EvidenceProf Blog

Editor: Colin Miller
Univ. of South Carolina School of Law

Tuesday, June 15, 2021

District of Idaho Notes That the Ninth Circuit Has Limited the Scope of Rule 704(b)

Federal Rule of Evidence 704(b) states that

In a criminal case, an expert witness must not state an opinion about whether the defendant did or did not have a mental state or condition that constitutes an element of the crime charged or of a defense. Those matters are for the trier of fact alone.

As the United States District Court for the District of Idaho noted in its recent opinion in United States v. Babichenko, 2021 WL 2364360 (D. Idaho 2021), however, "[t]he Ninth Circuit...has 'interpreted that rule much more narrowly than its text might indicate.'" So, what does that mean?

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June 15, 2021 | Permalink | Comments (0)

Friday, June 11, 2021

Supreme Court of Indiana Finds Tyson Timbs's Land Rover Was Unconstitutionally Forfeited, Comparing Him to Captain Ahab

In Timbs v. Indiana, Tyson Timbs

was charged in June 2013 with two counts of dealing in a controlled substance and conspiracy to commit theft, all felonies. He pleaded guilty in 2015 to selling $260 worth of heroin and served a year of home detention and five years of probation, which he is still on.

His Land Rover was taken by the government in a process known as "civil asset forfeiture," which allows police to seize and keep property alleged to have been used in a crime.

By Indiana law, however, the maximum fine for Timbs' crime was $10,000 — well below the value of the seized vehicle.

The question thus became whether the forfeiture of the Land Rover violated the Excessive Fines Clause of the Eighth Amendment. This led to the predicate question of whether the Excessive Fines Clause is applicable to the States. In Timbs v. Indiana, the Supreme Court answered this question in the affirmative, holding that "[t]he Excessive Fines Clause is therefore incorporated by the Due Process Clause of the Fourteenth Amendment." 

So, was this Clause violated by the forfeiture of the Land Rover?

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June 11, 2021 | Permalink | Comments (0)

Wednesday, June 9, 2021

Cop Who Wrongly Led No-Knock Raid Against 78-Year-Old Grandfather Can’t Be Sued, Court Rules

Nick Sibilla has written the article, "Cop Who Wrongly Led No-Knock Raid Against 78-Year-Old Grandfather Can’t Be Sued, Court Rules," for Forbes. The article concerns the case of 78 year-old Onree Norris, who was the victim of a no-knock raid done at the wrong house. For more context, here was my blog post about the case.

-CM

June 9, 2021 | Permalink | Comments (0)

Tuesday, June 8, 2021

Court of Appeals of Maryland Finds Defense Attorneys Couldn't Have Discovered Baltimore Ballistics Expert's Lies Before 2007

According to a newspaper article headlined, “Police expert lied about credentials,” by Jennifer McMenamin, published 9 March 2007, in the Baltimore Sun, Kopera claimed in court to have degrees that he had not earned in fact. Kopera testified frequently that he had a degree from the Rochester Institute of Technology (“RIT”) in photographic science/engineering and, on at least one occasion, testified that his RIT degree was in aerospace engineering. Kopera claimed also to have a mechanical engineering degree from the University of Maryland. The 2007 article reported that Kopera had forged at least one document (a transcript that he claimed was from the University of Maryland) offered originally to attorneys with the Innocence Project, attempting to justify his qualifications. In response to further questions from the attorneys at the Innocence Project, Kopera provided allegedly a “certificate of training” from the United States Air Force, to what intended curative effect remains opaque. Hunt v. State, 2021 WL 2306669 (Md. 2021). 

Pursuant to CP § 8-301(a),

(a) A person charged by indictment or criminal information with a crime triable in circuit court and convicted of that crime may, at any time, file a petition for writ of actual innocence in the circuit court for the county in which the conviction was imposed if the person claims that there is newly discovered evidence that:

(1)

(i) if the conviction resulted from a trial, creates a substantial or significant possibility that the result may have been different, as that standard has been judicially determined; or

(ii) if the conviction resulted from a guilty plea, an Alford plea, or a plea of nolo contendere, establishes by clear and convincing evidence the petitioner's actual innocence of the offense or offenses that are the subject of the petitioner's motion; and

(2) could not have been discovered in time to move for a new trial under Maryland Rule 4-331 (emphasis added).

So, could defense attorneys have discovered Kopera's lies before 2007?

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June 8, 2021 | Permalink | Comments (0)

Monday, June 7, 2021

District of Montana Finds Attorney Can't Contact "Juror" Who Left Cryptic Message

Federal Rule of Evidence 606(b) reads as follows:

(b) During an Inquiry into the Validity of a Verdict or Indictment.

(1) Prohibited Testimony or Other Evidence. During an inquiry into the validity of a verdict or indictment, a juror may not testify about any statement made or incident that occurred during the jury’s deliberations; the effect of anything on that juror’s or another juror’s vote; or any juror’s mental processes concerning the verdict or indictment. The court may not receive a juror’s affidavit or evidence of a juror’s statement on these matters.

(2) Exceptions. A juror may testify about whether:

(A) extraneous prejudicial information was improperly brought to the jury’s attention;

(B) an outside influence was improperly brought to bear on any juror; or

(C) a mistake was made in entering the verdict on the verdict form.

So, jurors generally can't impeach their verdicts, but there are three (Rules-based) exceptions. That said, many jurisdictions have rules that limit the ability of lawyers to contact jurors after a verdict. So, what should happen when a juror send a lawyer an ambiguous message? That was the question addressed by the United States District Court for the District of Montana in its recent opinion in United States v. McConnell, 2021 WL 2256276 (D. Mont 2021).

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June 7, 2021 | Permalink | Comments (1)

Sunday, June 6, 2021

Supreme Court of Appeals of West Virginia Clarifies Scope of Forfeiture-by-Wrongdoing Doctrine

Similar to its federal counterpart, West Virginia Rule of Evidence 804(b)(6) provides an exception to the rule against hearsay for

A statement offered against a party that wrongfully caused — or acquiesced in wrongfully causing — the declarant's unavailability as a witness, and did so intending that result.

So, what exactly constitutes wrongdoing under this forfeiture-by-wrongdoing hearsay exception? That was the question of first impression addressed by the Supreme Court of Appeals of West Virginia in its recent opinion in State v. Jako, 2021 WL 2221041 (W.Va. 2021).

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June 6, 2021 | Permalink | Comments (1)

Wednesday, June 2, 2021

United States District Court for the District of Minnesota Deems Alford Plea Admissible

An Alford plea, based on the Supreme Court's opinion in North Carolina v. Alford, is a plea in which the defendant maintains her innocence but pleads guilty while acknowledging that the State has sufficient evidence to prove her guilt beyond a reasonable doubt. There's no federal (and, in most states, no state) rule of evidence governing the (in)admissibility of Alford pleas. So, what should courts do?

In a recent post, I discussed State Farm Mut. Auto. Ins. Co. v. Havemeier, 2021 WL 838768 (D.Minn. 2021), where the United States District Court for the District of Minnesota cited precedent holding that Alford pleas should be deemed inadmissible.

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June 2, 2021 | Permalink | Comments (0)

Tuesday, June 1, 2021

Supreme Court of Arizona Holds That a Single Prosecutor's Misconduct May be Imputed to Disqualify an Entire Prosecutor's Office

In its opinion today in State v. Honorable James E. Marner, 2021 WL 2197962 (Ariz. 2021), the Supreme Court of Arizona addressed a question of first impression: "whether an appearance of impropriety, arising from a prosecutor's actual misconduct, may be imputed to disqualify an entire prosecutor's office"?

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June 1, 2021 | Permalink | Comments (0)

Monday, May 31, 2021

Colorado Court of Appeals Finds Trial Court Can't Rely on Additional Race-Neutral Reasons Given on Remand in Resolving Batson Claim

In Batson v. Kentucky, the Supreme Court "ruled that a State may not discriminate on the basis of race when exercising peremptory challenges against prospective jurors in a criminal trial."* Under Batson,

once the opponent of a peremptory challenge has made out a prima facie case of racial discrimination (step one), the burden of production shifts to the proponent of the strike to come forward with a race-neutral explanation (step two). If a race-neutral explanation is tendered, the trial court must then decide (step three) whether the opponent of the strike has proved purposeful racial discrimination. Purkett v. Elem, 514 U.S. 765 (1995).

So, let's say that a prosecutor gives race-neutral reasons for striking a prospective juror during jury selection and later gives additional reasons on remand. Should the court be able to rely upon the additional reasons? That was the question addressed by the Colorado Court of Appeals, Division II in its recent opinion in People v. Madrid, 2021 WL 2149340 (Colo. App. 2021).

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May 31, 2021 | Permalink | Comments (0)

Friday, May 28, 2021

Missouri Court of Appeals Precludes Jury Impeachment Based Upon Jurors Holding Defendant's Silence Against Him

Federal Rule of Evidence 606(b) reads as follows:

(b) During an Inquiry into the Validity of a Verdict or Indictment.

(1) Prohibited Testimony or Other Evidence. During an inquiry into the validity of a verdict or indictment, a juror may not testify about any statement made or incident that occurred during the jury’s deliberations; the effect of anything on that juror’s or another juror’s vote; or any juror’s mental processes concerning the verdict or indictment. The court may not receive a juror’s affidavit or evidence of a juror’s statement on these matters.

(2) Exceptions. A juror may testify about whether:

(A) extraneous prejudicial information was improperly brought to the jury’s attention;

(B) an outside influence was improperly brought to bear on any juror; or

(C) a mistake was made in entering the verdict on the verdict form.

Missouri doesn't (really) have rules of evidence, but it applies a similar anti-jury impeachment rule. And, as the recent opinion of the Missouri Court of Appeals, Western District in State v. Gilbert, 2021 WL 2093608 (Mo. App. 2021), makes clear, there are very few exceptions to the rule.

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May 28, 2021 | Permalink | Comments (0)

Wednesday, May 26, 2021

Supreme Court of Colorado Finds Impeachment Exception to Exclusionary Rule Doesn't Cover Truthful But Misleading Testimony

The Fourth Amendment to the United States Constitution and article II, section 7 of the Colorado Constitution protect against “unreasonable searches and seizures.” However, because the Fourth Amendment is silent regarding how this right is to be enforced, the Supreme Court adopted the “exclusionary rule,” which serves as a “deterrent sanction that bars the prosecution from introducing evidence obtained by way of a Fourth Amendment violation.”...The exclusionary rule's purpose is to deter future Fourth Amendment violations “by removing the incentive to disregard” the Amendment's constitutional guarantee....

Because the exclusionary rule bars the prosecution from introducing evidence obtained through a Fourth Amendment violation, there is tension between the Fourth Amendment rights the exclusionary rule protects and the future search and seizure violations it seeks to deter, on the one hand, and the courts' truth-seeking function, on the other. People v. Johnson, 2021 WL 2069732 (Colo. 2021).

Based on this tensions, courts have found that the exclusionary rule does not apply to the prosecution's use of evidence obtained in violation of the Fourth Amendment to impeach a defendant, i.e., show that her testimony is lacking in credibility. But does this impeachment exception apply to truthful testimony that could mislead the jury? That was the question of first impression addressed by the Supreme Court of Colorado in its recent opinion in Johnson.

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May 26, 2021 | Permalink | Comments (1)

Tuesday, May 25, 2021

First Circuit Finds “Substantial Similarity” Test Applies to Demonstrative Recreation Evidence in Criminal Cases

At trial, parties are allowed to introduce demonstrative recreation evidence, i.e., a demonstration for the jury that recreates the conditions of an alleged crime or civil wrong, e.g., a crime scene reconstruction of a shooting or a car crash. So, what test should apply for the admission of such evidence in a criminal case? That was the question of first impression addressed by the First Circuit in its recent opinion in United States v. Stewart-Carrasquillo, 2021 WL 1961017 (1st Cir. 2021).

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May 25, 2021 | Permalink | Comments (0)

Monday, May 24, 2021

Court of Appeals of Indiana Punts on Issue of Whether Facebook Messages Meet the State of Mind Hearsay Exception

Similar to its federal counterpart, Indiana Rule of Evidence 803(3) provides an exception to the rule against hearsay for

A statement of the declarant’s then-existing state of mind (such as motive, design, intent, or plan) or emotional, sensory, or physical condition (such as mental feeling, pain, or bodily health), but not including a statement of memory or belief to prove the fact remembered or believed unless it relates to the execution, revocation, identification, or terms of the declarant’s will.

So, would Rule 803(3) cover the following Facebook messages received on a defendant's phone on the day of his drug arrest?

Hey bud whatcha doing my man lmfao wants some bad, he said he just wants a few bong rips lmfao
Did I show you what I made
Hey bub
You ok bub
I got you cash bub
I'm at home I need and got your money.
Hey guy, whatcha doing? Got cash for a zip
I mean how much for four whole ones grn
I need a qp bro
Ok so I got that but what about a b

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May 24, 2021 | Permalink | Comments (1)

Saturday, May 22, 2021

District of New Jersey Finds "Friend With Benefits" Had Standing to Challenge Search of His Friend's Place

The Fourth Amendment states that

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

In order to challenge a search, though, an individual must have standing. So, for instance, if I go to my friend's house for an afternoon to watch the French Open, I would not have standing to challenge a warrantless search of her house. Conversely, if I were an overnight guest, I would have standing. So, what if someone is at his friend's house, and the two are "friends with benefits"? That was the question addressed by the United States District Court for the District of New Jersey in its recent opinion in United States v. Brantley, 2021 WL 1921584 (D.N.J. 2021).

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May 22, 2021 | Permalink | Comments (0)

Wednesday, May 19, 2021

Supreme Court Will Consider Johnson v. Indiana Tomorrow

The case of Johnson v. Indiana has been distributed for tomorrow's Supreme Court conference. Here is Mr. Johnson's petition for writ of certiorari. Here is the amici curiae brief I wrote on behalf of 98 law professors asking the Court to grant cert. And here is the amicus curiae brief by the CATO Institute asking the Supreme Court to grant cert. Here is the question presented by the cert petition:

To uphold a Terry frisk as constitutional, the First and Ninth Circuits require the frisking officer to have actually suspected that the detainee may be armed and dangerous. Here, the Indiana Supreme Court joined the Seventh and Tenth Circuits by applying a purely objective standard that regards an officer’s actual suspicion as irrelevant to a Terry frisk analysis. And other courts, including the Eighth Circuit and the Supreme Court of Utah, have adopted a hybrid approach wherein an officer’s actual suspicion is a relevant—but not dispositive—factor to weigh in an ultimately objective analysis.

The question presented is: May a court uphold a Terry frisk where the frisking officer did not actually suspect that the detainee was armed and dangerous?

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May 19, 2021 | Permalink | Comments (0)

Monday, May 17, 2021

Supreme Court Rules That the Community Caretaking Exception Does Not Apply to Warrantless Home Entries

Today, the Supreme Court issued its opinion in Caniglia v. Strom. It was a unanimous opinion, with the Court concluding that the community caretaking exception to the Fourth Amendment warrant requirement does not apply to warrantless home entries. Here was the key portion of the Court's opinion:

True, Cady also involved a warrantless search for a firearm. But the location of that search was an impounded vehicle—not a home—“‘a constitutional difference’” that the opinion repeatedly stressed. 413 U. S., at 439; see also id., at 440–442. In fact, Cady expressly contrasted its treatment of a vehicle already under police control with a search of a car “parked adjacent to the dwelling place of the owner.” Id., at 446–448 (citing Coolidge v. New Hampshire, 403 U. S. 443 (1971)).

Cady’s unmistakable distinction between vehicles and homes also places into proper context its reference to “community caretaking.” This quote comes from a portion of the opinion explaining that the “frequency with which . . . vehicle[s] can become disabled or involved in . . . accident[s] on public highways” often requires police to perform noncriminal “community caretaking functions,” such as providing aid to motorists. 413 U. S., at 441. But, this recognition that police officers perform many civic tasks in modern society was just that—a recognition that these tasks exist, and not an open-ended license to perform them anywhere.

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May 17, 2021 | Permalink | Comments (0)

Sunday, May 16, 2021

Supreme Court of Georgia Finds Brady Violation in Malice Murder Trial

Pursuant to Brady v. Maryland, the State has an affirmative obligation, under the Due Process Clause, to timely disclose material exculpatory evidence to the defense. Brady covers not only substantive evidence but also impeachment evidence, with the recent opinion of the Supreme Court of Georgia in State v. Taylor, 2021 WL 1724970 (Ga. 2021), being a good example of the latter.

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May 16, 2021 | Permalink | Comments (0)

Friday, May 14, 2021

The City of Columbus Agrees to Pay Andre' Hill's Family $10 Million for Police Shooting

Today, it was announced that "[t]he city of Columbus, Ohio, has agreed to pay a record $10 million settlement to the family Andre Hill, a Black man who was shot and killed by a police officer." If approved on Monday, the settlement would represent the highest amount the city has ever agreed to pay.

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May 14, 2021 | Permalink | Comments (1)

Thursday, May 13, 2021

Judge Grants Keith Davis a New (Sixth) Trial

Today, Judge Sylvester Cox granted the motion of Keith Davis Jr. for a new trial (Download Motion for new trial). Amelia McDonell-Parry covered Keith's case on the Undisclosed podcast. Keith's case is far too complicated to cover in a single blog post, but

Davis has been tried for the June 2015 murder of Pimlico security guard Kevin Jones four times. The trials ended with a hung jury twice, an overturned conviction once and then he was convicted again during the fourth trial and sentenced to 50 years in prison.

I believe in Keith's innocence and drafted the portion of his motion for a new trial arguing that the prosecutor committed reversible error by mischaracterizing the presumption of innocence:

Screen Shot 2021-05-13 at 5.16.14 PM

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May 13, 2021 | Permalink | Comments (1)

Wednesday, May 12, 2021

Judge Finds 4 Aggravating Factors in Derek Chauvin's Murder of George Floyd

Today, Judge Peter Cahill found four aggravating factors beyond a reasonable doubt in connection with Derek Chauvin's conviction for second degree murder based on the death of George Floyd. Those factors are:

(1) Chauvin abused a position of trust and authority (as a police officer);

(2) Chauvin treated George Floyd with particular cruelty (by preventing Floyd's ability to breath after Floyd said he was having trouble breathing;

(3) children were present during the offense (a 9 year-old and three 17 year-olds); and

(4) Chauvin committed the crime as part of a group with at least three others (the other police officers).

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May 12, 2021 | Permalink | Comments (0)