EvidenceProf Blog

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

Monday, March 30, 2020

Sixth Circuit Grants New Trial Based on Prosecution's Use of an Unauthenticated Video of a Masked Man Rapping & Wielding a Gun

The recent opinion of the United States Court of Appeals for the Sixth Circuit in United States v. Craig, 2020 WL 1482385 has to be among the craziest I've ever read. In Craig

[Terrance] Craig was charged with being a felon in possession of a firearm and took the case to trial. Craig admitted that he possessed a firearm while being a felon but testified that he possessed the gun only long enough to defend himself and his friends during [a] firefight. On cross-examination, the Government played for the jury a video depicting a masked individual it alleged to be Craig rapping and wielding a firearm that was similar to the gun for which he was charged. Craig denied that he was the masked individual in the video, and the Government did not attempt to introduce the video into evidence. 

Later, during closing arguments, the prosecutor stated:

And how do you know that he had that gun before, that he had that gun before he got in the car on November 26th? Because you saw it. You saw the Facebook video and you saw him with the gun, waving the gun around, and it looks just like this gun. And he said on cross-examination that that wasn't him in the Facebook video. Do you remember that?

So, was this proper?

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March 30, 2020 | Permalink | Comments (2)

Thursday, March 26, 2020

New Jersey Allows Statements Against Interest Even if the Declarant is Available

Federal Rule of Evidence 804(b)(3) provides an exception to the rule against hearsay for 

A statement that:

(A) a reasonable person in the declarant’s position would have made only if the person believed it to be true because, when made, it was so contrary to the declarant’s proprietary or pecuniary interest or had so great a tendency to invalidate the declarant’s claim against someone else or to expose the declarant to civil or criminal liability; and

(B) is supported by corroborating circumstances that clearly indicate its trustworthiness, if it is offered in a criminal case as one that tends to expose the declarant to criminal liability.

Rule 804(b)(3) is subject to Rule 804(a), which first requires that the proponent of a statement against interest establish that the declarant -- the person who made the statement -- is unavailable.

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March 26, 2020 | Permalink | Comments (2)

Tuesday, March 24, 2020

Court of Appeals of Tennessee Questions Whether Inverse Habit Evidence is Admissible

Tennessee Rule of Evidence 406 provides that

(a) Evidence of the habit of a person, an animal, or of the routine practice of an organization, whether corroborated or not and regardless of the presence of eye-witnesses, is relevant to prove that the conduct of the person, animal, or organization on a particular occasion was in conformity with the habit or routine practice.

(b) A habit is a regular response to a repeated specific situation. A routine practice is a regular course of conduct of an organization.

So, for example, if Carl carpooled with Dan every day, Carl could testify that Dan always drove above the speed limit when they passed San Dimas High School if Dan were being prosecuted for involuntary manslaughter based upon striking a San Dimas student with his car while driving to work. But could Carl testify that Dan always drove below the speed limit when they passed the high school? The answer would seem to be a clear "yes," but according to the Court of Appeals of Tennessee, the answer is (possibly) "no."

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March 24, 2020 | Permalink | Comments (5)

Monday, March 23, 2020

District Court Finds Statement After Domestic Assault Qualified as an Excited Utterance

Federal Rule of Evidence 803(2) provides an exception to the rule against hearsay for

A statement relating to a startling event or condition, made while the declarant was under the stress of excitement that it caused.

The recent opinion of the United States District Court for the District of Nevada in United States v. Howard, 2020 WL 1318790 (D.Nev. 2020), provides a pretty textbook example of a hearsay statement properly admitted this excited utterance hearsay exception.

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March 23, 2020 | Permalink | Comments (0)

Sunday, March 22, 2020

District Court Finds Gypsy Plaintiff Can be Impeached With Evidence He Previously Used Multiple Names & Dates of Birth

Federal Rule of Evidence 608(b) provides that

Except for a criminal conviction under Rule 609, extrinsic evidence is not admissible to prove specific instances of a witness’s conduct in order to attack or support the witness’s character for truthfulness. But the court may, on cross-examination, allow them to be inquired into if they are probative of the character for truthfulness or untruthfulness of:

(1) the witness; or

(2) another witness whose character the witness being cross-examined has testified about.

By testifying on another matter, a witness does not waive any privilege against self-incrimination for testimony that relates only to the witness’s character for truthfulness.

So, under Rule 608(b), can an attorney cross-examine a witness who is a gypsy and who previously used multiple names and dates of birth?

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March 22, 2020 | Permalink | Comments (0)

Friday, March 20, 2020

District Court Clarifies the Timing for Subsequent Remedial Measure Rule

Federal Rule of Evidence 407 provides that 

When measures are taken that would have made an earlier injury or harm less likely to occur, evidence of the subsequent measures is not admissible to prove:

  • negligence;
  • culpable conduct;
  • a defect in a product or its design; or
  • a need for a warning or instruction.

But the court may admit this evidence for another purpose, such as impeachment or — if disputed — proving ownership, control, or the feasibility of precautionary measures.

But when is a remedial measure a subsequent remedial measure under the Rule? That was the question addressed by the United States District Court for the District of Nebraska in its recent opinion in Susman v. Goodyear Tire & Rubber Company, 2020 WL 1065179 (D.Neb. 2020).

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March 20, 2020 | Permalink | Comments (0)

Thursday, March 19, 2020

District Court Finds Inmate Food Grievances Not Admissible as Business Records, Might be Admissible to Prove Notice

Federal Rule of Evidence 803(6) provides an exception to the rule against hearsay for

(A) the record was made at or near the time by — or from information transmitted by — someone with knowledge;

(B) the record was kept in the course of a regularly conducted activity of a business, organization, occupation, or calling, whether or not for profit;

(C) making the record was a regular practice of that activity;

(D) all these conditions are shown by the testimony of the custodian or another qualified witness, or by a certification that complies with Rule 902(11) or (12) or with a statute permitting certification; and

(E) neither the opponent does not show that the source of information nor or the method or circumstances of preparation indicate a lack of trustworthiness.

"[H]uman resources and payroll databases...are textbook examples of records of regularly conducted activity within the hearsay exception of Rule 803(6)." Fredrickson v. Starbucks Corp., 980 F. Supp. 2d 1227, 1231 (D. Or. 2013). But what about food-related grievances filed by various inmates at a correctional facility?

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March 19, 2020 | Permalink | Comments (0)

Friday, March 13, 2020

Supreme Court of Georgia Allows Both of Joey Watkins's Claims to Move Forward

Today, the Supreme Court of Georgia issued its opinion in the Joey Watkins case, and...the news is good. In this post, I will break things down.

Jwatk

JoeyWatkins

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March 13, 2020 | Permalink | Comments (6)

Supreme Court of Delaware Finds Most People, Including Young Children, Are Competent to Testify

Like its federal counterpart, Delaware Rule of Evidence 601 provides that 

Every person is competent to be a witness unless these rules provide otherwise.

And what that means is that nearly any person is competent to be a witness.

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March 13, 2020 | Permalink | Comments (0)

Monday, March 9, 2020

Missouri Judge Finds that Jonathan Irons Was Wrongfully Convicted

Last October, I did an introductory post about the case of Jonathan Irons, who was 16 years-old when he allegedly broke into the home of Stanley Stotler in Missouri and shot him. Irons was eventually convicted of various crimes connected to the incident and sentenced to 50 years in prison. But then, about 20 years later...WNBA superstar Maya Moore stepped in. Last June, I read a New York Times article about Moore taking a one year sabbatical from the WNBA to work with a legal team to fight to prove Jonathan Irons's innocence (Moore subsequently extended that sabbatical to a second year). I subsequently reached out to that team, asking if they could use assistance on the case and coverage on the Undisclosed Podcast. They agreed, and I've been working on the case for the past five months, with the goal of covering it on the podcast later this year.

Irons

Jonathan Irons

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March 9, 2020 | Permalink | Comments (1)

Sunday, March 8, 2020

Utah Rule of Evidence 607 & Eyewitness Identifications

Last year, Utah enacted Utah Rule of Evidence 617, which governs eyewitness identifications. The Advisory Committee Note to the Rule states that

This rule ensures that when called upon, a trial court will perform a gatekeeping function and will exclude unreliable eyewitness identification evidence in a criminal case. Several organizations, including the Department of Justice and the ABA, have published best practices for eyewitness identification procedures when a witness is asked to identify a perpetrator who is a stranger to the witness.  As scientific research advances, other factors in addition to those outlined in Subsection (b) may be considered.

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March 8, 2020 | Permalink | Comments (0)

Advisory Committee's Note to Alabama Rule of Evidence 407 Recognizes Limits to Subsequent Remedial Measure Rule

Federal Rule of Evidence 407 provides that

When measures are taken that would have made an earlier injury or harm less likely to occur, evidence of the subsequent measures is not admissible to prove:

  • negligence;
  • culpable conduct;
  • a defect in a product or its design; or
  • a need for a warning or instruction.

But the court may admit this evidence for another purpose, such as impeachment or — if disputed — proving ownership, control, or the feasibility of precautionary measures.

Generally, federal courts have interpreted Rule 407 to not cover (1) remedial measures taken by nonparties; and (2) involuntary remedial measures. Both of these lines of precedent have been incorporated into the Advisory Committee's Note to Alabama Rule of Evidence 407.

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March 8, 2020 | Permalink | Comments (0)

Saturday, March 7, 2020

Second Annual Evidence Summer Workshop at Vanderbilt Law School

On August 6-7, there will be the Second Annual Evidence Summer Workshop at Vanderbilt Law School. Details are below and in the attached PDF (Download Evidence Summer Workshop):

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March 7, 2020 | Permalink | Comments (0)

Tuesday, March 3, 2020

AALS Criminal Justice Section's AALS Call For Proposals

On behalf of the Executive Committee of the AALS Criminal Justice Section, I invite you to submit panel abstracts for consideration for our 2021 AALS Annual Meeting program in San Francisco (Jan. 5 - Jan. 9). As in previous years, we anticipate organizing two panels, as well as a session on pedagogy. 

As part of our ongoing efforts to expand the topics addressed by our section and to engage more members, we are especially interested in considering panel proposals that are innovative and include new voices.  Attached is a document listing topics and speakers at recent AALS gatherings that you may wish to consider as you formulate your proposal. 

To submit a proposal, please email me (drinan@law.edu) a short description of the proposed panel and a list of proposed speakers. We will issue a call for participation and determine the final speakers after topics are selected.  

Proposals are due by Friday, March 20. We look forward to receiving your submissions!

March 3, 2020 | Permalink | Comments (0)

Saturday, February 29, 2020

Does Rule 408 Apply to Discovery or Just to Admissibility?

Federal Rule of Evidence 408 reads as follows:

(a) Prohibited Uses. Evidence of the following is not admissible — on behalf of any party — either to prove or disprove the validity or amount of a disputed claim or to impeach by a prior inconsistent statement or a contradiction:

(1) furnishing, promising, or offering — or accepting, promising to accept, or offering to accept — a valuable consideration in compromising or attempting to compromise the claim; and

(2) conduct or a statement made during compromise negotiations about the claim — except when offered in a criminal case and when the negotiations related to a claim by a public office in the exercise of its regulatory, investigative, or enforcement authority.

(b) Exceptions. The court may admit this evidence for another purpose, such as proving a witness’s bias or prejudice, negating a contention of undue delay, or proving an effort to obstruct a criminal investigation or prosecution.

It is often said that the rules of evidence are rules of admissibility and not rules of discovery, but the rules might be a bit "flexible" in cases involving settlement negotiations.

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February 29, 2020 | Permalink | Comments (0)

Friday, February 28, 2020

10th Circuit Holds Entire 911 Call May be Admitted Without Parsing Each Individual Sentence

Federal Rule of Evidence 803(1) provides an exception to the rule against hearsay for

A statement describing or explaining an event or condition, made while or immediately after the declarant perceived it.

So, let's say that a declarant -- Dana -- makes a 911 call. Should the court assess each sentence in the call to determine whether it constitutes a "present sense impression" under Rule 803(1)? Or can the court simply assess the call as a whole. This was the question addressed by the Tenth Circuit in its recent opinion in United States v. Lovato, 2020 WL 949942 (10th Cir. 2020).

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February 28, 2020 | Permalink | Comments (3)

Friday, February 21, 2020

The Third of Kentucky's Three Privity-Based Hearsay Exclusions

Kentucky Rule of Evidence 801A(c)(3) reads as follows:

(c) Admission by privity:...

(3) Predecessors in litigation. Even though the declarant is available as a witness, when the liability, obligation, or duty of a party to a civil action is based in whole or in part upon the liability, obligation, or duty of the declarant, or when the claim or right asserted by a party to a civil action is barred or diminished by a breach of duty by the declarant, evidence of a statement made by the declarant is not excluded by the hearsay rule when offered against the party if the evidence would be admissible against the declarant in an action involving that liability, obligation, duty, or breach of duty.

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February 21, 2020 | Permalink | Comments (0)

Wednesday, February 5, 2020

The Second of Kentucky's Three Privity-Based Hearsay Exclusions

Kentucky Rule of Evidence 801A(c)(2) reads as follows:

(c) Admission by privity:...

(2) Predecessors in interest. Even though the declarant is available as a witness, when a right, title, or interest in any property or claim asserted by a party to a civil action requires a determination that a right, title, or interest existed in the declarant, evidence of a statement made by the declarant during the time the party now claims the declarant was the holder of the right, title, or interest is not excluded by the hearsay rule when offered against the party if the evidence would be admissible if offered against the declarant in an action involving that right, title, or interest.

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February 5, 2020 | Permalink | Comments (0)

Monday, January 27, 2020

Kentucky's Three Privity-Based Hearsay Exclusions

Kentucky has some unique hearsay exclusions that I recently came across. Kentucky Rule of Evidence 801A(c) reads as follows:

(c) Admission by privity:

(1) Wrongful death. A statement by the deceased is not excluded by the hearsay rule when offered as evidence against the plaintiff in an action for wrongful death of the deceased.

(2) Predecessors in interest. Even though the declarant is available as a witness, when a right, title, or interest in any property or claim asserted by a party to a civil action requires a determination that a right, title, or interest existed in the declarant, evidence of a statement made by the declarant during the time the party now claims the declarant was the holder of the right, title, or interest is not excluded by the hearsay rule when offered against the party if the evidence would be admissible if offered against the declarant in an action involving that right, title, or interest.

(3) Predecessors in litigation. Even though the declarant is available as a witness, when the liability, obligation, or duty of a party to a civil action is based in whole or in part upon the liability, obligation, or duty of the declarant, or when the claim or right asserted by a party to a civil action is barred or diminished by a breach of duty by the declarant, evidence of a statement made by the declarant is not excluded by the hearsay rule when offered against the party if the evidence would be admissible against the declarant in an action involving that liability, obligation, duty, or breach of duty.

I will break down these exclusions in my next three posts.

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January 27, 2020 | Permalink | Comments (0)

Friday, January 24, 2020

Louisiana State University, Paul M. Hebert Law Center Seeks a Visiting Professor

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January 24, 2020 | Permalink | Comments (0)