EvidenceProf Blog

Everything's Bigger In Texas?: Opinion Reveals Four Key Differences Between Federal And Texas Statement Against Interest Exceptions

The recent opinion of the Court of Appeals of Texas in Chaney v. State, 2009 WL 1086952 (Tex.App.-Houston [1 Dist.] 2009), reveals that Texas' statement against interest exception to the rule against hearsay is different from its federal counterpart in four material regards. 

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It's Settled: Sixth Circuit Finds Rule 408 Doesn't Bar Settlement Negotiation Evidence From Being Used To Prove Minimum Contacts

In order for a forum state (and thus its federal courts) to have personal jurisdiction over a nonresident defendant even though the defendant was not personally served within the forum state, the defendant must, inter alia, have minimum contacts with the forum state such that the maintenance of the suit does not offend traditional notions of fair play and substantial justice. Meanwhile, Federal Rule of Evidence 408 states:

(a) Prohibited uses.--Evidence of the following is not admissible on behalf of any party, when offered to prove liability for, invalidity of, or amount of a claim that was disputed as to validity or amount, or to impeach through a prior inconsistent statement or contradiction:

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

(2) conduct or statements made in compromise negotiations regarding the claim, except when offered in a criminal case and the negotiations related to a claim by a public office or agency in the exercise of regulatory, investigative, or enforcement authority.

(b) Permitted uses.--This rule does not require exclusion if the evidence is offered for purposes not prohibited by subdivision (a). Examples of permissible purposes include proving a witness's bias or prejudice; negating a contention of undue delay; and proving an effort to obstruct a criminal investigation or prosecution

In SunCoke Energy, Inc. v. MAN Ferrostaal Aktiengesellschaft, 2009 WL 1034990 (6th Cir. 2009), the Sixth Circuit had to address the question of whether evidence of settlement negotiations is admissible to establish the aforementioned minimum contacts. The Sixth Circuit found that it is, and I agree.

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The Shield And The Sword: Supreme Court Of New Hampshire Incorrectly Finds No Waiver Of Attorney-Client Privilege In Implied Covenant Appeal

It is well established that evidentiary privileges cannot be used as both a shield and a sword. For example, a criminal defendant cannot seek to selectively or partially disclose exculpatory statements that he made to his attorney in confidence (sword) while still invoking the attorney-client privilege to preclude the prosecution from discovering incriminatory statements that he made to the same attorney in confidence (shield). And yet, in its recent opinion in Livingston v. 18 Mile Point Drive, Ltd., 2009 WL 1098455 (N.H. 2009), this is excatly what the Supreme Court of New Hampshire allowed the plaintiff to do.

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I Put A Spell On You: Supreme Court Of Illinois Reveals That The State Per Se Precludes Hypontically Refreshed Testimony By Any Witness Besides The Criminal Defendant

In Rock v. Arkansas, 483 U.S. 44 (1987), 

Vicki Rock was charged with manslaughter in connection with the shooting death of her husband.  When Vicki could not remember the precise details of the shooting, her attorney suggested that she submit to hypnosis to refresh her memory. Vicki was thereafter hypnotized by a neuropsychologist and subsequently "recalled" that she had a gun in her hand that accidentally discharged when her husband grabbed her arm during a struggle. At trial, however, based upon the prosecution's motion, the court only allowed Vicki to testify concerning what she remembered before she was hypnotized because it "decided to follow the approach of States that ha[d] held hypnotically refreshed testimony of witnesses inadmissible per se."   

The Supreme Court reversed, finding that the application of a per se rule precluding the admission of hypnotically refreshed testimony by a criminal defendant violates the right to present a defense. The Court's opinion, however, did not address the issue of whether courts can apply per se rules precluding the admission of hypnotically refreshed testimony by anyone besides criminal defendants, and the recent opinion of the Supreme Court of Illinois in People v. Sutton, 2009 (Ill. 2009), reveals that Illinois has such a per se rule.

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Gangster No. 1: Court of Appeals of Minnesota Finds Statements Made During Concealment Phase Of Conspiracy Qualify As Co-Conspirator Admissions

Minnesota Rule of Evidence 801(d)(2)(E) indicates that a statement is not hearsay if the statement is offered against a party and is

a statement by a coconspirator of the party.  In order to have a coconspirator’s declaration admitted, there must be a showing, by a preponderance of the evidence, (i) that there was a conspiracy involving both the declarant and the party against whom the statement is offered, and (ii) that the statement was made in the course of and in furtherance of the conspiracy.

And, as the recent opinion of the Court of Appeals of Minnesota in State v. Neiss, 2009 WL 1046515 (Minn.App. 2009), makes clear, a statement is made "in furtherance of" a conspiracy even if it is made during the concealment phase of the conspiracy.

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Juror Under The Influence: Delaware Court Denies New Trial Motion Despite Juror Conversation With Son About Drugs

A juror has heard all of the evidence in the trial of a man accused of Possession of Cocaine within 300 Feet of a Church and Possession With Intent to Deliver Cocaine. As the first day of deliberation ends, the juror believes that the defendant is guilty of possession, but is undecided on the possession with intent to distribute charge, but he is leaning against a finding of guilt. The juror thereafter discusses the case with his son, a recovering drug addict, asking him "whether the amount of drugs involved in this case was more consistent with simple possession or possession with intent to deliver." The next day, the juror returns to deliberations, agrees to vote in favor of a conviction on the possession with intent to deliver charge, and the defendant is convicted of both charges. Should the defendant be entitled to a new trial? The answer, at least according to the recent opinion of the Superior Court of Delaware in State v. Black, 2009 WL 147023 (Del. Super. 2009), is "no."

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Coming Out of the Closet: How Arizona v. Gant Could Lead to the Shrinking of the Scope of Searches Incident to Lawful Home Arrests

(Cross-posted at PrawfsBlawg)

In Chimel v. California, 395 U.S. 752 (1969) the Supreme Court held that a search incident to a lawful home arrest may only include "the area 'within [an arrestee's] immediate control' - construing that phrase to mean the area from within which he might gain possession of a weapon or destructible evidence." According to the Court, there were two justifications for allowing such searches: (1) "When an arrest is made, it is reasonable for the arresting officer to search the person arrested [and the area within his immediate control] in order to remove any weapons that the latter might seek to use in order to resist arrest or effect his escape;" and (2) "it is entirely reasonable for the arresting officer to search for and seize any evidence on the arrestee's person [or within his immediate control] in order to prevent its  concealment or destruction." The Court, however, was quick to note that "[t]here is no comparable justification...for routinely searching any room other than that in which an arrest occurs - or, for that matter, for searching through all the desk drawers or other closed or concealed areas in that room itself."  

Twelve years later, in New York v. Belton, a majority of the Court found that "when a policeman has made a lawful custodial arrest of the occupant of an automobile, he may, as a contemporaneous incident of that arrest, search the passenger compartment of that automobile." It was, however, Justice Brennan's construction of the majority opinion in his dissent that his since predominated. According to Brennan, the majority "adopt[ed] a fiction - that the interior of a car is always within the immediate control of an arrestee who has recently been in the car." While in Belton, a single officer searched a vehicle when there were four unsecured arrestees, Justice Brennan found that the majority's conclusion "would presumably be the same even if Officer Nicot had handcuffed Belton and his companions in the patrol car before placing them under arrest, and even if his search had extended to locked luggage or other inaccessible containers located in the back seat of the car."   

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Goodyear? No, The Worst: Minnesota Opinion Reveals That The Anti-Jury Impeachment Rule Precludes Jury Testimony Concerning Quotient Verdicts

The recent opinion of the Court of Appeals of Mississippi in Goodyear Tire & Rubber Co. v. Kirby, 2009 WL 1058654 (Miss.App. 2009), provides a nice illustration of how the anti-jury impeachment rule precludes post-trial jury testimony on whether the jury reached a quotient verdict.

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Dismissed With Prejudice, Take 2: Court Denies New Trial To Death Sentenced Defendant Despite Jury Exposure To Racist Comment

Sometimes, I read a court opinion, and all that I can think about are the immortal words of John Patrick McEnroe, Jr.: "You cannot be serious!" Readers of this blog might remember a post that I did back in February about Rejon Taylor, an African-American man convicted of four capital offenses in connection with a carjacking, kidnapping, and murder and given a death sentence. As I noted in that post,

He thereafter moved for a new trial and evidentiary hearing and moved to interview jurors ahead of that hearing. The basis for the latter motion was at least two-fold. First, according to alternate juror Everage Holloway and two regular jurors, all 12 seated jurors and all six alternates were aware of and discussed media reports which indicated that Taylor had called jurors "racist rednecks." Also, according to Holloway, he "heard (jurors) talking about how we needed to make an example of him. It was like, here's this little black boy. Let's send him to the chair, and all I ever thought was that he made the unluckiest (gun)shot of his life." 

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Trying Over Spilt Milk: Ninth Circuit Finds District Court Improperly Admitted Fault Letter As Business Record

In relevant part, Federal Rule of Evidence 803(6), the business records exception to the rule against hearsay, allows for the admission of

A memorandum, report, record, or data compilation, in any form, of acts, events, conditions, opinions, or diagnoses, made at or near the time by, or from information transmitted by, a person with knowledge, if kept in the course of a regularly conducted business activity, and if it was the regular practice of that business activity to make the memorandum, report, record or data compilation, all as shown by the testimony of the custodian or other qualified witness. 

The rationale behind this exception is that members of a business generally record things accurately to ensure the smooth functioning of the business. When, however a business prepares a record/report or has a record/report prepared for it, not in the course of regularly conducted activity, but after an accident, there is no such expectation of reliability. Instead, because the business in this situation likely anticipates suing or being sued, there is the strong possibility that the report/record will be unreliability slanted in favor of the business. And this was exactly the problem with a district court opinion, according to the Ninth Circuit's recent opinion in Millenkamp v. Davisco Foods Intern., Inc., 2009 WL 982787 (9th Cir. 2009).

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Attention Wal-Mart Robbers: Third Circuit Finds Rule 701 Does Not Apply To Co-Defendants Identification Testimony In Wal-Mart Robbery Appeal

It is well established that an acquaintance of a defendant may or may not be allowed to identify the defendant in an incriminating photo or video pursuant to Federal Rule of Evidence 701. That Rule allows for the admission of lay witness opinion testimony if, inter alia, that testimony would be "helpful to a clear understanding of the witness' testimony or the determination of a fact in issue." Of course, in such cases, an argument can be made that the jury is just as capable as the acquaintance of determining whether the defendant is the man in the photo or video, which would make the acquaintance's testimony not helpful and not admissible under Rule 701. But when there is a sufficient basis for concluding that the acquaintance is more likely than the jury to correctly identify the defendant from the photo or video, such testimony is admissible. See, e.g., United States v. Dixon, 413 F.3d 540, 544-46 (6th Cir. 2005). But what happens when the acquaintance was a participant in the event that was photographed or videotaped? According to the recent opinion of the Third Circuit in United States v. Shabazz, 2009 WL 1011971 (3rd Cir. 2009), it is Federal Rule of Evidence 602 that applies, and the testimony is admissible.

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I Can't Put My Finger On It: Will England's New Fingerprinting Technique Have The Same Fate As Low Copy Number DNA?

Will a new fingerprinting technique from England become the key to solving cold cases in the United States? Or, like low copy number DNA and ear print evidence, will it be something that we decide is as unwanted on these shores as the British monarchy?

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Slowing Up Gotti: Court Denies Peter Gotti Evidentiary Hearing In Appeal Of Sammy Bull Sentence

Pursuant to the tax day ruling of the United States District Court for the Southern District of New York in Gotti v. United States, 2009 1010498 (S.D.N.Y. 2009), the 2004 conviction and sentencing of Peter Gotti, a/k/a "One Eyed Pete" and the brother of John Gotti, will stand, at least for now. Back in 2004, Gotti was convicted of racketeering, conspiracy to racketeer, conspiracy to murder, and extortion and was sentenced to 25 years in prison, 3 years of supervised release, and a $400 special assessment based upon his ordering a hit on mob rat Salvatore "Sammy Bull" Gravano. This was not Gotti's first appeal, but it might be his last.

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Thieves Like Them: Court Of Appeals Of Minnesota Explains The Boundaries Of Proper Prosecutoruial Comment During Closing

It is well established that a prosecutor may not belittle or disparage the defendant('s case) during closing argument. At the same time, "[a] prosecutor has discretion to fashion a persuasive closing argument, and the rhetoric need not be colorless." The question that the Court of Appeals of Minnesota had to address in State v. Peterson, 2009 WL 982081 (Minn.App. 2009), was whether the prosecutor in the appeal before it crossed this line.

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The Conclusory Conclusion: Fourth Circuit Makes Seemingly Incorrect Evidentiary Ruling Regarding Admissibility Of Instant Messages

I hate conclusory conclusions, i.e., when a court rejects a litigant's argument in one sentence without even telling you the basis for its conclusion. The problem with these conclusory conclusions is that the court possibly has a valid reason for rejecting the argument. But based upon the paucity of analysis in the court's opinion, the reader is forced to assume that the court got it wrong. The recent opinion of the Fourth Circuit in United States v.Minder, 2009 WL 981102 (4th Cir. 2009), contains just such a cursory conclusion.

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(Dys)Functional Equivalent?: Ninth Circuit Finds No Exception To Confidential Marital Communications Privilege For Grandchild Victim

The confidential marital communications privilege protects from disclosure private communications between spouses; however, there is an exception to the privilege for statements relating to a crime where a child of one or both of the spouses is the victim. As the recent opinion of the Ninth Circuit in United States v. Banks, 556 F.3d 967 (9th Cir. 2009), makes clear, this exception also applies to statements relating to a crime where the "functional equivalent" of a spouse's child is the victim, but only when the victim truly is a "functional equivalent."

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I Need A Remedy: Supreme Court Of Idaho Opinion Raises Question Regarding Admissibility of Subsequent Remedial Measure Evidence By A Defendant

Like its federal counterpart, Idaho Rule of Evidence 407 indicates that

When, after an injury or harm allegedly caused by an event, measures are taken which, if taken previously, would have made the event less likely to occur, evidence of the subsequent measures is not admissible to prove negligence, or culpable conduct, or a defect in a product, a defect in a product's design, or a need for a warning or instruction. This rule does not require the exclusion of evidence of subsequent measures if offered for another purpose, such as proving ownership, control, or feasibility of precautionary measures, if controverted, or impeachment.

But does Rule 407 apply when a defendant wants to present evidence of a subsequent remedial measure to prove that it did not act negligently or otherwise culpably at the time of an accident? According to the recent opinion of the Supreme Court of Idaho in Jones v. Crawforth, 2009 WL 929839 (Idaho 2009), it does. I disagree.

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Your Only Self Defense: Court Of Appeals Of Louisana Engaged In Incorrect Right To Present A Defense Analysis In Murder Appeal

Most states, including Louisiana, have rules of evidence that govern the admissibility of evidence in their courts. Those rules, however, are not highest law of the land and must bow in the face of higher laws. One of those laws is the United States Constitution, and in Crane v. Kentucky, the Supreme Court found that:

 "[w]hether rooted directly in the Due Process Clause of the Fourteenth Amendment or in the Compulsory Process or Confrontation Clauses of the Sixth Amendment, the Constitution guarantees criminal defendants a meaningful opportunity to present a complete defense."

Appellate courts have found this right to be violated when trial courts apply state rules of evidence in a fashion that is technically correct but "mechanistic" or arbitrary or disproportionate to the purposes that the rule is designed to serve. In other words, an appellate court cannot simply respond to an appellant's claim that a trial court violated his right to present a defense by excluding evidence based upon the conclusion that the trial court properly applied a rule of evidence. And yet, that is exactly what the Court of Appeal of Louisiana, Second Circuit, did in State v. Thomas, 2009 WL 929388 (La.App. 2 Cir. 2009).

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Waiting For The Verdict?: Supreme Court of Texas Precludes Jury Impeachment Even In The Absence Of A Verdict

Under Texas' version of the anti-jury impeachment rule, Texas Rule of Evidence 606(b),

Upon an inquiry into the validity of a verdict or indictment, a juror may not testify as to any matter or statement occurring during the course of the jury’s deliberations or to the effect of anything on any juror’s mind or emotions or mental processes, as influencing any juror’s assent to or dissent from the verdict or indictment. Nor may a juror’s affidavit or any statement by a juror concerning a matter about which the juror would be precluded from testifying be admitted in evidence for any of these purposes. However a juror may testify: (1) whether any outside influence was improperly brought to bear upon a juror; or (2) to rebut a claim that the juror was not qualified to serve. 

But can jurors testify after a trial which ended in with a settlement agreement and not a verdict, meaning that they would not be testifying upon an inquiry into the validity of a verdict? According to the recent opinion of the Supreme Court of Texas in Ford Motor Com. v. Castillo, 2009 WL 886159 (Tex. 2009), they cannot.

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Ford Tough?: Sixth Circuit Reverses Excited Utterance Ruling Against Ford Based Upon Odd Test

The recent opinion, Maggard v. Ford Motor Company, 2009 WL 928604 (6th Cir. 2009), makes it clear that the Sixth Circuit has added one foundation factor to the excited utterance exception to the rule against hearsay and subtracted another. In looking at the way in which that court analyzes excited utterances, however, I would characterize the result more as strange than unsettling.

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