EvidenceProf Blog

Texas Sized Justice: Texas Passes Bill Increasing Compensation To The Wrongfully Convicted

Many of you may have heard of Craig Watkins, who in 2006 became the first African-American elected district attorney of any county in Texas history when he became the Dallas County District Attorney. Last year, Reason's Radly Balko mused about whether Watkins was America's best prosecutor based upon his creation of the Conviction Integrity Unit.

Established by District Attorney Craig Watkins in July of 2007, the Conviction Integrity Unit oversees the post-conviction review of more than 400 DNA cases in conjunction with the Innocence Project of Texas (IPOT) and in accordance with the Texas Code of Criminal Procedure, Chapter 64 (Motion for Forensic DNA Testing).  In addition to the IPOT project, the Conviction Integrity Unit investigates and prosecutes old cases (DNA and non-DNA related) where evidence identifies different or additional perpetrators.  Special Field Bureau Chief Mike Ware supervises the Conviction Integrity Unit, the Appellate Division, the Public Integrity Division, the Federal Division and the Mental Health Unit, as well as public information, evidence destruction and expunctions at the District Attorney’s Office.  The Conviction Integrity Unit is staffed by one assistant district attorney, one investigator and one legal assistant.  This special division is the first of its kind in the United States.

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Balanced Opinion: Third Circuit Applies Balancing Test To Hearsay Admitted At Revocation Hearing

Pursuant to Federal Rule of Evidence 1101(d)(3), the Federal Rules of Evidence do not apply in revocation hearings. This does not, however, mean that hearsay evidence is per se admissible at such hearings as the Third Circuit made clear in its recent opinion in United States v. Lloyd, 2009 1459216 (3rd Cir. 2009).

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Drag Me To Hell: Court Finds Discriminatory Remarks Not Precluded By Rule Against Hearsay In Employment Discrimination Suit

Federal Rule of Evidence 801(c) indicates that

"Hearsay" is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted. 

But, as the United States District Court for the Middle District of Pennsylvania found in its recent opinion in E.E.O.C. v. Schott North America, 2009 WL 310897 (M.D. Pa. 2009), discriminatory remarks made about the suitability of particular employees which serve as circumstantial evidence of a discriminatory atmosphere in an employment discrimination suit are not hearsay because such statements are not offered to prove the truth of the matters asserted.

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Public Enemy?: Eleventh Circuit Finds No Plain Error In Business Records Ruling In Health Care Fraud Appeal

The recent opinion of the Eleventh Circuit in United States v. Hoffman-Vaile, 2009 WL 1458567 (11th Cir. 2009), raised but did not resolve an interesting question: Do the records of a private administrator that processes and reviews claims for Medicare qualify as business records under Federal Rule of Evidence 803(6) or public records under Federal Rule of Evidence 803(8)? And the reason that the question is interesting is that the classification of such records could have drastic consequences in terms of their admissibility at criminal trials.

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In The Impala: Court Allows Defendant To Introduce Reverse 404(b) Evidence In Drug Possession Trial

In relevant part, Federal Rule of Evidence 404(b) provides that

Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.

Usually, a prosecutor seeks to introduce Rule 404(b) evidence to prove that a criminal defendant committed the subject crime, but sometimes a defendant seeks to introduce so-called reverse-Rule 404(b) evidence to prove that somebody else committed the subject crime. In its recent opinion in United States v. Duran-Moreno, 2009 WL 1290010 (D.N.M. 2009), the United States District Court for the District of New Mexico addressed this latter scenario.

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Submission Guide for Online Law Review Supplements Now Available On SSRN

In the beginning of March, a colleague, knowing that I had published two pieces in online law review supplements (here and here), asked if I had a list of online law review supplements because she was interested in possibily writing a piece for one of them. In writing my prior pieces, I actually had created a list of sorts and sent it to her. At the time, though, I realized that she would not be able to submit her proposed original piece to some of these supplements because they only accepted responses to pieces published in their print law reviews. I thus decided it would be useful to create a submission guide for online law review supplements similar to the one that Allen Rostron and Nancy Levit created for traditional law reviews, which would contain information about the types of pieces accepted, submission information, and submission format.

I started by creating a rough draft of a submission guide from information culled from each online supplement's website and then sent that draft to the editors of each journal for additions, deletions, and revisions. The product of that work is the Submission Guide for Online Law Review Supplements, available for download for free from SSRN. The Guide will be updated an an annual basis and as law reviews created new online supplements. Indeed, since the start of this project, two law review have created new online supplements -- Cardozo Law Review's de∙novo and Minnesota Law Review's Headnotes -- so I expect updates to the Guide to be fairly frequent (Mitchell Rubinstein over at Adjunct Law Prof Blog also posted a list of  online law review supplements, which includes some speciality journals not included in my Guide, which only covers general online law reviews). Of course, if any reader is aware of any new online supplements or supplements I missed, please let me know.

-CM

Competent Opinion: Supreme Court Of Ohio Removes Requirement From Rule 807 In Memorial Day Case

Ohio Rule of Evidence 807 provides an exception to the rule against hearsay for

An out-of-court statement made by a child who is under twelve years of age at the time of trial or hearing describing any sexual act performed by, with, or on the child or describing any act of physical violence directed against the child is not excluded as hearsay under Evid. R. 802 if...[,inter alia,]...the following apply:

(1) The court finds that the totality of the circumstances surrounding the making of the statement provides particularized guarantees of trustworthiness that make the statement at least as reliable as statements admitted pursuant to Evid. R. 803 and 804.... 

(2) The child's testimony is not reasonably obtainable by the proponent of the statement.

(3) There is independent proof of the sexual act or act of physical violence.

In State v. Said, 644 N.E.2d 337 (Ohio 1994), the Supreme Court of Ohio added a requirement to Ohio Rule of Evidence 807: the requirement that the child declarant be evaluated at a competency hearing to determine whether the child was "competent" at the time that he made the out-of-court statement. In State v. Silverman, 2009 WL 961431 (Ohio 2009), the Court removed this requirement.

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Broken Record? Court Of Appeals Of North Carolina Finds Tape Recorded Statements Can Be Admissible Under Rule 803(5)

Like its federal counterpart, North Carolina Rule of Evidence 803(5) provides an exception to the rule against hearsay for

A memorandum or record concerning a matter about which a witness once had knowledge but now has insufficient recollection to enable him to testify fully and accurately, shown to have been made or adopted by the witness when the matter was fresh in his memory and to reflect that knowledge correctly.

It seems clear that this Rule covers something written by a witness, but does it also cover a tape recorded statement by a witness? That was the question recently presented to the Court of Appeals of North Carolina in State v. Wilson, 2009 1373205 (N.C.App. 2009).

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Can You Search Me Now?: Court Upholds Search Of Cell Phone Incident To A Lawful Arrest

A man is arrested. Pursuant to the Supreme Court's opinion in United States v. Robinson, 414 U.S. 218 (1973), "[a] full search of the person, his effects, and the area within his immediate reach at the time of a lawful custodial arrest may be conducted without regard to any exigency or the seriousness of the offense, and regardless of any probability that the search will yield a weapon or evidence of the crime for which the person is arrested." As part of a valid search incident to a lawful arrest, however, can an arresting officer search the contents of the arrestee's cell phone, and if so, how thorough can that search be? Those were the questions posed to the United States District Court for the District of Massachusetts in United States v. Wurie, 2009 WL 1176946 (D.Mass. 2009).

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In Treatment: Court Of Appeals Of Texas Finds Trial Court Properly Allowed For The Admission Of Child's Statements To Doctor Concerning Sexual Assault By His Father

Like its federal counterpart, Texas Rule of Evidence 803(4) provides an exception to the rule against hearsay for

Statements made for purposes of medical diagnosis or treatment and describing medical history, or past or present symptoms, pain, or sensations, or the inception or general character of the cause or external source thereof insofar as reasonably pertinent to diagnosis or treatment.

The basis for this exception is that a patient would not lie to his doctor for fear of mistreatment and/or misdiagnosis. And the exception typically only allows for the admission of those portions of a patient's statements describing the "general character of the cause or external source" of his injury or illness and does not allow for the admissions of those portions describing the identity of the person causing the injury or illness, if applicable. But what if the patient is a child? Does the child understand the consequences of lying to a doctor, making his statements sufficiently reliable? And if the source of a child patient's injuries is his parent, is a statement of identification reasonably pertinent to diagnosis or treatment, making statements of identification admissible? These were the questions that the Court of Appeals of Texas recently addressed in Weeks v. State, 2009 WL 1325461 (Tex.App.-Hous. [14th Dist.] 2009).

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The Bloodhound Gang, Take 2: Supreme Court Of South Carolina Tweaks Test For Admissibility Of Bloodhound Tracking Evidence

Back in February, I wrote a post about how "courts generally admit evidence that bloodhounds tracked down a defendant if the prosecution can establish" certain elements. As support for this proposition, I cited to the opinion of the Court of Appeals of South Carolina in State v. White, 642 S.E.2d 607, 614 (S.C.App. 2007), in which the court found that evidence that bloodhounds tracked down a defendant is admissible if the prosecution can establish that the bloodhounds

(1)...are of pure blood, and of a stock characterized by acuteness of scent and power of discrimination; (2)...possess these qualities, and have been accustomed and trained to pursue the human track; (3)...have been found by experience reliable in such pursuit; [and] (4)...were put on the trail of the guilty party, which was pursued and followed under such circumstances and in such way as to afford substantial assurance, or permit a reasonable inference, of identification.

The Court of Appeals of South Carolina in White found the prosecution established these four elements and thus affirmed the defendant's conviction, prompting his appeal to the Supreme Court of South Carolina which affirmed but did so only after tweaking the above test in State v. White, 2009 WL 1108881 (S.C. 2009).

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Plain Truth: Court Of Appeals Of Minnesota Fails To Conduct Plain Error Review Of Business Records Ruling

In relevant part, Federal Rule of Evidence 803(6) provides a exception to the rule against hearsay for 

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, or by certification that complies with Rule 902(11), Rule 902(12), or a statute permitting certification, unless the source of information or the method or circumstances of preparation indicate lack of trustworthiness.

Thus, before a business record/report may be admitted under Rule 803(6), the proponent must have a custodian or other qualified witness testify that the record/report satisfies all of the elements of the Rule. Ostensibly, the prosecution failed to present such a witness in State v. Forbes, 2009 WL 1181914 (Minn.App. 2009), but, based upon the defendant's failure to object, the Court of Appeals of Minnesota concluded that he had waived the issue on appeal. I disagree.

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The Text-Message Mistrial: Judge Declares Mistrial After Witness Receives Text-Messages While On The Witness Stand

Back in March, I did a post about jurors improperly exchanging e-mails during trial and deliberations and concluded: "I have to wonder whether improper e-mailing among jurors is an increasing problem that courts will have to address at some point."  Later that month, I did a post about mistrials being declared after jurors improperly used Google and twitter to look up and communicate details about the cases they were hearing. A recent case from Miami presented a slightly different problem: A witness engaging in text-messaging while he was on the witness stand.

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Under Construction: Ninth Circuit Resolves Interplay Between Rules Of Evidence 608 And 609

Federal Rule of Evidence 609 allows for witnesses to be impeached through evidence of their prior convictions. Meanwhile, Federal Rule of Evidence 608(b) provides in relevant part that

Specific instances of the conduct of a witness, for the purpose of attacking or supporting the witness' character for truthfulness, other than conviction of crime as provided in rule 609, may not be proved by extrinsic evidence. They may, however, in the discretion of the court, if probative of truthfulness or untruthfulness, be inquired into on cross-examination of the witness (1) concerning the witness' character for truthfulness or untruthfulness, or (2) concerning the character for truthfulness or untruthfulness of another witness as to which character the witness being cross-examined has testified.

So, how do these two Rules work together? Does the above cited language from Rule 608(b) mean that evidence relating to a conviction is treated solely under Rule 609? Or does this language indicate that the defendant's actions which led to his conviction can be inquired into on cross-examination and that they can be proven by extrinsic evidence? This was the question presented to the Ninth Circuit in United States v. Osazuwa, 2009 WL 1232107 (9th Cir. 2009).

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The Cherry On Top Of The Prosecutorial Sundae: Why Improperly Admitted Rule 704 Evidence Will Almost Never Lead To A Reversal

Federal Rule of Evidence 704 provides that

(a) Except as provided in subdivision (b), testimony in the form of an opinion or inference otherwise admissible is not objectionable because it embraces an ultimate issue to be decided by the trier of fact.

(b) No expert witness testifying with respect to the mental state or condition of a defendant in a criminal case may state an opinion or inference as to whether the defendant did or did not have the mental state or condition constituting an element of the crime charged or of a defense thereto. Such ultimate issues are matters for the trier of fact alone.

After reading the recent opinion of the Fifth Circuit in United States v. Setser, 2009 WL 1299562 (5th Cir. 2009), I made a realization regarding this Rule: Testimony improperly admitted under it will almost never lead to a reversal.

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I Need You To Aid And Abet Me: Court Precludes Jury Impeachment In Aiding And Abetting Appeal

In Hunter v. Felker, 2009 WL 1246691 (N.D. Cal. 2009), David Hunter brought a federal habeas action in the United States District Court for the Northern District of California, seeking relief from his convictions for assault with a firearm and being a felon in possession of a firearm. Hunter, however, ran into a popular obstacle on this blog: Federal Rule of Evidence 606(b). 

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Caller ID: Supreme Court Of Tennessee Finds That Anonymous Statements Cannot Qualify As Statements Against Interest

Like its federal counterpart, Tennessee Rule of Evidence 804(b)(3) provides an exception to the rule against hearsay for

A statement which was at the time of its making so far contrary to the declarant's pecuniary or proprietary interest, or so far tended to subject the declarant to civil or criminal liability or to render invalid a claim by the declarant against another, that a reasonable person in the declarant's position would not have made the statement unless believing it to be true. 

But what happens when the statement at issue was made anonymously? That was the question presented to the Supreme Court of Tennessee in State v. Kiser, 2009 1313564 (Tenn. 2009). And, like many other courts, Tennessee's highest court found that anonymous statements cannot qualify as statements against interest for hearsay purposes.

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I'd Rather Be Fishing: Court Refuses To Allow Jury Impeachment Based Upon Juror Changing Vote To Guilty To Make Annual Fishing Trip

In State v. Miller, 2009 WL 1081745 (Wis.App. 2009), James D. Miller appealed from his conviction for first-degree reckless injury while armed with a dangerous weapon and aggravated battery while armed with a dangerous weapon, alleging, inter alia, juror misconduct. His claim: One of the jurors found him guilty so that he could be dismissed in time for his annual fishing trip. Unfortunately for Miller, the Court of Appeals of Wisconsin didn't take the bait.

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13 Going On 30: Illinois Man Becomes Youngest Person In The U.S. To Be Wrongfully Convicted And Exonerated

More than 16 years ago, 13 year old Thaddeus Jimenez was arrested for a street gang murder on Chicago's Northwest side. At the time, the judge sentenced him to 50 years imprisonment, describing Jimenez as a "little punk, probably too young to shave, but old enough to commit a vicious murder." The judge was wrong. On May 1, Jimenez became what his lawyers say is likely to be the youngest person in U.S. history to be wrongfully convicted of a crime and exonerated after Cook County Criminal Court Judge Joseph Claps vacated Jimenez's conviction and released him at the age of 30.

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Into the Dawn To Montana, Take 2: House Bill 295 Dies In The Senate Judiciary

Back in February, I wrote a post about Montana House Bill 295, which would have allowed for the admission of evidence of

(1) prior sexual assaults against criminal defendants charged with sexual assault, (2) prior acts of child molestation against criminal defendants charged with child molestation, and (3) prior acts of sexual assault and child molestation against civil parties in actions in which a claim for damages or other relief is predicated on that party's alleged commission of conduct constituting the offense of sexual assault or child molestation.

In other words, the Bill would have created Montana counterparts to Federal Rules of Evidence 413, 414, and 415.

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