EvidenceProf Blog

Mississippi Mud: Supreme Court Of Mississippi Opinion Reveals Anomalous Nature Of Its Marital Privilege

Mississippi Rule of Evidence 504(b) provides that

In any proceeding, civil or criminal, a person has a privilege to prevent that person’s spouse, or former spouse, from testifying as to any confidential communication between that person and that person's spouse. 

Mississippi Rule of Evidence 504(d)(1), however, indicates that

There is no privilege under this rule in civil actions between the spouses or in a proceeding in which one spouse is charged with a crime against (1) the person of any minor child.

But what constitutes a crime against the person of any minor child? That was the question that the Supreme Court of Mississippi had to address in its recent opinion in Hood v. State, 2009 WL 2259937 (Miss. 2009).

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Efficiency Expert: Supreme Court Of Kansas Opinion Reveals Differences Between Kansas And Federal Rules Of Evidence On Expert Testimony

Federal Rule of Evidence 703 provides in relevant part that

The facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by or made known to the expert at or before the hearing. If of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject, the facts or data need not be admissible in evidence in order for the opinion or inference to be admitted.

As the recent opinion of the Supreme Court of Kansas in In re Colt, 2009 WL 1974517 (Kan. 2009), K.S.A. 60-456(b), is quite different from its federal counterpart, but in a way that was ultimately not relevant to the court's opinion.  

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Avoiding Confrontation: New Jersey Appellate Court Finds Admission Of Excited Utterance Did Not Violate Confrontation Clause

Like its federal counterpart, New Jersey Rule of Evidence 803(c)(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 caused by the event or condition and without opportunity to deliberate or fabricate.

It seems clear to me that the Superior Court of New Jersey, Appellate Division, in its recent opinion in State ex re. B.S., 2009 2140031 (N.J.Super.A.D. 2009), correctly found that the trial court properly admitted the victim's "excited utterance" under this rule. And it only seems somewhat less clear to me whether the appellate court made the right call in finding that this "excited utterance" was admissible notwithstanding the Confrontation Clause.

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Money For Nothing: Court Of Appeals Of Texas Upholds Excited Utterance Ruling In Elder Theft Appeal

Like its federal counterpart, Texas 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 caused by the event or condition.

Usually, the startling event or condition triggering this "excited utterance" exception is something along the lines of a physical or verbal assault (event) or an illness or injury (condition); however, as the recent opinion of the Court of Appeals of Texas in Arriaga v. State, 2009 WL 2045220 (Tex.App.-San Antonio 2009), makes clear, the startling event can be something along the lines of somebody without authorization withdrawing money from your bank account.

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Arizona v. Gant: A Windfall For The Government?

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."

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Garden State (Of Mind): Connecticut Federal Court Finds Psychotherapist-Patient Privilege Waived Even Under Narrow View Of Waiver

All federal courts and most states recognize some version of the psychotherapist-patient privilege, under which a patient has the privilege to refuse to disclose confidential communications made to a psychotherapist for the purpose of diagnosis or treatment. I have posted a couple of entries on this blog (here and here) about the two different interpretations of when a party waives the psychotherapist-patient privilege.

Under the "broad" view, "the mere allegation of emotional distress was viewed as sufficient to justify discovery into that party's psychological records to determine whether events other than the challenged conduct may have caused or exacerbated the party's distress."...

In contrast, under the "narrow" view, a plaintiff is not deemed to have waived the privilege by alleging only “garden variety” emotional distress....Courts using the narrow approach "must distinguish between garden variety claims and claims for more 'severe' emotional distress, such as those involving a diagnoses of a specific psychiatric disorder."..."Garden variety claims refer to claims for 'compensation for nothing more than the distress that any healthy, well-adjusted person would likely feel as a result of being so victimized.'"

In In re Sims, 534 F.3d 117, 132 (2nd Cir. 2008), the Second Circuit became one of the courts adopting some version of the "narrow view" of waiver. Even under that "narrow view," however, the United States District Court for the District of Connecticut still found that the plaintiff had waived the psychotherapist-patient privilege in its recent opinion in Jacobs v. Connecticut Community Technical Colleges, 2009 WL 2046016 (D.Conn. 2009). 

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Sine Qua Nah: Court Of Appeals Of Minnesota Opinion Fleshes Out Specifics Of Rule 807

Like its federal counterpart, Minnesota Rule of Evidence 807 provides in relevant part that

A statement not specifically covered by rule 803 or 804 but having equivalent circumstantial guarantees of trustworthiness, is not excluded by the hearsay rule, if the court determines that (A) the statement is offered as evidence of a material fact; (B) the statement is more probative on the point for which it is offered than any other evidence which the proponent can procure through reasonable efforts; and (C) the general purposes of these rules and the interests of justice will best be served by admission of the statement into evidence.

In its 1985 opinion in State v. Ortlepp, 2009 WL 2015404 (Minn. 1985), the Supreme Court admitted a non-judicial prior consistent statement as substantive evidence based upon four factors:

(1) the witness was available for cross-examination regarding the statement, thereby assuaging any confrontation problems; (2) there was proof that the prior statement was made; (3) the statement was against the declarant's penal interest, a fact that increases its reliability; and (4) the statement was consistent with all the other evidence introduced.

Since, Ortlapp, Minnesota courts have referred to these as the Ortlepp factors, but are they the sine qua non of such a statement being admissible under Rule 807, or are there other factors that can lead to its admission?

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Not That I'm Biased: Court Of Appeals Of Minnesota Misapplies Rule 408 In Automobile Accident Appeal

Like its federal counterpart, Minnesota Rule of Evidence 408 provides that:

Evidence of (1) furnishing or offering or promising to furnish, or (2) accepting or offering or promising to accept, a valuable consideration in compromising or attempting to compromise a claim which was disputed as to either validity or amount, is not admissible to prove liability for or invalidity of the claim or its amount.  Evidence of conduct or statements made in compromise negotiations is likewise not admissible.  This rule does not require the exclusion of any evidence otherwise discoverable merely because it is presented in the course of compromise negotiations.  This rule also does not require exclusion when the evidence is offered for another purpose, such as proving bias or prejudice of a witness, negativing a contention of undue delay, or proving an effort to obstruct a criminal investigation or prosecution.

So, clearly evidence of settlement negotiations can be admissible to prove bias, but when is such evidence probative on the issue of whether a witness is biased? That was the question addressed by the Court of Appeals of Minnesota in its recent opinion in Lallas v. Paquette, 2009 WL 2015821 (Minn.App. 2009), and I think that it answered the question incorrectly.

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Gone Fishin'?: Eastern District Of Pennsylvania Denies Evidentiary Hearing Into Juror Misconduct In State Senator's Case

Federal Rule of Evidence 606(b) provides that

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 upon that or any other juror's mind or emotions as influencing the juror to assent to or dissent from the verdict or indictment or concerning the juror's mental processes in connection therewith. But a juror may testify about (1) whether extraneous prejudicial information was improperly brought to the jury's attention, (2) whether any outside influence was improperly brought to bear upon any juror, or (3) whether there was a mistake in entering the verdict onto the verdict form. A juror's affidavit or evidence of any statement by the juror may not be received on a matter about which the juror would be precluded from testifying.

What this means is that if a defendant has enough evidence that the jury's verdict was tainted by extraneous prejudicial information, the court should conduct an evidentiary hearing to determine the precise, nature, quality, and extent of the jury breach. In its recent opinion in United States v. Fumo, 2009 WL 1977715 (E.D. Pa. 2009), the United States District Court for the Eastern District of Pennsylvania did not award the defendant such a hearing, and I'm not sure that this was the correct decision.

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Human Behavior: Eighth Circuit Construes Expressions Of Desire As "Sexual Behavior" For Rape Shield Purposes

Federal Rule of Evidence 412(a), the Rape Shield Rule, provides that

The following evidence is not admissible in any civil or criminal proceeding involving alleged sexual misconduct except as provided in subdivisions (b) and (c):

(1) Evidence offered to prove that any alleged victim engaged in other sexual behavior.

(2) Evidence offered to prove any alleged victim's sexual predisposition.

But what exactly constitutes sexual behavior? Well, as the recent opinion of the Eighth Circuit in United States v. Papakee, 2009 2066797 (8th Cir. 2009), makes clear, courts have construed this phrase, and thus Federal Rule of Evidence 412(a)'s proscription, broadly.

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Confession(s) To Make: Florida Court Orders Separate Trials Of Former Football Players Based Upon Bruton Issues

In Bruton v. United States, 391 U.S. 123 (1968), the Supreme Court held that when there is a joint trial of a defendant and a co-defendant, the admission into evidence of the non-testifying co-defendant's out-of-court confession violates the Confrontation Clause of the Sixth Amendment if the confession incriminates the other defendant. This so-called "Bruton doctrine" explains why former high school football players in Bradenton, Florida were informed on Friday that they will have separate murder trials. 

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No Collateral: Tenth Circuit Finds Extrinsic Evidence Of Child Abuse Was Properly Admitted In International Parental Kidnapping Appeal

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.

The reason this Rule precludes the use of extrinsic evidence is that the (un)truthfulness of a witness is collateral to the substantive issues at trial. What this means, as is made clear by the Tenth Circuit's recent opinion in United States v. Rizvanovic, 2009 WL 2105231 (10th Cir. 2009), is that when extrinsic evidence of specific instances of conduct is relevant not only to a witness' (un)trustworthiness but also relevant to the substantive issues at trial, Rule 608(b)'s proscription does not apply.

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Rape Shield Redux: Eighth Circuit Holds That District Court Properly Excluded "Other Source" Evidence In Rape Shield Appeal

Federal Rule of Evidence 412(a), the Rape Shield Rule, indicates that

The following evidence is not admissible in any civil or criminal proceeding involving alleged sexual misconduct except as provided in subdivisions (b) and (c):

(1) Evidence offered to prove that any alleged victim engaged in other sexual behavior.

(2) Evidence offered to prove any alleged victim's sexual predisposition.

Federal Rule of Evidence 412(b)(1)(A), however, indicates that

(1) In a criminal case, the following evidence is admissible, if otherwise admissible under these rules:

(A) evidence of specific instances of sexual behavior by the alleged victim offered to prove that a person other than the accused was the source of semen, injury, or other physical evidence;

As this latter Rule makes clear, such evidence of other sexual behavior is not automatically admissible; instead, it must be "otherwise admissible under the rules of evidence. This qualifying language was the problem for tha appellant in United States v. Seed, 2009 WL 2045690 (8th Cir. 2009).

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Plea Agreement As Improper Influence: New Jersey Appellate Court Finds Prior Consistent Statement Were Properly Admitted In Drug Appeal

New Jersey Rule of Evidence 607 indicates that

Except as otherwise provided by Rules 405 and 608, for the purpose of impairing or supporting the credibility of a witness, any party including the party calling the witness may examine the witness and introduce extrinsic evidence relevant to the issue of credibility, except that the party calling a witness may not neutralize the witness' testimony by a prior contradictory statement unless the statement is in a form admissible under Rule 803(a)(1) or the judge finds that the party calling the witness was surprised. A prior consistent statement shall not be admitted to support the credibility of a witness except to rebut an express or implied charge against the witness of recent fabrication or of improper influence or motive and except as otherwise provided by the law of evidence.

As the recent opinion of the New Jersey Superior Court, Appellate Division in State v. Davis, 2009 WL 1974509 (N.J.Super.A.D. 2009), makes clear, however, the "improper influence" need not be improper in the sense that we usually think of the word but can include events such as a witness' entry into a plea agreement.

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Fresh Enough: Western District Of Wisconsin Finds Statement Created Months After Harassment Qualifies As Recorded Recollection

Federal 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 the witness to testify fully and accurately, shown to have been made or adopted by the witness when the matter was fresh in the witness' memory and to reflect that knowledge correctly.

My post yesterday addressed two important aspects of this "recorded recollection" exception to the rule against hearsay: (1) When does a witness have insufficient recollection, and (2) When does a witness need to adopt a memorandum/record? My post today, and the recent opinion of the United States District Court for the Western District of Wisconsin in Vorwald v. 3M Co., 2009 1970694 (W.D. Wis. 2009), both address a third aspect: When is a matter fresh in a witness' memory?

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Record(ing) Recollection: Minnesota Case Reveals Two Important Aspects Of Recorded Recollection Exception To Rule Against Hearsay

Like its federal counterpart, Minnesota 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 testify fully and accurately, shown to have been made or adopted by the witness when the matter was fresh in the witness’ memory and to reflect that knowledge correctly.

The recent opinion of the Court of Appeals of Minnesota in State v. Stone, 2009 WL 1919005 (Minn.App. 2009), addressing two important aspects of this "recorded recollection" exception: (1) When does a witness have insufficient recollection, and (2) When does a witness need to adopt a memorandum/record? 

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In The Maine: District Of Maine Refuses To Apply Maine's Peer Review Privilege In Disparate Treatment Case

Federal Rule of Evidence 501 provides that

Except as otherwise required by the Constitution of the United States or provided by Act of Congress or in rules prescribed by the Supreme Court pursuant to statutory authority, the privilege of a witness, person, government, State, or political subdivision thereof shall be governed by the principles of the common law as they may be interpreted by the courts of the United States in the light of reason and experience. However, in civil actions and proceedings, with respect to an element of a claim or defense as to which State law supplies the rule of decision, the privilege of a witness, person, government, State, or political subdivision thereof shall be determined in accordance with State law.

What this means, as is made clear by the recent opinion of the United States District Court for the District of Maine in Thayer v. Eastern Maine Medical Center, 2009 WL 1686673 (D.Me. 2009), is that when a plaintiff brings federal claims against a defendant in a federal court located in a particular state, the court is not bound by the state's rules of privilege.

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A Foolish Consistency: Supreme Court Of New Hampshire Opinion Misapplies Prior Consistent Statement Rule

Like its federal counterpart, New Hampshire Rule of Evidence 801(d)(1)(B) provides that:

A statement is not hearsay if...[t]he declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement, and the statement is...consistent with the declarant's testimony and is offered to rebut an express or implied charge against the declarant of recent fabrication or improper influence or motive.

As the recent opinion of the Supreme Court of New Hampshire in State v. White, 2009 WL 1955235 (N.H. 2009), makes clear, however, this rule does not provide the sole method for admitting prior consistent statements into evidence. But it seems to me that the method that the court applied was not, in fact, applicable.

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Leave The Falling To Us: Seventh Circuit Affirms Exclusion Of Employee Report In Case Against Metra

Federal Rule of Evidence 801(d)(2)(D) provides that

[a] statement is not hearsay if...The statement is offered against a party and is...a statement by the party's agent or servant concerning a matter within the scope of the agency or employment, made during the existence of the relationship.

Like all admissions, employee admissions are generally admissible under Rule 801(d)(2)(D) notwithstanding the personal knowledge requirement of Federal Rule of Evidence 602. But, as the recent opinion of the Seventh Circuit in Mister v. Northeast Illinois Commuter R.R. Corp., 2009 WL 1956333 (7th Cir. 2009), makes clear, courts can still find employee admissions made without personal knowledge inadmissible pursuant to Federal Rule of Evidence 403.

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A Matter Of Credibility?: New Hampshire Case Involves Important Impeachment, Rape Shield Issues

An upcoming sexual assault trial provides a good illustration of the rape shield rule and a couple of rules of evidence dealing with the impeachment of witnesses. 

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