EvidenceProf Blog

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

Saturday, July 11, 2009

I Read The News Today: 10th Circuit Denies Habeas Despite Juror Misconduct In Death Penalty Appeal

A defendant is convicted of murder and sentenced to death. It turns out, however, that after the jury found the defendant guilty but before they decided to impose the death penalty, a juror spoke with a released alternate juror, who told her that he thought that the jury had done the right thing and that he had read newspaper articled that supported the jury's verdict. The defendant is thus entitled to a new penalty phase of trial, right? Well, actually he isn't, at least according to the recent opinion of the Tenth Circuit in Matthews v. Workman, 2009 1927051 (10th Cir. 2009). 

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July 11, 2009 | Permalink | Comments (0) | TrackBack (0)

Friday, July 10, 2009

Collateral Damage: 8th Circuit Finds District Court Properly Precluded Extrinsic Evidence of Prior Inconsistent Statement

It is well established that a witness who testifies at trial can be impeached if he made a prior inconsistent statement before trial; moreover, Federal Rule of Evidence 613(b) indicates that the attorney impeaching a witness through a prior inconsistent statement can prove the existence of that prior statement through extrinsic evidence as long as "the witness is afforded an opportunity to explain or deny the same and the opposite party is afforded an opportunity to interrogate the witness thereon, or the interests of justice otherwise require." As the recent opinion of the Eighth Circuit in United States v. Bordeaux, 2009 WL 1919390 (8th Cir. 2009), makes clear, however, such extrinsic evidence is inadmissible when the witness is being impeaching on a "collateral" matter.

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July 10, 2009 | Permalink | Comments (0) | TrackBack (0)

Thursday, July 9, 2009

Private Ears Are Listening: California Judge Expresses Doubt That Confidential Marital Communications Privilege Applies To Intercepted Conversation

Corey Lyons will soon stand trial in California for the slayings of his brother and sister-in-law. And, according to Judge Brian Hill, it is likely that statements that Lyons made to his wife in a locked interview room will be admissible, despite Lyons' claim that the statements constitute confidential marital communications.

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July 9, 2009 | Permalink | Comments (0) | TrackBack (0)

Wednesday, July 8, 2009

The Character Of The Matter, Take 2: Iowa Judge Precludes Specific Act Character Evidence In Murder Trial

Yesterday, I posted an entry about how criminal defendants claiming self-defense generally can present opinion and reputation testimony concerning the victim's character for violence but generally cannot present specific act testimony concerning the victim's character for violence. Well, a current case in Iowa presents another example of this dichotomy.

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July 8, 2009 | Permalink | Comments (0) | TrackBack (0)

Tuesday, July 7, 2009

The Character Of The Matter: Court Of Appeals Of Arizona Finds That Victim's Violent Character Is Not An Essential Element Of A Self Defense Claim

Like its federal counterpartArizona Rule of Evidence 404(a)(2) provides that:

Evidence of a person's character or a trait of character is not admissible for the purpose of proving action in conformity therewith on a particular occasion, except...2. Character of victim. Evidence of a pertinent trait of character of the victim of the crime offered by an accused, or by the prosecution to rebut the same, or evidence of a character trait of peacefulness of the victim offered by the prosecution in a homicide case to rebut evidence that the victim was the first aggressor.

Meanwhile, like its federal counterpartArizona Rule of Evidence 405 provides that:

(a) Reputation or opinion. In all cases in which evidence of character or a trait of character of a person is admissible, proof may be made by testimony as to reputation or by testimony in the form of an opinion. On cross-examination, inquiry is allowable into relevant specific instances of conduct.

(b) Specific instances of conduct. In cases in which character or a trait of character of a person is an essential element of a charge, claim, or defense, or pursuant to Rule 404(c), proof may also be made of specific instances of that person's conduct.

So, how do these rules apply when a criminal defendant claims self-defense? Clearly, the defendant can introduce reputation/opinion evidence concerning the victim's character for violence, but is the victim's character for violence an essential element of the defendant's defense, meaning that he can also introduce specific instances of violence by the alleged victim? The answer, according to the recent opinion of the Court of Appeals of Arizona in State v. Fish, 2009 WL 1872146 (Ariz.App.Div. 1 2009), is "no" at least when the defendant did not know about those instances before the alleged crime.

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July 7, 2009 | Permalink | Comments (0) | TrackBack (0)

Monday, July 6, 2009

The "Phantom Expert Witness" And The Confrontation Clause

Let's say that a defendant is on trial for arson. A key part of the prosecution's case is going to be its evidence that the defendant used gasoline or some other agent to start the subject fire. And if there is no forensic evidence that the defendant started the subject fire, the prosecution is going to have to scramble to explain the absence of such evidence. One way it could do so would be to call an expert to explain the absence of such evidence. Another, as was the case in United States v. Myers, 2009 WL 1873510 (7th Cir. 2009), would be to itself explain the absence during closing arguments. Of course, the latter method would be improper, but would such an explanation lead to the creation of a "phantom expert witness," in violation of the defendant's rights under the Confrontation Clause? According to the Seventh Circuit, the answer is "no."

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July 6, 2009 | Permalink | Comments (0) | TrackBack (0)

Sunday, July 5, 2009

Passing By With Every Exit Sign: Delaware Search Seemingly Violates Arizona v. Gant

A recent search of an automobile in Delaware incident to a lawful arrest seems to be exactly the type of search that used to be authorized under New York v. Belton, 453 U.S. 454 (1981), but is now no longer authorized based upon the Supreme Court's recent opinion in Arizona v. Gant.

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July 5, 2009 | Permalink | Comments (0) | TrackBack (0)

Saturday, July 4, 2009

Questioning The Jury: Tennessee Court Finds Trial Court Applied Proper Jury Questioning Procedure In 4th Of July Case

I have written a few posts on this blog (hereherehere, and here) about the propriety of allowing jurors to ask questions during trial. The recent opinion of the Court of Criminal Appeals of Tennessee in State v. James, 2009 WL 1579236 (Tenn.Crim.App. 2009), makes clear that Tennessee allows juror questioning in criminal cases and also clarifies a key detail about how that questioning works.

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July 4, 2009 | Permalink | Comments (0) | TrackBack (0)

Friday, July 3, 2009

Summary Judgment: Seventh Circuit FInds Audit Report Admissible Under Rule 1006

Federal Rule of Evidence 803(6) provides an 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.

But what happens when a party seeks to introduce a report that was not made in the course of regularly conducted business activity, but that report was made from documents that themselves qualify as business records under Federal Rule of Evidence 803(6)? The answer, as the Seventh CIrcuit found in its recent opinion in Trustees of the Chicago Plastering Institute Pension Trust v. Cork Plastering Company, 2009 WL 1873516 (7th Cir. 2009), is that the report is admissible under Federal Rule of Evidence 1006.

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July 3, 2009 | Permalink | Comments (0) | TrackBack (0)

Thursday, July 2, 2009

Something Special In The Verdict: Rule 606(b) Precludes Jury Impeachment On Workers' Compensation Issue In Case Against American Airlines

Judges often make rulings excluding evidence to avoid confusing the jury. Indeed, Federal Rule of Evidence 403 explicitly provides that judges may exclude even relevant evidence if its probative value is substantially outweighed by the danger of confusion of the issues. Sometimes, however, in an attempt to prevent juror confusion, the judge ends up causing that very confusion. But even when a party can prove that this confusion caused a misguided verdict, Federal Rule of Evidence 606(b) will preclude the verdict from being disturbed, as was the case with the recent opinion of the United States District Court for the Southern District of New York in Severino v. American Airlines, 2009 WL 1810014 (S.D.N.Y. 2009).

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July 2, 2009 | Permalink | Comments (0) | TrackBack (0)

Wednesday, July 1, 2009

Chicken Little Or Canary In The Coal Mine?, Take 3: Could Briscoe v. Virginia Lead To An Immediate Overturning Of Melendez-Diaz?

Last week, I wrote a post about the Supreme Court's new opinion in Melendez-Diaz v.Massachusetts, in which it found in a 5-4 vote that certificates of state laboratory analysts were "testimonial" and thus covered by the Sixth Amendment. One of the five Justices in the majority was Justice Souter, who, of course, will soon be gone from the Court, likely to be replaced by Sonia Sotomayor. What this means is that the Melendez-Diaz opinion could soon be invalidated if the Court hears a case that leads it to reassess Melendez-Diaz, and the new Justice agrees with the four dissenting Justices in Melendez-Diaz. And, as SCOTUS Blog, recently noted, the Court has just granted cert in just such a case. 

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July 1, 2009 | Permalink | Comments (0) | TrackBack (0)