EvidenceProf Blog

Requiem For Admission: Supreme Court Of New Hampshire Finds Evidence Of Defendant's Drug Addiction Admissible To Prove Motive To Steal

Like its federal counterpart, New Hampshire 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 that the person acted 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.

In its recent opinion in State v. Costello, the Supreme Court of New Hampshire had to answer of question of first impression under this Rule: Is evidence of a defendant's drug addicition admissible to prove a motive to steal?

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Credible Witness?: Court Of Criminal Appeals Of Alabama Makes Seemingly Erroneous Rule 704 Ruling

Alabama Rule of Evidence 704 provides that

Testimony in the form of an opinion or inference otherwise admissible is to be excluded if it embraces an ultimate issue to be decided by the trier of fact.  

Under this Rule, it is well established that "the credibility of a witness is a question solely for the jury's determination.” So, how could the Court of Criminal Appeals of Alabama explain its recent opinion in Foster v State, 2009 WL 2657615 (Ala.Crim.App. 2009)? The answer: It didn't.

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Horton Hears A Hearsay: Appeals Court Of Massachusetts Makes Interesting Ruling Concerning Statements Against Interest

Federal 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.

Massachusetts does not have codified rules of evidence but it has recognized this statement against interest exception to the rule against hearsay in its case law. And, pursuant to the Supreme Court's opinion in Williamson v. United States, 512 U.S. 594 (1994), when a declarant makes a broadly self-inculpatory confession which also contains some self-exculpatory statements, courts will admit only the self-inculpatory statements and excise the self-exculpatory statements under the statement against interest exception. But what happens when a declarant makes a broadly self-exculpatory statement which also contains some self-inculpatory statements? That was the question addressed by the Appeals Court of Massachusetts in Commonwealth v. Dejarnette, 2009 WL 2595871 (Mass.App.Ct. 2009).

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Privileged: Supreme Court Of Nevada Finds Judicial Proceeding Communication Privilege Applies To Nonlawyers

It is a “long-standing common law rule that communications [made] in the course of judicial proceedings [even if known to be false] are absolutely privileged." Does this privilege, however, extend to instances where a nonlawyer makes an allegedly defamatory communication in response to threatened litigation or during a judicial proceeding? In its recent opinion in Clark County School District v. Virtual Education Software, Inc., 2009 WL 2414820 (Nev. 2009), the Supreme Court of Nevada answered this question of first impression in the affirmative.

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Confronting Fear: Tenth Circuit Finds Excited Utterances Aren't Per Se Excluded From Scope Of Confrontation Clause

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 caused by the event or condition. 

Meanwhile, the Confrontation Clause of the Sixth Amendment is violated when hearsay is "testimonial," admitted against a criminal defendant, and the hearsay declarant does not testify regarding the hearsay at the defendant's trial, unless (1) the declarant was unavailable for trial, and (2) the defendant was previously able to cross-examine the declarant. This begs the question of whether excited utterances under Rule 803(2) are per se excluded from the scope of the Confrontation Clause. In United States v. Pursley, 2009 WL 2568954 (10th Cir. 2009), the Tenth Circuit answered this question of first impression in the negative, contrary to the district court's conclusion.

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What Not To Wear, Religious Edition, Take 2: Supreme Court Of Michigan Finalizes Attire Rule Of Evidence, With Lawsuit To Follow

Back in June, I posted an entry about the Supreme Court of Michigan's adoption of an amendment to Michigan Rule of Evidence 611 which provides as follows:

(b) Appearance of Parties and Witnesses. The court shall exercise reasonable control over the appearance of parties and witnesses so as to (1) ensure that the demeanor of such persons may be observed and assessed by the fact-finder, and (2) to ensure the accurate identification of such persons.

As I noted at the time, the amendment was crafted after a judge dismissed a Muslim woman's case when she refused to comply with his order that she remove her niqab and was inconsitent with "a pretty consistent line of precedent in this country which had established that judges are not entitled to tell witnesses what not to wear when such an order implicates religious liberty."  Well, yesterday, the Supreme Court of Michigan issued the order impliementing this amendment, effective September 1st. And now, the woman, along with the Michigan chapter of the Council on American-Islamic Relations (CAIR), plans to sue the judge in federal court. 

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S-U-C-C-E-S-S: Third Circuit Finds Settlement Offers Admissible As Evidence Of Degree Of Success Obtained For Fees And Costs Analysis

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 Lohman v. Duryea Borough, 2009 WL 2183056 (3rd Cir. 2009), the Third Circuit resolved an issue of first impression under the Rule, the issue of "whether and to what extent the trial court may consider settlement negotiations when awarding fees."

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The Lone Ranger And Tonto Fistfight In Heaven, Take 6: The Final Version Of My Amicus Brief For Benally

I have written five previous posts (here, here, here, here, and here) about the plight of Kerry Dean Benally, the Native American man who was convicted of assaulting a Bureau of Indian Affairs Officer with a deadly weapon and later learned that juror racial bias against Native Americans played a role during jury deliberations. In my last post on the subject, I noted that, as a result of my forthcoming article, Dismissed with Prejudice,  I was asked to write an amicus curiae brief in support of Benally's petition for writ of certiorari with the Supreme Court. That brief was submitted on Friday, and you can download a copy by clicking this link:

Download Amicus

I would like to thank all of the fine folks at Jenner & Block with whom I worked on preparing the brief, such as Marc Goldman, Elaine Goldenberg, Carrie Apfel, Sarah Maguire. I would also like to thank all of the Evidence professor who agreed to sign on to the brief.

-CM

Noisy Withdrawal: Third Circuit Finds That Involuntarily Withdrawn Guilty Plea Is Not Covered By Rule 410

On Friday, I posted an entry about the Eighth Circuit enforcing a clause in a plea agreement against a criminal defendant despite the fact that no court would enforce a similar clause in a contract between parties in a civil case. In that entry, I argued that this decision was indefensible, especially in light of the fact that ambiguities in plea agreements are construed against the government. The recent opinion of the Third Circuit in United States v. Jenkins, 2009 WL2518529 (3rd Cir. 2009), is questionable on similar grounds.

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Avoiding A Confrontation: Court Of Appeals Of Texas Deals With Intersection Between Rules Of Evidence And Confrontation Clause In Assault Appeal

In relevant part, Federal Rule of Evidence 608(b) provides 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.

Texas Rule of Evidence 608(b), however, provides that

Specific instances of the conduct of a witness, for the purpose of attacking or supporting the witness' credibility, other than conviction of crime as provided in Rule 609, may not be inquired into on cross-examination of the witness nor proved by extrinsic evidence.

That's not to say, however, that a criminal defendant is automatically precluded from impeaching a witness for the prosecution through inquiry into specific instances of (mis)conduct by the witness as is made clear by the recent opinion of the Court of Appeals of Texas in Aguilar v. State, 2009 WL 2476628 (Tex.App.-Austin 2009).

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Call for Articles and Essays: Recent Developments in New York Law

Call for Articles and Essays: Recent Developments in New York Law

Proposals due October 1, 2009.

The editors of Pace Law Review invite proposals from scholars, researchers, practitioners, and professionals for contributions to our second annual issue addressing recent developments in New York law to be published in Spring 2010.

This issue will explore a wide range of recent developments in the laws of New York State, including but not limited to areas of criminal law, civil litigation, family law, property law, constitutional law, tax law, bankruptcy law, and municipal law. Authors may also discuss proposed changes to New York law, at the state or local level.

Please submit proposals of no more than 500 words by attachment to [email protected] by October 1, 2009. All proposals should include the intended author’s name, title, institutional affiliation, contact information, and should relate to an area of New York State law.  Authors are also welcome, but not required, to submit a CV. We expect to make publication offers by October 8. We encourage clear, concise, and accessible writing that will be of use to lawmakers, attorneys, and students.

Completed manuscripts will be due November 24, 2009.

Not What He Bargained For: Eighth Circuit Enforces Questionable Clause In Plea Agreement After Defendant's Breach

Al and Bob enter into a contract under which Al agrees to paint Bob's house for $500. Al breaches the contract by not painting Bob's house. Bob thereafter sues Al for breach of contract. Finding that Al breached, the judge orders Al to paint Bob's house and finds that Bob does not have to pay him a cent in exchange. The reason? The contract contained a clause stating that, in the event of a breach, Bob would be released from his obligations, but Al would "remain bound by the terms of the agreement." 

I think that we can all agree that this would never happen. The judge might award Bob damages and could possibly award specific performance of the contract, but not without compensation to Al. And yet, in its recent opinion in United States v. Sisco, 2009 WL 2477235 (8th Cir. 2009), the Eighth Circuit enforced just such a clause in a plea agreement against a criminal defendant, a result which was far from anomalous. I would also argue that the opinion was far from convincing.

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The "Phantom" Blue Corvette And New Jersey's Hearsay Exception For Trustworthy Statements By Deceased Declarants

New Jersey Rule of Evidence 804(b)(6) provides an exception to the rule against hearsay for 

Trustworthy statements by deceased declarants. In a civil proceeding, a statement made by a person unavailable as a witness because of death if the statement was made in good faith upon declarant's personal knowledge in circumstances indicating that it is trustworthy.

This is an odd exception; indeed, as far as I know, there is no state that has a similar hearsay exception in its rules of evidence. In a sense, it is the complement to a Dead Man's Statute, which precludes an interested party from testifying about any communication, transaction, or promise made to him by a now deceased or incapacitated person when the testimony would go against the decedent's estate. And the recent opinion of the Superior Court of New Jersey, Appellate Division in Estate of Nick Hanges v. Metropolitan Property & Casualty Insurance Company, 2009 WL2496810 (N.J.Super.A.D. 2009), provides a nice illustration of how the exception works.

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Welcome To The Blogosphere, Snitching Blog

Professor Alexandra Natapoff at Loyola Law School Los Angeles has started Snitching Blog, which she explains as follows:

snitching = when police or prosecutors offer lenience to criminal suspects in exchange for information or cooperation

Snitching Blog is devoted to a part of our criminal system that most people know little or nothing about: criminal informants, or "snitches." At any given moment, thousands of informants are in the system trying to work off their own criminal liability by giving information to the government. These informants may be in court, in prison, on the street, or in the workplace. Police and prosecutors often rely heavily on information obtained from snitches. This is especially true in drug enforcement, but also for investigations of white collar crime, organized crime, and terrorism. In fact, it is impossible to fully understand the U.S. legal system without understanding snitching. Nevertheless, snitching remains shrouded in secrecy and confusion.

This blog does a number of things:

• How it all works. Snitching Blog discusses how snitching works, how it shapes the legal system, and how it affects the lives of ordinary people. Snitching Blog offers news analysis, legal commentary, cultural insights, and more. If you want the complete story, you can read my book, SNITCHING: CRIMINAL INFORMANTS AND THE EROSION OF AMERICAN JUSTICE (NYU Press, 2009). 
• Resources. Snitching Blog provides resources for individuals, lawyers, organizations, law enforcement, legislators, and others who want information about the law and public policies associated with snitching. There are links to government documents, reports, and sample court filings that may be educational or useful. Snitching Blog does not provide legal advice.
  
• Current events. Snitching Blog shares informant-related stories, new legal developments, and other current events. If you know of a news story that might be of interest to other readers, please pass it on. 
• Share your stories. Snitching Blog is the first public forum for people who have encountered snitching first-hand and who want to share their experiences. Many people have had their lives touched, sometimes ruined, by criminal informants or the practices associated with snitching. Many law enforcement professionals have important insights about how the practice works or could be improved. But because snitching is so secretive and "off the books," there is typically no way to share these experiences and insights with others. This blog provides that opportunity through the "Testimonials" section, in which individuals can submit brief descriptions of their experiences for others to read.
  

I hope you find this site interesting and useful. I look forward to your comments.

It is hard to imagine a person better suited to write a blog on this subject area. If you check out her faculty page at Loyola and a related page, you can see the great variety of work she has done on snitching, ranging from amicus curiae briefs to testimony to articles to books. Professor Natapoff already has a number of interesting posts on her blog covering topics such as informants killing informants and committing crimes while working for the government, and I am sure that many more will follow.

-CM

2009 Legal Educator Blog Census, Version 1.0 (Schools N-Z)

This post lists the blogs containing posts by legal educators at schools starting with the letter N-Z. The previous post listed the blogs containing posts by legal educators at schools starting with the letter A-M . For those preferring a PDF of the Census with hyperlinks, you can download a copy from SSRN by clicking here. 

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2009 Legal Educator Blog Census, Version 1.0 (Schools A-M)

A Bill for taking a census has passed the House of Representatives, and is within the Senate. It contained a schedule for ascertaining the component classes of the Society, a kind of information extremely requisite to the Legislator, and much wanted for the science of Political Economy. A repetition of it every ten years would hereafter afford a most curious and instructive assemblage of facts. It was thrown out by the Senate as a waste of trouble and supplying materials for idle people to make a book. Judge by this little experiment of the reception likely to be given to so great an idea as that explained in your letter of September.  

-Letter from James Madison to Thomas Jefferson, February 14, 1970

Of course, Madison's projection was incorrect as Article I, Section 2 of the Constitution eventually provided that "[t]he actual Enumeration [of the population] shall be made within three years after the first meeting of the Congress of the United States, and within every subsequent term of ten years, in such manner as they shall by law direct." Part of the reason that the framers made a decennial census a Constitutional requirement was that "[t]he census serves a vital statistical database that tells us who we are and where we are going as a nation."  

The purpose of this legal educator blog census is similar: telling us which legal educators are blogging and where the blogosphere is headed. Beginning in 2005, Daniel Solove and company began publishing a Law Professor Blogger Census. As an aspiring law professor at the time, I found that census to be an extremely useful tool for putting my finger on the pulse of legal academia. The last Law Professor Blogger Census was posted in August 2007, just as I entered the academy. When I asked Professor Solove earlier this year about whether he had any plans on preparing a new version, he informed me that he had no current plans and that I had his permission to prepare an update.

What follows is the first draft of what I am calling the Legal Educator Blogger Census because I have decided to list anyone who might be involved in the education of students at law schools in the United States: full time professors, adjunct professors, deans, legal writing instructors, law librarians, etc. I used the same methodology as Professor Solove in preparing my census: Anyone who posted at least one entry on a blog during a three month period (January 1, 2009-March 30, 2009) qualified for inclusion (except for guest bloggers). Of course, I am sure that I have failed to identify several bloggers, so anyone with knowledge of an omission, please let me know, and I will include the blogger in version 2.0, which will also include some statistics such as number of blogs per law school, number of blogs per tier of law school, number of blogs by gender of blogger, etc. 

I also realize that in the rapidly changing world of the blogosphere, this census is already somewhat out of date. For instance, my Census attributes CrimProf Blog to Mark Godsey, who was running it earlier this year, rather than the folks at the University of San Diego School of Law, who relaunched it a few days ago. These changes will not be included in Version 2.0 but will be in the 2010 Legal Educator Blog Census. 

I hope that this Census, which I plan on updating annually, will serve at least three purposes: (1) giving those presently interested in the law a central location to be able to locate every legal educator blog; (2) tracking the changes in the number and type of legal educator blogs/bloggers per year; and (3) giving those interested in the law in the future an ability to track down legal educator blogs that might otherwise have disappeared without a trace.

I would like to thank my wife Zoe for her invaluable assistance in the preparation of this census.

This post lists the blogs containing posts by legal educators at schools starting with the letter A-M. The next post lists the blogs containing posts by legal educators at schools starting with the letter N-Z. For those preferring a PDF of the Census with hyperlinks, you can download a copy from SSRN by clicking here. 

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My New Article: Stranger Than Dictum: Why Arizona v. Gant Compels the Conclusion that Suspicionless Buie Searches Incident to Lawful Arrests are Unconstitutional

Two days after the Supreme Court's opinion in Arizona v. Gant back in April, I wrote a post contending that the opinion could be read as invalidating the suspicionless search incident to a lawful (home) arrest authorized by the Court in Buie v. Maryland. As I started investigating the issue some more, I realized that the issue was important and complex enough for it to become my summer project. The result is my new article, Stranger Than Dictum: Why Arizona v. Gant Compels the Conclusion that Suspicionless Buie Searches Incident to Lawful Arrests are Unconstitutional. Here is the abstract:

In its 1990 opinion in Maryland v. Buie, the Supreme Court held that as an incident to a lawful (home) arrest, officers can “as a precautionary matter and without probable cause or reasonable suspicion, look in closets and other spaces immediately adjoining the place of arrest from which an attack could be immediately launched.” While this holding was actually dictum, thereafter courts categorically concluded that Buie authorizes suspicionless searches of sufficiently large spaces not only in arrest rooms, but also in rooms immediately abutting arrest rooms and connected to arrest rooms by hallways.

Buie was one of three Supreme Court opinions expansively reading the scope of searches incident to lawful arrests after it circumscribed their scope in 1969 in Chimel v. California. The other two opinions were Belton v. New York and Thornton v. United States, and, in its 2009 opinion in Arizona v. Gant, the Court expressly overruled Belton and rebuked Thornton as an application of Chimel, which it reaffirmed as continuing to define the boundaries of searches incident to lawful arrests. This article argues that, even without Gant, courts should have realized that they had grossly misconstrued the scope of suspicionless Buie searches, and that now, defendants and appellants should be able to raise Arizona v. Gant to argue that the reaffirmation of Chimel and the destruction of the Belton fiction together invalidate the suspcionless Buie search.   

The article can be downloaded from SSRN by clicking this link.

-CM

Welcome The Blogosphere (Relaunched) CrimProf Blog

Today marks relaunch of CrimProf Blog. The blog, which used to be run by Mark Godsey of the University of Cincinnati College of Law, is now being run by Kevin Cole, Dean and Professor of Law at the University of San Diego School of Law, the author of articles such as Killings During Crime: Toward a Discriminating Theory of Strict Liability, 28 Am. Crim. L. Rev. 73 (1990), and The Empty Idea of Sentencing Disparity, 91 NW. U. L. Rev. 1336 (1997).

Several University of San Diego School of Law professors are listed as contributing editors:

Lawrence A. Alexander (The Philosophy of Criminal Law, Criminal Liability for Omissions: An Inventory of Issues)

Donald A. Dripps (Sixth-Amendment Originalism's Collision Course with the Right to Counsel: What's Titanic, What's Iceberg?, The 'New' Exclusionary Rule Debate: From 'Still Preoccupied with 1985' to 'Virtual Deterrence)

Yale Kamisar (Dickerson v. United States: The Case that Disappointed Miranda's Critics - And then its Supporters, On the Fortieth Anniversary of Miranda: Why We Needed It, How We Got It - and What Happened To It)

Adam J. Kolber (The Subjective Experience of Punishment, The Comparative Nature of Pubishment)

Jean Ramirez 

With such a great lineup of contributors, I am sure that the blog will have many illuminating posts on issues related to criminal law and criminal procedure. In his introductory post, Dean Cole writes,

In  my time at the University of San Diego School of Law, I’ve had the privilege of working with highly talented colleagues across a broad range of subject matters. In my own areas of special interest--criminal law and procedure--I have been especially fortunate, and I am delighted that my current CrimProf colleagues have joined me in assuming the editorship of the CrimProf blog. We hope to continue the success of the previous editors in making this blog a valuable resource for teachers and others in these fields.

In another post, Dean Cole reviews a forthcoming criminal law article and writes,

CrimProf hopes to provide for criminal law and procedure types the same convenient method for keeping up with recent SSRN posts that my former San Diego colleague, Larry Solum, provides for the general legal theory crowd on his Legal Theory Blog. I cannot hope to read every manuscript about which there might be sufficient interest to justify posting an abstract, but when I do have something more to say than "Here is the abstract," I will signal that fact by designating the manuscript as a "featured download." Of course, this designation should be taken more as an indication of my own personal interests than as an opinion about how the manuscript stacks up against all those that I haven't read.

-CM

Another Habit Like An Unwanted Friend: Court Of Appeals Of Kentucky Affirms Trial Court's Habit Ruling

Like its federal counterpart, Kentucky Rule of Evidence 406 provides that

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

Examples of admissible evidence under this Rule 

include going down a particular stairway two stairs at a time, giving the hand signal for a left turn, alighting from railway cars while they are still moving,...reacting with extreme violence to any contact with a uniformed police officer,...and placing a gun in your belt every morning. United States v. Morris, 2008 WL 382859 at **4.

The type of habit evidence found admissible by the Court of Appeals of Kentucky in its recent opinion in Gaines v. Commonwealth, 2009 WL 2475299 (Ky.App. 2009), was most similar to this last example.

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Great Wall Of Hearsay: New Jersey Appellate Court Finds Recorded Recollection Was Improperly Introduced As An Exhibit

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

A statement concerning a matter about which the witness is unable to testify fully and accurately because of insufficient present recollection if the statement is contained in a writing or other record which (A) was made at a time when the fact recorded actually occurred or was fresh in the memory of the witness, and (B) was made by the witness himself or under the witness' direction or by some other person for the purpose of recording the statement at the time it was made, and (C) the statement concerns a matter of which the witness had knowledge when it was made, unless the circumstances indicate that the statement is not trustworthy; provided that when the witness does not remember part or all of the contents of a writing, the portion the witness does not remember may be read into evidence but shall not be introduced as an exhibit over objection.

A key but often forgotten part of this hearsay exception is the last part as was the case in the recent opinion of the Superior Court of New Jersey, Appellate Division, in Business Computer Resources, Inc. v. Great Wall of Tinton Road, Inc., 2009 2426344 (N.J.Super.A.D. 2009).

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