EvidenceProf Blog

Analog Rules In A Digital Age: Nigeria Seeks To Amend Its Evidence Act To Allow Admissibility Of Electronic Evidence

Here in the United States, there have been several major amendments to the Federal Rules of Evidence since they were became effective in 1975. Conversely, since its enactment 64 years ago, Nigeria's Evidence Act has only been subject to three minor amendments. The Nigerian government recently realized that, without more significant amendments, some of its evidentiary rules have become analog rules in a digital age. That might be about to change.

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Submission Guide for Online Law Review Supplements, Version 2.0 (9/30/2009), Now Available On SSRN

Back in May, I posted my initial Submission Guide for Online Law Review Supplements. At the time, I promised to update the guide annually and as law reviews create new online supplements. Since then, I have learned of two other supplements:  Maryland Law Review Endnotes and Texas Tech Law Review Addendum. Also, a few online supplements have changed their sites and/or the types of pieces they accept. The former Yale Law Journal Pocket Part is now Yale Law Journal Online, and it has expanded the list of submissions its accepts. Michigan's First Impressions has changed its website and now accepts original essays in addition to symposium pieces. Finally, Connecticut's CONNtemplations has changed its website.

All of these additions and changes are recorded in Submission Guide for Online Law Review Supplements, version 2.0 (9/30/2009), which you can download for free from SSRN. Finally, I wanted to alert readers that the Denver University Law Review just launched an online supplement, DU Process, but it is still in the trial phase, with details to be sorted out. When they are, I will add that information to the guide.

-CM 

Baked Alaska: Supreme Court Of Alaska Opinion Shows Oddness In Expert Witness Contention

Like its federal counterpart, Alaska Rule of Evidence 702(a) provides that

If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise. 

Meanwhile, Section Section 1912(f) of the Indian Child Welfare Act provides that 

No termination of parental rights may be ordered in such proceeding in the absence of a determination, supported by evidence beyond a reasonable doubt, including testimony of qualified expert witnesses, that the continued custody of the child by the parent or Indian custodian is likely to result in serious emotional or physical damage to the child.  

The Supreme Court of Alaska recently found that "ICWA § 1912(f) heightens the requirements for an expert's qualifications beyond those normally required to qualify an expert." You wouldn't know it, however, based upon that court's recent opinion in Sandy B. v. State, Dept. of Health & Social Services, Office of Children's Services, 2009 WL 3049721 (Alaska 2009).

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I Need A Remedy: Court Of Appeals Of Wisconsin Finds Subsequent Remedial Measure Rule Inapplicable In Criminal Cases

Like (but not exactly like) its federal counterpart, Wisconsin Stat. Section 904.07 provides that

When, after 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 in connection with the event. This section does not require the exclusion of evidence of subsequent measures when offered for another purpose, such as proving ownership, control, or feasibility of precautionary measures, if controverted, or impeachment....

In its recent opinion in State v. Conley, 2009 WL 3018121 (Wis.App. 2009), the Court of Appeals of Wisconsin had to answer the following question: Does this rule apply in criminal cases? It answered the question in the negative. I disagree.

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Still Haven't Found What I'm Looking For: Court Of Appeals Of Texas Finds Prosecution Made Reasonable Attempt To Locate Witness In Murder Retrial For Former Testimony Purposes

Like its federal counterpart, Texas Rule of Evidence 804(b)(1) provides an exception to the rule against hearsay for 

testimony given as a witness at another hearing of the same or a different proceeding, or in a deposition taken in the course of another proceeding, if the party against whom the testimony is now offered, or a person with a similar interest, had an opportunity and similar motive to develop the testimony by direct, cross, or redirect examination.

And, like its federal counterpart, Texas Rule of Evidence 804(b)(1) only applies when the proponent can prove declarant unavailability under Rule 804(a), which includes situations in which the declarant 

is absent from the hearing and the proponent of the declarant's statement has been unable to procure the declarant's attendance or testimony by process or other reasonable means.

But what constitutes reasonable means? That was the question presented to the Court of Appeals of Texas, Houston, in Reed v. State, 2009 WL 3050825 (Tex.App.-Houston [1 Dist.] 2009).

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The Devil Is In The Dictum: Second Circuit Makes Troubling Statements In Dictum In Rape Shield Ruling

A female employee allegedly flashes her breasts to co-workers at the workplace. That female employee later brings a sexual harassment action against her superior, claiming that he touched her thighs and breasts, offered her job security in return for sex, and showed up uninvited at her residence. The superior, who was not present during the alleged breast flashing, seeks to present evidence of this flashing in his defense. How should the court rule? Clearly, the answer should be to deem the evidence inadmissible. And indeed, that is what the United States District Court for the Southern District of New York held in hearing a case with these facts: Basile v. Spagnola. Moreover, the Second Circuit recently affirmed that decision in its recent opinion in Basile v. Spagnola, 2009 WL3015489 (2nd Cir. 2009). So, what's the problem? Well, in this case, the devil is in the dictum.

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Like A Good Witness: Supreme Court Of South Carolina Applies "Substantial Connection" Test To Evidence Of Insurance Offered To Prove Bias

Like its federal counterpart, South Carolina Rule of Evidence 411 provides that

Evidence that a person was or was not insured against liability is not admissible upon the issue whether the person acted negligently or otherwise wrongfully. This rule does not require the exclusion of evidence of insurance against liability when offered for another purpose, such as proof of agency, ownership, or control, or bias or prejudice of a witness.

That's not to say, though, that evidence of liability insurance is automatically admissible to prove bias as it must still pass the Rule 403 balancing test. And the recent opinion of the Supreme Court of South Carolina in Todd v. Joyner, 2009 WL 2988904 (S.C. 2009), reveals the test that South Carolina courts use to make that determination.

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Better Evidence Or Best Evidence?: Second Circuit Affirms Bank Fraud Convictions Despite Best Evidence Rule

Federal Rule of Evidence 1002, the Best Evidence Rule, states that

To prove the content of a writing, recording, or photograph, the original writing, recording, or photograph is required, except as otherwise provided in these rules or by Act of Congress.

And it was the "except as otherwise" portion of the rule that got the appellant in United States v. Whittingham, 2009 WL 3004345 (2nd Cir. 2009). 

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The Case-In-Chief Waiver: Fifth Circuit Becomes Third Federal Appellate Court To Read Mezzanatto In Broadest Sense

In relevant part, Federal Rule of Evidence 410 provides that

Except as otherwise provided in this rule, evidence of the following is not, in any civil or criminal proceeding, admissible against the defendant who made the plea or was a participant in the plea discussions:....

(4) any statement made in the course of plea discussions with an attorney for the prosecuting authority which do not result in a plea of guilty or which result in a plea of guilty later withdrawn.

In United States v. Mezzanatto, 513 U.S. 196 (1995), the Supreme Court held that a criminal defendant can waive Rule 410 protection and make his otherwise excludable plea statements admissible to impeach him should he make contradictory statements at trial. The Court left open the question of whether a criminal defendant could waive Rule 410 and make his otherwise excludable plea statements admissible as substantive evidence. Thereafter, a handful of federal appellate courts found that a defendant could make such a waiver by presenting evidence at trial contradicting his otherwise excludable plea statements, which would allow the prosecution to use his statements substantively to rebut the evidence elicited, i.e., the "rebuttal waiver."

Until a few days ago, however, only two federal appelate courts had found that a criminal defendant could waive Rule 410 and make his otherwise excludable plea statements admissible as substantive evidence  even when he did not present evidence at trial contradicting his otherwise excludable plea statements. But after the opinion of the Fifth Circuit in United States v. Sylvester, that number has risen to three.

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If You Catch My Drift: Innocence Project Of Texas Publishes: Dog Scent Lineups A Junk Science Injustice

I have written a couple of previous posts (here and here) about the tests that courts have used to determine whether evidence of tracking by a dog is admissible. Now, The Innocence Project of Texas has weighed in on a somewhat related issue by publishing a special report, Dog Scent Lineups A Junk Science Injustice.

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The Guy Is So Dangerous: Supreme Court Of Virginia Finds Virginia Courts Did Not Err In Future Dangerousness Rulings In Death Penalty Appeal

A man is convicted of murder. During the capital sentencing hearing, the prosecution presents evidence regarding the man's future dangerousness, i.e., evidence that the man would present a future danger if not given the death penalty. This danger, however, would be limited to the danger presented to prison guards and other inmates because the jury's only sentencing options are the death penalty and life imprisonment without the possibility of parole. The man wants to drive this point home to the jury by having the court appoint him an expert to, inter alia, testify that his opportunities for serious violence toward others would be greatly reduced based upon the conditions of his confinement. The court denies his motion. Has the court acted properly?

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The Unspecified Prior Conviction: Court Of Appeals Of Minnesota Precludes Sanitized Impeachment In Order Of Protection Violation Appeal

Like its federal counterpart, Minnesota Rule of Evidence 609(a)(1) provides that

For the purpose of attacking the credibility of a witness, evidence that the witness has been convicted of a crime shall be admitted only if the crime (1) was punishable by death or imprisonment in excess of one year under the law under which the witness was convicted, and the court determines that the probative value of admitting this evidence outweighs its prejudicial effect.

When the prosecution seeks to impeach a criminal defendant through a prior conviction, the court considers five factors, such as how much bearing the crime leading to the prior conviction has on the defendant's honesty and the similarity between the crime leading to the prior conviction and the crime charged. Previously, when courts used to find that a specific conviction would not be admissible to impeach a defendant because its admission would be too prejudicial, they usually still allowed for the defendant (or another witness) to be impeached through evidence that he had some unspecified prior conviction. As the recent opinion of the Court of Appeals of Minnesota in State v. Utter, 2009 WL 2926510 (Minn.App. 2009), makes clear, however, the modern trend is away from this practice.

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I Need A Remedy: SDNY Finds That Change In Employment Practice Constitutes Subsequent Remedial Measure

Federal Rule of Evidence 407 provides that

When, after an injury or harm allegedly caused by an event, measures are taken that, if taken previously, would have made the injury or harm less likely to occur, evidence of the subsequent measures is not admissible to prove negligence, culpable conduct, 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 when offered for another purpose, such as proving ownership, control, or feasibility of precautionary measures, if controverted, or impeachment.

Usually, this rule applies when an instrumentality causes an injury and the defendant subsequently makes the instrumentality safer. For instance, if a patron falls on the front steps at a restaurant, evidence that the restaurant subsequent changed the lighting or added a handrail to the steps would be inadmissible under the rule. And if a child chokes on a toy, evidence that the manufacturer subsequently made the toy bigger would be inadmissible under the rule. As the recent opinion of the United States District Court for the Southern District of New York in Hamilton v. City of New York, 2009 WL 2973007 (S.D.N.Y. 2009), makes clear, however, the rule also applies to changes to allegedly discriminatory hiring practices.

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Lie To Me: Colorado Supreme Court Denies Cert in Rule 703/Polygraph Case

Recently, in People ex rel. M.M., Jr. v. M.M., 2009 WL 2917036 (Colo. 2009), the Colrado Supreme Court denied a petition for writ of certiorari from People ex rel. M.M., Jr., 2009 WL 1012910(Colo.App. 2009), but a dissenting justice would have granted cert on, inter alia, the following issue:

Whether the court of appeals incorrectly applied Colorado Rule of Evidence 703 in holding that expert testimony about opinions based in part upon the results of polygraph examinations should not be admitted.

This seemed interestingto me, so I went back to the opinion of the Colorado Court of Appeals, Division III, and I'm think that I disagree with the Court of Appeals' reasoning.

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Finding Consistency: Arizona Case Provides Good Example Of Prior Consistent Statement Rule

Like its federal counterpart, Arizona Rule of Evidence 801(d)(1)(B) indicates 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.

And the recent opinion of the Arizona Court of Appeals, Division 2 in State v. Georgatos, 2009 WL 2883059 (Ariz.App. Div. 2 2009), provides a good example of when the rule applies.

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My New Essay: Crossing Over: Why Attorneys (And Judges) Should Not Be Able To Cross-Examine Witnesses Regarding Their Immigration Statuses For Impeachment Purposes

Last December, I posted an entry about the Eighth Circuit finding that a district judge did not commit plain error by extensively interrogating defense witnesses about their immigrations statuses. In January, I followed up on that post with an entry about the United States District Court for the Southern District of New York similarly finding that a civil plaintiff could be cross-examined regarding his immigration status. At the time, I noted that I thought that the judges had reached the wrong conclusions. I decided to follow up that posts with an essay, which became Crossing Over: Why Attorneys (and Judges) Should Not Be Able to Cross-Examine Witnesses Regarding Their Immigration Statuses for Impeachment Purposes. The final version of the essay will be published in the Northwestern University Law Review Colloquy in November, and you can download my initial draft now on SSRN. Here is the abstract for the essay:

In two recent opinions, courts authorized the impeachment of witnesses through cross-examination regarding their immigration statuses. They allowed such impeachment pursuant to Federal Rule of Evidence 608(b), which only permits specific act impeachment if based upon acts that are directly probative of (un)truthfulness. This essay argues that immigration status is an improper subject for impeachment because it is most akin to trespassing, which is not an impeachable offense under Rule 608, and fundamentally dissimilar from the acts related to crimen falsi, which are generally the only impeachable offenses under the Rule.

Moreover, even if immigration status were an impeachable offense under Rule 608, courts should foreclose immigration interrogation for impeachment purposes because of its capacity to divide and prejudice jurors and discourage illegal aliens from bringing legitimate lawsuits for fear of being deported. Finally, if an attorney seeks to impeach a witness based upon his alleged commission of some crime, such as fraudulently obtaining documentation, and not simply based upon his immigration status, that witness should be able to invoke his Fifth Amendment privilege against self-incrimination.  

-CM 

Rape Shield Redux: Supreme Court Of Nevada Finds Rule 26 Applies Where Rape Shield Law Doesn't

Unlike its federal counterpart, NRS 50.090 -- Nevada's rape shield law -- only applies in criminal cases. Does that mean, however, that judges in civil cases are precluded from precluding discovery regarding a civil plaintiff's sexual history? According to the recent opinion of the Supreme Court of Nevada in Sonia F. v. Eighth Judicial Dist. Court, 2009 WL 2900770 (Nev. 2009), the answer is "no."

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Requiem For Residuum: Court Of Appeals Of Utah Finds Ruling Against Nurse Didn't Violate Residuum Rule

It is well established that rules of evidence do not apply at administrative proceedings. That is not to say, however, that such rules are irrelevant at such proceedings. For instance, hearsay is admissible at administrative proceedings, but under the residuum rule, factual findings at such a hearing cannot be exclusively based on inadmissible hearsay, as was made clear by the recent opinion of the Court of Appeals of Utah in Benitez v. Department of Health, Div. of Health Care Financing, 2009 WL 2902518 (Utah.App. 2009).

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Welcome To The Blogosphere, (Relaunched) Civil Procedure & Federal Courts Blog

Last Wednesday marked the relaunch of the renamed Civil Procedure & Federal Courts Blog. The blog, which used to be run by W. Jeremy Counseller and Rory Ryan of Baylor, is now being run by

-Robin Effron (Event Jurisdiction and Protective Coordination: Lessons from the September 11th Litigation, Disaster-Specific Mechanisms for Consolidation) of Brooklyn;

-Cynthia L. Fountaine (Have License, Will Travel:  An Analysis of the New ABA Multijurisdictional Practice Rules, 81 WASHINGTON UNIVERSITY LAW QUARTERLY 737 (2003), Article III and the Adequate and Independent State Grounds Doctrine, 48 AMERICAN UNIVERSITY LAW REVIEW 1053 (1999)) of Texas Wesleyan; and

-Adam Steinman (The Irrepressible Myth of Celotex: Reconsidering Summary Judgment Burdens Twenty Years after the Trilogy, What is the Erie Doctrine? (And What Does it Mean for the Contemporary Politics of Judicial Federalism?)) of Cincinnati.

In the first post on the relaunched blog, the authors state:

Hello, and welcome to the renovated Civil Procedure & Federal Courts Blog on the Law Professor Blogs Network. There have been a number of changes recently, the most large-fonted of which is the addition of "& Federal Courts" to our name. This expansion recognizes the often blurry line between civil procedure issues and federal courts/federal jurisdiction issues, for both academics and practitioners. But the new name does not mean we'll be covering only federal civil procedure. We're interested in civil procedure in all its forms--state, federal, foreign, transnational.

We hope you find the Civil Procedure & Federal Courts Blog to be a valuable resource. And if readers come across bloggable developments that we've missed, please feel free to let any (or all) of us know; our contact info appears at the left. Folks who are interested in guest blogging are also encouraged to contact us.

Enjoy!  

I'm sure that we can expect a number of terrifics posts from these knowledgeable folks that will be helpful to litigants, judges, students, and professors like me who teach civil procedure. Indeed, there are already interesting posts on the blog concerning recent Ninth Circuit preemption opinions, Iqbal, and military commission trials.

-CM

The Sleeping Juror: Eastern District Of California Denies Habeas Relief To Petitioner Despite Non-Juror Evidence Of Sleeping Juror

In Tanner v. United States, 483 U.S. 107 (1987), the Supreme Court held that post-trial juror testimony that, during trial, jurors were falling asleep, drinking alcohol, and using and selling drugs was inadmissible under Federal Rule of Evidence 606(b), which provides in relevant part 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.

According to the Court, this was the case because none of the alleged juror misconduct constituted extraneous prejudicial information or an improper outside influence. The court did note, however, that the Rule only precluded post-trial impeachment of verdict by jurors, not post-trial impeachment of verdicts by non-jurors. And in the recent opinion of the United States District Court for the Eastern District of California in Anderson v. Terhune, 2009 WL 2462398 (E.D. Cal. 2009), the petitioner had non-juror evidence that a juror fell asleep during portions of his trial. And yet, the court somehow found that this evidence was insufficient to award the petitioner relief.

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