EvidenceProf Blog

EvidenceProf Blog's 3rd Annual Halloween Movie Pick: John McNaughton's "Henry: Portrait of a Serial Killer"

It's Halloween again, which means that it's time for EvidenceProf's Blog's third annual Halloween movie pick (after "The Gift" and "Homecoming"). For this year's pick, I'm again digging into the archives from my days reviewing DVDs and pulling out a review. This one is of John McNaughton's "Henry: Portrait of a Serial Killer," a film loosely based upon real life serial killer Henry Lee Lucas, the only man that George W. Bush granted clemency while he was governor.

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Don't Rock The Boat, Take 2: Supreme Court Of Iowa Opinion Reveals That Iowa And Federal Rules On Subsequent Remedial Measures Aren't That Different

Back in March, I posted an entry about the opinion of the Court of Appeals of Iowa in Scott v. Dutton-Lainson Co., 2009 WL 398488 (Iowa App. 2009), and how it revealed the differences between Federal Rule of Evidence 407 and Iowa Rule of Evidence 5.407. Well, in its recent opinion in Scott v. Dutton-Lainson Co., 2009 WL 3415937 (Iowa 2009), the Supreme Court of Iowa reversed the Court of Appeals of Iowa, revealing that the two rules aren't that different.

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The Art Of The Steal: The EvidenceProf Blog Review Of The "White Collar" Pilot

Last Friday, USA aired the pilot of its new series "White Collar." The second episode airs tomorrow at 10/9c. If the pilot is a harbinger of things to come, this might be the rare show that I recommend that law students watch. Here is the EvidenceProf Blog review:  

In the early twentieth century, Upton Sinclair coined the phrase "white collar," and he exposed the New York City white collar criminal in "The Moneychangers," his fictionalized account of the Wall Street panic of 1907. The pilot episode of "White Collar" reveals why it is appropriate, especially in the post-Madoff milieu, that the USA Network show takes its name from the famed muckraker's musings.

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Absence Of Malice: Court Vacates Second Degree Murder Conviction Because Juror Read Dictionary Definitions Of "Malice" To Other Jurors

A man is charged with, among other things, second degree murder, which means that the prosecution needs to prove beyond a reasonable doubt that the man acted with malice in order for the jury to convict him. Legally,

Malice is a necessary element which distinguishes second degree murder from manslaughter. Malice arises when an act which is inherently dangerous to human life is intentionally done so recklessly and wantonly as to manifest a mind utterly without regard for human life and social duty and deliberately bent on mischief.

Of course, the word malice is also used outside the legal context, with its usual definition being "desire to cause pain, injury, or distress to another" or "intent to commit an unlawful act or cause harm without legal justification or excuse." 

So, what would happen in the above case if a juror decides to bring a dictionary into the jury room and reads the dictionary definition of malice, with the defendant eventually being convicted of second degree murder? The answer, according to the recent opinion of the United States District Court for the Eastern Middle District of North Carolina in Bauberger v. Haynes, 2009 WL 3450967 (M.D.N.C. 2009), is that the jury can impeach its verdict, leading to the defendant being awarded a new trial.

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The Love Letter: Colorado Judge To Determine Admissibility Of Love Note From Ex-Boyfriend In Second Degree Murder Trial

A man allegedly shoots and kills his girlfriend and is charged with second-degree murder. In order to establish the man's motive for the shooting, the prosecution seeks to introduce a love note allegedly written to the girlfriend by an ex-boyfriend. Should the court admit the note, or should it exclude it as inadmissible hearsay? That's the question that a judge in Colorado is about to answer.

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Hook Me Up: Court Of Appeals Of Indiana Addresses Admissibility Of Polygraph-Related Statements

There's an odd dichotomy under the Federal Rules of Evidence and state counterparts. Evidence of polygraph test results are per se inadmissible (except in New Mexico) unless both sides stipulate to their admission before the test is taken. Conversely, according to some courts, in some circumstances, a defendant can introduce evidence that he volunteered to take a polygraph test to prove his innocent state of mind. As the recent opinion of the Court of Appeals of Indiana in Nugent v. State, 2009 WL 3415318 (Ind.App. 2009), noted, however this opens the door for the prosecution to present evidence calling into question just how willing the defendant was to take the test.

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We The Jury: Eastern District Of Louisiana Finds Rule 606(b) Precludes Jury Impeachment On Issue Of Whether Unanimous Verdict Was Reached

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.

In Imperial Trading Co., Inc. v. Travelers Property Cas. Co. of America, 2009 WL 2922307 (E.D. La. 2009), the plaintiffs claimed that evidence that the jury failed to reach a unanimous verdict fell under the exception contained in subsection (3). They were wrong.

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Deflating The Conspiracy Theory: Article Wrongfully Claims That Mother's Admission Will Qualify As Co-Conspirator Admission In Potential "Balloon Boy" Trial

Like its federal counterpart, New Mexico Rule of Evidence 11-801(D)(2)(e) defines as nonhearsay "a statement by a co-conspirator of a party during the course and in furtherance of the conspiracy." An article in the Examiner yesterday notes regarding the "balloon boy" brouhaha that 

Mayumi Heene told Larimer County investigators that she and her husband, Richard Heene, knew that their 6-year-old son, Falcon, was hiding at their Fort Collins home the entire time, even as police and military scrambled to search for the boy.

The article then concludes that Mayumi's statement to investigators would be admissible in a trial against Richard as a co-conspirator admission. But if you look at the above language from New Mexico Rule of Evidence 11-801(D)(2)(e), I think that you can see why this conclusion is wrong.

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As I Lay Dying: Court Of Criminal Appeals Of Texas Artfully Explains Dying Declaration Exception

Like its federal counterpart, Texas Rule of Evidence 804(b)(2) provides an exception to the rule against hearsay for 

A statement made by a declarant while believing that the declarant's death was imminent, concerning the cause or circumstances of what the declarant believed to be impending death. 

(An important distinction between the two rules is that the federal rule only applies in civil cases and criminal homicide cases, whereas it appears that the Texas rule applies in any case). In describing this rule to students, I always say that courts admit these statements under the theory that a person doesn't want to die with a lie on his lips, supplying the necessary reliability (and then I explain how people who have been shot or stabbed are often in a hypoxic or anoxic state, meaning that modern science gives us reasons to doubt the reliability of such statements). 

In its recent opinion in Gardner v. State, 2009 WL 3365652 (Tex.Crim.App. 2009), the Court of Criminal Appeals of Texas explained the dying declaration in an especially artful and clear way, and I think that I will use its two part explanation in teaching the rule to students in future classes,

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You've Got Mail: Eastern District Of Pennsylvania Finds Plaintiff's E-Mails Admissible In Sexual Harassment Case Despite Rape Shield Rule

A woman sues her employer, claiming, inter alia, sexual harassment based on an arguably hostile work environment. Specifically, she claims that her superior stared at her breasts on two separate occasions and made the following comment to her, with regard to a dessert, in front of her colleagues, including her superiors, at a work-sponsored dinner: "I heard it's really good if you go down deep, into the chocolate, with your berry." Should the employer be able to present evidence of e-mails sent by the plaintiff to a non-work friend from her work account, which, according to the court itself, contained sexual "jokes and stories about generic topics, made-up characters or representative figures (e.g. Santa Claus)"?

According to the recent opinion of the United States District Court for the Eastern District of Pennsylvania in Seybert v. International Group, Inc., 2009 WL 3297304 (E.D.Pa. 2009), the answer is "yes." I strongly disagree.

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Against Interest: Article Discusses Proposed Change To Statement Against Interest Hearsay Exception

Federal Rule of Evidence 804(b)(3) currently 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. A statement tending to expose the declarant to criminal liability and offered to exculpate the accused is not admissible unless corroborating circumstances clearly indicate the trustworthiness of the statement.

As far as I know, the Rule is unique among the Federal Rules of Evidence as the only Rule that makes it more difficult for a criminal defendant to introduce evidence than it is for the prosecution to admit evidence (Compare my earlier post about how almost all of the Federal Rules of Evidence make it at least as difficult to admit evidence against a criminal defendant as it is to admit evidence against a civil defendant). Presently, criminal defendants trying to present statements against interest to exculpate themselves must present evidence of corroborating circumstances, but prosecutors trying to present statements against interest to incriminate criminal defendants need not provide such evidence. It appears, though, that this disparity is about to change.

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Forfeit Victory, Take 11: California Appellate Court Finds Forfeiture By Wrongdoing Doctrine Applies To Attempts To Prevent Victims From Reporting Abuse

Last year, I did a series of posts on the Supreme Court's opinion in Giles v. California, which construed the scope of the forfeiture by wrongdoing doctrine. Under that doctrine, there is an exception to the rule against hearsay (and the Confrontation Clause) for

A statement offered against a party that has engaged or acquiesced in wrongdoing that was intended to, and did, procure the unavailability of the declarant as a witness.

In Giles, the Court held that application of the forfeiture by wrongdoing doctrine requires a specific intent on the part of a criminal defendant to render a witness unavailable for trial (e.g., the witness tampering situation), meaning that the doctrine does not apply in a case where, for instance, a man allegedly murders a woman and then stands trial for her murder. But what if a man murders a woman (at least in part) to prevent her from reporting domestic violence and/or to prevent her from testifying against him at his trial for domestic violence? Can the man raise a hearsay/Confrontation Clause objection to the admission of the woman's prior statements at his trial for murdering the woman? Well, that's an interesting question and one which I previously answered incorrectly, if dicta from the recent opinion of the California Court of Appeal, Second District, in People v. Banos, 2009 WL 3337673 (Cal.App. 2 Dist. 2009), is accurate.

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Beast Of Burden: Court Of Appeals Of Michigan Seemingly Misapplies Rule 609(c) In Admitting Defendant's Prior Conviction For Impeachment Purposes

Michigan Rule of Evidence 609(c) provides that 

Evidence of a conviction under this rule is not admissible if a period of more than ten years has elapsed since the date of the conviction or of the release of the witness from the confinement imposed for that conviction, whichever is the later date.

Meanwhile, other portions of Michigan Rule of Evidence 609 allow for the admission of evidence of certain prior convictions that are no more than ten years old. So, what should happen in the following case? A defendant is on trial in 2006 and has a previous conviction from 1992 for armed robbery. Neither the prosecution nor the defendant presents any evidence regarding the date of the defendant's release from confinement imposed for that conviction. Under Michigan Rule of Evidence 609(c), should the conviction be inadmissible because the prosecution failed to prove that the conviction was no more than ten years old, or should the conviction be potentially admissible because the defendant failed to prove that the conviction was more than ten years old? In its recent opinion in People v. Watts, 2009 WL 3321511 (Mich.App. 2009), the Court of Appeals of Michigan chose the latter option. I disagree.

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Pregnant Pause: District Of Idaho Finds Declarant Unavailable Based Upon Late Stage Pregnancy

In 2004, the Supreme Court found in Crawford v. Washington, 541 U.S. 36 (2004), that the Confrontation Clause of the U.S. Constitution is violated when hearsay is "testimonial," admitted against a criminal defendant, and the hearsay declarant does not testify 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. In its recent opinion in McKinney v. Fisher, 2009 WL 3151106 (D. Idaho 2009), the United States District Court for the District of Idaho had to decide whether a declarant in the latter stages of an at-risk pregnancy was "unavailable" for Confrontation Clause purposes. The court answered the question in the affirmative, and I agree.

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Judging Judges: Third Circuit Denies Appeal Based Upon Judicial Comment And Questioning

A defendant is on trial for being a felon in possession of a firearm. While a witness for the prosecution is on the stand, the prosecution engages in direct and redirect examinations, and defense counsel engages in cross and re-cross examinations. During defense counsel's questioning of the witness, the judge makes a negative comment regarding the interrogation. Moreover, at the end of re-cross, the judge is not completely satisfied with these four examinations and decides to step in and ask the witness a few more questions, eliciting testimony that incriminates the defendant. After the defendant is convicted, he appeals, claiming that the judge should not have asked these questions because he became, in effect, a second prosecutor. Should the court grant the defendant a new trial? According to the Third Circuit in its recent opinion in United States v. Holder, 2009 3287534 (3rd Cir. 2009), the answer is "no," as long as the judge did not overstep the bounds of prudential judicial conduct.

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In Good Hands?: Court Of Appeals Of Kentucky Opinion Reveals Danger Of Using Privileged Documents To Refresh Recollection

Like its federal counterpart, Kentucky Rule of Evidence 612 indicates that

Except as otherwise provided in the Kentucky Rules of Criminal Procedure, if a witness uses a writing during the course of testimony for the purpose of refreshing memory, an adverse party is entitled to have the writing produced at the trial or hearing or at the taking of a deposition, to inspect it, to cross-examine the witness thereon, and to introduce in evidence those portions which relate to the testimony of the witness. If it is claimed that the writing contains matters not related to the subject matter of the testimony, the court shall examine the writing in camera, excise any portions not so related, and order delivery of the remainder to the party entitled thereto. Any portion withheld over objections shall be preserved and made available to the appellate court in the event of an appeal.

In other words, as the recent opinion of the Court of Appeals of Kentucky in Hager v. Allstate Insurance Company, 2009 WL 3320938 (Ky.App. 2009), makes clear, if you have a document that you want to keep privileged, don't use it to refresh the recollection of a witness.

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Chicken Little Or Canary In The Coal Mine, Take 4: Article Speculates That Melendez-Diaz Could Have Substantial Negative Impact In Military Justice System

I have written three previous posts (here, here, and here) on this blog about the Supreme Court's recent opinion in Melendez-Diaz v. Massachusetts. Basically, this opinion held that certificates of state laboratory analysts were "testimonial" and thus covered by the Sixth Amendment. I titled each of these posts, "Chicken Little or Canay in the Coal Mine" because of the differing views of the impact of the opinion offered by Justices Scalia and Kennedy in their majority and dissenting opinions, respectively. According to Scalia, the opinion will not have a substantial negative impact on criminal prosecutions, but Kennedy disagreed. According to a new article by Patrick McClain, one place where the opinion might have a substantial negative impact is in the military justice system.

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It's My Space. That's Why They Call It MySpace, Take 4: Supreme Court of Indiana Seemingly Errs in Deeming MySpace Evidence Admissible In Murder Appeal

I have written three previous posts on this blog (here, here, and here) about court rulings addressing the admissibility of evidence on parties' MySpace pages. The latest court to weigh in on the issue was the Supreme Court of Indiana in its opinion in Clark v. State. In my opinion, the Indiana Supremes, got it wrong.

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Picture (Im)Perfect?: Second Circuit Finds Wearing Of T-Shirts With Victim's Photograph Not Inherently Prejudicial In Murder Appeal

A defendant is on trial for murdering a victim. During trial, the victim's relatives wear t-shirts displaying the victim's photograph. If the defendant is convicted of murder, should he be awarded a new trial based upon the t-shirts being inherently prejudicial? According to the Second Circuit in its recent opinion in United States v. Farmer, 2009 WL 3200690 (2nd Cir. 2009), the answer is "no," at least based upon the particular factual context with which it was presented.

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Lacking Consistency: Court Of Appeals Of Texas Seemingly Errs In Deeming Prior Consistent Statements Admissible In Sexual Assault Appeal

Like Federal Rule of Evidence 801(d)(1)(B), Texas Rule of Evidence 801(e)(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.

In other words, if a witness says something at trial and opposing counsel presents evidence that the witness' testimony is the product of some recent event giving the witness an improper motive to lie, the party calling the witness can thereafter present a consistent statement preceding the event to challenge this "product" argument. In its recent opinion in Hutson v. State, 2009 WL 3210704 (Tex.App.-Dallas 2009), the Court of Appeals of Texas, Dallas, found that Texas Rule of Evidence 801(e)(1)(B) was applicable in a sexual assault trial. I disagree.

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