EvidenceProf Blog

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

Sunday, February 28, 2010

For A Limited Time: Opinion Reveals That Mississippi Courts Once Required Sua Sponte Limiting Instructions After Objection To Character Evidence

Like its federal counterpartMississippi Rule of Evidence 105 provides that

When evidence which is admissible as to one party or for one purpose but not admissible as to another party or for another purpose is admitted, the court, upon request, shall restrict the evidence to its proper scope and instruct the jury accordingly.  

As the language of the Rule makes clear, a court only needs to issue a limiting instruction "upon request." As the recent opinion of the Court of Appeals of Mississippi in Lindsey v. State, 2010 WL 615649 (Miss.App. 2010), makes clear, such a request was not always required.

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February 28, 2010 | Permalink | Comments (0) | TrackBack (0)

Saturday, February 27, 2010

Complete Denial: Seventh Circuit Turns Aside Defendant's Fifth Amendment Argument Based Upon Rule Of Completeness

A defendant is on trial for defrauding the Medicare program. One piece of evidence that the prosecution admits against her is a redacted audio recording on which she seemingly makes incriminatory statements. On appeal, the defendant claims that the admission of the tape violated her Fifth Amendment privilege against self-incrimination because the redacted portions of the recording were exculpatory, but she would have needed to take the witness stand to explain why. How should the court rule? As the Seventh Circuit correctly found in its recent opinion in United States v. Phillips, 2010 WL 652852 (7th Cir. 2010), the court should found the argument without merit based upon the rule of completeness.

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February 27, 2010 | Permalink | Comments (0) | TrackBack (0)

Friday, February 26, 2010

Mississippi Mud: Court Of Appeals Of Mississippi Reverses Conviction Based Upon Impeachment Of Non-Testifying Criminal Defendant

Similar to its federal counterpartMississippi Rule of Evidence 609(a)(1) provides that 

For the purpose of attacking the character for truthfulness of a witness, (1) evidence that (A) a nonparty witness has been convicted of a crime shall be admitted subject to Rule 403, if the crime was punishable by death or imprisonment in excess of one year under the law under which the witness was convicted, and (B) a party has been convicted of such a crime shall be admitted if the court determines that the probative value of admitting this evidence outweighs its prejudicial effect to the party.  

As I always tell my Evidence students, the only purpose of impeachment is to show the jury (or judge) that a witness' testimony is not necessarily trustworthy. What this means is that a criminal defendant's prior convictions cannot be admitted to impeach him unless he chooses to testify at trial. What this also means is that the Court of Appeals of Mississippi had to reverse Willie Joe Robinson's conviction in its recent opinion in Robinson v. State, 2010 611504 (Miss.App. 2010).

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February 26, 2010 | Permalink | Comments (0) | TrackBack (0)

Thursday, February 25, 2010

The AALS Poster Project: Eric E. Johnson's Intellectual Property & Disability

Eric E. Johnson presesented the poster Intellectual Property & Disability (Download Intellectual Property & Disability):

Intellectual Property & Disability 

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February 25, 2010 | Permalink | Comments (0) | TrackBack (0)

Wednesday, February 24, 2010

The AALS Poster Project: Twinette Johnson's Reintroducing First-Year Students to Policy Based Reasoning Using "Hot Topics"

Twinette Johnson presented the poster Reintroducing First-Year Students to Policy Based Reasoning Using "Hot Topics" (Download Hot Topics):

Hot Topics 

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February 24, 2010 | Permalink | Comments (0) | TrackBack (0)

Tuesday, February 23, 2010

The AALS Poster Project: Jessica Owley Lippmann's Conservation Easements and Global Climate Change

Jessica Owley Lippmann presented the poster Conservation Easements and Global Climate Change (Download Conservation Easements and Global Climate Change):

Conservation Easements and Global Climate Change 

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February 23, 2010 | Permalink | Comments (0) | TrackBack (0)

Monday, February 22, 2010

Refresh My Recollection: SDNY Finds Production Of Notes Used Before Testifying To Be Necessary In The Interests Of Justice

Federal Rule of Evidence 612 indicates in relevant part that

Except as otherwise provided in criminal proceedings by section 3500 of title 18, United States Code, if a witness uses a writing to refresh memory for the purpose of testifying, either--

(1) while testifying, or

(2) before testifying, if the court in its discretion determines it is necessary in the interests of justice,

an adverse party is entitled to have the writing produced at the hearing, to inspect it, to cross-examine the witness thereon, and to introduce in evidence those portions which relate to the testimony of the witness.

So, when is production necessary in the interests of justice under Rule 612(2)? That was the question addressed by the Unites States District Court for the Southern District of New York in its recent opinion in Thomas v. Euro RSCG Life, 2010 WL 565391 (S.D.N.Y. 2010).

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February 22, 2010 | Permalink | Comments (0) | TrackBack (0)

Sunday, February 21, 2010

Eyes Wide Shut, Take 2: Supreme Court Of Illinois Finds HGN Test Satisfies Frye Test, Just Not In The Case Before It

Back in October 2007, I posted an entry about People v. McKown, in which the Supreme Court of Illinois found that an Illinois trial court erred in taking judicial notice of the general acceptance of the reliability of Horizontal Gaze Nystagmus (HGN) test results in a drunk driving case. The court thus reversed the trial court's opinion, holding that a Frye hearing had to be held to determine whether there was general acceptance of the HGN test in the relevant scientific community. On Friday, the Supreme Court finally addressed the validity of that hearing in People v. McKown, 2010 WL 572082 (Ill. 2010), an opinion that is a victory for Illinois prosecutors in general but a loss for them in McKown itself.

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February 21, 2010 | Permalink | Comments (1) | TrackBack (0)

Saturday, February 20, 2010

Don't Deal In No Kind Of Hearsay: Pennsylvania Court Reverses Order Regarding Prisoner Under Residuum Rule

I have previously posted on this blog about the residuum rule, pursuant to which factual findings at an administrative hearing cannot be exclusively based on hearsay. In Pennsylvania, courts refer to this rule as the "Walker Rule" based upon the opinion of the Commonwealth Court of Pennsylvania in Walker v. Unemployment Compensation Board of Review, 367 A.2d 366 (Pa.Cmwlth. 1976), and in Speight v. Department of Corrections, application of this rule led to reversal of an order of the Department of Corrections.

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February 20, 2010 | Permalink | Comments (0) | TrackBack (0)

Friday, February 19, 2010

Private Eyes, Take 2: Tenth Circuit Case Reveals Different Treatments Of Private Detectives And Governmental Case Agents Under Rule 615

A few weeks ago, I posted an entry about Federal Rule of Evidence 615, which provides that 

At the request of a party the court shall order witnesses excluded so that they cannot hear the testimony of other witnesses, and it may make the order of its own motion. This rule does not authorize exclusion of (1) a party who is a natural person, or (2) an officer or employee of a party which is not a natural person designated as its representative by its attorney, or (3) a person whose presence is shown by a party to be essential to the presentation of the party's cause, or (4) a person authorized by statute to be present.

That post dealt with the recent opinion in United States v. McClendon2010 WL 272878 (6th Cir. 2010), in which the Sixth Circuit found, inter alia, that defense counsel's private investigator was not an "essential" person under Rule 615(3). The recent opinion of the Tenth Circuit in United States v. Lott, 2010 WL 529310 (10th Cir. 2010), reveals how courts treat governmental case agents under Rule 615 and raises questions about the Rule's fairness.

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February 19, 2010 | Permalink | Comments (0) | TrackBack (0)

Thursday, February 18, 2010

Book 'Em Danno: First Circuit Finds That Booking Sheet Is Not Covered By Law Enforcement Exception In Rule 803(8)(B)

Federal Rule of Evidence 803(8) provides an exception to the rule against hearsay for

Records, reports, statements, or data compilations, in any form, of public offices or agencies, setting forth (A) the activities of the office or agency, or (B) matters observed pursuant to duty imposed by law as to which matters there was a duty to report, excluding, however, in criminal cases matters observed by police officers and other law enforcement personnel, or (C) in civil actions and proceedings and against the Government in criminal cases, factual findings resulting from an investigation made pursuant to authority granted by law, unless the sources of information or other circumstances indicate lack of trustworthiness.

Rule 803(8)(B) contains what is known as the "law enforcement exception," pursuant to which police reports are inadmissible in a criminal case when offered by the prosecution. But does this exception cover routine, non-adversarial documents, such as booking sheets? That was the question of first impression addressed by the First Circuit in its recent opinion in United States v. Dowdell, 2010 WL 481416 (1st Cir. 2010).

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February 18, 2010 | Permalink | Comments (0) | TrackBack (0)

Wednesday, February 17, 2010

Double Waiver: Eleventh Circuit Finds Defendant Waived Rule 609 Issue But That Government Waived The Issue Of Defendant's Waiver

Federal Rule of Evidence 609(b) 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, unless the court determines, in the interests of justice, that the probative value of the conviction supported by specific facts and circumstances substantially outweighs its prejudicial effect. However, evidence of a conviction more than 10 years old as calculated herein, is not admissible unless the proponent gives to the adverse party sufficient advance written notice of intent to use such evidence to provide the adverse party with a fair opportunity to contest the use of such evidence.

When a court does allow impeachment of a criminal defendant under this Rule, the prosecution thereafter usually cross-examines the defendant about his conviction, thereby discrediting his direct testimony. In order to reduce the sting of such cross-examinations, defense attorneys began to elicit such convictions from criminal defendants during direct examinations. This practice greatly diminished, however, in the wake of the opinion in Ohler v. United States, 529 U.S. 753 (2000), in which the Supreme Curt found that a defendant waives his objection to a court's Rule 609 ruling by using such a technique. As the recent opinion of the Eleventh Circuit in United States v. Lewis, 2010 WL 438367 (11th Cir. 2000), makes clear, however, the government itself can waive the issue of the defendant's waiver.

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February 17, 2010 | Permalink | Comments (0) | TrackBack (0)

Tuesday, February 16, 2010

No Expertise Required: United States District Court For The District Of Colorado Notes Lack Of Affirmative Obligation On Courts To Exercise Their Rule 706 Powers

Federal Rule of Evidence 706(a) provides that

The court may on its own motion or on the motion of any party enter an order to show cause why expert witnesses should not be appointed, and may request the parties to submit nominations. The court may appoint any expert witnesses agreed upon by the parties, and may appoint expert witnesses of its own selection. An expert witness shall not be appointed by the court unless the witness consents to act. A witness so appointed shall be informed of the witness' duties by the court in writing, a copy of which shall be filed with the clerk, or at a conference in which the parties shall have opportunity to participate. A witness so appointed shall advise the parties of the witness' findings, if any; the witness' deposition may be taken by any party; and the witness may be called to testify by the court or any party. The witness shall be subject to cross-examination by each party, including a party calling the witness. 

But when should a court appoint an expert witness? And is there any affirmative obligation on courts to exercise their Rule 706 powers? According to the United States District Court for the District of Colorado, the answer to the latter question is "not really."

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February 16, 2010 | Permalink | Comments (0) | TrackBack (0)

Monday, February 15, 2010

I Swear: Court Of Appeals Of Minnesota Notes Flexibility Of Courts In Allowing Children To Be Sworn As Witnesses

Like its federal counterpartMinnesota Rule of Evidence 603 provides that

Before testifying, every witness shall be required to declare that the witness will testify truthfully, by oath or affirmation administered in a form calculated to awaken the witness’ conscience and impress the witness’ mind with the duty to do so.   

And, as the recent opinion of the Court of Appeals of Minnesota in In the Matter of the Welfare of J.J.W., 2010 WL 431490 (Minn.App. 2010), makes clear, courts have been flexible in allowing children to be sworn as a witness.

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February 15, 2010 | Permalink | Comments (0) | TrackBack (0)

Sunday, February 14, 2010

Impeachable Offenses: Opinion Reveals Differences Between Federal And Indiana Rules Of Evidence 609(a)(1)

For the purpose of attacking the character for truthfulness of a witness,

(1) evidence that a witness other than an accused has been convicted of a crime shall be admitted, subject to Rule 403, if the crime was punishable by death or imprisonment in excess of one year under the law under which the witness was convicted, and evidence that an accused has been convicted of such a crime shall be admitted if the court determines that the probative value of admitting this evidence outweighs its prejudicial effect to the accused; and

(2) evidence that any witness has been convicted of a crime shall be admitted regardless of the punishment, if it readily can be determined that establishing the elements of the crime required proof or admission of an act of dishonesty or false statement by the witness.
As the recent opinion of the Court of Appeals of Indiana in Perry v. State, 2010 WL 415281 (Ind.App. 2010), makes clear, Indiana Rule of Evidence 609(a) is both narrower and broader than its federal counterpart.

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February 14, 2010 | Permalink | Comments (0) | TrackBack (0)

Saturday, February 13, 2010

Versions Of Violence: Court Of Appeals Of Tennessee Refuses To Read Violence Exception Into Rule 606(b)

Tennessee 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 any juror's mind or emotions as influencing that juror to assent to or dissent from the verdict or indictment or concerning the juror's mental processes, except that a juror may testify on the question of whether extraneous prejudicial information was improperly brought to the jury's attention, whether any outside influence was improperly brought to bear upon any juror, or whether the jurors agreed in advance to be bound by a quotient or gambling verdict without further discussion; nor may a juror's affidavit or evidence of any statement by the juror concerning a matter about which the juror would be precluded from testifying be received for these purposes.

I have written previously about how Minnesota added an exception to its version of Rule 606(b) which permits jury impeachment "as to any threats of violence or violent acts brought to bear on jurors, from whatever source, to reach a verdict." In Gaines v. Tenney, 2010 WL 199628 (Tenn.Ct.App. 2010), a trial court had read a similar violence exception into Tennessee Rule of Evidence 606(b), but the Court of Appeals of Tennessee reversed.

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February 13, 2010 | Permalink | Comments (0) | TrackBack (0)

Friday, February 12, 2010

Mourning the Loss of Loyola Los Angeles Associate Dean and Co-EvidenceProf Blogger David Leonard

I am deeply saddened to report that my co-EvidenceProf Blogger David P. Leonard has passed away.  David was one of the first people whom I contacted when I was starting the blog, and he was extremely helpful in giving me advice and encouragement. The launching of this blog was also simultaneous with the launching of my teaching career, and David gave me extremely useful information about working with students and how to be an effective professor in general. David was one of the best Evidence professors and scholars in the world and an even better person. I send my warmest regards to his family at this time.

You can read the announcement from Loyola Law School Los Angeles regarding his passing by clicking here or reading below:

Professor David P. Leonard, Associate Dean for Research and longtime member of the faculty at Loyola Law School, passed away on the evening of Wednesday, Feb. 10, due to complications related to cancer. Funeral services will be at 11 a.m. on Sunday, Feb. 14, at Hillside Memorial Park, 6001 W. Centinela Ave., Los Angeles, CA 90045. 

Leonard joined the Loyola faculty in 1990 and was appointed Associate Dean for Research in 2008. He was an immensely popular professor with students, faculty and staff alike. The graduating class of 2009 presented him with the Excellence in Teaching Award. Leonard served as a model of compassion and professionalism. His efforts as Associate Dean for Research helped raise Loyola’s scholarly profile. And he did all this with a constant smile as he battled cancer.

“David was not only a colleague but also a dear friend,” said Dean Victor Gold, who co-authored Evidence: A Structured Approach with Leonard. “He was kind, funny, compassionate and courageous.  He loved teaching and was dedicated to his students. We have suffered a great loss."

At Loyola, Leonard taught the Advanced Evidence Seminar, Evidence and Torts. In addition, he was a prolific scholar. His books include The New Wigmore: A Treatise on Evidence: Evidence of Other Misconduct and Similar Events and Evidence Law: A Student’s Guide to the Law of Evidence as Applied in American Trials. His many law review articles appeared in the U.C. Davis Law Review, the North Carolina Law Review, the Southern California Law Review, the University of Colorado Law Review, the Hastings Law Journal and the Indiana Law Journal, among others.

Before joining the Loyola faculty, Leonard was a member of the faculty at the Indiana University School of Law and a lecturer-in-law at UCLA School of Law, where he received his J.D. Leonard received his bachelor’s degree with highest honors from the University of California, San Diego.

Leonard, who was 57, is survived by his wife, Susan, and sons, Adam and Matthew.

As news of Leonard’s passing traveled around campus, impromptu eulogies sprung up on Internet status messages like that of alumnus Greg Strausberg ’09, a Tax LL.M. student who studied evidence under Leonard in 2007. “He took it personally upon himself to take care of not only his current students, but all of his past students, staff, faculty and administration at Loyola. He will be, and already is, sorely missed by all of generations of his students," said Strausberg.


February 12, 2010 | Permalink | Comments (0) | TrackBack (0)

Liar, Liar: Court Of Appeals Notes That Polygraph Related Statements Can Be Admitted Even If Polygraph Results Cannot

It is well established (except in New Mexico) that the results of a polygraph exam are inadmissible at trial, barring a stipulation by both sides that such results will be admissible before the test is taken. But what about statements made by an individual in connection with a polygraph exam? For instance, what happens if an individual fails a polygraph exam and thereafter makes incriminatory statements? Should those statements also be deemed inadmissible? According to the recent opinion of the Court of Appeals of Virginia in Lee v. Southside Virginia Training Center, 2010 WL 342592 (Va.App. 2010), the answer is "no."

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February 12, 2010 | Permalink | Comments (2) | TrackBack (0)

Thursday, February 11, 2010

48 Hours: Supreme Court Of South Dakota Addresses 18 Day Detention Of Arrestee Without Probable Cause Hearing

Pursuant to the Supreme Court's opinion in County of Riverside v. McLaughlin, 500 U.S. 44 (1991), individuals arrested without a warrant must have a judicial probable cause determination within 48 hours after the arrest unless a bona fide emergency or other extraordinary circumstance exists. But what is the remedy for violations of the principle? In the situation where a defendant confesses or make other incriminating statements during an unlawful detention, the court is faced with the decision of whether to suppress the confession, statements, or evidence, and courts across the country have reached inconsistent results. But what happens when potentially exculpatory evidence is lost as a result of the delay? That was the issue of first impression faced by the Supreme Court of South Dakota in its recent opinion in State v. Larson, 776 N.W.2d 254 (S.D. 2009).

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February 11, 2010 | Permalink | Comments (0) | TrackBack (0)

Wednesday, February 10, 2010

Residual Value: Nevada Case Reveals Potential Usefulness Of Residual Hearsay Exception To Gender And Race Discrimination Plaintiffs

Federal Rule of Evidence 807 provides an exception to the rule against hearsay for

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. However, a statement may not be admitted under this exception unless the proponent of it makes known to the adverse party sufficiently in advance of the trial or hearing to provide the adverse party with a fair opportunity to prepare to meet it, the proponent's intention to offer the statement and the particulars of it, including the name and address of the declarant.

Rule 807 is a rarely applied rule of last resort upon which litigants can try to rely if all other hearsay exceptions don't quite cover statements that they seek to admit. As the recent opinion of the United States District Court for the District of Nevada in Taylor v. Fairfield Resorts, Inc./Wyndham, 2009 WL 5195973 (D. Nev. 2009), makes clear, however, it could be a useful rule for gender and race discrimination plaintiffs who can't point to smoking guns and who can't find employees willing to testify.

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February 10, 2010 | Permalink | Comments (0) | TrackBack (0)