EvidenceProf Blog

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

Tuesday, February 9, 2010

Not What She Bargained For: Supreme Court Of Idaho Addresses Issue Of Whether Government Breached Plea Agreement In Harboring A Felon Appeal

About 90% of criminal cases in the United States are resolved by plea bargains, and it is well established that if the prosecution fails to adhere to the terms of a plea agreement, it constitutes good cause for the defendant to withdraw his guilty plea. In its recent opinion in State v. Lampien, 2009 WL 4928357 (Idaho 2009), the Supreme Court of Idaho addressed an issue that is less clear and that has split courts across the country: Is a law enforcement agency bound by a prosecutor's plea agreement?

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February 9, 2010 | Permalink | Comments (0) | TrackBack (0)

Monday, February 8, 2010

Jumping To Conclusions: Supreme Court Of Arkansas Seemingly Errs In Deeming Admission An Ultimate Legal Conclusion

Arkansas Rule of Evidence 704 provides that

Testimony in the form of an opinion or inference otherwise admissible is not objectionable because it embraces an ultimate issue to be decided by the trier of fact.  

Under this rule, Arkansas courts have drawn the same line as federal courts:  Witnesses can testify concerning ultimate issues but cannot testify about ultimate legal conclusions. And, in W.E. Pender & Sons, Inc. v. Lee, 2010 WL 391332 (Ark. 2010), the Supreme Court of Arkansas found that a witness crossed that line. I, however, disagree with its conclusion

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February 8, 2010 | Permalink | Comments (1) | TrackBack (0)

Sunday, February 7, 2010

Open Content: Court Of Appeals Of North Carolina Seemingly Misconstrues Best Evidence Rule In Child Abuse Appeal

Like its federal counterpartNorth Carolina Rule of Evidence 1002 provides 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 statute.

What this means is that this "Best Evidence Rule" is inapplicable when a party seeks to present testimony connected to a writing, recording, or photograph but is not seeking to prove the contents of the writing, recording, or photograph. For instance, if a defendant is charged with robbing a bank in the Bronx at 2:00 p.m. on February 5, 2010, he could testify that he was mailing a letter at a post office in Brooklyn at 2:00 p.m. on February 5, 2010. In that case, he would be presenting testimony connected to a writing -- the letter -- but he would not be seeking to prove the contents of the letter. The letter could be a love letter, a cable bill, or an employment application, and it wouldn't matter. The man would simply be seeking to prove that he was in Brooklyn at the time of the robbery in the Bronx. This is a point that the Court of Appeals of North Carolina seemingly misunderstood in its recent opinion in State v. Haas, 2010 348260 (N.C. 2010).

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February 7, 2010 | Permalink | Comments (0) | TrackBack (0)

Saturday, February 6, 2010

New Problem. Old Solution: Andrew Perlman's "The Legal Ethics Of Metadata Mining" & What I Think It Tells Us About Compelled Forensic Imaging

Metadata is essentially information that is embedded in -- not apparent on the face of -- electronic documents, such as word processing files or spreadsheets.  Metadata can contain a wide range of information, including the name of the person who originally authored the document, the date the document was created, the dates it was edited, the names of other people who edited it, and even the contents of previous edits. Andrew M. PerlmanThe Legal Ethics of Metadata MiningAkron Law Review (forthcoming)

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February 6, 2010 | Permalink | Comments (0) | TrackBack (0)

Friday, February 5, 2010

Jury Worry: Colorado Court Of Appeals Adopts ABA Approach To Jury Challenges

American Bar Association, Standards for Criminal Justice: Trial by Jury, Standard 15-2.7(a) provides that

All challenges, whether for cause or peremptory, should be addressed to the court outside of the presence of the jury, in a manner so that the jury panel is not aware of the nature of the challenge, the party making the challenge, or the basis of the court's ruling on the challenge.

Conversely, "[s]everal jurisdictions have determined that whether challenges for cause are made and argued in open court is a matter of discretion left to the trial court." In its recent opinion in People v. Flockhart, 2009 WL 4981910 (Colo.App. 2009), the Colorado Court of Appeals agreed with the ABA. I agree based upon the reasons cited by the court as well as Federal Rule of Evidence 606(a).

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February 5, 2010 | Permalink | Comments (0) | TrackBack (0)

Thursday, February 4, 2010

The AALS Poster Project: Team-Based Learning in law

Sophie Sparrow and Margaret Sova McCabe  presented the poster Team-Based Learning in law (Download McCabe Sparrow TBL Poster):

McCabe Sparrow TBL Poster

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February 4, 2010 | Permalink | Comments (0) | TrackBack (0)

Wednesday, February 3, 2010

The AALS Poster Project: Gregory S. Gordon's Complementarity and Alternative Justice

Gregory S. Gordon presented the poster, Complementarity and Alternative Justice (Download Complementarity and Alternative Justice): 

Complementarity and Alternative Justice Poster-1

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February 3, 2010 | Permalink | Comments (0) | TrackBack (0)

Tuesday, February 2, 2010

Reasonable Doubt: Seventh Circuit Finds That Data Disclosure Was Reasonable For Rule 1006 Purposes

Federal Rule of Evidence 1006 provides that

The contents of voluminous writings, recordings, or photographs which cannot conveniently be examined in court may be presented in the form of a chart, summary, or calculation. The originals, or duplicates, shall be made available for examination or copying, or both, by other parties at reasonable time and place. The court may order that they be produced in court.

In its recent opinion in United States v. Isaacs, 2010 WL 252278 (7th Cir. 2010), the Seventh Circuit addressed the issue of whether the government made available to a defendant duplicates for examination and/or copying at a reasonable place and time. The Seventh Circuit found that it did, but I am not sure that I agree.

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

Program on Understanding Law, Sciene & Evidence (PULSE) Symposium @ UCLA School of Law, February 18, 2010, 9:00 a.m.-6:00 p.m.

Inaugural Symposium: Forensic Science

A Blueprint for the Future

Feb 18th, Thursday, 9 - 6 p.m. (public panels) |  UCLA School of Law

For more information and to register please go to the Symposium website:


Symposium Speakers:

Michael Chamberlain
Simon Cole
Itiel Dror
Ingrid Eagly
Barry Fisher
Hon. Nancy Gertner
Dean Gialamas
Sam Gross
Max Houck
Keith Inman
Sheila Jasanoff
Jerry Kang
David Kaye
Jay Koehler
Glenn Langenburg
Ken Melson
Jennifer Mnookin
Joe Peterson
D. Michael Risinger
Norah Rudin
David Stoney
Jay Siegel


Forensic science - from latent fingerprint analysis to firearms identification to DNA - is often among the most significant evidence introduced in criminal cases. Over the last few decades, it has also been the subject of significant controversy, with defense attorneys arguing that long-accepted forensic techniques lack scientific validation, and prosecutors vociferously defending their accuracy and reliability.

Last February, the National Academy of Sciences (NAS) issued a major and long-awaited report assessing the strengths and limitations of forensic science in the United States. The report explicitly criticized the lack of empirical and research basis underpinning some of the claims routinely made by many forensic scientists in court, and called for significant changes and major overhaul to our system of forensic science.  This NAS report, which spurred congressional hearings and was recently cited in the Supreme Court, quickly garnered a great deal of attention from scholars, practitioners, and political stakeholders alike.

One year after this report, what, if anything has changed? This public symposium takes the one-year anniversary of the report as an opportunity to reflect on the aftermath of the National Academy report, its effects on courts, practitioners, scholars, and the forensic science community. But even more important, this symposium look forward to ask what does the future hold for forensic science? Flashing forward one decade or two, what should we expect,  what should we fear, and what should we hope for? In this one-day symposium, key stakeholders will consider and help to create a blueprint for the future of forensic science.

This symposium, organized by UCLA's new Program on Understanding Law, Science, and Evidence (PULSE http://www.law.ucla.edu/pulse
), brings together an extraordinary group of leading participants in the forensic science debates, including forensic practitioners, attorneys, law professors, psychologists, and judges, to engage in robust presentations and debates about the future of forensic science.

Panel topics to include:   (1) The Central Debates Facing the Forensic Sciences; (2) Reflections on the National Academy Report: One Year later; (3) The Future of Forensic Science: Utopian Hopes and Rose-Colored Possibilities; and (4) Back To Reality: What to Expect for the Future of Forensic Science.

REGISTRATION IS REQUIRED.  To register, please go to www.law.ucla.edu/pulse/symposium
and click for online registration.

Registration is free for UCLA students, faculty and staff.  Advance registration is $50 for all others (including lunch).  On-site registration, space permitting, will be $75.00

MCLE credit available. UCLA School of Law is a State Bar of California approved MCLE provider.

PULSE INAUGURAL LECTURE<http://www.law.ucla.edu/home/index.asp?page=3267
February 17, 2010   |   UCLA School of Law

"Reframing Rights: The Constitutional Implications of Technological Change"

Professor Sheila Jasanoff<http://www.hks.harvard.edu/about/faculty-staff-directory/sheila-jasanoff
Pforzheimer Professor of Science and Technology Studies at the John F. Kennedy School of Government at Harvard University

12:15 p.m. – lunch available at noon

To attend, RSVP to [email protected]

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

Monday, February 1, 2010

Competent Opinion: Supreme Court Of New Hampshire Reverses Sexual Assault Conviction Based Upon Incorrect Competency Ruling

New Hampshire Rule of Evidence 601 provides that:

(a) General rule of competency. Every person is competent to be a witness except as otherwise provided by statute or in these rules. 

(b) Incompetence of a witness. A person is not competent to testify as a witness if the court finds that the witness lacks sufficient capacity to observe, remember and narrate as well as understand the duty to tell the truth.

It was the finding of the Supreme Court of New Hampshire in its recent opinion in State v. Horak, 2010 WL 114537 (N.H. 2010), that the complainant lacked this last capacity that led it to reverse and remand.

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