EvidenceProf Blog

Dead Man's Chest, Take 3: Court Of Appeals Of Minnesota Opinion Makes Clear That Elimination Of Dead Man's Statute Does Not Eliminate Hearsay Concerns

As I have previously noted on this blog,

Dead Man's Statutes generally preclude interested parties from testifying about any communication, transaction, or promise made to them by a now deceased or incapacitated person when the testimony would go against the decedent's estate....The theory behind these statutes is that the interested person has reason to fabricate his testimony, and the deceased/incapacitated person does not have the ability to dispute the testimony and protect his estate from false claims.  Thus, for instance, a person who sought to testify that a now deceased individual promised to give him his car would not be allowed to do so because of the fear that his testimony would consist of perjury. 

As I have also previously noted on this blog, most states have repealed their Dead Man's Statutes. As the recent opinion of the Court of Appeals of Minnesota in Bronczyk v. Bronczyk, 2010 WL 1029738 (Minn.App. 2010), makes clear, however, the repeal of a Dead Man's Statute merely means that the person who talked to the now deceased or incapacitated person is no longer incompetent to testify; it does not mean that the rule against hearsay is satisfied.

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Judge, Jury, And interrogator, Take 3: Seventh Circuit Doesn't Reverse Despite Improper Judicial Interrogation

Federal Rule of Evidence 605 provides that

The judge presiding at the trial may not testify in that trial as a witness. No objection need be made in order to preserve the point.

Conversely, Federal Rule of Evidence 614(b) provides that "[t]he court may interrogate witnesses, whether called by itself or by a party," and Federal Rule of Evidence 614(c) provides that

Objections to the calling of witnesses by the court or to interrogation by it may be made at the time or at the next available opportunity when the jury is not present.

In other words, a party does not need to object to judicial testimony to preserve the point for appeal, but a party does need to object to judicial interrogation to preserve the point for appeal (although the party can object outside the presence of the jury). Does this make sense? Let's consider the recent opinion of the Seventh Circuit in United States v. Barnhart, 2010 WL 1136522 (7th Cir. 2010).

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A Foolish Consistency, Take 2: New Jersey Court Finds No Error With Admission Of Prior Consistent Statement Before Charge Of Recent Fabrication

Like Federal Rule of Evidence 801(d)(1)(B), New Jersey Rule of Evidence 803(a)(2) allows for the admission of:

A statement previously made by a person who is a witness at a trial or hearing, provided it would have been admissible if made by the declarant while testifying and the statement...is consistent with the witness' testimony and is offered to rebut an express or implied charge against the witness of recent fabrication or improper influence or motive.

In other words, an attorney is allowed to admit a witness' prior consistent statement after opposing counsel has charged the witness with recent fabrication or improper influence or motive to rebut that charge. According to the recent opinion of the Superior Court of New Jersey, Appellate Division, in State v. Hay, 2010 WL 1028048 (N.J.Super.A.D. 2010), however, there is no unfair prejudice if an attorney is allowed to admit a witness' prior consistent statement before opposing counsel has made such a charge. I disagree.

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Simply The Best: Court Of Appeals Of Georgia Notes That Satisfying Best Evidence Rule Doesn't Satisfy Rule Against Hearsay

Similar to Federal Rule of Evidence 1002, OGCA Section 24-5-4(a), Georgia's Best Evidence Rule, provides that "[t]he best evidence which exists of a writing sought to be proved shall be produced, unless its absence shall be satisfactorily accounted for." As the recent opinion of the Court of Appeals of Georgia in McKinley v. State, 2010 WL 1136202 (Ga.App. 2010), makes clear, however, just because a party satisfies the Best Evidence Rule does not mean that it satisfies the rule against hearsay.

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Take Out Some Insurance: Court Of Appeals Of Kentucky Notes Exceptions To Rule 411 But Finds Them Inapplicable In Car Crash Appeal

Like its federal counterpart, Kentucky 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.  

As the recent opinion of the Court of Appeals of Kentucky in Akers v. Cross, 2010 WL 1133083 (Ky.App. 2010), makes clear, there are exceptions to this rule although the court ultimately found that they did not apply in the case before it.

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Ten Years Have Got Behind You: Supreme Court of Mississippi Affirms Conviction Because Defense Counsel Fails To Cite Rule 609(b)

Like its federal counterpart, Mississippi Rule of Evidence 609 provides, inter alia, that a criminal defendant can be impeached through his prior felony convictions not involving dishonesty or false statement if their probative value outweighs their prejudicial effect. Moreover, it is well established that a criminal defendant cannot appeal a trial court's ruling deeming his prior convictions admissible to impeach him unless he actually takes the witness stand and subjects himself to impeachment (or at least proffers his proposed testimony). Defense counsel in these cases thus faces a difficult decision. Does he have his client take the witness stand, knowing that his prior convictions could lead to his present conviction, but also knowing that he will be able to appeal the present conviction? Or does he have his client avoid taking the witness stand, hoping that this will lead to his client winning at trial but knowing that if he loses, no appeal can follow? It is tough to fault defense counsel for making either of these choices, but it is apparently easier to fault defense counsel for Ivan McClellan based upon the recent opinion of the Supreme Court of Mississippi in McClellan v. State, 2010 WL 1077322 (Miss. 2010).

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Did You Notice That?: Second Circuit Discusses Interplay Between Rules 201 And 605

Under Federal Rule of Evidence 201(c), "A court may take judicial notice, whether requested or not." Meanwhile, pursuant to Federal Rule of Evidence 605,

The judge presiding at the trial may not testify in that trial as a witness. No objection need be made in order to preserve the point.

So, what happens when a judge makes a statement of common knowledge during a trial? Is this simply the judge taking judicial notice of a matter of common knowledge in accordance with Federal Rule of Evidence 201(c) or is the judge improperly testifying in violation of Federal Rule of Evidence 605? According to the recent opinion of the Second Circuit in United States v. Bari, such a statement is simply the judge taking judicial notice.

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A Foolish Consistency: Fifth Circuit Case Reveals Odd Aspect Of Louisiana's "Prior" Consistent Statement Rule

Federal Rule of Evidence 801(d)(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.

Seemingly similarly, Louisiana Code of Evidence article 801(d)(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...[c]onsistent with his testimony and is offered to rebut an express or implied charge against him of recent fabrication or improper influence or motive.

As the recent opinion of the Fifth Circuit in Jones v. Cain, 2010 WL 909084 (5th Cir. 2010), makes clear, however, there is a clear (and bizarre) difference between the two rules.

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Hostile Takeover: Third Circuit Reverses Murder Conviction Because Of Overly Loquacious Trial Judge

Federal Rule of Evidence 611(c) provides that

Leading questions should not be used on the direct examination of a witness except as may be necessary to develop the witness' testimony. Ordinarily leading questions should be permitted on cross-examination. When a party calls a hostile witness, an adverse party, or a witness identified with an adverse party, interrogation may be by leading questions.

It is up to the judge to determine whether a witness is in fact a hostile witness, but, as the recent opinion of the Third Circuit in Government of the Virgin Islands v. Williams, 2010 WL 939916 (3rd Cir. 2010), makes clear, the judge shouldn't share (all of) his reasoning with jurors.

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What Are Your Intentions?: Seventh Circuit Finds Expert Testimony Was Properly Precluded Under Rule 704(b) In Sexting Appeal

Federal Rule of Evidence 704(b) provides that

No expert witness testifying with respect to the mental state or condition of a defendant in a criminal case may state an opinion or inference as to whether the defendant did or did not have the mental state or condition constituting an element of the crime charged or of a defense thereto. Such ultimate issues are matters for the trier of fact alone.

This Rule was originally "enacted to limit psychiatric testimony when a criminal defendant relies upon the defense of insanity," and it was passed in the wake of the shootings of Ronald Reagan and John Lennon. As the recent opinion of the Ninth Circuit in United States v. Hofus, 2010 WL 986799 (9th Cir. 2010), makes clear, however, this Rule also applies to testimony that a defendant engaged in "sexting" with a minor would never act on the intentions expressed in his texts.

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Expert Advice: Seventh Circuit Notes That Judges Might Want To Appoint Experts In Fair Debt Collection Practices Cases

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.

As the Seventh Circuit noted in its recent opinion in DeKoven v. Plaza Associates, 2010 WL 938025 (7th Cir. 2010), judges "rarely exercise[]" their powers under this Rule and appoint their own experts, but they might want to consider doing so in Fair Debt Collection Practices Act cases.

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Objectionable Objection?: Court Of Appeals Of North Carolina Affirms Impeachment Ruling Based Upon Lack Of Specific Objection

Like its federal counterpart, North Carolina Rule of Evidence 609(b) provides that

Evidence of a conviction under this rule is not admissible if a period of more than 10 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.

As the Advisory Committee Note to Federal Rule of Evidence 609 makes clear, "Although convictions over ten years old generally do not have much probative value, there may be exceptional circumstances under which the conviction substantially bears on the credibility of the witness." In other words, convictions more than 10 years old are almost never admissible for impeachment purposes. Of course, as the recent opinion of the Court of Appeals of North Carolina in State v. Graham, 2010 WL 916389 (N.C.App. 2010), makes clear, none of those matters unless opposing counsel raised a specific objection to the admission of such a remote conviction.

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The Giant(s) Of Illinois, Take 2: Special Committee On Illinois Evidence Issues Proposed Illinois Rules Of Evidence

Currently, Illinois is one of few states that does not have codified rules of evidence. In November 2008, I wrote that

the Illinois Supreme Court announced the formation of a Special Committee on Illinois Evidence with the aim of codifying existing evidentiary law so that it is available in a single source.   The Special Committee, appointed by the Supreme Court, is composed of a blue ribbon roster of judges, practitioners, law professors and state legislators.

I was honored to be asked by that Committee to draft a report comparing each Federal Rule of Evidence with the corresponding evidentiary principle that Illinois courts had developed in case law to assist the Committee in its creation of Illinois Rules of Evidence. The result of that endeavor was a 100 page report prepared with substantial assistance from John Marshall's Associate Dean for Academic Affairs and Professor Ralph Ruebner and law students Katie Anderson, Timothy Herman, and Jessica Kull. 

We submitted that report in May 2009, and the Committee set forth on the arduous task of drafting Proposed Illinois Rules of Evidence, which are now available here: Proposed Illinois Rules of Evidence. Here is the accompanying Notice of Public Hearings on the Proposed Rules, which will be held on May 18th and May 20th at 10:00 A.M. As the Notice notes, "Anyone wishing to be scheduled to testify at the public hearings should advise the Committee in writing...not later than Monday, May 10, 2010."

After my initial brief review of the rules, everything looks to be in place, but maybe I missed something. Do readers have any thoughts or suggestions on the rules? If so, please either submit a comment to this post or e-mail me at [email protected].

(Hat tip to my colleague Mark Wojcik for the link)

-CM 

Judge, Jury, and Interrogator, Take 2: Court Of Appeals Of Virginia Finds Judicial Interrogation At Sentencing Hearing Was Proper

Federal Rule of Evidebce 614(b) provides that "[t]he court may interrogate witnesses, whether called by itself or by a party." Virginia does not have codified rules of evidence, but its courts also generally allow judges to interrogate witnesses. In a post last week about Iowa Rule of Evidence 5.614(b) last week, I noted that Iowa courts discourage judicial interrogation, "particularly where the jury is the fact finder." The recent opinion of the Court of Appeals of Virginia in Aispuro v. Commonwealth, 2010 WL 906636 (Va.App. 2010), a case where the judge was the fact finder. And, as the court's opinion makes clear, judicial interrogation in such a case is not similarly discouraged.

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Can You Corroborate That?: Ninth Circuit Denies Habeas Petition Because Of Uncorroborated Statement Against Interest

Like its federal counterpart, Idaho 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 declarant to civil or criminal liability, or to render invalid a claim by declarant against another, that a reasonable man in declarant's position would not have made the statement unless declarant believed 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.

The main reason for the second sentence in this Rule is the fear that an accused will be able to introduce somebody else's confession to secure a "not guilty verdict," and then the prosecution will not be able to turn around and secure a conviction against the somebody else. A nice illustration of the type of situation that the second sentence seeks to avoid can be found in the recent opinion of the Ninth Circuit in Rhoades v. Henry, 2010 WL 761146 (9th Cir. 2010).

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High Risk Insurance: Court Of Appeals Of Iowa Finds Evidence Of Liability Insurance Admissible To Impeach Plaintiff

Like its federal counterpart, Iowa Rule of Evidence 5-411 provides that 

Evidence that a person was or was not insured against liability is not admissible upon the issue whether he 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.

As the "such as" language from the Rule's second sentence makes clear, the listed permissible purposes are not exhaustive, just illustrative. This point is driven home by the recent opinion of the Court of Appeals of Iowa in Sweers v. Westfall, 2010 786036 (Iowa App. 2010), an opinion that also calls into question the efficacy of the Rule.

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Immigration Man: Third Circuit Finds That Results Of Asylum Investigation Were Properly Admitted

It is well established that "[t]he Federal Rules of Evidence do not apply in immigration proceedings." Liu v. Attorney General of the United States, 2010 WL 772166 (3rd Cir. 2010). That said, "evidence must be probative and used in a fundamentally fair manner to satisfy concerns of due process." Id. And in its recent opinion in Liu, the Third Circuit found that the results of an investigation of asylum documents satisfied these concerns.

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What's Your Damage?: Fifth Circuit Finds Lay Witness Can't Offer Opinion Testimony On Organic Brain Damage

Federal Rule of Evidence 701 provides that

If the witness is not testifying as an expert, the witness' testimony in the form of opinions or inferences is limited to those opinions or inferences which are (a) rationally based on the perception of the witness, and (b) helpful to a clear understanding of the witness' testimony or the determination of a fact in issue, and (c) not based on scientific, technical, or other specialized knowledge within the scope of Rule 702.

As the Rule intimates, when testimony is based on scientific, technical, or other specialized knowledge, it can only be offered by an expert witness pursuant to Federal Rule of Evidence 702. And, under these Rules, the Fifth Circuit could make an easy ruling in its recent opinion in United States v. York, 2010 780166 (5th Cir. 2010): A lay witness cannot opine that his son suffers from organic brain damage.

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Court Of Public Opinion: Supreme Court Of Washington Holds Judicial Findings Inadmissible Under Public Records Exception

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.

It is well established that

Rule 803(8) was not intended to allow the admission of findings of fact by courts. Rule 803(8) is limited to investigations: "A judge in a civil trial is not an investigator, rather a judge." Nipper v. Snipes, 7 F.3d 415, 417 (4th Cir. 1993).The advisory committee notes to Rule 803(8) also indicate that the intent of the rule's drafters was to allow for the admission of investigations by officials in the executive branch; there is no indication in those notes that the committee intended this exception to include findings of fact by judges. Herrick v. Garvey, 298 F.3d 1184, 1192 (10th Cir. 2002). 

Washington doesn't have a state counterpart to Federal Rule of Evidence 803(8), but it has recognized a public records exception to the rule against hearsay in its case law. And, in its recent opinion in In re Detention of Pouncy, 2010 WL 817369 (Wash. 2010), the Supreme Court of Washington found that this exception does not apply to judicial opinions.

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Judge, Jury, And Interrogator: Court Of Appeals Of Iowa Notes That Judicial Interrogation Of Witnesses Is Allowed But Not Encouraged

Like its federal counterpart, Iowa Rule of Evidence 5.614(b) provides that

When necessary in the interest of justice, the court may interrogate witnesses, whether called by the court or by a party.

But according to the recent opinion of the Court of Appeals of Iowa in State v Benesh, 2010 WL 786039 (Iowa App. 2010), Iowa precedent provides that "the practice is not encouraged." 

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