EvidenceProf Blog

Impeachable Opinion?: Court Of Appeals Of Maryland Finds Trial Court Properly Deferred Impeachment Ruling Until After Defendant Testified

Similar to its federal counterpart, Maryland Rule of Evidence 5-609(a) 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 if elicited from the witness or established by public record during examination of the witness, but only if (1) the crime was an infamous crime or other crime relevant to the witness's credibility and (2) the court determines that the probative value of admitting this evidence outweighs the danger of unfair prejudice to the witness or the objecting party. 

A criminal defendant, of course, can exercise his Fifth Amendment privilege against self-incrimination and not testify at trial. So, does the trial court have an obligation to rule on the issue of whether a defendant's prior convictions will be admissible to impeach him before he makes this decision, or can it defer that decision until after the defendant testifies? According to the recent opinion of the Court of Appeals of Maryland in Dallas v. State, 2010 WL 1643252 (Md. 2010), courts can at least sometimes defer that decision, and the trial court in the case before it was entitled to defer. I'm not sure how I feel about the court's general conclusion, but I disagree with its specific conclusion in the case before it.

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Send More Paramedics: Court Of Appeals Of Indiana Finds Stranger's Statements Not Covered By Rule 803(4)

Like its federal counterpart, Indiana Rule of Evidence 803(4) provides an exception to the rule against hearsay for

Statements made for purposes of medical diagnosis or treatment and describing medical history, or past or present symptoms, pain, or sensations, or the inception or general character of the cause or external source thereof insofar as reasonably pertinent to diagnosis or treatment.

Clearly, this rule covers statements made by the person needing medical treatment, but does it also cover statements made by third parties? As the recent opinion of the Supreme Court of Indiana in Jackson v. State, 2010 WL 1685974 (Ind. 2010), the answer is "maybe" when the statement is made by a close family member, but the answer is "no" when the statement is made by a stranger. 

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Can You Give Me A Summary?: Court Of Appeals Of Texas Finds Summary Of Defendant's Convictions Inadmissible At Sentencing

Article 37.07, section 3(a)(1) of the Texas Criminal Code provides that

Regardless of the plea and whether the punishment be assessed by the judge or the jury, evidence may be offered by the state and the defendant as to any matter the court deems relevant to sentencing, including but not limited to the prior criminal record of the defendant, his general reputation, his character, an opinion regarding his character, the circumstances of the offense for which he is being tried, and, notwithstanding Rules 404 and 405, Texas Rules of Evidence, any other evidence of an extraneous crime or bad act that is shown beyond a reasonable doubt by evidence to have been committed by the defendant or for which he could be held criminally responsible, regardless of whether he has previously been charged with or finally convicted of the crime or act. A court may consider as a factor in mitigating punishment the conduct of a defendant while participating in a program under Chapter 17 as a condition of release on bail. Additionally, notwithstanding Rule 609(d), Texas Rules of Evidence, and subject to Subsection (h), evidence may be offered by the state and the defendant of an adjudication of delinquency based on a violation by the defendant of a penal law of the grade of:

(A) a felony; or

(B) a misdemeanor punishable by confinement in jail.

Based upon this language, I don't quite understand the recent opinion of the Court of Appeals of Texas, Waco, in Melvin v. State, 2010 WL 1611072 (Tex.App.-Waco 2010).  

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Ace In The Hole: Seventh Circuit Deems Neurologist's Testimony Properly Excluded Based Upon Late Disclosure

Under Federal Rule of Civil Procedure 26(a)(1)(A)(i),

Except as exempted by Rule 26(a)(1)(B) or as otherwise stipulated or ordered by the court, a party must, without awaiting a discovery request, provide to the other parties:

(i) the name and, if known, the address and telephone number of each individual likely to have discoverable information — along with the subjects of that information — that the disclosing party may use to support its claims or defenses, unless the use would be solely for impeachment.

Moreover, Federal Rule of Civil Procedure 26(a)(2), requires the proponent of expert testimony to disclose the witness' identity, along with a written report that contains, among other things, a “complete statement of all opinions the witness will express and the basis and reasons for them." And, as the recent opinion of the Seventh Circuit in Happel v. Walmart Stores, Inc., 2010 WL 1529010 (7th Cir. 2010), makes clear, the sanction for noncompliance with this latter rule is typically automatic and mandatory exclusion of the expert's testimony.

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Pleading In: Court Of Appeals Of Ohio Finds Plea Allocution Qualified As A Statement Against Interest

Similar to its federal counterpart, Ohio Rule of Evidence 804(B)(3) provides an exception to the rule against hearsay for

A statement that 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 the declarant believed it to be true. A statement tending to expose the declarant to criminal liability, whether offered to exculpate or inculpate the accused, is not admissible unless corroborating circumstances clearly indicate the truthworthiness of the statement.  

I had never really thought about it before, but as the recent opinion of the Court of Appeals of Ohio, Sixth District, in State v. Jones, 2010 WL 1633340 (Ohio App. 6 Dist. 2010), makes clear, a plea allocution by an unavailable declarant should qualify as a statement against interest under this Rule.

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Ask The Doctor: Does Rule 803(4) Require Inquiries Into the Declarant's Motive?

Like its federal counterpart, Iowa Rule of Evidence 5.803(4) provides an exception to the rule against hearsay for

Statements made for purposes of medical diagnosis or treatment and describing medical history, or past or present symptoms, pain, or sensations, or the inception or general character of the cause or external source thereof insofar as reasonably pertinent to diagnosis or treatment. 

In its recent opinion in State v. Bentley, 2010 WL 1576832 (Iowa App. 2010), the Court of Appeals of Iowa claimed that the Tenth Circuit has found that the second prong of a test commonly used in connection with the federal counterpart "is unnecessary because it essentially duplicates the language of the rule of evidence." I disagree with this conclusion and also disagree with the Tenth Circuit opinion at issue.

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Murphy's Law: New Jersey Court Finds Admission Of Defendant's 17 Year-Old Conviction Required Reversal

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.

Moreover, the Advisory Committee's Note to the Rule indicates that "[a]lthough 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." Conversely, New Jersey Rule of Evidence 609 merely provides that

For the purpose of affecting the credibility of any witness, the witness' conviction of a crime shall be admitted unless excluded by the judge as remote or for other causes. Such conviction may be proved by examination, production of the record thereof, or by other competent evidence.

Under this Rule, it is thus unclear how New Jersey courts should treat convictions that are more than ten years old, but it is clear that convictions more than sixteen years old will almost never) be admissible, at least according to the recent opinion of the Superior Court of New Jersey, Appellate Division, in State v. Murphy, 2010 WL 1609379 (N.J.Super.A.D. 2010).

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For Your Eyes Only: Court Of Appeals Of Ohio Finds Trial Court Erred By Allowing Witness To Read Rule 612 Writing Aloud

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

Except as otherwise provided in criminal proceedings by Rules 16(B)(1)(g) and 16(C)(1)(d) of Ohio Rules of Criminal Procedure, 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. The adverse party is also entitled 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. If a writing is not produced or delivered pursuant to order under this rule, the court shall make any order justice requires, except that in criminal cases when the prosecution elects not to comply, the order shall be one striking the testimony or, if the court in its discretion determines that the interests of justice so require, declaring a mistrial.  

In other words, if a witness once had personal knowledge of an event but now lacks memory of that event, an attorney can use a writing to refresh the witness' recollection and allow the witness to testify independent of the writing. Thus, the witness cannot read aloud from the writing under Rule 612; that can only be done if the writing also qualifies for admission as a recorded recollection under Ohio Rule of Evidence 803(5) (or is otherwise admissible). An Ohio trial court recently missed this point, leading to the recent opinion of the Court of Appeals of Ohio, Twelfth District, in State v. Miller, 2010 WL 1534104 (Ohio App. 12 Dist. 2010).

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You Can Learn A Lot From A Dummy: Federal Circuit Reads "Qualified Witness" Language Out Of Rule 803(6) In Dicta In Crash Test Dummies Action

Federal Rule of Evidence 803(6) provides an exception to the rule against hearsay for

A memorandum, report, record, or data compilation, in any form, of acts, events, conditions, opinions, or diagnoses, made at or near the time by, or from information transmitted by, a person with knowledge, if kept in the course of a regularly conducted business activity, and if it was the regular practice of that business activity to make the memorandum, report, record or data compilation, all as shown by the testimony of the custodian or other qualified witness, or by certification that complies with Rule 902(11), Rule 902(12), or a statute permitting certification, unless the source of information or the method or circumstances of preparation indicate lack of trustworthiness.

So, who constitutes a qualified witness? And does that witness need personal knowledge regarding the creation of the document offered, or personal participation in its creation, or knowledge of who actually recorded the information? In its recent opinion in Crash Test Dummy Movie, LLC v. Mattel, Inc., 2010 WL 1508203 (Fed. Cir. 2010), the Federal Circuit suggested that the answer to this latter question is "no." I disagree.

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Community Of Interest: Eleventh Circuit Fails To Reach "Predecessor In Interest" Ruling In Maritime Appeal

Federal 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 compliance with law in the course of the same or another proceeding, if the party against whom the testimony is now offered, or, in a civil action or proceeding, a predecessor in interest, had an opportunity and similar motive to develop the testimony by direct, cross, or redirect examination.

So, who qualifies as a predecessor in interest? Unfortunately, that was a question left unanswered by the Eleventh Circuit in its recent opinion in Hearn v. McKay, 2010 WL 1490344 (11th Cir. 2010).

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The Ultimate Driving Machine?: Third Circuit Seemingly Errs In Subsequent Remedial Measure Dicta In Action Against BMW

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.

It is well established that this Rule only precludes the admission of evidence of subsequent remedial measures taken by parties, not evidence of subsequent remedial measures taken by non-parties; consequently, I can't understand the Third Circuit's contrary conclusion (in dicta) in Jacobson ex rel. Jacobson v. BMW of North America, LLC, 2010 WL 1499809 (3rd Cir. 2010).

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Quantum Of Stealth: Court Of Appeals Of Minnesota Finds Gross-Misdemeanor Theft Qualified As Crime Of Dishonesty Or False Statement

Like Federal Rule of Evidence 609(a)(2), Minnesota Rule of Evidence 609(a)(2) 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...involved dishonesty or false statement, regardless of the punishment.

As the Advisory Committee's Note to Federal Rule of Evidence 609(a)(2) notes, very few crimes qualify as crimes of dishonsety or false statement:

By that phrase, the committee means crimes such as perjury or subordination of perjury, false statement, criminal fraud, embezzlement or false pretense, or any other offense, in the nature of crimen falsi the commission of which involves some element of untruthfulness, deceit, or falsification bearing on the accused's propensity to testify truthfully.

In its recent opinion in State v. Gaiovnik, 2010 WL 1439156 (Minn.App. 2010), the Court of Appeals found that one of the defendant's prior convictions qualified for admission under Minnesota Rule of Evidence 609(a)(2). I'm not sure that I agree.

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Avoiding A Confrontation?: Eleventh Circuit Finds That Melendez-Diaz Did Not Do Away With Rule 703

In Melendez-Diaz v. Massachusetts, the Supreme Court recently found that certificates of state laboratory analysts are "testimonial" and thus covered by the Confrontation Clause. Thus, if the forensic analysts (or similar experts) who prepared such certificates (or similar documents) do not testify at a criminal defendant's trial, the certificates are inadmissible. Does the prosecution, however, solve this problem by not admitting these certificates but having other experts offer their "own" conclusions based upon these certificates? That certainly seems to be the case based upon a recent opinion of the Court of Appeals of North Carolina and the recent opinion of the Eleventh Circuit in United States v, Winston, 2010 WL 1253809 (11th Cir. 2010).

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Raising Arizona: Second Circuit Finds Statement Against Interest Was Properly Admitted To Prove Interstate Component Of Hobbs Act Violation

The Hobbs Act, 18 U.S.C. Section 1951(a), provides that

Whoever in any way or degree obstructs, delays, or affects commerce or the movement of any article or commodity in commerce, by robbery or extortion or attempts or conspires so to do, or commits or threatens physical violence to any person or property in furtherance of a plan or purpose to do anything in violation of this section shall be fined under this title or imprisoned not more than twenty years, or both.

Usually, the fact that a defendant was charged with violating the Hobbs Act would not play a factor in an evidentiary ruling. But the fact that the defendants were charged with violating the Act possibly played a large role in an evidentiry ruling in United States v. White, 2010 WL 1461645 (2nd Cir. 2010).

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Eyewitness Account: Supreme Court Of Louisiana Precludes Expert Testimony On Inaccuracy Of Eyewitness Identifications

I have done several posts on this blog (here, here, here, here, here, and here) about the inaccuracy of regular and cross-racial eyewitness identifications and whether expert testimony about this inaccuracy should be allowed. In a recent post, I noted that "My general sense is that most courts allow such expert testimony although a decent number of courts, such as the Eleventh Circuit and Minnesota courts, preclude it." That post addressed a recent opinion in which the Supreme Court of Utah reversed past precedent and allow for the admission of expert testimony on the inaccuracy of eyewitness identifications. This post addresses a recent opinion, State v. Young, 2010 WL 1286933 (La. 2010), in which the Supreme Court of Louisiana adhered to prior precedent and refused to allow for the admission of expert testimony on the inaccuracy of eyewitness identifications.

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Event Horizon: Eighth Circuit Finds District Court Failed To Identify Entirety Of Startling Event For Excited Utterance Purposes

Federal Rule of Evidence 803(2), the excited utterance exception, provides an exception to the rule against hearsay for

A statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition.

Absent an abuse of discretion, an appellate court will not reverse a trial court's ruling under the excited utterance exception. In its recent opinion in Brunsting v. Lutsen Mountains Corp., 2010 WL 1440350 (8th Cir. 2010), however, the Eighth Circuit found just such an abuse of discretion. And one of its reasons for doing so was that the district court failed to identify the entirety of the startling event for excited utterance purposes, which, according to the Eighth Circuit includes not just the underlying startling event, but its aftermath.

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Show Me Case: Missouri Court Of Appeals Finds Subsequent Remedial Measure Rule Applies To Inverse Condemnation Cases

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.

Missouri doesn't have codified rules of evidence (and while the Missouri constitution authorizes the Supreme Court of Missouri to create rules, that authorization specifically excludes rules of evidence). That said, Missouri courts have in effect applied Federal Rule of Evidence 407 in their precedent, and in its recent opinion in Rader Family Ltd. Partnership, L.L.L.P. v. City of Columbia, 2009 WL 1439017 (Mo.App. W.D. 2010), the Missouri Court of Appeals, Western District, found that the exclusionary portion of this Rule applies in nuisance cases generally and inverse condemnation cases specifically.

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Forgive Me Father, Take 2: Supreme Court Of New Jersey Reverses Cleric-Penitent Privilege Ruling

Back in August 2008, I posted an entry about State v. J.G., 2008 WL 3850772 (N.J.Super.A.D. 2008), in which the Superior Court of New Jersey, Appellate Division reversed a trial court's decision to apply New Jersey's cleric-penitent privilege in the case of a man accused of sexually molesting his daughters. In response to the court's ruling, I wrote, "I agree with the court's conclusion but not its reasoning." Well, after the appellate division ruled against the defendant, he appealed to the Supreme Court of New Jersey, and that court disagreed both with the appellate division's reasoning and its conclusion in its recent opinion in State v. J.G., 2010 WL 1328844 (N.J. 2010).   

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Follow My Voice: Seventh Circuit Notes "Minimal Familiarity" Standard Under Rule 901(b)(5) But Still Reverses

Federal Rule of Evidence 901(b)(5) provides the following as an example of proper authentication:

Identification of a voice, whether heard firsthand or through mechanical or electronic transmission or recording, by opinion based upon hearing the voice at any time under circumstances connecting it with the alleged speaker.  

And as the recent opinion in United States v. Jones, 2010 WL 1337741 (7th Cir. 2010), makes clear, the Seventh Circuit (like several other circuits) merely requires that the witness identifying the speaker's voice to have "minimal familiarity" with the speaker's voice. But the prosecution could not even satisfy this standard in Jones.

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Pleading Out: Court Of Appeals Of North Carolina Deems Defendant's Statement To Judge During Plea Hearing Admissible

North Carolina Rule of Evidence 410(4) indicates that

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

So, let's say that there is a hearing before at trial judge during which the prosecutor offers the defendant a plea bargain. The defendant then addresses the trial judge, admits complicity in the crime, and asks if the judge would impose a lesser sentence than that offered by the prosecutor. The trial judge refuses and allows the defendant to discuss the plea bargain with his counsel over the evening recess. The next day, the defendant rejects the plea bargain. Should the statement of complicity be admissible? According to the recent opinion of the Court of Appeals of North Carolina in State v. Haymond, 2010 WL 1286897 (N.C. App. 2010), the answer is "Yes." I disagree.

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