EvidenceProf Blog

Leave It To The Experts: Supreme Court Of Kentucky Waffles Over Whether Nonexperts Can Authenticate Handwriting Based Upon Familiarity Acquired For Purposes Of Litigation

Like its federal counterpart, Kentucky Rule of Evidence 901(a) provides that

The requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims. 

And, like its federal counterpart, Kentucky Rule of Evidence 901(b)(2) provides that

By way of illustration only, and not by way of limitation, the following are examples of authentication or identification conforming with the requirements of this rule:  

(2) Nonexpert testimony on handwriting. Nonexpert opinion as to the genuineness of handwriting, based upon familiarity not acquired for the purposes of litigation. 

The way I see it, the language of Rule 901(b)(2) makes it clear that a party cannot authenticate a writing based upon nonexpert opinion testimony as to the genuineness of handwriting, based upon familiarity acquired for the purposes of litigation. According to the recent opinion of the Supreme Court of Kentucky in Roach v. Commonwealth, 2010 WL 2016851 (Ky. 2010), however, this is not so clear.

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Proper Proffer: Second Circuit Construes Scope Of Substantive Rebuttal Waiver Provision Under Rule 410

Federal 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 against the defendant who made the plea or was a participant in the plea discussions:

(4) 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for the prosecuting authority which do not result in a plea of guilty or which result in a plea of guilty later withdrawn.

Since the Supreme Court's decision in United States v. Mezzanatto, 513 U.S. 196 (1995), however, it is well established that prosecutors can get criminal defendants to waive the protections of this Rule. But if a defendant signs a waiver allowing for the use of his statements made during plea discussions as substantive evidence to rebut evidence offered or elicited or factual assertions made by or on behalf of him at trial, what exactly has he waived? That was the question addressed by the Second Circuit in its recent opinion in United States v. Oluwanisola, 2010 WL 2011317 (2nd Cir. 2010).

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Jurors Behaving Badly: Eastern District Of California Precludes Jury Impeachment Regarding Intrajury Threats Of Violence

Just last week, I posted an entry about a recent opinion out of Texas in which an appellate court refused to allow a juror to impeach her verdict based upon allegations of derogatory intimidation by other jurors until she changed her vote. The basis for the court's refusal was Texas' counterpart to Federal Rule of Evidence 606(b), which 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 .

The recent opinion of the United States District Court for the Eastern District of California in Dickson v. Subia, 2010 WL 1992580 (E.D. Cal. 2010), in which a juror was allegedly subjected to both verbal harassment and physical threats, was resolved on similar grounds.

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Prejudging: New Jersey Appellate Court Reverses Restraining Order Based On Trial Judge's Pror Knowledge

Like its federal counterpart, New Jersey Rule of Evidence 605 provides that

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

As I noted in a recent post,

Normally, this Rule applies when a judge makes comments at trial that are the equivalent of testimony, but as the recent opinion of the Court of Appeals of Arkansas in Kinard v. Arkansas Dept. of Human Services, 2010 WL 1904515 (Ark.App. 2010), makes clear, the Rule also applies when a judge engages in off-the-record fact gathering.

In Kinard, the judge intentionally engaged in off-the-record fact gathering. But as the recent opinion of the Superior Court of New Jersey, Appellate Division in T.J. v. G.G., 2010 2089676 (N.J. Super.A.D. 2010), makes clear, the Rule also applies to a judge who unintentionally engages in off-the-record fact gathering.

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Your Expert('s) Advide: District Of Puerto Rico Finds No Expert Disclosure Problem In Bed Burning Case

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." As I noted in a recent post, "the sanction for noncompliance with this...rule is typically automatic and mandatory exclusion of the expert's testimony." But what requirements apply when a party wants to present the testimony of the opposing party's expert witness at trial? That was the question addressed by the United States District Court for the District of Puerto Rico in its recent opinion in Rosa-Melendez v. Invacare Corp., 2010 WL 1801789 (D.Puerto Rico 2010).

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Did You Notice That? Court Of Appeals Of Ohio Avoids Internet Authentication Issue Through Judicial Notice

Like its federal counterpart, Ohio Rule of Evidence 901(A) provides that

The requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims.

So, can internet printouts be admitted without the testimony of an authenticating witness? This was a question presented to the Court of Appeals of Ohio, Twelfth District in State v. Howard, 2010 WL 2029056 (Ohio App. 12 Dist. 2010), but one which it did not need to answer based upon judicial notice.

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Getting Distribution: Eighth Circuit Finds Testimony Concerning Intent To Distribute Fine Under Rule 704(b)

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.

And, as the recent opinion of the Eighth Circuit in United States v. Parish, 2010 WL 2025365 (8th Cir. 2010), makes clear, testimony that a certain amount of drugs is consistent with possession with intent to distribute does not run afoul of this rule.

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Bad Habit: Supreme Court Of Alaska Finds Eight Photographs Of Parking Lot Insufficient As Habit Evidence

Like its federal counterpart, Alaska Rule of Evidence 406 provides that

Evidence of the habit of a person or of the routine practice of an organization, whether corroborated or not and regardless of the presence of eyewitnesses, is relevant to prove that the conduct of the person or organization on a particular occasion was in conformity with the habit or routine practice.

In order to present habit evidence, however, the proponent must be able to prove that a person or organization acted in a particular way with sufficient frequency and regularity. And, as the recent opinion of the Supreme Court of Alaska in Mueller v. Buscemi, 2010 WL 2011505 (Alaska 2010), makes clear, this is difficult to do.

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Getting (Un)Lucky In Kentucky: Court Of Appeals of Kentucky Finds Trial Court Used Incorrect Standard For Rule 609(b) Impeachment

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

Evidence of a conviction under this rule is not admissible if a period of more than ten (10) years has elapsed since the date of the conviction unless the court determines that the probative value of the conviction substantially outweighs its prejudicial effect. 

In Smith v. Commonwealth, 2010 WL 2010730 (Ky.App. 2010), the trial court had deemed the alleged victims' convictions that were more than ten years old inadmissible because they did not relate to the issues before the trial court. And as the Court of Appeals of Kentucky found, this was clearly erroneous.

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I Need A Remedy: Middle District Of Georgia Finds Subjective Intent Not Dispositive In Subsequent Remedial Measures Analysis

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.

The main ground for excluding evidence of subsequent remedial measures "rests on a social policy of encouraging people to take, or at least not discouraging them from taking, steps in furtherance of added safety."  So, let's say that a company's product allegedly causes an injury. And let's say that after the injury, the company stops selling the product and begins selling a similar product that is safer. But let's say that the company's motivation for selling the new product rather than the old product has nothing to do with safety concerns. Is evidence of the change inadmissible even in the absence of a specific intent by the defendant to make a subsequent remedial measure? According to the United States District Court for the Middle District of Georgia in In re Mentor Corp. ObTape Transobturator Sling Products Liability Litigation, 2010 WL 2015146 (M.D.Ga. 2010), the answer is "yes."

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Grave Secrets: Bones Episode Begs Question: Can The Alleged Victim Of A Crime Testify As An Expert Witness?

I am a fan of the TV show "Bones." Back in 2008, I did a post about a real case in which Kathy Reichs, the forensic anthropologist who wrote the books which served as the inspiration for the TV show, testified as an expert witness and was subjected to scathing comments from the prosecutor. Well, I finally caught up to last week's episode of "Bones," and it dealt with an interesting evidentiary question: Can the alleged victim of a crime testify as an expert witness at the trial of the defendant for committing that crime? According to the show, the answer is "no." In courts across the United States, however, the answer is "yes."

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You Have My Letter: Supreme Court Of Indiana Finds Letter Written To Victim Improperly Admitted Against Defendant Under Rule 410

Somewhat similar to its federal counterpart, Indiana Rule of Evidence 410 provides in relevant part that

Evidence of a plea of guilty or admission of the charge which was later withdrawn, or a plea of nolo contendere, or of an offer so to plead to the crime charged or any other crime, or of statements made in connection with any of the foregoing withdrawn pleas or offers, is not admissible in any civil or criminal action, case or proceeding against the person who made the plea or offer.

So, is a letter of apology written by the defendant to the victim inadmissible under this Rule? According to the recent opinion of the Supreme Court of Indiana in Gonzalez v. State, 2010 WL 1988134 (Ind. 2010), the answer is "yes" if the letter was written as part of the plea bargaining process.

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We The Jury: Court Of Appeals Of Texas Finds Allegations Of Derogatory Intimidation Insufficient To Allow Jury Impeachment

Somewhat similar to its federal counterpart, Texas 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 jury's deliberations, or on any juror's mind or emotions or mental processes, as influencing any juror's assent to or dissent from the verdict or indictment. Nor may a juror's affidavit or any statement by a juror concerning any matter about which the juror would be precluded from testifying be admitted in evidence for any of these purposes. However, a juror may testify: (1) whether any outside influence was improperly brought to bear upon any juror; or (2) to rebut a claim that the juror was not qualified to serve.

In other words, jurors cannot impeach verdicts based upon allegations of threatened or actual physical violence or intimidation by other jurors (except in Minnesota). So, does this rule make sense? Well let's look at the recent opinion of the Court of Appeals of Texas, Tyler, in Lee v. State, 2010 WL 1899675 (Tex.App.-Tyler 2010).

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Benefit Of The Bargain: New Jersey Appellate Court Finds Improper Admission Of Plea Bargaining Statements Was Not Harmless Error

Like its federal counterpart, New Jersey Rule of Evidence 410 provides that

Except as otherwise provided in this rule, evidence of a plea of guilty which was later withdrawn, of any statement made in the course of that plea proceeding, and of any statement made during plea negotiations when either no guilty plea resulted or a guilty plea was later withdrawn, is not admissible in any civil or criminal proceeding against the person who made the plea or statement or who was the subject of the plea negotiations. However, such a statement is admissible (1) in any proceeding in which another statement made in the course of the same plea or plea discussions has been introduced and the statement should in fairness be considered contemporaneously with it, or (2) in a criminal proceeding for perjury, false statement, or other similar offense, if the statement was made by the defendant under oath, on the record, and in the presence of counsel.

And, as the recent opinion of the Superior Court of New Jersey, Appellate Division in State v. Brabham, 2010 WL 1929560 (N.J.Super.A.D. 2010), makes clear, if a defendant's confessions made during plea discussions are admitted in violation of this Rule, it is going to be difficult for the court to find harmless error.

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Tender Mercies: Why Evidence of Ununsual Maturity Shouldn't Be Enough To Rebut Preumption That Children Under 12 Are Of Tender Years

Like the vast majority of states, Mississippi has a "tender years" exception to the rule against hearsay. Specifically, Mississippi Rule of Evidence 803(25) provides an exception to the rule against hearsay for

A statement made by a child of tender years describing any act of sexual contact performed with or on the child by another is admissible in evidence if: (a) the court finds, in a hearing conducted outside the presence of the jury, that the time, content, and circumstances of the statement provide substantial indicia of reliability; and (b) the child either (1) testifies at the proceedings; or (2) is unavailable as a witness: provided, that when the child is unavailable as a witness, such statement may be admitted only if there is corroborative evidence of the act.

In its recent opinion in McCrory v. State, 2010 WL 1855853 (Miss.App. 2010), the Court of Appeals of Mississippi noted that "[t]here is a rebuttable presumption that a child under the age of twelve is of tender years." So, when can this presumption be rebutted? As far as I can tell, no Mississippi court has conclusively answered that question, but I don't like what at least one Mississippi court has intimated.

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Just The Facts: Supreme Court Of North Dakota Finds NDRCP 56(e) Trumps NDRE 705 In Uninsured Motorist Appeal

Like its federal counterpart, North Dakota Rule of Evidence 705 provides that

The expert may testify in terms of opinion or inference and give reasons therefor without first testifying to the underlying facts or data, unless the court requires otherwise. The expert may in any event be required to disclose the underlying facts or data on cross-examination.

Also, like its federal counterpart, North Dakota Rule of Civil Procedure 56(e) provides in relevant part that, with regard to motions for summary judgment,

Supporting and opposing affidavits must be made on personal knowledge, set forth such facts as would be admissible in evidence, and show affirmatively that the affiant is competent to testify to the matters stated therein. Sworn or certified copies of all papers or parts thereof referred to in an affidavit must be attached thereto or served therewith.

So, do affidavits containing expert opinions submitted in connection with motions for summary judgment need to set forth specific facts showing there is a genuine issue for trial? In its recent opinion in Perius v. Nodak Mut. Ins. Co., 2010 WL 1875738 (N.D. 2010), the Supreme Court of North Dakota, like many courts before it, answered this question in the affirmative.

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Inconclusive: Southern District Of New York Allows Expert Testimony Regarding Hawala

A hawala is

an alternative or parallel remittance system. It exists and operates outside of, or parallel to 'traditional' banking or financial channels. It was developed in India, before the introduction of western banking practices, and is currently a major remittance system used around the world. It is but one of several such systems; another well known example is the 'chop', 'chit' or 'flying money' system indigenous to China, and also, used around the world. These systems are often referred to as 'underground banking'; this term is not always correct, as they often operate in the open with complete legitimacy, and these services are often heavily and effectively advertised.

The components of hawala that distinguish it from other remittance systems are trust and the extensive use of connections such as family relationships or regional affiliations. Unlike traditional banking or even the 'chop' system, hawala makes minimal (often no) use of any sort of negotiable instrument. Transfers of money take place based on communications between members of a network of hawaladars, or hawala dealers.

If a defendant were charged with various crimes, with the allegation being that the defendant used a hawala to commit these crimes, expert testimony that the defendant did not use a hawala could run afoul of Federal Rule of Evidence 704. That was not, however, what happened in United States v. Banki, 2010 WL 1875690.

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Judge, Jury & Investigator: Court Of Appeals Of Arkansas Finds Trial Judge Improperly Took Field Trip To Appellant's House

Like its federal counterpart, Arkansas 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. 

Normally, this Rule applies when a judge makes comments at trial that are the equivalent of testimony, but as the recent opinion of the Court of Appeals of Arkansas in Kinard v. Arkansas Dept. of Human Services, 2010 WL 1904515 (Ark.App. 2010), makes clear, the Rule also applies when a judge engages in off-the-record fact gathering.

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Sign Here: Court Of Appeals Of Iowa Finds Rule 410 Doesn't Cover Defendant's Falsely Signed Statement of Understanding

Like its federal counterpart, Iowa Rule of Evidence 5.410(4) indicates that

Except as otherwise provided in this rule or R.Cr.P. 9(5), evidence of the following is not, in any civil or criminal proceeding, admissible against the defendant who made the plea or was a participant in the plea discussions:

(4) 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.

Most courts require a defendant claiming that he made statements during plea discussions to prove two elements: (1) that he exhibited an actual subjective expectation to negotiate a plea at the time of the discussion; and (2) that this expectation was reasonable given the totality of the circumstances. And as the recent opinion of the Court of Appeals of Iowa in State v. Daniels, 2010 WL 1875707 (Iowa App. 2010), makes clear, if a defendant claims that a document commenced plea negotiations and yet he signed a false name on that document, he did not have an actual subjective expectation to negotiate a plea.

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No Foundation: Seventh Circuit Opinion Reveals Lack Of Need To "Lay A Foundation" In American Evidence Law

When I reach the authentication portion of my Evidence classes, students usually ask whether authenticating a piece of evidence is the same thing as laying a proper foundation for its admission. My response is that there is no such thing as laying a foundation in American evidence law (despite what we are told by legal movies and TV shows). This point was recently recognized by the Seventh Circuit in its recent opinion in United States v. Collins, 2010 WL 1838361 (7th Cir. 2010).

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