EvidenceProf Blog

Demonstrably Durable: Indiana Case Reveals Indiana Courts Still Recognize Demonstrably False Accusation Exception To Rape Shield Rule

"Under common law, evidence of prior false allegations of sexual misconduct is admissible if the allegation was demonstrably false and similar to that with which the defendant was charged, or if the complaining witness has admitted that the prior accusation was false." Jack Kenney, Prior False Allegations of Sexual Misconduct, Other Holdings 41-JUN Res Gestae 30, 30 (1998).

The recent opinion of the Court of Appeals of Indiana in Wells v. State, 2010 WL 2396283 (Ind.App. 2010), reveals that Indiana courts still recognize this common law rule as an exception to Indiana's rape shield rule and the unlikelihood that defendants will be able to use it to their advantage.

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Without Prejudice: Supreme Court Of Montana Allows Jury Impeachment Regarding Internet Research, Upholds Verdict

Similar to its federal counterpart, Montana 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 that or any other juror's mind or emotions as influencing the juror to assent or dissent from the verdict or indictment or concerning the juror's mental processes in connection therewith. 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. 

However, as an exception to this subdivision, a juror may testify and an affidavit or evidence of any kind be received as to any matter or statement concerning only the following questions, whether occurring during the course of the jury's deliberations or not: (1) whether extraneous prejudicial information was improperly brought to the jury's attention; or (2) whether any outside influence was brought to bear upon any juror; or (3) whether any juror has been induced to assent to any general or special verdict, or finding on any question submitted to them by the court, by a resort to the determination of chance.

As I have noted previously, information does not need to appear overtly prejudicial to be considered extraneous prejudicial information for Rule 606(b) purposes, meaning that a dictionary definition of a legal term can be extraneous prejudicial information. Of course, when that (internet) dictionary definition is the same as the legal definition, a juror's use of a dictionary is unlikely to result in a new trial as the recent opinion of the Supreme Court of Montana in Stebner v. Associated Materials, Inc., 2010 WL 2509626 (Mont. 2010), makes clear.

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Tanner '87: Court Of Criminal Appeals Of Tennessee Precludes Jury Impeachment Regarding Allegations Of Juror Intoxication

Similar to its federal counterpart, 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.

In its landmark opinion in Tanner v. United States, 483 U.S. 107 (1987), the Supreme Court found that juror intoxication does not constitute an improper outside influence, with Justice O'Connor famously concluding, "However severe their effect and improper their use, drugs or alcohol voluntarily ingested by a juror seems no more an 'outside influence' than a virus, poorly prepared food, or a lack of sleep." Based upon this ruling, the defendant in State v. Haynes, 2010 WL 2473298 (Tenn.Crim.App. 2010), had no chance of success.

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By Invitation Only: Court Of Appeals Of Tennessee Affirmes Terimination Of Parental Rights Based On Invited Error Doctrine

Under the invited error doctrine, a party is not permitted to take advantage of an error which he himself invited or induced the trial court to make. Although the Court of Appeals of Tennessee did not mention this doctrine by name, it clearly applied it in its recent opinion in In re Corey N.A., 2010 WL 2490758 (Tenn.Ct.App. 2010). 

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Off The Record: Court Of Appeals Of Texas Notes That Rule 609(b) Balancing Doesn't Need To Be Recorded

Like its federal counterpart, Texas 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.

And, as the recent opinion of the Court of Appeals of Texas, Beaumont, in Walker v. State, 2010 WL 2533774 (Tex.App.-Beaumont 2010), makes clear, the trial court does not need to create a record indicating that it performed the above balancing test.

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Just The Facts, Man: D.C. Case Reveals Broadness Of D.C.'s Prior Identification Rule

Federal Rule of Evidence 801(d)(1)(C) 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...one of identification of a person made after perceiving the person.

Washington D.C. does not have codified rules of evidence, but D.C. Code Section 14-102(b)(3) provides that

A statement is not hearsay if the declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement and the statement is...an identification of a person made after perceiving the person. 

In other words, as the District of Columbia Court of Appeals found in its recent opinion in Lewis v. United States, 2010 WL 2516135 (D.C. 2010), "FED.R.EVID....is essentially identical to D.C.Code § 14-102(b)." As the court's opinion reveals, though, the D.C. rule may go even farther.

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Drive@death?: Florida Appellate Court Finds Trial Court Improperly Applied Doctrine Of Substantial Similarity In Trial Against Mitsubishi

Generally, the doctrine of substantial similarity applies in a products liability claim when a party, most often a plaintiff, attempts to introduce evidence of prior accidents or recreates the accident involving the defendant's product, in order to show notice of defect, magnitude of the danger involved, the defendant's ability to correct a known defect, or the lack of safety for intended uses.

The personal representative of the estate of a decedent sues Mitsubishi, claiming that design defects in the seat belt, seatback, and side window glass of the decedent's Mitsubishi Native caused him to be partially ejected from the vehicle during an accident, causing his death. In response, Mitsubishi seeks to introduce evidence of “301 testing” to show that a variety of seats in different vehicles tested by NHTSA perform in a similar manner to the seat in the Nativa. Should the admissibility of the evidence of the 301 testing depend on the doctrine of substantial similarity? According to the trial court, the answer is "yes." According to the District Court of Appeal of Florida, Fourth District, in its recent opinion in Mitsubishi Motor Corp. v. Laliberte, 2010 WL 2382562 (Fla.App. 4 Dist. 2010), the answer is "no."

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Bloody Well Right: Supreme Court Of Arizona Finds 6 Crime Scene Photos Were Properly Admitted

Like its federal counterpart, Arizona Rule of Evidence 403 provides that

Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.

The key phrase in this Rule is "substantially outweighed." In other words, even if the probative value of a piece of evidence is slightly or moderately outweighed by the danger of unfair prejudice that it creates, it will still be deemed admissible. This wording helps explains why American courts admit all sorts of gruesome evidence, such as the six crime scene photos deemed admissible by the Supreme Court of Arizona in its recent opinion in State v. Lynch, 2010 WL 2485248 (Ariz. 2010).

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Maxitrial?: First Circuit Finds That Regular Rule 403 Analysis Applies to Rule 415 Rulings

Federal Rule of Evidence 415(a) provides that

(a) In a civil case in which a claim for damages or other relief is predicated on a party's alleged commission of conduct constituting an offense of sexual assault or child molestation, evidence of that party's commission of another offense or offenses of sexual assault or child molestation is admissible and may be considered as provided in Rule 413 and Rule 414 of these rules.

Meanwhile, Federal Rule of Evidence 403 provides that

Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.

In its recent opinion in Martínez v. Cui, 2010 WL 2404390 (1st Cir. 2010), the First Circuit addressed an issue that has split the courts: Does Rule 403 apply differently in Rule 415 cases than in other cases. According to many courts, the answer is "yes." According to the First Circuit, the answer is "no."

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Expert Reliance: Court Of Appeals Of Kentucky Finds Expert Opinion Testimony On Damages Was Properly Based On Inadmissible Hearsay

Kentucky Rule of Evidence 703(a) provides that

The facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by or made known to the expert at or before the hearing. If of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject, the facts or data need not be admissible in evidence.

And, as the recent opinion of the Court of Appeals of Kentucky in Kessler Homes, Inc. v. Petzold, 2010 WL 2427415 (Ky.App. 2010), makes clear, estimates of damages based upon inadmissible hearsay are often admissible under Kentucky Rule of Evidence 703(a) and similar rules.

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Plenty Of Time: Tenth Circuit Finds Statement Made Almost 2 Hours After Sexual Assault Qualified As Excited Utterance

Federal Rule of Evidence 803(2) 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.

And, as the recent opinion of the Tenth Circuit in United States v. Smith, 2010 WL 2197524 (10th Cir. 2010), makes clear, even statements made several hours after a startling event or condition can qualify as excited utterances.

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Brief Inquiry: Court Of Appeals Of Indiana Affirms Child Molesting Conviction Despite Possibly Erroneous Impeachment

Like its federal counterpart, Indiana 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, if the conviction resulted in confinement of the witness then the date of the release of the witness from the confinement 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 ten 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.

So, let's say that the prosecution impeaches the defendant with a conviction that is more than ten year old, and the defendant does not object to the admission of his conviction for impeachment purposes. After the defendant is convicted, however, he appeals, claiming that evidence of this conviction was improperly admitted. Clearly, the defendant has to prove plain error. But can he do so if the prosecution's impeachment of him was fairly brief? According to the recent opinion of the Court of Appeals of Indiana in its recent opinion in Boyd v. State, 2010 WL 2396260 (Ind.App. 2010), the answer is "no."

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Rapier, Not Blunderbuss: Court Of Criminal Appeals Of Texas Clarifies Scope Of Davis v. Alaska

Texas Rule of Evidence 609(d) provides that

Evidence of juvenile adjudications is not admissible, except for proceedings conducted pursuant to Title III, Family Code, in which the witness is a party, under this rule unless required to be admitted by the Constitution of the United States or Texas.

So, when does the Constitution require the admission of evidence of juvenile adjudications? According to the appellant in Irby v. State, 2010 WL 2382594 (Tex.Crim.App. 2010), any witness, including a juvenile, who is on probation may be cross-examined about that status to show a potential bias or motive to testify for the State. The Court of Criminal Appeals of Texas disagreed.

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Same Claim?: Northern District Of Florida Fails To Answer Whether Rule 408 Only Covers Settlement Documents Regarding Same Claim As Lawsuit

Federal Rule of Evidence 408(a) states:

(a) Prohibited uses.--Evidence of the following is not admissible on behalf of any party, when offered to prove liability for, invalidity of, or amount of a claim that was disputed as to validity or amount, or to impeach through a prior inconsistent statement or contradiction:

(1) furnishing or offering or promising to furnish--or accepting or offering or promising to accept--a valuable consideration in compromising or attempting to compromise the claim; and

 

(2) conduct or statements made in compromise negotiations regarding the claim, except when offered in a criminal case and the negotiations related to a claim by a public office or agency in the exercise of regulatory, investigative, or enforcement authority.

But does this Rule apply only when the claim involved in a lawsuit is the same as the claim involved in the settlement negotiations? The United States District Court for the Northern District of Florida didn't really answer that question in its recent opinion in Fluor Intercontinental, Inc. v. IAP Worldwide Services, Inc., 2010 WL 2366482 (N.D. Fla. 2010), but I think that the answer is a clear "no."

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Standard Deduction: Court Of Appeals Of North Carolina Precludes Jury Impeachment Regarding Incorrect Damages Being Awarded

North Carolina 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 his or any other juror's mind or emotions as influencing him to assent to or dissent from the verdict or indictment or concerning his mental processes in connection therewith, except that a juror may testify on the question whether extraneous prejudicial information was improperly brought to the jury's attention or whether any outside influence was improperly brought to bear upon any juror. Nor may his affidavit or evidence of any statement by him concerning a matter about which he would be precluded from testifying be received for these purposes.

So, let's say that a plaintiff seeks $50,000 in damages, and the defendant counterclaims. And let's say that the jury's verdict form appears to award the plaintiff $20,000 in damages and the defendant $30,000 in damages. And let's say that after the verdict is entered, jurors come forward and claim that the $20,000 in damages listed for the plaintiff was the net amount that they intended to award it, with the $30,000 allegedly awarded to the defendant was intended to be the amount deducted from the $50,000 sought by the plaintiff to reach the total final billing of $20,000. Will the jurors' testimony be admissible? According to the recent opinion of the Court of Appeals of North Carolina in Carolina Homes by Design, Inc. v. Lyons, 2010 WL 2367110 (N.C. App. 2010), the answer is "no."

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You're Not Authentic: Court Of Appeals Of Texas Finds Tape Recording Properly Excluded Based On Lack Of Authentication

Like its federal counterpart, Texas 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.

In other words, before an alleged confession note written by the defendant can be admitted, the proponent of the note must present some evidence establishing that the note was indeed written by the defendant. And if the defendant wants to introduce what he claims is a tape recording of the alleged victim's mother yelling at her, he must present some evidence establishing that it is indeed the mother's voice on the tape. In Sosa v. State, 2010 WL 2330304 (Tex.App.-Austin 2010), this was something that the defendant was unable to do.

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A Foolish Consistency?: Court Of Appeals Of Ohio Deems Improper Admission Of Victim's Prior Consistent Statement Harmless Error

Like its federal counterpart, Ohio Rule of Evidence 801(D)(1)(b) provides that

A statement is not hearsay if...[t]he declarant testifies at trial or hearing and is subject to cross-examination concerning the statement, and the statement is...consistent with declarant's testimony and is offered to rebut an express or implied charge against declarant of recent fabrication or improper influence or motive.

Because such a prior consistent statement is not hearsay, it is admissible both to bolster the credibility of the declarant after her credibility has been attacked and as substantive evidence, i.e., to prove the truth of the matter asserted in the statement. Therefore, it is difficult for an appellate court to find plain error when the trial court erroneously finds that an alleged victim's statement qualified as a prior consistent statement. And yet, that is exactly what the Court of Appeals of Ohio, Eighth District, found in its recent opinion in State v. Rosa, 2010 WL 2007199 (Ohio App. 8 Dist. 2010).

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Refreshment Refresher: Air Force Court Of Criminal Appeals Finds Proper Procedure Followed In Rule 612 Refreshment Of Recollection

Like its federal counterpart, Military Rule of Evidence 612 permits an attorney to refresh a witness' recollection with a "writing," with courts liberally construing the word "writing" to include basically anything (e.g., a photograph, food, or a piece of music). But what if opposing counsel's strategy is to attack a witness' ability to recall details? Can the attorney still refresh that witness' recollection? And what is the generally accepted manner by which counsel may refresh a witness' recollection? Those were the questions answered by the United States Air Force Court of Criminal Appeals in its recent opinion in United States v. Berry, 2010 WL 2265612 (A.F.Ct.Crim.App. 2010).

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Disinterested?: Court Of Appeals Of Texas Finds Statement Regarding "Burned Or Dirty" Gun Inadmissible As Statement Against Interest

Texas Rule of Evidence 803(24) 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 the declarant to civil or criminal liability, or to render invalid a claim by the declarant against another, or to make the declarant an object of hatred, ridicule, or disgrace, that a reasonable person in declarant's position would not have made the statement unless believing it to be true. In criminal cases, a statement tending to expose the declarant to criminal liability is not admissible unless corroborating circumstances clearly indicate the trustworthiness of the statement.

A defendant is charged with capital murder based upon the victim being shot to death. Part of his defense is that an alternate suspect committed the crime. To prove that the alternate suspect committed the crime, the defendant seeks to introduce testimony that, two weeks after the victim's death, the alternate suspect sought to sell a gun to another individual. When the other individual asked whether the gun was "burned or dirty," the alternate suspect responded, "Yeah, I just did something good." Should this statement qualify as a statement against interest? According to the recent opinion of the Court of Appeals of Texas, Houston, in its recent opinion in Ramirez v. State, 2010 WL 2306112 (Tex.App.-Hous. [1 Dist. 2010]), the answer is "no." I disagree.

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You're Giving Me A Headache: Court Of Appeals Of Texas Deems Child's Statements To Therapist About Parents' Drug Use Admissible Under Rule 803(4)

Like its federal counterpart, Texas 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.

So, does a four-and-a-half year-old's statement to her therapist that her parents used drugs and that she saw white powder around her house qualify for admission as a statement for purposes of medical treatment or diagnosis under Texas Rule of Evidence 803(4)? According to the Court of Appeals of Texas, Austin, in its recent opinion in Jesse Calderon and Marixza Melendez v. Texas Department of Family and Protective Services, 2010 WL 2330372 (Tex.App.-Austin 2010), the answer is "yes."

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