EvidenceProf Blog

Going Into Withdrawl: Eleventh Circuit Finds Rule 410(1) Inapplicable In Immigration Appeal

Federal Rule of Evidence 410(1) 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:

(1) a plea of guilty which was later withdrawn

As the recent opinion of the Eleventh Circuit in Garces v. U.S. Attorney General, 2010 WL 2899024 (11th Cir. 2010), makes clear, however, this Rule only holds that a withdrawn guilty plea is inadmissible in a later criminal trial for the same offense, and the Rule, like all Federal Rules of Evidence, does not apply to administrative proceedings.

Continue reading

Complete Reversal: Military Court Sets Aside Sexual Assault Conviction Based On Confessions Rule Of Completeness

Like its federal counterpart, Military Rule of Evidence 106 provides that

When a writing or recorded statement or part thereof is introduced by a party, an adverse party may require that party at that time to introduce any other part or any other writing or recorded statement which ought in fairness to be considered contemporaneously with it.

Unlike the Federal Rules of Evidence, however, the Military Rules of Evidence also have a "rule of completeness," Military Rule of Evidence 304(h)(2), dealing specifically with confessions, which provides that

If only part of an alleged admission or confession is introduced against the accused, the defense, by cross-examination or otherwise, may introduce the remaining portions of the statement.

The recent opinion of the U.S. Navy-Marine Corps Court of Criminal Appeals in United States v. Foisy, 2010 WL 2824964 (N.M.Ct.Crim.App. 2010), does a good job of laying out how military courts apply this latter Rule.

Continue reading

A History Of Violence: Court Of Appeals Of Tennessee Makes Odd Comment About Violent Felonies In Rule 609 Ruling

Like its federal counterpart, Tennessee Rule of Evidence 609 permits a prosecutor to impeach a defendant through evidence of the defendant's prior conviction if the prosecutor can prove that the probative value of the conviction outweighs its prejudicial effect. What the Court of Criminal Appeals of Tennessee seems to have missed in its recent opinion in State v. Parham, 2010 WL 2898785 (Tenn.Crim.App. 2010), is the relevant question is how probative the prior conviction is on the issue of the defendant's credibility as a witness.

Continue reading

Make Me Whole, Take 5: Court Of Appeals Of Minnesota Issues Another Ridiculous Opinion Under "Whole Person" Impeachment Theory

I have done a couple of previous posts (here, here, here, and here) about Minnesota's wrongheaded "whole person" approach to felony conviction impeachment, and I am going to continue posting about it until Minnesota courts abandon this horribly misguided approach. The latest example of Minnesota's miscarriage of justice is the opinion of the Court of Appeals of Minnesota in State v. James, 2010 WL 2899115 (Minn.App. 2010).

Continue reading

Judge, Jury, And Witness: Court Of Appeals Of Texas Notes That Rule 605 Covers The Functional Equivalent Of Witness Testimony

Like its federal counterpart, Texas 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.

And, as the recent opinion of the Court of Appeals of Texas, Waco, in Marriott v. State, 2010 WL 2869781 (Tex.App.-Waco 2010), makes clear, Rule 605 precludes not only judicial testimony but also judicial statements of fact that are the "functional equivalent of witness testimony."

Continue reading

Bad Reputation: Alaska Case Reveals Differences Between Federal And Alaska Rules Of Evidence On Character/Reputation Evidence

Federal Rule of Evidence 404(a)(2) provides that

Evidence of a person's character or a trait of character is not admissible for the purpose of proving action in conformity therewith on a particular occasion, except:....

In a criminal case, and subject to the limitations imposed by Rule 412, evidence of a pertinent trait of character of the alleged victim of the crime offered by an accused, or by the prosecution to rebut the same, or evidence of a character trait of peacefulness of the alleged victim offered by the prosecution in a homicide case to rebut evidence that the alleged victim was the first aggressor.

Meanwhile, Alaska Rule of Evidence 404(a)(2) provides that

Evidence of a person's character or a trait of character is not admissible for the purpose of proving that the person acted in conformity therewith on a particular occasion, except:

Evidence of a relevant trait of character of a victim of crime offered by an accused, or by the prosecution to rebut the same, or evidence of a relevant character trait of an accused or of a character trait for peacefulness of the victim offered by the prosecution in a case to rebut evidence that the victim was the first aggressor....

The recent opinion of the Court of Appeals of Alaska in Proctor v. State, 2010 WL 2870106 (Alaska App. 2010), reveals the important difference between these rules and a possible difference between Federal Rule of Evidence 405(a) and Alaska Rule of Evidence 405(a) regarding the admissibility of reputation evidence.

Continue reading

Plain Justice: Court Of Appeals Of Minnesota Finds No Plain Error In Trial Court's Failure To Admit Statement Under Residual Exception

Like its federal counterpart, Minnesota Rule of Evidence 807 provides an exception to the rule against hearsay for

A statement not specifically covered by rule 803 or 804 but having equivalent circumstantial guarantees of trustworthiness, is not excluded by the hearsay rule, if the court determines that (A) the statement is offered as evidence of a material fact; (B) the statement is more probative on the point for which it is offered than any other evidence which the proponent can procure through reasonable efforts; and (C) the general purposes of these rules and the interests of justice will best be served by admission of the statement into evidence. However, a statement may not be admitted under this exception unless the proponent of it makes known to the adverse party, sufficiently in advance of the trial or hearing, to provide the adverse party with a fair opportunity to prepare to meet it, the proponent's intention to offer the statement and the particulars of it, including the name, address and present whereabouts of the declarant.

And it is well established under Federal Rule of Evidence 103(d) and Minnesota Rule of Evidence 103(d) that if a party does not raise an issue at trial but does raise it on appeal, the appellate court can reverse if the trial court committed plain error affecting substantial rights. In its recent opinion in State v. Martin, 2010 WL 2813485 (Minn.App. 2010), the Court of Appeals of Minnesota found that the trial court did not commit plain error in failing to admit a statement that the defendant claimed was admissible under Minnesota Rule of Evidence 807 for the first time on appeal. My question is whether a court could ever find plain error under such circumstances.

Continue reading

Conspiracy Theory: First Circuit Finds Co-Conspirator Admissions Present No Problems Under Crawford & Bruton

In Crawford v. Washington, 541 U.S. 36 (2004), the Supreme Court found that that the Confrontation Clause of the U.S. Constitution is violated when hearsay is "testimonial," admitted against a criminal defendant, and the hearsay declarant does not testify at the defendant's trial, unless (1) the declarant was unavailable for trial, and (2) the defendant was previously able to cross-examine the declarant. And, in Bruton v. United States, 391 U.S. 123 (1968), the Supreme Court held that when there is a joint trial of a defendant and a co-defendant, the admission into evidence of the non-testifying co-defendant's out-of-court confession violates the Confrontation Clause of the Sixth Amendment if the confession incriminates the other defendant. As the recent opinion of the First Circuit in United States v. De La Paz-Rentas, 2010 WL 2813810 (1st Cir. 2010), makes clear, however, if a statement qualifies as a co-conspirator admission under Federal Rule of Evidence 801(d)(2)(E), it does not present any problems under either Crawford or Bruton.

Continue reading

A Foolish Consistency?: Minnesota Opinion Reveals Three Factor Test Minnesota Courts Use To Determine Admissibility Of Prior Consistent Statements

Like its federal counterpart, Minnesota 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 helpful to the trier of fact in evaluating the declarant's credibility as a witness....

And, as the recent opinion of the Court of Appeals of Minnesota in State v. Morris, 2010 WL 2813345 (Minn.App. 2010), makes clear, courts in Minnesota apply a three factor test for determining whether a statement qualifies as a prior consistent statement under this Rule.

Continue reading

Ten Years Have Got Behind You: Tennessee Case Is Rare Case In Which Defendant's Remote Conviction Is Admissible Under Rule 609(b)

Like its federal counterpart, Tennessee 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 between the date of release from confinement and commencement of the action or prosecution; if the witness was not confined, the ten-year period is measured from the date of conviction rather than release. Evidence of a conviction not qualifying under the preceding sentence is admissible if the proponent gives to the adverse party sufficient advance notice of intent to use such evidence to provide the adverse party with a fair opportunity to contest the use of such evidence and 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.

Moreover, the Advisory Committee's Note to Federal Rule of Evidence 609(b) provides that

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 that are more than ten years old should rarely be admitted as impeachment evidence, and they should almost never be admitted against criminal defendants. The recent opinion of the Court of Criminal Appeals of Tennessee in State v. Byington, 2010 WL 2812664 (Tenn.Crim.App. 2010), however, presents one of the rare cases in which such evidence is admissible against a criminal defendant: when the subject conviction is a perjury conviction that is only slightly more than ten years old and that bears no resemblance to the crime charged.

Continue reading

You'll Shoot Your Eye Out: Texas Case Involving BB Gun Stickup Reveals Basics Of Texas Rule Of Evidence 705(b)

Federal 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.

Texas Rule of Evidence 705(a) is similar. It provides that

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

Texas also, however, has Texas Rule of Evidence 705(b), which provides that

Prior to the expert giving the expert's opinion or disclosing the underlying facts or data, a party against whom the opinion is offered upon request in a criminal case shall, or in a civil case may, be permitted to conduct a voir dire examination directed to the underlying facts or data upon which the opinion is based. This examination shall be conducted out of the hearing of the jury.

And, as the recent opinion of the Court of Appeals of Texas, Amarillo, in Blackburn v. State, 2010 WL 2802186 (Tex.App.-Amarillo 2010), makes clear, Rule 705(b) is mandatory.

Continue reading

Hired Gun: Court Of Appeals Of Utah Finds Evidence That Expert Was Hired By Insurance Company Inadmissible

Like its federal counterpart, Utah 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.

Of course, even when evidence of liability insurance is offered for a permissible purpose under Rule 411, it is still subject to the balancing test prescribed by Federal Rule of Evidence 403 and Utah Rule of Evidence 403, which indicates 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.

So, is evidence that an expert was hired by the defendant's insurance company admissible under Rule 411 and 403? According to the recent opinion of the Court of Appeals of Utah in Kearl v. Okelberry, 2010 WL 2784593 (Utah App. 2010), the answer is "no."

Continue reading

What Can Brown Do For You?: First Circuit Upholds Hearsay Ruling Based Upon Defendant's Failure To Prove Declarant Unavailability

Federal 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 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 believing it to be true.

In order for a party to be able to introduce such a statement against interest, however, the party must be able to prove that the declarant is "unavailable" to testify at trial as defined in Federal Rule of Evidence 804(a). This latter requirement was the problem for the defendant in the recent opinion of the First Circuit in United States v. Weekes, 2010 WL 2704610 (1st Cir. 2010).

Continue reading

A Bit Preliminary: Court Of Appeals Of Michigan Deals Preliminary Examination Testimony Admissible Under Former Testimony Exception

Like its federal counterpart, Michigan 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, 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.

A defendant is charged with murder. At the preliminary examination, he cross-examines an alleged eyewitness to that murder. At trial, the eyewitness invokes her Fifth Amendment privilege against self-incrimination and refuses to testify. Should her testimony at the preliminary examination be admissible under Michigan Rule of Evidence 804(b)(1)? According to the recent opinion of the Court of Appeals of Michigan in People v. Hadley, 2010 WL 2757143 (Mich.App. 2010), the answer is "yes." I disagree.

Continue reading

Is It Your Recollection?: Florida Court Varies From Prior Florida Precedent In Recorded Recollection Ruling

Like Federal Rule of Evidence 803(5), Section 90.803(5) of the Florida Statutes provides an exception to the rule against hearsay for

A memorandum or record concerning a matter about which a witness once had knowledge, but now has insufficient recollection to enable the witness to testify fully and accurately, shown to have been made by the witness when the matter was fresh in the witness's memory and to reflect that knowledge correctly. A party may read into evidence a memorandum or record when it is admitted, but no such memorandum or record is admissible as an exhibit unless offered by an adverse party.

So, for a recorded recollection to be admissible under this rule, does the declarant need to lay a foundation for its admission by testifying at trial that he or she recorded the statement when the described events were fresh in his or her mind and attesting to the accuracy of the statement?  According to the recent opinion of the District Court of Appeal of Florida, Fifth District, in its recent opinion in Polite v. State, 2010 WL 2787457 (Fla.App. 5 Dist. 2010), the answer is "no," despite prior Florida precedent.

Continue reading

Divide And Prejudice?: Arizona Court Finds No Prejudicial Joinder In Sex Abuse Case Based On Rule 413(a)

If a defendant is charged with several unrelated crimes, he has a good chance of having several counts severed based upon prejudicial joinder. In such a case, joinder would be prejudicial because if the defendant were given separate trials for each count, evidence of each alleged crime would likely be inadmissible in every other trial under Federal Rule of Evidence 404. Federal Rule of Evidence 413(a), however, provides that

In a criminal case in which the defendant is accused of an offense of sexual assault, evidence of the defendant's commission of another offense or offenses of sexual assault is admissible, and may be considered for its bearing on any matter to which it is relevant.

Thus, if a defendant is charged with several unrelated crimes of sexual assault, he will have a tough time proving prejudicial joinder because evidence of each alleged crime would likely be admissible in every other trial under Federal Rule of Evidence 413(a), as was the case with the recent opinion of the United States District Court for the District of Arizona in United States v. Brown, 2010 WL 2771882 (D. Ariz. 2010).

Continue reading

Drunk Dialing: Eighth Circuit Assumes 911 Call Was Improperly Admitted As Excited Utterance Based On Lack Of Personal Knowledge

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.

Meanwhile, Federal Rule of Evidence 602 provides that

A witness may not testify to a matter unless evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter. Evidence to prove personal knowledge may, but need not, consist of the witness' own testimony. This rule is subject to the provisions of rule 703, relating to opinion testimony by expert witnesses.

And, as the recent opinion of the Eighth Circuit in United States v. Erickson, 2010 WL 2721026 (8th Cir. 2010), makes clear, a party cannot introduce an excited utterance unless it establishes that the declarant had personal knowledge of the startling event or condition.

Continue reading

Northern District Of California Permits Defendants To Interrogate Title IX Plaintiff About Whether She Consented to Teacher’s Sexual Behavior When She Was 15

A plaintiff claims that she was 15 years-old when she was subjected to sexual molestation by her then 38 year-old teacher at a charter school.  Accordingly, she brings a Section 1983 action (1) against the school and its director/principal for failure to train and supervise, and (2) against the teacher for denial of equal protection. She also files a Title IX sex discrimination claim against all three defendants, a state law claim for negligent hiring and supervision against the school, and a state law invasion of privacy claim against the director/principal, who allegedly made a public announcement to the student body, disclosing details of the sexual conduct between the teacher and the plaintiff. During a deposition of the plaintiff, the parties disagree about the proper scope of questioning.  Among other things, defense counsel wants to interrogate the plaintiff about whether she "consented" to the sexual encounters with her teacher and whether the teacher's sexual behavior was "unwelcome" by her. The parties thereafter make their arguments to the court on the issue. How should the court rule? In its recent opinion in Doe v. Willits Unified School Dist., 2010 WL 2524587 (N.D. Cal. 2010), the United States District Court for the Northern District of California permitted such questioning. I strongly disagree.

Continue reading

Killing Me Softly: Court Of Appeals Of Ohio Case Reveals That Dying Declaration And Excited Utterance Exceptions Are Often Intertwined

Like its federal counterpart, Ohio Rule of Evidence 804(B)(2) provides an exception to the rule against hearsay "[i]n a prosecution for homicide or in a civil action or proceeding" for

a statement made by a declarant, while believing that his or her death was imminent, concerning the cause of what the declarant believed to be his or her impeding death.

And, like its federal counterpart, Ohio 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 Court of Appeals of Ohio, First District, in State v. Washington, 2010 WL 2697078 (Ohio App. 1 Dist. 2010), makes clear, statements covered by the former hearsay exception will almost always also be covered by the latter hearsay exception.

Continue reading

Updated Submission Guide for Online Law Review Supplements Posted On SSRN

The fall submission season is almost upon us, and today, I updated my Submission Guide for Online Law Review Supplements. I did not add any new online supplements to my guide, but this version of the guide contains some important changes that some journals made to their submissions guidelines. You can download a copy of the updated guide from SSRN by clicking here.