EvidenceProf Blog

One Time Offer: Court Of Appeals Of North Carolina Rejects Rule 106 Appeal Based Upon Lack Of Offer Of Proof

Like its federal counterpart, North Carolina 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 him 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.

And, like its federal counterpart, North Carolina Rule of Evidence 103(a)(2) provides that

Error may not be predicated upon a ruling which admits or excludes evidence unless a substantial right of the party is affected, and...[i]n case the ruling is one excluding evidence, the substance of the evidence was made known to the court by offer or was apparent from the context within which questions were asked.

In other words, if the judge excludes evidence that a party offers under Rule 106 -- the rule of completeness -- the party must make an offer of proof regarding the excluded evidence under Rule 103(a)(2) or the issue will not be preserved for appellate review. Unfortunately for the defendant in State v. Jacobs, 2010 WL 3001653 (N.C.App. 2010), this is something that he failed to do.

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Hearsay Within Hearsay: Supreme Court of South Dakota Offers Two Ways to Introduce Double Hearsay From Police Reports

Of all the gin joints, in all the towns, in all the world, Rusty Johnson chose the wrong bar in Marvin, South Dakota.  From the ensuing police report, it appears that Johnson "used to go with" the girlfriend of Cory O’Farrell, a bar employee, and O’Farrell made clear that Johnson was not welcome.  See Johnson v. O'Farrell, --- N.W.2d ----, 2010 WL 3172275 (S.D. Aug. 11, 2010), at ¶8.  O'Farrell may have then "'tackled' Johnson from behind and threw him across the bar into a wall."  Id. at ¶3.  Then again, perhaps through no fault of O'Farrell's, "Johnson 'lost his balance,' hit the wall, and fell."  Id.  Either way, Johnson ended up with a broken leg.  Id. at ¶10 n.2.

Cory O'Farrell and his employer (Kela O'Farrell, the bar owner and Cory O'Farrell's husband^[FN1]) testified in support of the "lost his balance" theory.  Johnson, as might be expected, pressed the "threw him across the bar" theory.  At issue on appeal was whether the trial judge properly admitted a police report taken by a Grant County deputy sheriff on the night Johnson broke his leg.  Like police reports generally, the sheriff report at issue is hearsay, and it contained an additional level of hearsay in the form of statements by Cory and Kela O'Farrell written down by the deputy sheriff.  In the majority opinion and a separate concurrence, justices of the Supreme Court of South Dakota offered two methods for properly admitting the O'Farrells' statements into evidence.

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The Other (Wo)Man: Supreme Court Of Connecticut Finds Exclusion Of Evidence Violated Right to Present A Defense

It is well established that "[t]he federal constitution require[s] that criminal defendants be afforded a meaningful opportunity to present a complete defense....The sixth amendment...[guarantees] the right to offer the testimony of witnesses, and to compel their attendance, if necessary, [and] is in plain terms the right to present a defense, the right to present the defendant's version of the facts as well as the prosecution's to the jury so that it may decide where the truth lies....When defense evidence is excluded, such exclusion may give rise to a claim of denial of the right to present a defense....

In its opinion in Holmes v. South Carolina, the United States Supreme Court found that South Carolina courts erred by applying a rule that precluded a defendant from presenting evidence concerning an alternate suspect theory where there is strong evidence of the defendant's guilt, especially where there is strong forensic evidence. The recent opinion of the Supreme Court of Connecticut in State v. Hedge, 2010 WL 2889494 (Conn. 2010), is not all that different.

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Trial Separation:Court Of Appeals Of Virginia Finds Statement Of Intent To Divorce Covered By Rule 803(3)

Federal Rule of Evidence 803(3) provides an exception to the rule against hearsay for

A statement of the declarant's then existing state of mind, emotion, sensation, or physical condition (such as intent, plan, motive, design, mental feeling, pain, and bodily health), but not including a statement of memory or belief to prove the fact remembered or believed unless it relates to the execution, revocation, identification, or terms of declarant's will.

Virginia does not have codified rules of evidence, but Virginia courts have recognized a "state of mind" exception to the rule against hearsay, as is made clear by the recent opinion of the Court of Appeals of Virginia in State v. Creacey, 2010 WL 2998764 (Va.App. 2010).

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Inadmissible But Harmless: Fouth Circuit Affirms Conviction Despite Erroneous Admission of Evidence of Uncharged Murder

In United States v. Wilson, --- F.3d ---, 2010 WL 3156775 (4th Cir. Aug. 11, 2010), the U.S. Court of Appeals for the Fourth Circuit upheld a conviction despite the erroneous admission at trial of evidence concerning an uncharged murder.

Lorenzo A. Wilson appealed from his conviction for conspiracy to kidnap, in violation of 18 U.S.C. § 1201(c) and § 2, and his sentence of life imprisonment for that offense.  The prosecution argued at trial that Wilson assisted in the kidnapping (in Washington, D.C.) and murder (in Maryland, bringing the case into the Fourth Circuit) of Eric Hayes on the evening of January 3, 2002.  Id. at 2-6 [pin cites refer to the PDF of the opinion].  Wilson's trial was severed from the other defendants because of statements Wilson made implicating his coconspirators.  (The court's opinion in United States v. Lighty, ---F.3d ---, 2010 WL 3156777, affirming the convictions of co-defendants tried separately, was issued on the same day.)

At Wilson's trial, the prosecution introduced evidence of a January 30, 2002 drive-by shooting which resulted in the death of Antoine Newbill.  As in the Hayes murder, Wilson participated in the drive-by shooting of Newbill but did not kill the victim.  The same shooter, Kenneth Jamal Lighty, killed Hayes and Newbill.  Wilson, at 6-7.  Lighty was sentenced to death for the Hayes killing.  Lighty, at 3.

Although not charged with any crime related to the Newbill shooting, Wilson faced the following evidence at his trial, which he maintains should have been excluded under Federal Rule of Evidence 404(b) as evidence of "other wrongs or acts solely to prove [Wilson’s] bad character," Wilson, at 9:

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Evidence of Ineffective Assistance: N.J. Court Finds Counsel Inadequate for Failing to Brief Admissibility of Enhanced Audiotape

In State v. Reshevsky, --- A.2d ----, 2010 WL 3075483 (N.J. Super. A.D. Aug. 9, 2010), the Superior Court of New Jersey, Appellate Division heard an appeal for post-conviction relief based on a claim of ineffective assistance of trial counsel.

The case arose from a traffic court hearing at which defendant was found guilty of running a red light.  After the trial, defendant said, "You lied" to Police Officer Denis Murphy, who had testified against him.  In the hallway outside the courtroom, Murphy arrested Reshevsky for harassment, alleging that Reshevsky poked him repeatedly in the chest, which Reshevsky denied.  Following the arrest, Reshevsky was led away by a different officer, and Murphy returned to testify in other traffic trials.  While back in the courtroom, Murphy chatted with the prosecutor about Reshevsky and their hallway interaction.  Portions of this conversation were taped by the court reporter.

At the harassment trial, the court heard the audiotape, substantial portions of which were inaudible.  Reshevsky sought to introduce an enhanced version of the tape, along with expert testimony about the enhanced tape.  He claimed that the enhanced tape proved that Murphy admitted to the prosecutor immediately after the arrest that Reshevshy had not poked him.  The trial judge sought briefing on the admissibility of such a tape, which defense counsel did not provide.  Eventually, the trial court declined to hear the enhanced tape and found Reshevshy guilty of harassment.  Reshevshy sought post-conviction relief, asserting that his trial counsel was ineffective.

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Drowning Your Sorrows: Supreme Court Of Arizona Finds No Error In Expert Testimony Regarding Drowning Under Rule 704

Like Federal Rule of Evidence 704(a), Arizona Rule of Evidence 704 provides that

Testimony in the form of an opinion or inference otherwise admissible is not objectionable because it embraces an ultimate issue to be decided by the trier of fact.

Conversely, expert opinion is objectionable when it embraces an ultimate legal conclusion, i.e., when it tells the jury how it must resolve an issue. And, because the expert's testimony in State v. Chappell, 2010 WL 3000032 (Ariz. 2010), merely embraced an ultimate issue, the Supreme Court of Arizona correctly concluded that it was not objectionable.

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Phoning It In: Arizona Supreme Court Allows Telephonic Testimony in Involuntary Commitment Hearing

The Supreme Court Court of Arizona decided in In re MH-2008-000867, --- P.3d ----, 2010 WL 3034499 (Ariz. Aug. 5, 2010) that telephonic testimony by a psychiatric expert in an involuntary commitment hearing did not violate the rights of the patient.

The patient objected to the phoned-in testimony, arguing that his inability to confront the doctor violated his rights under the Due Process Clause of the Fourteenth Amendment, which he characterized as similar to those under the Confrontation Clause of the Sixth Amendment.

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Play It Again, Sam: Court Of Appeals Of Arizona Affirms Conviction Despite Video Recorded Recollection Being Admitted As Exhibit

Like its federal counterpart, Arizona Rule of Evidence 803(5) 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 or adopted by the witness when the matter was fresh in the witness' memory and to reflect that knowledge correctly. If admitted, the memorandum or record may be read into evidence but may not itself be received as an exhibit unless offered by an adverse party.

The recent opinion of the Court of Appeals of Arizona, Division 1, in State v. Martin, 2010 WL 3001900 (Ariz.App. Div. 1 2010), gives me the opportunity to revisit two issues recently discussed on this blog: (1) Does a videotape qualify as a recorded recollection under Rule 803(5); and (2) Will an appellate court ever reversed based upon a recorded recollection being improperly received as an exhibit?

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Jeresy Sure: New Jersey Opinion Reveals Key Difference Between Federal And New Jersey Rule Of Evidence 703

Federal Rule of Evidence 703 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 in order for the opinion or inference to be admitted. Facts or data that are otherwise inadmissible shall not be disclosed to the jury by the proponent of the opinion or inference unless the court determines that their probative value in assisting the jury to evaluate the expert's opinion substantially outweighs their prejudicial effect.

Meanwhile, New Jersey Rule of Evidence 703 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.

In other words, New Jersey Rule of Evidence 703 does not have the final sentence contained in its federal counterpart.  And, as the recent opinion of the New Jersey Superior Court, Appellate Division, in In re Civil Commitment of T.J.T., 2010 WL 2991041 (N.J.Super.A.D. 2010), makes clear, this difference is meaningful.

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Propensity or Risk: New Jersey Court Allows Evidence of Parent's Past Conduct in Abuse Case Despite Rule 404(b)

In New Jersey Div. of Youth and Family Services v. I.H.C., --- A.2d ----, 2010 WL 3033928 (N.J. Super. A.D. Aug. 5, 2010), a law guardian appealed on behalf of three children, arguing that the family court wrongly ordered the children returned to the home of their allegedly abusive and neglectful parents.  In the family court, the law guardian stated that among other conduct, the abuse of the children's mother by their father (including some abuse in the presence of at least one of the children) subjected the children to risk of harm justifying removal from the home.

Among other evidence, the law guardian presented testimony of an ex-wife of the father concerning abuse he committed against her and their children during their marriage, acts which led to the father's criminal conviction for making terroristic threats.  Id. at 21-24 [pin cites for I.H.C. refer to the opinion PDF on the court website].  The family court disregarded the ex-wife's testimony pursuant to New Jersey Rule of Evidence 404(b), which prohibits most "evidence of other crimes, wrongs, or acts ... to prove the disposition of a person in order to show that such person acted in conformity therewith."  The Superior Court of New Jersey, Appellate Division, reversed, holding "that evidence of prior domestic violence committed by defendant-father against his ex-wife and the two children of a prior marriage was admissible in this case to prove the risk of harm to these children."

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No Alternative: Maine Supreme Judicial Court Affirms Exclusion of Alternative Suspect Theory

In my last post, I discussed State v. Mitchell, --- A.2d ---, 2010 WL 3034607 (Me. Aug. 5, 2010), wherein the Supreme Judicial Court of Maine held that use of an autopsy report did not deprive a murder defendant of his rights under the Confrontation Clause despite his inability to cross-examine the report's author.

This post discusses the trial court's rejection of the defendant's proffered evidence of an alternative suspect, a ruling affirmed on appeal (with one justice dissenting).  Thomas Mitchell, charged with a 1983 murder, wished to introduce evidence supporting a theory that the crime was committed by the victim's neighbor.  To review the trial court's rejection of the alternative suspect evidence, the Supreme Judicial Court considered Maine Rule of Evidence 403, which is identical to the analogous federal rule, along with constitutional doctrines protecting the accused’s opportunity to present a complete defense.

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The Opinion Speaks For Itself: Western District Of Pennsylvania Finds That Res Ipsa Loquitur Is Not A Cause Of Action

Res ipsa loquitur (Latin for "the thing speaks for itself") is an evidentiary rule that a plaintiff can use when he has evidence that the defendant very likely injured him through negligence but cannot prove the particular manner in which the accident was caused. See Hector v. Christus Health Gulf Coast, 175 S.W.3d 832, 837 (Tex.App.-Houston 2005). The basic significance of res ipsa loquitur is that it allows the circumstantial evidence submitted by the plaintiff to get to a jury, and thus prevents summary judgment for the defendant on a cause of action sounding in negligence. As these descriptions and the recent opinion of the United States District Court for the Western District of Pennsylvania in Tennis v. Ford Motor Co., 2010 WL 2978073 (W.D.Pa. 2010), make clear, res ipsa loquitur is merely a rule of evidence and not a cause of action.

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The Autopsy Business: Maine Supreme Judicial Court Holds Medical Examiner Autopsy Report Not Testimonial

Many thanks to Colin for inviting me to visit here.  I'll start with a case from Maine in which a decades-old murder case was closed with DNA evidence.

The Supreme Judicial Court of Maine held in State v. Mitchell, --- A.2d ---, 2010 WL 3034607 (Me. Aug. 5, 2010), that use of an autopsy report did not deprive a murder defendant of his rights under the Confrontation Clause despite his inability to cross-examine the report's author.

Since the Supreme Court's decision in Crawford v. Washington, 541 U.S. 36 (2004), much debate has ensued about what statements are "testimonial" and therefore are inadmissible absent cross-examination.  The Sixth Amendment's Confrontation Clause provides "In all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him," and the Crawford Court held “Where testimonial statements are at issue, the only indicium of reliability sufficient to satisfy constitutional demands is the one the Constitution actually prescribes: confrontation.”  541 U.S. at 68-69.

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Inconsistent Inconsistency: Court Of Appeals Of Utah Opinion Reveals Differences Between Federal And Utah Rules Of Evidence On Prior Inconsistent Statements

Federal Rule of Evidence 801(d)(1)(A) 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...inconsistent with the declarant's testimony, and was given under oath subject to the penalty of perjury at a trial, hearing, or other proceeding, or in a deposition....

Utah Rule of Evidence 801(d)(1)(A) is broader. It 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...inconsistent with the declarant's testimony or the witness denies having made the statement or has forgotten....

In other words, under the federal rule, only sworn prior inconsistent statement qualify as nonhearsay, but, under the Utah, rule, even unsworn prior inconsistent statements qualify as nonhearsay. And, in the Court of Appeals of Utah's recent opinion in State v. Zaelit, 2010 WL 2961469 (Utah App. 2010), this distinction made all the difference.

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Please Welcome Guest Blogger Ben Trachtenberg

Ben Trachtenberg, a Visiting Associate Professor of Law at the University of Missouri School of Law, will be joining EvidenceProf Blog as a guest blogger starting tomorrow. Trachtenberg is a 2001 graduate of Yale University and a 2005 graduate of the Columbia Law School, where he was an Articles Editor on the Columbia Law Review and both a James Kent Scholar and Harlan Fiske Stone Scholar. Prior to visiting at Missouri, Trachtenberg was a judicial clerk for Judge José A. Cabranes of the Second Circuit, an associate at Covington & Burling LLP, and a Visiting Assistant Professor at the Brooklyn Law School.

Trachtenberg's publications include State Sentencing Policy and New Prison Admissions , 38 U. MICH. J.L. REFORM 479 (2005), Incarceration Policy Strikes Out: Exploding prison population compromises the U.S. justice system, A.B.A. JOURNAL, Feb. 2009, and Coconspirators, "Coventurers," and the Exception Swallowing the Hearsay Rule, 61 HASTINGS L.J. 581 (2010). At Missouri, he will be teaching Evidence, Criminal Procedure, and Trial Practice.

-CM 

Kill Me Again: D.C. Court Of Appeals Narrowly Reads Forfeiture By Wrongdoing Doctrine In Stabbing Appeal

"Under the forfeiture-by-wrongdoing doctrine, a defendant forfeits his Sixth Amendment right to be confronted by a witness against him, as well as his objection to the introduction of hearsay, if he wrongfully procured the unavailability of that witness with the purpose of preventing the witness from testifying." Roberson v. United States, 961 A.2d 1092, 1095 (D.C.2008) (emphasis added) (citing Giles v. California, 128 S.Ct. 2678, 2684 (2008)).

And, as the above language, Giles, and the recent opinion of the District of Columbia Court of Appeals in Zanders v. United States, 2010 WL 2944294 (D.C. 2010), the doctrine of forfeiture by wrongdoing can never apply to statements made by the alleged victim of crime regarding the identity of the perpetrator of that crime. But what about if the perpetrator attacks the victim with the intent of killing him and later finishes the job. Can statements made between these two events be admitted under the doctrine?

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A Question Of Your Honesty: Court Of Appeals Of Iowa Opinion Reveals Iowa Courts Treat Theft And Burglary As Crimes Involving Dishonesty Or False Statement

Like its federal counterpart, Iowa Rule of Evidence 5.609(a) provides that

(1) Evidence that a witness other than the accused has been convicted of a crime shall be admitted, subject to rule 5.403, if the crime was punishable by death or imprisonment in excess of one year pursuant to the law under which the witness was convicted, and evidence that an accused has been convicted of such a crime shall be admitted if the court determines that the probative value of admitting this evidence outweighs its prejudicial effect to the accused; and

 

(2) Evidence that any witness has been convicted of a crime shall be admitted if it involved dishonesty or false statement, regardless of the punishment.

In most jurisdictions, convictions for crimes such as theft and burglary do not automatically qualify as convictions for crimes involving dishonesty or false statement. This is not, however, the case in Iowa, as was revealed by the recent opinion of the Court of Appeals of Iowa in State v. Harrington, 2010 WL 2925696 (Iowa.App. 2010).

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Avoiding A Confrontation: Eleventh Circuit Finds Confrontation Clause Doesn't Apply To Supervised Release Revocation Hearings

The Confrontation Clause provides that "[i]n all criminal prosecutions, the accused shall enjoy the right...to be confronted with the witnesses against him...." As the recent opinion of the Eleventh Circuit in United States v. Garcia Hernandez, 2010 WL 2911104 (11th Cir. 2010), makes clear, however, a supervised release revocation hearing is not a criminal prosecution, rendering the Confrontation Clause inapplicable at such a hearing.

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As I Lay Dying: Court Of Appeals Of Virginia Notes That Declarant Doesn't Have To Immediately Die For Dying Declaration Exception To Apply

Federal Rule of Evidence 804(b)(2) provides an exception to the rule against hearsay

In a prosecution for homicide or in a civil action or proceeding, [for] a statement made by a declarant while believing that the declarant's death was imminent, concerning the cause or circumstances of what the declarant believed to be impending death.

Virginia does not have codified rules of evidence, but Virginia precedent fully conforms to common law principles governing dying declarations, pursuant to which a statement qualifies as a dying declaration if it was made under a sense of impending death without any expectation or hope of recovery from his mortal wounds. And, as the recent opinion of the Court of Appeals of Virginia in Satterwhite v. Commonwealth, 2010 WL 2899044 (Va.App. 2010), makes clear, for a statement to qualify as a dying declaration, the declarant merely needs to believe that his death was imminent when he made the statement; he does not actually need to die soon after making the statement.

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