EvidenceProf Blog

You're Out Of Your Element: Eighth Circuit Finds Statement Concerning Matter Outside Scope Of Employment Not An Employee Admission

Federal Rule of Evidence 801(d)(2)(D) provides that

A statement is not hearsay if...[t]he statement is offered against a party and is...a statement by the party's agent or servant concerning a matter within the scope of the agency or employment, made during the existence of the relationship....

The problem for the plaintiffs in the recent opinion of the Eighth Circuit in E.E.O.C. v. Con-Way Freight, Inc., 2010 WL 3655999 (8th Cir. 2010), was that while they had a statement by an employee of the defendant which potentially helped their case, they could not prove that the statement concerned a matter within the scope of his employment.

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Empty Formalism Is A Vacuum To Be Abhorred: Eighth Circuit Notes That Parties Don't Need To Renew Objections To Definitive In Limine Rulings

A party files a motion in limine seeking to have certain evidence deemed admissible at trial. The court makes a formal ruling deeming the evidence inadmissible at trial. The party objects to this ruling and makes an offer of proof. At trial, does the party need to renew its objection and again make an offer of proof? As the Eighth Circuit artfully put it in its recent opinion in Shelton v. Kennedy Funding, Inc., 2010 WL 3719065 (8th Cir. 2010), the answer used to be "yes" but now it is "no."

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Tell Me Lies: Court Of Appeals Of Michigan Finds Misdemeanor False Pretenses Conviction Was Properly Admitted For Impeachment Purposes

Michigan Rule of Evidence 609(a) provides that

For the purpose of attacking the credibility of a witness, evidence that the witness has been convicted of a crime shall not be admitted unless the evidence has been elicited from the witness or established by public record during cross-examination, and

(1) the crime contained an element of dishonesty or false statement, or

 

(2) the crime contained an element of theft, and

(A) the crime was punishable by imprisonment in excess of one year or death under the law under which the witness was convicted, and

 

(B) the court determines that the evidence has significant probative value on the issue of credibility and, if the witness is the defendant in a criminal trial, the court further determines that the probative value of the evidence outweighs its prejudicial effect.

This Rule is thus actually quite different from Federal Rule of Evidence 609(a), which provides that

For the purpose of attacking the character for truthfulness of a witness,

(1) evidence that a witness other than an accused has been convicted of a crime shall be admitted, subject to Rule 403, if the crime was punishable by death or imprisonment in excess of one year under 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 regardless of the punishment, if it readily can be determined that establishing the elements of the crime required proof or admission of an act of dishonesty or false statement by the witness.

As the recent opinion of the Court of Appeals of Michigan in People v. Rondo, 2010 WL 3565245 (Mich.App. 2010), makes clear, however, they are the same in at least one regard: They allow for witnesses to be impeached via misdemeanor convictions resulting from crimes of dishonesty or false statement.

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The Giant(s) Of Illinois, Take 3: Supreme Court Of Illinois Approves And Promulgates Illinois Rules Of Evidence

Readers of this blog know about Illinois Supreme Court Chief Justice Thomas R. Fitzgerald and his intention to create Illinois Rules of Evidence. He announced this intention on September 6, 2008 and announced the creation of a Special Committee on Illinois Evidence on November 24, 2008. That Committee delegated to me the task of drafting a report comparing each Federal Rule of Evidence with the corresponding evidentiary principle that Illinois courts had developed in case law to assist the Committee in its creation of Illinois Rules of Evidence. In May 2009, with substantial assistance from John Marshall's Associate Dean for Academic Affairs and Professor Ralph Ruebner and law students Katie Anderson, Timothy Herman, and Jessica Kull, I submitted a 100 page report to the Committee. The Committee then created Proposed Illinois Rules of Evidence, and, in May 2010, there were public hearings regarding the Proposed Rules.

Today, I am happy to announce that the Supreme Court of Illinois has approved and promulgated Illinois Rules of Evidence, which will take effect on January 1, 2011. Here is the Press Release. And here are the Illinois Rules of Evidence along with a Committee Commentary.

(Hat tip to my colleague Mark Wojcik for the link).

-CM

As Seen on TV?: SDNY Finds Social Framework Testimony Wouldn’t Help Jurors Because Gender Stereotypes are Exposed on Sitcoms & News Reports

Moreover, the Court agrees with the Minnesota Court of Appeals' reasoning in Ray v. Miller Meester Advertising, Inc., 664 N.W.2d 355 (Minn.Ct.App.2003) wherein the court found that the trial court abused its discretion by admitting Dr. Borgida's testimony because the opinion was unhelpful to the jury. The court noted that “[i]nformation about and commentary on gender issues is so abundant in our society that it has become a common stereotype that women receive disparate and often unfairly discriminatory treatment in the workplace.”...In addition, the court in Ray observed that “[g]ender stereotypes are the stuff of countless television situation comedies and are the focus of numerous media treatments on nearly a daily basis. It is unarguable that virtually all adults in our society know about gender stereotypes.”...The Court agrees. E.E.O.C. v. Bloomberg L.P., 2010 WL 3466370 (S.D.N.Y. 2010).

Bloomberg involved an action by the EEOC against Bloomberg, LP.,  in which it alleged

that from approximately February 2002 through the present, Bloomberg engaged in a pattern or practice of unlawful employment practices, including discriminating against Claimants based on sex/pregnancy by: (1) paying them less total compensation after they announced their pregnancy and returned from maternity leave; (2) demoting them in title or in the number of employees directly reporting to them; (3) diminishing their responsibilities and/or replacing them with male employees junior to the Claimants; (4) excluding them from management meetings and otherwise isolating them once they announced their pregnancy and returned from maternity leave; and (5) subjecting them to stereotypes regarding female caregivers when they returned from maternity leave....EEOC further claim[ed] that Bloomberg engaged in unlawful employment practices by retaliating against the named Claimants and other similarly situated female employees who protested the alleged unlawful sex/pregnancy discrimination by reducing their compensation, criticizing their performance, reducing their job opportunities, and threatening to terminate them.

So, let's consider the proposed testimony of Dr. Borgida and the court's ruling and decide whether we agree with the conclusion of the court listed at the top of this post.

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Impeachable Opinion: Southern District Of Illinois Badly Botches Rule 609(a)(1) Analysis

Federal Rule of Evidence 609(a)(1) provides that

For the purpose of attacking the character for truthfulness of a witness,

(1) evidence that a witness other than an accused has been convicted of a crime shall be admitted, subject to Rule 403, if the crime was punishable by death or imprisonment in excess of one year under 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.

Most courts use a five factor analysis to determine whether convictions are admissible under this Rule. Sometimes, however, that analysis goes badly wrong as was the case with the recent opinion of the United States District Court for the Southern District of Illinois in United States v. Wooten, 2010 WL 3614922 (S.D. Ill. 2010).

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Youthful Indiscretions: Court Of Appeals Of Washington Finds Juvenile Adjudications Inadmissible To Impeach Prosecution Witness

Like its federal counterpart, Washington Rule of Evidence 609 provides that

Evidence of juvenile adjudications is generally not admissible under this rule. The court may, however, in a criminal case allow evidence of a finding of guilt in a juvenile offense proceeding of a witness other than the accused if conviction of the offense would be admissible to attack the credibility of an adult and the court is satisfied that admission in evidence is necessary for a fair determination of the issue of guilt or innocence.

I thought that the Court of Appeals of Washington, Division One, addressed a case in which a juvenile adjudication should have been deemed admissible in its recent opinion in State v. Jones, 2010 WL 3490255 (Wash.App. Div. 1 2010). The court disagreed.

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State Your Reasoning: Court Of Appeals Of North Carolina Finds Trial Court Failed To Conduct Proper Rule 609(b) Analysis

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

Evidence of a conviction under this rule is not admissible if a period of more than 10 years has elapsed since the date of the conviction or of the release of the witness from the confinement imposed for that conviction, whichever is the later date, unless the court determines, in the interests of justice, that the probative value of the conviction supported by specific facts and circumstances substantially outweighs its prejudicial effect. However, evidence of a conviction more than 10 years old as calculated herein is not admissible unless the proponent gives to the adverse party sufficient advance written notice of intent to use such evidence to provide the adverse party with a fair opportunity to contest the use of such evidence.

Rule 609(b) flips the typical Rule 403 balancing test, which deems evidence admissible as long as its probative value is not substantially outweighed by its prejudicial effect. It also requires trial courts to state specifically the facts and circumstances which led it to conclude that a more-than-ten-year-old conviction should be admissible for impeachment purposes. And, according to the opinion of the Court of Appeals of North Carolina in State v. Denton, 2010 WL 3633457 (N.C.App. 2010), a North Carolina trial court recently erred in applying the second aspect of Rule 609(b) while the prosecution's argument on appeal misstated the first aspect of the Rule.

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The Profile Doesn't Fit The Profile: Fifth Circuit Addresses Admissibility Of Drug Courier Profile Evidence 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.

So, is drug courier profile evidence admissible under Rule 704(b)? That was the question addressed by the Fifth Circuit in its recent opinion in United States v. Gonzalez-Rodriguez, 2010 WL 3636986 (5th Cir. 2010).

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Opinion Of Interest: Eleventh Circuit Affirmed Statement Against Interest Ruling In Drug Deal Appeal

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. A statement tending to expose the declarant to criminal liability and offered to exculpate the accused is not admissible unless corroborating circumstances clearly indicate the trustworthiness of the statement.

Of course, for a statement to be deemed a "statement against interest under Rule 804(b)(3), it must be clear that the statement was indeed against the declarant's interest, which was the problem for the appellant in the recent opinion of the Eleventh Circuit in United States v. Huerta, 2010 WL 3638789 (11th Cir. 2010).

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The Informant!: Court Of Appeals Of Texas Opinion Lays Out Test For Exception To Informant Exception

Texas Rule of Evidence 508(a), Texas' informant privilege, provides that

The United States or a state or subdivision thereof has a privilege to refuse to disclose the identity of a person who has furnished information relating to or assisting in an investigation of a possible violation of a law to a law enforcement officer or member of a legislative committee or its staff conducting an investigation.

That said, there is an exception to this privilege contained in Texas Rule of Evidence 508(c)(2), which provides that

If it appears from the evidence in the case or from other showing by a party that an informer may be able to give testimony necessary to a fair determination of a material issue on the merits in a civil case to which the public entity is a party, or on guilt or innocence in a criminal case, and the public entity invokes the privilege, the court shall give the public entity an opportunity to show in camera facts relevant to determining whether the informer can, in fact, supply that testimony. The showing will ordinarily be in the form of affidavits, but the court may direct that testimony be taken if it finds that the matter cannot be resolved satisfactorily upon affidavit. If the court finds that there is a reasonable probability that the informer can give the testimony, and the public entity elects not to disclose the informer's identity, the court in a civil case may make any order that justice requires, and in a criminal case shall, on motion of the defendant, and may, on the court's own motion, dismiss the charges as to which the testimony would relate. Evidence submitted to the court shall be sealed and preserved to be made available to the appellate court in the event of an appeal, and the contents shall not otherwise be revealed without consent of the public entity. All counsel and parties shall be permitted to be present at every stage of proceedings under this subdivision except a showing in camera, at which no counsel or party shall be permitted to be present.

So, how exactly does this exception apply in practice? The recent opinion of the Court of Appeals of Texas, San Antonio, in Morin v. State, 2010 WL 3582382 (Tex.App.-San Antonio 2010), provides a pretty good indication.

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Article Of Interest: Social Networking and Workers' Compensation Law at the Crossroads

The question of whether and to what extent social networking evidence should be admissible is relatively new and has led to some interesting initial cases addressed on this blog (see here, here, here, here, and here). Now, it has led to an interesting article as well: Social Networking and Workers' Compensation Law at the Crossroads (forthcoming, Pace Law Review) by Professor Gregory M. Duhl of the William Mitchell College of Law and Jaclyn S. Millner of Fitch, Johnson, Larson & Held. 

According to the abstract:

Over the past decade, social networking has increasingly influenced the practice of both civil and criminal law. One way to illustrate those influences is to examine a “system” of laws and the parties and lawyers in that system. In this article, we examine how social networking has influenced workers’ compensation law, looking at, in particular, the intersection of professional responsibility, discovery, privacy, and evidence with social networking in state workers’ compensation systems.

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Primary Motive: Court Of Appeals Of Arizona Finds Former Testimony Exception Applied To Bond Hearing Testimony

Arizona Rule of Evidence 804(b)(1) provides an exception to the rule against hearsay for

Former testimony in criminal actions or proceedings as provided in Rule 19.3(c), Rules of Criminal
Procedure.

In turn, Rule 19.3(c) provides that

(1) Admissibility. Statements made under oath by a party or witness during a previous judicial proceeding or a deposition under Rule 15.3 shall be admissible in evidence if:

(i) The party against whom the former testimony is offered was a party to the action or proceeding during which a statement was given and had the right and opportunity to cross-examine the declarant with an interest and motive similar to that which the party now has (no person who was unrepresented by counsel at the proceeding during which a statement was made shall be deemed to have had the right and opportunity to cross-examine the declarant, unless such representation was waived) and

(ii) The declarant is unavailable as a witness, or is present and subject to cross-examination.

So, does a criminal defendant have an interest and motive to cross-examine a witness at a hearing to hold him without bond that is similar to the interest and motive that he has to cross-examine the witness at his criminal trial? According to the recent opinion of the Arizona Court of Appeals, Division 1 in State v. Acuna, 2010 WL 3597233 (Ariz.App. Div. 1 2010), the answer is "yes."

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Lie To Me: Court Of Appeals Of Arkansas Finds Trial Court Erred In Prior Inconsistent Statement Ruling

Like its federal counterpart, Arkansas Rule of Evidence 613 sets forth the procedure for admitting prior inconsistent statements for impeachment purposes. It provides that

(a)  Examining Witness Concerning Prior Statement. In examining a witness concerning a prior statement made by him, whether written or not, the statement need not be shown nor its contents disclosed to him at that time, but on request the same shall be shown or disclosed to opposing counsel.  

(b)  Extrinsic Evidence of Prior Inconsistent Statement of Witness. Extrinsic evidence of a prior inconsistent statement by a witness is not admissible unless the witness is afforded an opportunity to explain or deny the same and the opposite party is afforded an opportunity to explain or deny the same and the opposite party is afforded an opportunity to interrogate him thereon, or the interests of justice otherwise require. This provision does not apply to admissions of a party-opponent as defined in Rule 801(d)(2). 

So, let's say that a witness makes a statement during trial and acknowledges that she made a prior inconsistent statement before trial. Can she thereafter be impeached via her prior inconsistent statement under Rule 613? According to the recent opinion of the Court of Appeals of Arkansas in White v. State, 2010 Ark. App. 588 (Ark.App. 2010), the answer is "no." I agree.

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Gasping At Straws: Fourth Circuit Finds Rule 606(b) Doesn't Cover Party's Observation Of Jury's Reaction To Evidence

Federal 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 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.

It is important to note, though, that the Rule only covers a juror's testimony and/or a juror's affidavit, a point not quite made clear by the recent opinion of the Fourth Circuit in Keeshan v. Eau Claire Cooperative Health Centers, Inc., 2010 WL 3556172 (4th Cir. 2010).

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Domestic Disturbance: Court Of Appeals Of Michigan Case Reveals DV Exception To Character Evidence Proscription In Michigan

Like its federal counterpart, Michigan Rule of Evidence 404(b) provides in relevant part 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....

That said, some states have a domestic violence exception under which the prosecution can present evidence of prior domestic violence to prove the defendant propensity to commit such acts and his likely conformity with that propensity at the time of the crime charged. And, as the recent opinion of the Court of Appeals of Michigan in People v. Branion, 2010 WL 3564746 (Mich.App. 2010), makes clear, Michigan has such an exception.

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The Marrying Man: Supreme Judicial Court Of Massachusetts Finds Defendant Marrying His Alleged Victim Triggered Forfeiture By Wrongdoing Doctrine

On Monday, I posted an entry about the strangest spousal testimonial privilege case that I have ever seen. In that case, the State filed an order to show cause seeking to enjoin a planned marriage between the defendant and the alleged victim's sister until after the defendant's trial so that the sister could not invoke the spousal testimonial privilege. It took me a mere two days to find a spousal testimonial privilege that topped that one. Here is the question raised by the recent opinion of the Supreme Judicial Court of Massachusetts in its recent opinion in Commonwealth v. Szerlong, 2010 WL 3530019 (Mass. 2010): Does the forfeiture by wrongdoing doctrine apply when the defendant marries his alleged victim so that she can exercise the spousal testimonial privilege? According to the court, the answer is "yes."

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Changing Minds: Eighth Circuit Opinion Reveals That Arkansas Courts Admit Insurance-Related Statements Under Rule 803(3)

Like its federal counterpart, Arkansas 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. 

So, Rule 803(3) does not cover a declarant's statements related to his will, but does it cover a declarant's oral statements related to his insurance policy? According to many courts, the answer is "no." But, as the recent opinion of the Eighth Circuit in Conseco Life Ins. Co. v. Williams, 2010 WL 3447769 (8th Cir. 2010), makes clear, according to Arkansas courts, the answer is "yes."

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Real Housewife Of New Jersey: NJ Court Denies Motion To Enjoin Marriage To Prevent Application Of Spousal Testimonial Privilege

New Jersey Rule of Evidence 501(2) provides that

The spouse of the accused in a criminal action shall not testify in such action except to prove the fact of marriage unless (a) such spouse consents, or (b) the accused is charged with an offense against the spouse, a child of the accused or of the spouse, or a child to whom the accused or the spouse stands in the place of a parent, or (c) such spouse is complainant.

In Matter of Kozlov, 398 A.2d 882 (N.J. 1979), however, the Supreme Court of New Jersey found that a criminal defendant can "pierce" this spousal testimonial privilege if three conditions are satisfied:

(1) there must be a legitimate need for the evidence; (2) the evidence must be relevant and material to the issue before the court; and (3) "by a fair preponderance of the evidence," the party must show "that the information [cannot] be secured from any less intrusive source."

In its recent opinion in State v. Mauti, 2010 WL 3488654 (N.J.SuperA.D. 2010), the Superior Court of New Jersey, Appellate Division, reviewed a trial court opinion permitting the prosecution to pierce the spousal testimonial privilege. Understandably, the court reversed this ruling.

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You've Got Mail: Court Of Appeals Of North Carolina Implies E-Mail Was Properly Authenticated Under Rule 901(b)(4)

Like its federal counterpart, North Carolina 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, North Carolina Rule of Evidence 901(b)(4) 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:

(4)     Distinctive Characteristics and the Like. – Appearance, contents, substance, internal  patterns, or other distinctive characteristics, taken in conjunction with circumstances.

And, as the recent opinion of the Court of Appeals of North Carolina in State v. Westrom, 2010 WL 3465716 (N.C.App. 2010), implies, parties should be able to authenticate e-mails under Rule 901(b)(4).

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