EvidenceProf Blog

Say Anything?: Jeopardy Question About New Miranda Opinion Gets It Almost Completely Correct

Last night's episode of Jeopardy! featured the category "A Murder Investigation," with The Closer's Kyra Sedgwick reading the clues. The $1000 clue in the category was:

Getting confessions, Brenda's specialty, will be easier now that the Supreme Court has ruled that any response to interrogation means you've waived your rights under this 1966 decision

And the Question/Answer was Miranda v. Arizona, 384 U.S. 436 (1966). But what was the Supreme Court ruling referenced in the clue, and is it really true that any response to interrogation means that a suspect has waived his Miranda rights?

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A Bit Presumptuous: Sixth Circuit Finds Undisclosed 15 Year Old Convictions Didn't Violate Brady

Pursuant to the Supreme Court's opinion in Brady v. Maryland, 373 U.S. 83 (1963), a new trial is warranted when the prosecution fails to timely disclose to the defendant material exculpatory evidence. Moreover, pursuant to the Supreme Court's opinion in Giglio v. United States, 405 U.S. 150 (1972), Brady covers material impeachment evidence. But is evidence of prior convictions of a "jailhouse snitch" material for Brady purposes if those convictions were more than ten years old? According to the recent opinion of the Sixth Circuit in Brooks v. Tennessee, 2010 WL 4721099 (6th Cir. 2010), the answer is "no."

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Honorable Discharge: Supreme Court Of Maine Debates When A Jury is Discharged For Jury Impeachment Purposes

Like its federal counterpart, Maine 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 juror's or any other juror's mind or emotions as influencing the juror to assent to or dissent from the verdict or indictment or concerning any juror's 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 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.

As the Supreme Court of Maine noted in its recent opinion in State v. Hurd, 2010 WL 4608732 (Me. 2010), this Rule precludes a juror from impeaching a verdict, except under limited circumstances, once the court has taken the verdict and discharged the jury. So, when exactly is the jury discharged? That was the question that split the court in Hurd. 

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Like A Bad Habit: New Jersey Court Uses Reputation Evidence Rule In Eviction Appeal

New Jersey Rule of Evidence 406 provides that

(a) Evidence, whether corroborated or not, of habit or routine practice is admissible to prove that on a specific occasion a person or organization acted in conformity with the habit or routine practice.

(b) Evidence of specific instances of conduct is admissible to prove habit or routine practice if evidence of a sufficient number of such instances is offered to support a finding of such habit or routine practice.

Meanwhile, N.J.S.A. 2A:18-61.1(j) provides that

No lessee or tenant or the assigns, under-tenants or legal representatives of such lessee or tenant may be removed by the Superior Court from any house, building, mobile home or land in a mobile home park or tenement leased for residential purposes...except upon establishment of one of the following grounds as good cause:

j. The person, after written notice to cease, has habitually and without legal justification failed to pay rent which is due and owing.

So, what does the definition of "habit" in New Jersey Rule of Evidence 406 tell us about the definition of "habitually" under N.J.S.A. 2A:18-61.1(j)? According to the recent opinion of the Superior Court of New Jersey, Appellate Division, in Matthew G. Carter Apartments v. Richardson, 2010 WL 4739934 (N.J.Super.A.D. 2010), the answer is "a great deal."

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Confusion Causin' Pollution: Court Of Appeals Of Indiana Finds Rule 407 Applies In Insurance Coverage Dispute Cases

Like its federal counterpart, Indiana Rule of Evidence 407 provides that

When after an event, measures are taken which, if taken previously, would have made the event less likely to occur, evidence of the subsequent measures is not admissible to prove negligence or culpable conduct in connection with the event. This rule does not require the exclusion of evidence of subsequent measures when offered for another purpose, such as proving ownership, control, or feasibility of precautionary measures, if controverted, or impeachment.

Rule 407 is typically associated with personal injury and other negligence cases, but does it also apply in insurance coverage dispute cases? According to the recent opinion of the Court of Appeals of Indiana in State Auto. Mut. Ins. Co. v. Flexdar, Inc., 2010 WL 4723188 (Ind.App. 2010), the answer is "yes."

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That's Unfair: Second Circuit Finds Sodomy Character Evidence Not Unfairly Prejudicial

Federal Rule of Evidence 414(a) provides that

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

Rule 413, like its counterparts Rules 414 and 415, was enacted in 1994 as part of the Violent Crime Control and Law Enforcement Act of 1994. The drafters' purpose was to supersede Rule 404(b)'s prohibition on evidence of like conduct showing propensity in sexual assault and child molestation cases. Of course, evidence sought to be admitted under Rule 414(a) is still subject to Federal Rule of Evidence 403, which 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.

But when is evidence of past sexual crimes "unfairly" prejudicial, presenting a problem under Rule 403, and when is it merely "highly" prejudicial? That was the question addressed by the recent opinion of the Second Circuit in United States v. Davis, 2010 WL 4366481 (2nd Cir. 2010). And I would say that the court got it wrong.

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Double Your Hearsay: SDNY Finds Customer Complaints In Business Records Inadmissible In Action Against MTA

Federal Rule of Evidence 803(6) provides an exception to the rule against hearsay for

A memorandum, report, record, or data compilation, in any form, of acts, events, conditions, opinions, or diagnoses, made at or near the time by, or from information transmitted by, a person with knowledge, if kept in the course of a regularly conducted business activity, and if it was the regular practice of that business activity to make the memorandum, report, record or data compilation, all as shown by the testimony of the custodian or other qualified witness, or by certification that complies with Rule 902(11), Rule 902(12), or a statute permitting certification, unless the source of information or the method or circumstances of preparation indicate lack of trustworthiness.

The rationale behind the Rule is that employees of a business have an interest in recording events accurately to ensure that the business functions smoothly. Conversely, customers of that business have no similar interest, so customer complaints are not admissible under this Rule. Instead, they are hearsay within hearsay and inadmissible unless they meet an independent exception to the rule against hearsay as is clear from the recent opinion of the United States District Court for the Southern District of New York in Rivera v. Metropolitan Transit Authority, 2010 WL 4545579 (S.D.N.Y. 2010).

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The Invention Of Lie Detection: Dr. William Marston And The Creation Of The Lie Detector Test, Frye, & Wonder Woman

I recently came across an interesting piece of information: Wonder Woman's creator, Dr. William Moulton Marston, created not only her Lasso of Truth, but also the systolic blood pressure test, i.e., the predecessor to the modern lie detector (polygraph) test. The systolic blood pressure test should be familiar to those who have taken Evidence in law school because it was the subject of the landmark expert evidence opinion, Frye v. United States, 293 F. 1013 (D.C. Cir. 1923).

Apparently, Marston was both a graduate psychology and law student at Harvard in 1915 when he began working on his blood pressure approach to deception (Marston eventually got his law degree in 1918). He got the idea for a lie detection machine based upon blood pressure after his wife, Elizabeth, suggested to him that "When she got mad or excited, her blood pressure seemed to climb." Marston eventually created his systolic blood pressure test, and,"[a]ccording to Marston..., he and his colleagues tested a total of 100 criminal cases in Boston criminal court, and his systolic blood pressure test led to correct determinations in 97 of them...." Dr. Marston soon thereafter either coined the phrase "lie detector" himself or adopted it from a reporter to whom he described the wonders of his device. See Vincent V. Vigluicci, Note, Calculating Credibility:  State v. Sharma and the Future of Polygraph Admissibility in Ohio and Beyond, 42 AKRON L. REV. 319, 321 (2009).

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Car And Driver: Court Of Appeals Of Texas Lays Out Corroborating Circumstances Test For Statements 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.

So, when do the corroborating circumstances clearly indicate the trustworthiness of the statement? That was the question addressed by the recent opinion of the Court of Appeals of Texas, Amarillo, in Rodriguez v. State, 2010 WL 4628580 (Tex.App.-Amarillo 2010).

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Do You Remember?: Court Of Appeals Of Indiana Defines "Insufficient Recollection" Under Rule 803(5)

Like its federal counterpart, Indiana Rule of Evidence 803(5) provides that

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's 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.

So, when does a witness have "insufficient recollection" for Rule 803(5) purposes? Must the witness have no present knowledge of the pertinent information, or is it enough if the witness has insufficient recollection to testify fully and accurately? As the recent opinion of the Court of Appeals of Indiana in Horton v. State, 2010 WL 4634609 (Ind.App. 2010), makes clear, Indiana courts used to apply the former standard but now apply the latter standard. 

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Follow My Voice: Seventh Circuit Reiterates Minimal Familiarity Standard Under Rule 901(b)(5)

Federal Rule of Evidence 901(b)(5) provides that the identification of a voice, "whether heard firsthand or through mechanical or electronic transmissions or recording," may be established by opinion testimony that is "based upon hearing the voice at any time under circumstances connecting it with the alleged speaker." So, can an officer authenticate a defendant's voice on wiretapped telephone conversations based upon the officer listening to an approximately fifteen second voice exemplar at least fifty to sixty times? According to the recent opinion of the Seventh Circuit in United States v. Cruz-Rea, 2010 WL 4628670 (7th Cir. 2010), the answer is "yes," despite the absence of any empirical evidence on the reliability of voice identifications. 

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Speed Bump: Tenth Circuit Finds Coconspirator Admission Motion Tolled Speedy Trial Clock

Pursuant to 18 U.S.C. Section 3161(c)(1) of the Speedy Trial Act,

In any case in which a plea of not guilty is entered, the trial of a defendant charged in an information or indictment with the commission of an offense shall commence within seventy days from the filing date (and making public) of the information or indictment, or from the date the defendant has appeared before a judicial officer of the court in which such charge is pending, whichever date last occurs. If a defendant consents in writing to be tried before a magistrate judge on a complaint, the trial shall commence within seventy days from the date of such consent.

That said, Section 3161(h)(1)(D) of the Act provides that

The following periods of delay shall be excluded in computing the time within which an information or an indictment must be filed, or in computing the time within which the trial of any such offense must commence:

(1) Any period of delay resulting from other proceedings concerning the defendant, including but not limited to....

(D) delay resulting from any pretrial motion, from the filing of the motion through the conclusion of the hearing on, or other prompt disposition of, such motion....

And, as the recent opinion of the Tenth Circuit in United States v. Mulgado-Patida, 2010 WL 4627875 (10th Cir. 2010), makes clear, evidentiary motions sometimes fall under Section 3161(h)(1)(D). 

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Doctor, Doctor, Give Me The News: Court Of Appeals Of Iowa Notes That Rule 803(4) Covers Exculpatory Statements

Like its federal counterpart, Iowa Rule of Evidence 5.803(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.

But does Rule 5.803(4) only apply to inculpatory statements? That was the surprising conclusion reached by an Iowa trial court and correctly reversed by the Supreme Court of Iowa in its recent opinion in State v. Hanes, 2010 WL 4539192 (Iowa 2010).

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The Passing Of Margaret A. Berger

I am saddened to pass along the news that Margaret A. Berger, the Trustee Professor of Law at the Brooklyn Law School and surely one of the most influential Evidence teachers and scholars in the world, has passed away. As Edward Cheng, her former colleague at Brooklyn, noted on the Evidence Professor listserv this morning: "She was an extraordinary scholar, teacher, and person. Our field will never quite be the same without her." For more on this amazing woman and her life, you can check out Tributes to Margaret A. Berger for the Science for Judges Programs, A Letter to Honor Professor Margaret Berger, and Professor Cheng's Festschrift in Honor of Margaret A. Berger.

Article Of Interest: Allison Orr Larsen's Bargaining Inside the Black Box

The vast majority of criminal cases are resolved by compromises in the form of plea bargains. Moreover, the purpose of Federal Rule of Evidence 410, which deems inadmissible statements made during the course of plea discussions, is to encourage such compromises. So, what happens to criminal cases that go to trial and are submitted to jurors for deliberations? Well, according to the terrific new article, Bargaining Inside the Black Box (forthcoming, Georgetown Law Journal), by Allison Orr Larsen, an Assistant Professor at the William & Mary Law School, most of these cases are resolved by compromises as well, in the form of compromise verdicts (including, but not limited to, verdicts reached when jurors, to avoid deadlocks, concede some issues so that other issues will be resolved in their favor). As Professor Larsen notes, these compromise verdicts are viewed quite differently than plea bargains: They are "generally dismissed as flaws in the jury process - examples of maverick jurors dishonoring their oath to uphold the law, and reasons why the jury should not be trusted with more power, for example, to participate in sentencing decisions." But should they be? Professor Larsen's fascinating argument is "that the best way to evaluate intrajury negotiation is to juxtapose it with the negotiation that dominates our criminal justice system and has already been subject to detailed study."

And by doing so, she reaches the conclusion

that while steps can and should be taken to improve intrajury negotiation, the common critiques of compromise verdicts - that they are lawless flaws in the jury system - do not have the force they might in a world without plea bargaining....Instead of quickly dismissing intrajury negotiation as an illegitimate process,...we should recognize it as a reality and seek to improve it with lessons we have learned from plea negotiations.

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Shield And Sword: Court Of Appeals Of Iowa Finds Prosecutor Improperly Used Rule 607 In Murder Appeal

Like its federal counterpart, Iowa Rule of Evidence 5.607 provides that

The credibility of a witness may be attacked by any party, including the party calling the witness.

It is well established, however, that the State can only use this Rule as a shield and not as a sword, i.e., that the State is not entitled  to place a witness on the stand who is expected to give unfavorable testimony and then, in the guise of impeachment, offer evidence which is otherwise inadmissible. And, as the recent opinion of the Court of Appeals of Iowa in State v. Bush, 2010 WL 4484401 (Iowa App. 2010), makes clear, if the State uses Rule 5.607 as a sword to get the defendant's confession(s) before the jury, an appellate court is likely to reverse.

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Forgive Me Father: Court Of Appeals Of Texas Finds Child Sexual Abuse Talk With Priest Not Covered By Privilege

Texas Rule of Evidence 505(b) provides that

A person has a privilege to refuse to disclose and to prevent another from disclosing a confidential communication by the person to a member of the clergy in the member's professional character as spiritual adviser.

So, let's say that a Catholic priest calls a father based upon allegations that the father was sexually abusing his daughter, a member of his parish. Are the father's statements to the priest covered by this clergyperson-penitent privilege. According to the recent opinion of the Court of Appeals of Texas, Houston, in Gutierrez v. State, 2010 WL 4484350 (Tex.App.-Houston [1 Dist.] 2010), the answer is "no," at least if the priest makes the purpose of the conversation clear to the father.

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Electric Sheep: Court Of Appeals Of Indiana Notes That Statements Automatically Generated By Computers Can't Be Hearsay

Like its federal counterpart, Indiana Rule of Evidence 801(c) defines hearsay as

a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.

And, like its federal counterpart, Indiana Rule of Evidence 801(b) defines a declarant as "a person who makes a statement." And, as this definition and the recent opinion of the Court of Appeals of Indiana in Cranston v. State, 2010 WL 4410153 (Ind.App. 2010), make clear, because a declarant must be a person, a statement automatically generated by a computer cannot be hearsay.

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In Conclusion: Southern District Of Texas Finds Testimony About Copyright Violations Violates Rule 704(a)

Federal Rule of Evidence 704(a) states that

Except as provided in subdivision (b), 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 witnesses are not allowed not testify in the form of ultimate legal conclusions? So, when does an opinion properly embrace an ultimate issue, and when does an opinion improperly embrace an ultimate legal conclusion? It's a thin line, but it is one that was recently crossed according to the recent opinion of the United States District Court for the Southern District of Texas in Interplan Architects, Inc. v. C.L. Thomas, Inc., 2010 WL 4065465 (S.D.Tex. 2010).

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Death Becomes Her: The Good Wife Partially Gets Psychotherapist-Patient Privilege Issue Right

This week's episode of "The Good Wife" had Alicia and company litigating a "test case" in which the allegation was that the defendant-pharmaceutical company's antidepressant caused the client's mother to kill herself and her husband. If the firm won, it would have opened the door for an easy class action lawsuit against the company and millions of dollars for both victims and the firm. The case, though, never went to verdict, with the company agreeing to a $35 million settlement. Why?

Well, part of the pharmaceutical company's defense (presented by terrific guest star Michael J. Fox) was that it wasn't the drug that caused the murder-suicide; it was the mother's belief that her husband was sleeping with their daughter. And, to establish this defense, the company called the mother's therapist to testify that the mother told him about these suspicions in the months before her death. This led to Alicia and company calling a former patient of the therapist to testify that the shrink engaged in sexual relations with her, prompting him to move his practice from Illinois to Wisconsin. This testimony leads the pharmaceutical company to enter into the settlement (although Fox's attorney later explains that this was always the company's plan).

So, why was the therapist allowed to testify about the mother-patient's suspicions? The show explains that while the psychotherapist-patient privilege normally deems such communications confidential and the privilege survives the patient's death in Illinois, it does not survive the patient's death in Wisconsin. Therefore, the therapist's move to Wisconsin meant that any statements made by the mother after the move were not protected by the privilege? So, did the show get it right? 

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