EvidenceProf Blog

Brother To Brother: First Circuit Finds Private Confession To Brother Not Admissible Under Rule 804(b)(3)

Federal Rule of Evidence 804(b)(3) provides an exception to the rule against hearsay for

A statement that:

(A) a reasonable person in the declarant’s position would have made only if the person believed it to be true because, when made, it was so contrary to the declarant’s proprietary or pecuniary interest or had so great a tendency to invalidate the declarant’s claim against someone else or to expose the declarant to civil or criminal liability; and

(B) is supported by corroborating circumstances that clearly indicate its trustworthiness, if it is offered in a criminal case as one that tends to expose the declarant to criminal liability.

So, would it be correct to make a blanket statement that a private confession to a brother can never constitute a statement against interest under Rule 804(b)(3)? The First Circuit didn't go quite that far in its recent opinion in Santiago v. O'Brien, 2010 WL 5175178 (1st Cir. 2010), but it came pretty darn close.

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It's An Eye Roller: Court Of Appeals Of Alaska Precludes Jury Impeachment Based On Prosecutor's Eye Rolling

Similar to its federal counterpart, Alaska Rule of Evidence 606(b) provides that

Upon an inquiry into the validity of a verdict or indictment, a juror may not be questioned as to any matter or statement occurring during the course of the jury's deliberations or to the effect of any matter or statement 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, 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 for these purposes.

So, does this Rule prevent the receipt of juror affidavits indicating that the prosecutor rolled his eyes during certain parts of trial? According to the recent opinion of the Court of Appeals of Alaska in Silvera v. State, 2010 WL 5129199 (Alaska App. 2010), the answer is "yes." 

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Battle Of The Transcripts: Eleventh Circuit Finds No Problem With Circumscription Of Paralegal Transcriptionist's Testimony

It's common at trial to have the so-called "battle of the experts," in which the prosecution's expert might claim that there were defensive wounds on the victim's body while the defense expert might claim that there were no such wounds. In United States v. Gayle, 2010 WL 5174536 (11th Cir. 2010), however, there was the much rarer "battle of the transcripts," with the key being that the defense transcriptionist was not an expert.

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What Kind Of Right?: Court Of Appeals Of Michigan Finds Rape Shield Rule Vests Rights In Victims

MCL 750.520j, Michigan's rape shield statute, provides that:

(1) Evidence of specific instances of the victim's sexual conduct, opinion evidence of the victim's sexual conduct, and reputation evidence of the victim's sexual conduct shall not be admitted ... unless and only to the extent that the judge finds that the following proposed evidence is material to a fact at issue in the case and that its inflammatory or prejudicial nature does not outweigh its probative value:

(a) Evidence of the victim's past sexual conduct with the actor.

(b) Evidence of specific instances of sexual activity showing the source or origin of semen, pregnancy, or disease.

In its recent opinion in People v. Hoskinson, 2010 WL 5129891 (Mich.App. 2010), the Court of Appeals of Michigan rejected the appellant's argument that he could present evidence of the alleged victim's sexual conduct to prove that she consumed a high level of alcohol on the night he allegedly sexually assaulted her. In rejecting this argument, the court concluded: "Allowing the jury to hear about a victim's sexual past to prove the victim consumed a high level of alcohol is not a recognized exception, and such a rule would violate a victim's rights under the rape shield statute."

At first blush, this sentence seems innocuous, something we might see in any case denying an appellant's rape shield appeal. But at second glance, it seems much more significant.

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Diagnosis Rape: Court Of Appeals Of Mississippi Finds Statements Made To Social Worker Admissible Under Rule 803(4)

Similar to its federal counterpart, Mississippi Rule of Evidence 803(4) provides an exception to the rule against hearsay for

Statements made for purposes of medical diagnosis or treatment and describing medical history, or past or present symptoms, pain, or sensations, or the inception or general character of the cause or external source thereof insofar as reasonably pertinent to diagnosis or treatment, regardless of to whom the statements are made, or when the statements are made, if the court, in its discretion, affirmatively finds that the proffered statements were made under circumstances substantially indicating their trustworthiness. For purposes of this rule, the term "medical" refers to emotional and mental health as well as physical health.

As the recent opinion of the Court of Appeals of Mississippi in Cox v. State, 2010 WL 5093619 (Miss. 2010), makes clear, however, statements do not need to be made to a diagnostician (or even a medical professional) to be admissible under this Rule.

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The Wicked Run Away: The Surprising Legal Focus Of The Coen Brothers' "True Grit"

Yesterday, I saw the Coen brothers' latest movie, "True Grit," the remake of the 1969 film starring John Wayne, with both being based upon the book by Charles Portis. One of my reactions: The Coens have learned a lot about the law since they made "Intolerable Cruelty," which I regard as one of the most legally inaccurate movies of all time.

But this was clearly not the case with "True Grit," an old school Western with a surprising legal focus. First, there's a scene which I will be sure to use in my Criminal Law classes that focuses on the distinction between Malum in se and Malum prohibitum:

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In Jury, We Trust: Court Of Appeals Of Colorado Allows Juror To Discount Effect Of Prejudicial Article

We trust jurors. We have to. This is the basis for Federal Rule of Evidence 606(b), which 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.

As Justice O'Conner noted in Tanner v. United States, 483 U.S. 107 (1987), "There is little doubt that postverdict investigation into juror misconduct would in some instances lead to the invalidation of verdicts reached after irresponsible or improper juror behavior. It is not at all clear, however, that the jury system could survive such efforts to perfect it." But what happens when jurors are exposed to extraneous prejudicial information or an improper outside influence? Do we still trust jurors when they say that they verdicts were not tainted by such information or influence? According to the recent opinion of the Court of Appeals of Colorado in People v. Moore, 2010 WL 5013681 (Colo.App. 2010), the answer is "yes." I'm not sure that I agree. 

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A Misunderstanding: Court Of Appeals Of Texas Precludes Jury Impeachment Based On Juror Misimpression For Video

A defendant is on trial for driving while intoxicated (DWI). At trial, the prosecution shows a videotape to the jury in which the defendant says that he "took responsibility before." After the jury convicts the defendant, jurors approach defense counsel and inform him that they thought based upon the video that the defendant had been convicted of DWI before. In fact the defendant had no prior DWI convictions. Should the jurors be able to impeach their verdict? According to the recent opinion of the Court of Appeals of Texas, San Antonio, in Salazar v. State, 2010 WL 4840491 (Tex.App.-San Antonio 2010), the answer is "no." 

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Judicial Guidance: Court Of Appeals Of Kentucky Applies Three Factor Test To Judicial Interrogation

Like its federal counterpart, Kentucky Rule of Evidence 614(b) provides that "[t]he court may interrogate witnesses, whether called by itself or by a party." But when does a judge cross the line into advocate for one of the parties, necessitating a new trial? As the recent opinion of the Court of Appeals of Kentucky in Amos v. Clubb, 2010 WL 5018471 (Ky.App. 2010), makes clear, however, many courts have adopted a three-factor test to determine whether judicial interrogation is proper.

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Uncompromising: Eastern District Of Tennessee Precludes Jury Impeachment To Prove Compromise Verdict

A defendant is charged with twelve counts. During deliberations, the jury sends a note to the judge which indicates that some jurors would not vote guilty. The note apparently also contains information about the numerical division of the jury. The judge reads aloud to the prosecutor and defense counsel the portion of the note that says that some jurors would not vote guilty. The judge then informs the parties that the note contains information about the numerical division of the jury, but the judge does not reveal this numerical information. The judge thereafter asks the parties for objections to an Allen charge. When the parties don't object, the judge recalls the jury and gives them the Allen charge. Later that day, the jury returns a verdict convicting the defendant on some charges but acquitting him on others. Should defense counsel be able to see the entire note and/or interview jurors to determine whether there was a compromise verdict? According to the recent opinion of the United States District Court for the Eastern District of Tennessee in United States v. Kennedy, 2010 WL 5057210 (M.D. Tenn. 2010), the answer is "no" on both counts.

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It's Settled: Court Of Appeals of Texas Finds Burden Is On Party Raising Rule 408 To Prove Settlement Negotiations

Similar to its federal counterpart, Texas Rule of Evidence 408 provides that

Evidence of (1) furnishing or offering or promising to furnish or (2) accepting or offering or promising to accept, a valuable consideration in compromising or attempting to compromise a claim which was disputed as to either validity or amount is not admissible to prove liability for or invalidity of the claim or its amount. Evidence of conduct or statements made in compromise negotiations is likewise not admissible. This rule does not require the exclusion of any evidence otherwise discoverable merely because it is presented in the course of compromise negotiations. This rule also does not require exclusion when the evidence is offered for another purpose, such as proving bias or prejudice or interest of a witness or a party, negativing a contention of undue delay, or proving an effort to obstruct a criminal investigation or prosecution.

As the recent opinion of the Court of Appeals of Texas, Fort Worth, in Vinson Minerals, Ltd. v. XTO Energy, Inc., 2010 WL 6118649 (Tex.App.-Fort Worth 2010), makes clear, however, the burden is on the party objecting to evidence under Rule 408 to show that it was a part of settlement negotiations and not offered for another purpose.

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Let's Go To The Tape: Supreme Court Of South Carolina Finds Prisoner Video Admissible In Death Penalty Appeal

A defendant is convicted of two counts of armed robbery, two counts of murder, one count of burglary of a dwelling, first degree, one count of attempt to burn, and one count of criminal sexual conduct, first degree. During the sentencing phase of trial and over the defendant's objection, the State introduced a video recording showing prison guards using pepper-spray to force the defendant to comply with a pat-down request. The events documented on the tape occurred the night that the defendant was found guilty. The defendant refused to allow prison guards to touch him when the guards requested that he place his hands on the wall for a pat-down. The guards explained that the pat-down was policy and indicated that if he continued to refuse, the defendant would be pepper-sprayed. The defendant continued to resist after several requests for compliance, so the guards used pepper-spray to restrain him. At the end of the sentencing phase of trial, the defendant was given the death penalty. Did the trial court properly allow for admission of the tape? According to the recent opinion of the Supreme Court of South Carolina in State v. Torres, 2010 WL 5071684 (S.C. 2010), the answer is "yes."

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Moving Target: Court Of Criminal Appeals Of Texas Clarifies Similar Motive Requirement Under Rule 804(b)(1)

Similar to its federal counterpart, Texas Rule of Evidence 804(b)(1) provides an exception to the rule against hearsay for

In civil cases, testimony given as a witness at another hearing of the same or a different proceeding, or in a deposition taken in the course of another proceeding, if the party against whom the testimony is now offered, or a person with a similar interest, had an opportunity and similar motive to develop the testimony by direct, cross, or redirect examination. In criminal cases, 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 had an opportunity and similar motive to develop the testimony by direct, cross, or redirect examination. In criminal cases the use of depositions is controlled by Chapter 39 of the Code of Criminal Procedure.

But when exactly is there is a similar motive to develop the testimony of a witness? That was the question addressed by the recent opinion of the Court of Criminal Appeals of Texas in its recent opinion in Martinez v. State, 2010 WL 5093405 (Tex.Crim.App. 2010).

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Lacking Substance: Supreme Court Of Kansas Finds Evidence Of Liability Insurance Was Inadmissible To Prove Bias

Federal 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.

Meanwhile, K.S.A. 60-454 provides that

Evidence that a person was, at the time a harm was suffered by another, insured wholly or partially against loss arising from liability for that harm is inadmissible as tending to prove negligence or other wrongdoing.

In other words, Kansas's counterpart to Rule 411 makes no mention of evidence of liability insurance being admissible for other purposes such as proving bias. As the recent opinion of the Supreme Court of Kansas in Kansas Medical Mut. Ins. v. Svaty, 2010 WL 5033519 (Kan. 2010), makes clear, however, Kansas courts have read such language into K.S.A. 60-454 and applied the "substantial connections test" applied by most jurisdictions. 

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Treatment Options: Court Of Appeals Of Texas Finds Statements Not Covered By Alcohol/Drug Treatment Privilege

Texas Rule of Evidence 509(b) provides that

There is no physician-patient privilege in criminal proceedings. However, a communication to any person involved in the treatment or examination of alcohol or drug abuse by a person being treated voluntarily or being examined for admission to treatment for alcohol or drug abuse is not admissible in a criminal proceeding.

In Murray v. State, 2010 WL 4924913 (Tex.App.-Dallas 2010), the appellant claimed that he went to a healing center seeking treatment for drug or alcohol abuse, making his statements to the center's staff covered by Rule 509(b). The Court of Appeals of Texas, Dallas, disagreed.

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Frownin' Bob: Sixth Circuit Finds Rule 704(b) Violation, Harmless Error In Enzyte Appeal

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.

As I have noted before, however, courts almost always find that violations of Rule 704(b) constitute harmless error, which is exactly what the Sixth Circuit found in its recent opinion in United States v. Warshak, 2010 WL 5071766 (6th Cir. 2010).

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Truth Of The Matter: Supreme Court Of Mississippi Finds Doctor's Affidavit Was Properly Admitted

Like its federal counterpart, Mississippi 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....

Because such a prior inconsistent statement is not hearsay, it is both admissible to impeach the witness and to prove the truth of the matter asserted as is made clear by the recent opinion of the Supreme Court of Mississippi in James K. Triplett as the Administrator of the Estate of Jean B. Triplett, Deceased v. River Region Medical Corporation, 2010 WL 5093777 (Miss. 2010). 

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Play It Again: Court Of Appeals Of Texas Finds No Problem With Admission Of Translation After Playing Of Spanish Confession

Texas Rule of Evidence 1009(a) provides that

A translation of foreign language documents shall be admissible upon the affidavit of a qualified translator setting forth the qualifications of the translator and certifying that the translation is fair and accurate. Such affidavit, along with the translation and the underlying foreign language documents, shall be served upon all parties at least 45 days prior to the date of trial.

Meanwhile Texas Code of Criminal Procedure 38.30(a) provides that

When a motion for appointment of an interpreter is filed by any party or on motion of the court, in any criminal proceeding, it is determined that a person charged or a witness does not understand and speak the English language, an interpreter must be sworn to interpret for the person charged or the witness. Any person may be subpoenaed, attached or recognized in any criminal action or proceeding, to appear before the proper judge or court to act as interpreter therein, under the same rules and penalties as are provided for witnesses. In the event that the only available interpreter is not considered to possess adequate interpreting skills for the particular situation or the interpreter is not familiar with use of slang, the person charged or witness may be permitted by the court to nominate another person to act as intermediary between the person charged or witness and the appointed interpreter during the proceedings.

In its recent opinion in Peralta v. State, 2010 WL 4851388 (Tex.App.-El Paso 2010), the Court of Appeals of Texas, El Paso, found that the government's compliance with these two provisions rendered meritless the appellant's argument that the introduction of the translation of his Spanish language confession after that confession was played to the jury was improper. I'm not sure that I agree.

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Trust Me: Eighth Circuit Finds EPA Report Inadmissible Because Of Disclaimer

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, Federal Rule of Evidence 803(8)(C) provides an exception to the rule against hearsay for

Records, reports, statements, or data compilations, in any form, of public offices or agencies, setting forth...in civil actions and proceedings and against the Government in criminal cases, factual findings resulting from an investigation made pursuant to authority granted by law, unless the sources of information or other circumstances indicate lack of trustworthiness.

And, Federal Rule of Evidence 803(18) provides an exception to the rule against hearsay for

To the extent called to the attention of an expert witness upon cross-examination or relied upon by the expert witness in direct examination, statements contained in published treatises, periodicals, or pamphlets on a subject of history, medicine, or other science or art, established as a reliable authority by the testimony or admission of the witness or by other expert testimony or by judicial notice. If admitted, the statements may be read into evidence but may not be received as exhibits.

The common theme: If a piece of evidence is not trustworthy, it can't be used under any of these Rules as is made clear by the recent opinion of the Eighth Circuit in Junk v. Terminix Intern. Co., 2010 WL 4978801 (8th Cir. 2010).

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Conspiracy Theory: Seventh Circuit Finds Statement About Disposing Murder Weapon Qualifies As Co-Conspirator Admission

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

A statement is not hearsay if...[t]he statement is offered against a party and is...a statement by a coconspirator of a party during the course and in furtherance of the conspiracy.

So, are statements about disposing the murder weapon later in the month after a shooting during the course of an in furtherance of the conspiracy to murder the victim? According to the recent opinion of the Seventh Circuit in United States v. Nicksion, 2010 WL 4978819 (7th Cir. 2010), the answer is "yes."

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