EvidenceProf Blog

Telephone Line: TN Court Best Evidence Violation Regarding Jailhouse Telephone Calls Not Plainly Erroneous

Like its federal counterpart, Tennessee Rule of Evidence 1002, Tennessee's Best Evidence Rule, provides that

To prove the content of a writing, recording, or photograph, the original writing, recording, or photograph is required, except as otherwise provided in these rules or by Act of Congress or the Tennessee Legislature.

As the recent opinion of the Court of Criminal Appeals of Tennessee in State v. Graves, 2011 WL 398024 (Tenn.Crim.App. 2011), makes clear, however, if a party does not raise a Best Evidence objection at trial, it is unlikely that the party will successfully be able to raise the issue on appeal. 

Continue reading

Open And Shut: Supreme Court Of Minnesota Finds Defendant's Statement During Omnibus Hearing Covered By Rule 410

Similar to its federal counterpart, Minnesota Rule of Evidence 410 provides that

Evidence of a plea of guilty, later withdrawn, or a plea of nolo contendere, or of an offer to plead guilty or nolo contendere to the crime charged or any other crime or of statements made in connection with any of the foregoing pleas or offers, is not admissible in any civil, criminal, or administrative action, case, or proceeding whether offered for or against the person who made the plea or offer.

In its recent opinion in State v. Brown, 2011 WL 13753 (Minn. 2011), the Supreme Court of Minnesota had to resolve a question of first impression: whether Rule 410 applies to statements made by a defendant in connection with plea discussions, or in connection with offers of settlement made by the State, when the statements by the defendant are made in open court and in response to questions posed by the district court. And, according to the court, the answer is "yes."

Continue reading

Nothing Compares: 9th Circuit Finds Best Evidence Rule Doesn't Cover Absence Of Entries In Computer Databases

Federal Rule of Evidence 1002, the Best Evidence Rule, provides that

To prove the content of a writing, recording, or photograph, the original writing, recording, or photograph is required, except as otherwise provided in these rules or by Act of Congress.

So, let's say that the prosecutor wants to call a witness to testify about the absence of an entry in a computer database. Under the Best Evidence Rule, would the prosecutor be required to introduce a printout of the search results from the database? According to the recent opinion of the Ninth Circuit in United States v. Diaz-Lopez, 625 F.3d 1198 (9th Cir. 2010), the answer is "no."

Continue reading

About Face: New York Court Applies Bruton Doctrine To Non-Facially Incriminatory Confession

Under the Bruton doctrine, at a joint jury trial, the admission of a codefendant's confession that facially incriminates another defendant violates the Confrontation Clause unless the co-defendant testifies at trial. The "facially incriminatory" portion of this doctrine comes from the Supreme Court's opinion in Richardson v. Marsh, 481 U.S. 200 (1987), in which it distinguished facially incriminatory confessions -- which violate the Confrontation Clause -- from confessions that only incriminate by inference -- which do not.  Of course, in this regard, the Supreme Court merely set the Constitutional minimum, and there is nothing wrong with lower courts finding Confrontation Clause violations based upon co-defendant confessions that only incriminate by inference as was the case with the recent opinion of the Supreme Court, Appellate Division, Second Department, New York in People v. Russo, 2011 WL 337886 (N.Y.A.D. 2 Dept. 2011).

Continue reading

That's One Interpretation: NJ Court Finds Confrontation Clause Doesn't Cover "Interpreters" Of Statements To Police

The Sixth Amendment's Confrontation Clause provides that

In all criminal prosecutions, the accused shall enjoy the right...to be confronted with the witnesses against him.

Pursuant to the Supreme Court's opinion in Crawford v. Washington, the Confrontation Clause of the U.S. Constitution is violated when hearsay is "testimonial," admitted against a criminal defendant, and the hearsay declarant does not testify at the defendant's trial, unless (1) the declarant was unavailable for trial, and (2) the defendant was previously able to cross-examine the declarant. But let's assume that the declarant makes a statement to the police and does not speak English. And let's assume that the police get an interpreter to translate the declant's statements to them. If the police officer testifies concerning these translated statements, does the interpreter have to testify at trial? According to the recent opinion of the Superior Court of New Jersey, Appellate Division in State v. Venable, 2011 WL 10053 (N.J.Super.A.D. 2011), the answer is "no."

Continue reading

I Am Number Four: 10th Circuit Becomes 4th Federal Appellate Court To Approve Of Case-In-Chief Waivers

Federal Rule of Evidence 410 states in relevant part that

Except as otherwise provided in this rule, evidence of the following is not, in any civil or criminal proceeding, admissible against the defendant who made the plea or was a participant in the plea discussions:

(1) a plea of guilty which was later withdrawn;

(2) a plea of nolo contendere;

(3) any statement made in the course of any proceedings under Rule 11 of the Federal Rules of Criminal Procedure or comparable state procedure regarding either of the foregoing pleas; or

(4) any statement made in the course of plea discussions with an attorney for the prosecuting authority which do not result in a plea of guilty or which result in a plea of guilty later withdrawn.

That said, in its opinion in United States v. Mezzanatto, 513 U.S. 196 (1995), the Supreme Court held that a defendant can waive the protections of this Rule under certain circumstances and permit the prosecutor to present evidence otherwise excludable under it to impeach the defendant (i.e., an impeachment waiver). The Court, however, left open the question of the validity of a "case-in-chief" waiver, under which a defendant waives the protections of Rule 410 and permits the prosecutor to present evidence otherwise excludable under it as part of its case-in-chief, regardless of whether the defendant testifies. Before Thursday, three federal circuit circuit courts -- the Fifth Circuit, the Eighth Circuit, and the D.C. Circuit -- had been presented with the question and a found such a waiver to be valid. With its opinion in United States v. Mitchell, 2011 WL 322371 (10th Cir. 2011), the Tenth Circuit can be added to the tally.

Continue reading

In Completion: Court Of Appeals Of Kentucky Finds Rule Of Completeness Applied In Gastric Bypass Case

Like its federal counterpart, Kentucky 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 the introduction at that time of any other part or any other writing or recorded statement which ought in fairness to be considered contemporaneously with it.

And, as the recent opinion of the Court of Appeals of Kentucky in Perry v. Larson, 2011 WL 181326 (Ky.App. 2011), makes clear, this "rule of completeness" applies even when the other part of the writing is offered for a different purpose as long as it concerns the same subject matter.

Continue reading

Et Tu, Bruton?: Seventh Circuit Finds Admission Of Non-Facially Incriminatory Statement Didn't Violate Bruton Doctrine

Pursuant to the Bruton doctrine, in a jury trial, the admission of a co-defendant's confession that also facially incriminates another defendant violates the Confrontation Clause unless (1) the co-defendant testifies, or (2) the confession is independently admissible against the other defendant. When, however, the co-defendant's confession does not facially incriminate the other defendant, there is no Bruton doctrine problem as is made clear by the recent opinion of the Seventh Circuit in United States v. Spagnola, 2011 WL 181480 (7th Cir. 2011).

Continue reading

Dead Letter: Court Of Appeals Of Michigan Finds Dead Man's Statute Abrogated By Rule 601

MCL 600.2166, Michigan's Dead Man's Statute, provides that

In an action by or against a person incapable of testifying, a party's own testimony shall not be admissible as to any matter which, if true, must have been equally within the knowledge of the person incapable of testifying, unless some material portion of his testimony is supported by some other material evidence tending to corroborate his claim.

Meanwhile, Michigan Rule of Evidence 601 provides that

Unless the court finds after questioning a person that the person does not have sufficient physical or mental capacity or sense of obligation to testify truthfully and understandably, every person is competent to be a witness except as otherwise provided in these rules.

In its recent opinion in In re Moon Estate, 2011 WL 254934 (Mich.App. 2011), the Court of Appeals of Michigan had to address whether Rule 601 abrogated MCL 600.2166.

Continue reading

A Is For Apple: ND Cal Finds Former Testimony Inadmissible Against Apple In Patent Infringement Case

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

Testimony given as a witness at another hearing of the same or a different proceeding, or in a deposition taken in compliance with law in the course of the same or another proceeding, if the party against whom the testimony is now offered, or, in a civil action or proceeding, a predecessor in interest, had an opportunity and similar motive to develop the testimony by direct, cross, or redirect examination.

And, as the recent opinion of the United States District Court for the Northern District of California in Affinity Labs of Texas, LLC v. Apple, Inc., 2011 WL 232521 (N.D. Cal. 2011), makes clear, Rule 804(b)(1) requires a contemporaneous opportunity and similar motive to develop the testimony of the witness.

Continue reading