EvidenceProf Blog

Editor: Colin Miller
Univ. of South Carolina School of Law

Saturday, April 30, 2011

Texas Two-Step: Will Texas Pass State Counterparts To Federal Rules Of Evidence 413-414?

Federal Rule of Evidence 404(b) provides in relevant part that 

Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith.

Enacted in the 1994 to increase the likelihood of sexual offense convictions, Federal Rules of Evidence 413-414 remove this propensity character evidence proscription for sex offenders and allow bad act evidence to prove, "Once a sex offender, always a sex offender."

Despite the objections of academic commentators, several states--including California-- followed suit. More states are considering similar exceptions; for instance, Alaska and California have also created similar exceptions for cases of domestic violence. Ted Sampsell-Jones, Preventive Detention, Character Evidence, and the New Criminal Law, 2010 Utah L. Rev. 723, 731-32 (2010).

In all, eleven states have enacted state counterparts to Federal Rules of Evidence 413-414 (I'm not sure how many states have enacted counterparts to Federal Rules of Evidence 415, which applies in civil cases) Could Texas make it a dozen?

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April 30, 2011 | Permalink | Comments (0) | TrackBack (0)

Friday, April 29, 2011

Another Loss To The Evidence Community, Dan Shuman At Southern Methodist

From William Bridge on the Evidence Professor listserv:

Tragically, another long-time Evidence teacher at Southern Methodist died early Tuesday morning, of Multiple System Atrophy, a Parkinson's-like disease.  Dan Shuman joined the SMU faculty in 1977 after stints at Legal Aid and in Bruce Babbitt's AG's Office in Tucson.  He taught, among other things, Civil Procedure, Torts, Evidence, Problems of Proof (our advanced Evidence seminar), an Expert Witness seminar, and extensively in mental health law.  He twice (in 1988, and 2011) won the Manfred Guttmacher Award from the American Psychiatric Association for his work in psychiatry and the law.  Dan had a loving family, and devoted students and colleagues.  Dan also taught this semester, two seminars.  His memorial service was this morning.

Here is the notice on his passing from SMU, and here is his obituary from the Dallas Morning News. Professor Shuman was a prolific author on a variety of topics, with some his best writing coming on the topic of expert testimony from a variety of perspectives.

Recently, I have been researching (1) whether suspects should be able to pre-assert their Miranda right to counsel, and (2) what the language used in the Miranda tells us about the language used during plea colloquies, and I have come across a wealth of information in recent articles that Professor Shuman co-authored:

-Everyone Knows Their Miranda Rights:" Implicit Assumptions and Countervailing Evidence, 16 Psychol. Pub. Pol'y & L. 300 (2010);

-Miranda Rights...and Wrongs, 23-SUM Crim. Just. 4 (2008);

-The Language of Miranda Warnings in American Jurisdictions: A Replication and Vocabulary Analysis, 32 Law & Hum. Behav. 124 (2008); and

-An Analysis of Miranda Warnings and Waivers:Comprehension and Coverage, 31 Law & Hum. Behav. 177 (2007)


April 29, 2011 | Permalink | Comments (0) | TrackBack (0)

Article Of Interest: Ronald F. Wright's Public Defender Elections and Popular Control Over Criminal Justice

I always found it odd when people criticized a single-payer health care system simply by labeling it "socialized medicine." Couldn't our public education system similarly be attacked as socialized education? Are our public libraries socialized book lending? Is the postal system socialized mail delivery? In other words, there are certainly problems with a single-payer health care system, but simply stigmatizing it as socialized medicine makes no sense. Instead, the important point is why we have made health insurance (primarily) private while other services are (primarily) public.

In his terrific recent article, Public Defender Elections and Popular Control Over Criminal Justice, 75 Mo. L. Rev. 803 (2010), Ronald F. Wright, a professor at the Wake Forest University School of Law, addresses a similar question. As he notes in the opening paragraph of the article:

Voters in the United States select some of the major actors in criminal justice, but not all of them. Among the major figures in the criminal courtroom, voters typically elect two of the three: the prosecutor and the judge, but not the public defender. Prosecutors in almost all states are elected at the local level. Judicial elections offer more of a mixed bag, but a strong majority of jurisdictions elect their judges in some form or other. Unlike prosecutors and most judges, however, the public defender is typically not an elected official, even though the defender is a public employee with important budgetary and policymaking authority over criminal justice. Why the difference? Do we believe that voters would behave markedly differently when electing public defenders? Or do we believe that public defenders themselves would respond to voter input in less desirable ways than other criminal justice officials? As it happens, we have some actual experience to draw upon in answering these questions because a few jurisdictions actually do elect their public defenders. Florida, Tennessee, and a few places in California and Nebraska elect their chief public defenders at the local level, and have done so for decades.

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April 29, 2011 | Permalink | Comments (0) | TrackBack (0)

Thursday, April 28, 2011

New Rules: Supreme Court Adopts Restyled Federal Rules Of Evidence & Sends Them To Congress

As I have previously noted on this blog,

After the Committee on Rules of Practice and Procedure of the Judicial Conference of the United States Courts "restyled" the Federal Rules of Appellate Procedure, the Federal Rules of Criminal Procedure, and the Federal Rules of Civil Procedure, it tackled its latest project:  the Federal Rules of Evidence. The goal in all of these projects has been to makes the Rules more user friendly rather than to enact substantive changes.

Here is a link to the initial report on the project from 2009. Thereafter, the Committee  released its Preliminary Draft of Proposed Style Revision of the Federal Rules of Evidence for public comment. The public comment period for this draft ended on February 16, 2010, with the following comments being submitted. Now, on April 26th, after a few minor changes, the Supreme Court adopted the latest version of the restyled Evidence Rules and sent them to Congress. The new Rules are set to take effect on December 1, 2011, unless Congress acts otherwise. Daniel Capra, the Reed Professor of Law at the Fordham University School of Law and the Reporter for the Judicial Conference Advisory Committee on the Federal Rules of Evidence, sent me a copy of the latest version of the Rules, which you can download here in three parts (Download Restyled Rules 101-415, Download Restyled Rules 501-706, Download Restyled Rules 801-1103)

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April 28, 2011 | Permalink | Comments (0) | TrackBack (0)

Wednesday, April 27, 2011

With A Gun?: Appeals Court Of Massachusetts Opinion Addresses Second, Sixth Amendment Issues

The Second Amendment provides that

A well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed.

Meanwhile, the Confrontation Clause of the Sixth Amendment provides that

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

It is not very often that a defendant claims that a criminal prosecution violated both his Second Amendment and Sixth Amendment rights, but that was exactly the case in Commonwealth v. Patterson, 2011 WL 1520025 (Mass.App.Ct. 2011).

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April 27, 2011 | Permalink | Comments (0) | TrackBack (0)

Tuesday, April 26, 2011

Prior Consent: Court Of Appeals Of Arkansas Precludes Jury Impeachment Based On Juror's Preexisting Knowledge

SImilar to its federal counterpart, Arkansas 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 his or any other juror's mind or emotions as influencing him to asset [assent] to or dissent from the verdict or indictment or concerning his mental processes in connection therewith, nor may his affidavit or evidence of any statement by him concerning a matter about which he would be precluded from testifying be received, but a juror may testify on the questions 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. 

Under Rule 606(b), it is clear that information that a juror discovers outside of the four walls of the courtroom (e.g., through surfing the 'net, visiting the crime scene, or reading the newspaper) after trial commences can constitute extraneous prejudicial information and form a proper predicate for jury impeachment. But what about information that a juror learned prior to trial in the ordinary scope of his life experiences and carries with him into the jury room? As the recent opinion of the Court of Appeals of Arkansas in Milner v. Luttrell, 2011 WL 1491461 (Ark.App. 2011), makes clear, such information is not extraneous prejudicial information and cannot form a proper predicate for jury impeachment.

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April 26, 2011 | Permalink | Comments (0) | TrackBack (0)

Monday, April 25, 2011

Article Of Interest: Caleb Mason's The Use of Immigration Status in Cross-Examination of Witnesses: Scope, Limits, Objections

In July 2008, I published a short essay in the Northwestern Law Review Colloquy entitled, Crossing Over: Why Attorneys (and Judges) Should Not be Able to Cross-Examine Witnesses Regarding Their Immigration Statuses for Impeachment Purposes. The piece was a a quick reaction to a couple of cases I posted about on this blog (here and here) in which courts permitted inquires into the immigration statuses of witnesses. I think that the essay is a nice illustration of the virtues of the various online supplements to law reviews. I identified a hot issue and was able to give a quick take on it in a couple of months rather than the near year or longer that it takes to publish an article in a traditional law review. And that take was that courts should generally not allow such immigration interrogation. Caleb Mason, a professor at the Southwestern Law School, has now followed up on my essay, with his terrific article, The Use of Immigration Status in Cross-Examination of WitnessesScopeLimitsObjections, 33 Am. J. Trial Advoc. 549 (2010), and I think it does great job of engaging in a more nuanced analysis, really digging into the issue of when immigration interrogation is improper and when (and how) it might be permissible.

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April 25, 2011 | Permalink | Comments (0) | TrackBack (0)

Mourning The Loss Of Craig Callen

Craig Callen, a professor at the Michigan State University College of Law and one of the foremost Evidence scholars in the world, passed away on Saturday. News of his passing was posted on the Evidence Professor listserv last night at 8:43 P.M., and already numerous prominent Evidence professors have chimed in with thoughts about how wonderful he was as a teacher, scholar, and, more importantly, person. Craig was actually the first Evidence professor with whom I interacted after law school. In my third year of law school, I had written a short piece about Brady v. Maryland and the circuit split over whether the failure to turn over inadmissible can form the basis for a Brady violation.

At that time, I didn't know much about writing law review articles or the law review submission process, but I did know that I wanted to be an Evidence professor, and I was aware of the excellent International Commentary on Evidence. Craig was the Editor-in-Chief of ICE, and I submitted my piece to the journal, having no expectation that it would be accepted for publication. To my surprise, I got a personal e-mail from Craig informing me that the Editorial Board really enjoyed the piece. Of course, there were tons of flaws with it, and Craig did a terrific job of working with me on improving it, really teaching me about what constitutes good legal scholarship. Without that advice, I don't know that I would be a law professor today. He will be missed.


April 25, 2011 | Permalink | Comments (2) | TrackBack (0)

Sunday, April 24, 2011

Moving Violations: Middle District Of Florida Finds No Problem With Lay Witness' Conclusions Under Rule 701

Federal Rule of Evidence 701 provides that 

If the witness is not testifying as an expert, the witness' testimony in the form of opinions or inferences is limited to those opinions or inferences which are (a) rationally based on the perception of the witness, and (b) helpful to a clear understanding of the witness' testimony or the determination of a fact in issue, and (c) not based on scientific, technical, or other specialized knowledge within the scope of Rule 702.

It is well established under this rule that lay witnesses can offer opinion testimony regarding a car's rate of speed. But did the lay witness go too far in a recent case? According to the recent opinion of the United States District Court for the Middle District of Florida in Hardiman v. Stevens, 2011 1480401 (M.D.Fla. 2011), the answer is "no." I disagree.

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April 24, 2011 | Permalink | Comments (0) | TrackBack (0)

Saturday, April 23, 2011

Knockin' On Heaven's Door?: Superior Court Of Pennsylvania Questionably Finds Statements Qualify As Dying Declarations

Like its federal counterpart, Pennsylvania Rule of Evidence 804(b)(2) provides an exception to the rule against hearsay 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.

As the recent opinion of the Superior Court of Pennsylvania in Commonwealth v. Priest, 2011 WL 1499828 (Pa.Super. 2011), makes clear, even statements made six hours (or three days) before the declarant's death can qualify as dying declarations. But did the court correctly conclude that the declarant's statements in Priest qualified as dying declarations? I don't know.

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April 23, 2011 | Permalink | Comments (1) | TrackBack (0)

Friday, April 22, 2011

Georgia On My Mind: Georgia Senate Overwhelming Votes To Approve Evidence Code Based On Federal Rules Of Evidence

As of 2010, forty-two states had passed state rules of evidence similar to the Federal Rules of Evidence. On January 1, 2011, that number became 42 as the Illinois Rules of Evidence went into effect. Earlier this week, on the last day of the 2011 legislative session, the Georgia Senate voted 50-3 to pass a Comprehensive Revised Evidence Code patterned on the Federal Rules of Evidence that would make Georgia state #43. Governor Nathan Deal is now expected to sign the bill into law, which would take effect on January 1, 2013. So, what led to the creation of this new Evidence Code, what will it replace, and what are the remaining states?

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April 22, 2011 | Permalink | Comments (0) | TrackBack (0)

Thursday, April 21, 2011

Article Of Interest: Jan Stiglitz's View From the Trenches: The Struggle to Free William Richards

A popular game among lawyers (and law professors) while watching legal TV shows is "spot the legal error." And as readers of this blog with their law degrees know, such shows are replete with inaccuracies. Some of these errors are innocuous. As an Evidence professor, I often see evidence wrongfully admitted or excluded, but I don't worry that such errors give laypersons a dangerous misimpression of how trials are conducted. Of course, one of the more obvious errors in legal TV shows is the rapidity with which disputes are resolved. In the classic "client of the week" format, we often see a client in complex litigation retain a firm, complete discovery, and achieve a settlement or verdict in a matter of days when in reality the entire process would likely drag on for years.

But I still don't know that this "fast forward justice" misleads the public in a way that is all that troubling. But what about when the lawyer at one of these fictional firms is given the pro bono project of the wrongfully incarcerated inmate? If you've watched one of these episodes, you know the score. The firm gets the case, and it throws its full resources into finding the flaws in the prosecution's case. Often, the inmate is on death row, and the firm has only a few days or hours to stop the execution. The firm gets a lab to expedite testing of forensic evidence. It gets a judge to hear an emergency motion. The inmate's innocence is proven. The episode ends with the prison gates opening and the inmate being reunited with his family. Tears are shed. Justice has been served.

In reality, though, these types of wrongful conviction cases are much more often of the "justice delayed is justice denied" variety than the "fast forward justice" we see on TV. And I think that the real value of the recent article, View From the Trenches: The Struggle to Free William Richards, 73 Albany L. Rev. 1357 (2010), by Jan Stiglitz, a professor and the director of the California Innocence Project at the California Western School of Law, is that it exposes the realities of the situation.

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April 21, 2011 | Permalink | Comments (0) | TrackBack (0)

Wednesday, April 20, 2011

Be Kind, Rewind: Southern District Of Ohio Uses Best Evidence Rule To Preclude Admission Of Private Eye's Affidavit

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.

I always tell my Evidence students that the Best Evidence Rule rarely prevents proponents from proving the contents of writings, recordings, and photographs. Instead, the provisions of Article X of the Federal Rules of Evidence merely point to how those contents will be proven. If the proponent has the original, it can introduce the original. If the proponent has a "duplicate," it can introduce the duplicate. And, if the proponent has neither, it can still prove the contents of the writing, recording, or photograph unless it lost or destroyed the original in bad faith or provides no reason for failing to produce it. The recent opinion of the United States District Court for the Southern District of Ohio in Crace v. Efaw, 2011 WL 1459357 (S.D. Ohio 2011), is thus the exception to the general rule.

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April 20, 2011 | Permalink | Comments (0) | TrackBack (0)

Tuesday, April 19, 2011

Article Of Interest: Eyewitness Errors and Wrongful Convictions: Let's Give Science a Chance, By David A. Sonenshein and Robin Nilson

Readers of this blog know of my interest in the inaccuracy of eyewitness identifications (see, e.g., here, here, herehere, and here) and efforts to increase their reliability (see, e.g. here). This interest came from the confluence of two events: First, I read about the results of The Illinois Pilot Program on Sequential Double-Blind Identification Procedures, which seemed to suggest that traditional lineup methods are uncannily accurate and that more modern safeguards actually lead to less reliable identifications. Thereafter, I saw a 60 Minutes piece about Jennifer Thompson's (mis)identification of Ronald Cotton as her rapist and about the problems inherent in traditional lineup methods. This piece changed the way that I thought about eyewitness identifications, and I now play the piece in all of my Evidence and Criminal Procedure classes. The Cotton-Thompson case also provides the launching point for an excellent recent article about eyewitness (mis)identifications, Eyewitness Errors and Wrongful Convictions: Let's Give Science a Chance, 89 Or. L. Rev. 263 (2010), by David A. Sonenshein and Robin Nilson, professors at the Temple University Beasley School of Law.

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April 19, 2011 | Permalink | Comments (0) | TrackBack (0)

Monday, April 18, 2011

It's So Juvenile: Ohio Child Custody Case Reveals Differences Between Federal And Ohio Rules On Juvenile Adjudication Impeachment

Federal Rule of Evidence 609(d) 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 juvenile adjudication 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.

As the recent opinion of the Court of Appeals Of Ohio, Twelfth District, in In re L.E.N., 2011 WL 1346825 (Ohio App. 12 Dist. 2011), makes clear, Ohio Rule of Evidence 609(d) is actually more restrictive than its federal counterpart although this distinction was ultimately irrelevant to the court's opinion.

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April 18, 2011 | Permalink | Comments (0) | TrackBack (0)

Sunday, April 17, 2011

Can I See Some ID?: EDNY Opinion Reveals Differences Between Federal & NY Prior ID Rules

Federal Rule of Evidence 801(d)(1)(C) 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...one of identification of a person made after perceiving the person....

As the recent opinion of the United States District Court for the Eastern District of New York in Linton v. Bradt, 2011 WL 1252752 (E.D.N.Y. 2011), reveals, New York also allows for 

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April 17, 2011 | Permalink | Comments (1) | TrackBack (0)

Saturday, April 16, 2011

Limited Too: Court Of Appeals Of Indiana Notes That Its Rule 105 Is Different From Every Other Rule 105

Federal Rule of Evidence 105 provides that

When evidence which is admissible as to one party or for one purpose but not admissible as to another party or for another purpose is admitted, the court, upon request, shall restrict the evidence to its proper scope and instruct the jury accordingly.

Meanwhile, Indiana Rule of Evidence 105 provides that

When evidence which is admissible as to one party or for one purpose but not admissible as to another party or for another purpose is admitted, the court, upon request, shall restrict the evidence to its proper scope and admonish the jury accordingly.

So, is there a difference between the word "instruct" in Federal Rule of Evidence 105 and the word "admonish" in Indiana Rule of Evidence 105? According to the recent opinion of the Court of Appeals of Indiana in Webb v. State, 2011 WL 1379830 (Ind.App. 2011), the answer is "yes."

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April 16, 2011 | Permalink | Comments (0) | TrackBack (0)

Friday, April 15, 2011

The Conspirator: Western District Of Louisiana Notes 4 Requirements To Admit Co-Conspirator Admissions

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.

And, as the recent opinion of the United States District Court for the Western District of Louisiana in United States v. Jackson, 2011 WL 1376276 (W.D.La. 2011), makes clear, to admit a statement as a co-conspirator admission under Rule 801(d)(2)(E), the prosecution must prove 4 elements by a preponderance of the evidence.

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April 15, 2011 | Permalink | Comments (0) | TrackBack (0)

Thursday, April 14, 2011

Article Of Interest: Caren Myers Morrison's Jury 2.0

Readers of this blog know my great interest in stories regarding jury misconduct (see, e.g., here, here, here, here, and here) and whether the very idea of trial by jury can survive the new technological era (see, e.g., here, here, and here). What I haven't addressed nearly as much is what courts can and should do to address the jury impeachment in the internet era (I think that my only posts on the subject are here and here). This latter topic is the subject of Jury 2.0, a thought-provoking article forthcoming in the Hastings Law Journal by Caren Myers Morrison, a professor at the Georgia State University College of Law.

Morrison's basic argument is this: The American jury is like a smart kid. He showed some early promise, but now he's not being challenged. And because he's not being challenged, his mind wanders, and he starts to misbehave. So, we need to challenge him. We need to force him to re-engage with the material. And by doing so, his long latent promise can start to shine through again. 

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April 14, 2011 | Permalink | Comments (0) | TrackBack (0)

Wednesday, April 13, 2011

New Rules: Court Of Appeals Of Georgia Applies New Framework To Find Statement Nontestimonial, Cites EvidenceProf

As I have previously noted,

In Crawford v. Washington, 541 U.S. 36 (2004), the Supreme Court found that that 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. The Court in Crawford set forth various formulations of the term "testimonial," with the most commonly adopted one defining a "testimonial" statement as one that "was made under circumstances which would lead an objectively reasonable declarant to believe or anticipate that the statement would be available for use against an accused at a later trial." The Supreme Court later expanded upon this analysis in Davis v. Washington, 547 U.S. 813 (2004), and Hammon v. Indiana, finding that 

Statements are nontestimonial [and thus nonviolative of the Confrontation Clause] when made in the course of police interrogation under circumstances objectively indicating that the primary purpose  of the interrogation is to enable police assistance to meet an ongoing emergency. They are testimonial when the circumstances objectively indicate that there is no such ongoing emergency, and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution. 

In Michigan v. Bryant, the United States Supreme Court had to decide whether [a crime victim]'s statements were testimonial or nontestimonial under this "primary" purpose test.

After creating a new Confrontation Clause framework, the Court in Bryant found that the victim's statements were nontestimonial. In its recent opinion in Philpot v. State, 2011 WL 982978 (Ga.App. 2011), the Court of Appeals of Georgia became one of the first courts to apply this new framework, and it reached the same conclusion based upon somewhat similar facts. And, it cited to this blog. So I got that goin' for me.

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April 13, 2011 | Permalink | Comments (0) | TrackBack (0)