EvidenceProf Blog

Not Warranted?: 8th Circuit Finds No Problem With Admission Of Arrest Warrant In Civil Action

Federal Rule of Evidence 803(8) 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 (A) the activities of the office or agency, or (B) matters observed pursuant to duty imposed by law as to which matters there was a duty to report, excluding, however, in criminal cases matters observed by police officers and other law enforcement personnel, or (C) 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.

So, under Rule 803(8)B), an arrest warrant could be excluded if offered in a criminal case but not if offered in a civil case, as was the case in Moore v. City of Desloge, Mo., 2011 WL 3189357 (8th Cir. 2011).

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Highway Robbery?: ND Ill Makes 2 Seeming Errors In Deeming Armed Robbery Conviction Inadmissible

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....

In its recent opinion in Blackwell v. Kalinowski, 2011 WL 3046320 (N.D. Ill. 2011), the the United States District Court for the Northern District of Illinois made two seeming errors in applying this Rule to a plaintiff's felony armed robbery conviction.

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Say Cheese: Tenth Circuit Finds Subsequent Remedial Measure Evidence Properly Excluded For Irrelevance

Federal Rule of Evidence 407 provides that

When, after an injury or harm allegedly caused by an event, measures are taken that, if taken previously, would have made the injury or harm less likely to occur, evidence of the subsequent measures is not admissible to prove negligence, culpable conduct, a defect in a product, a defect in a product's design, or a need for a warning or instruction.  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.

But while a party can use evidence of subsequent remedial measures to impeach witnesses, it can only do so if such evidence is relevant, which was a problem for the defendant in Leprino Foods Co. v. Factory Mut. Ins. Co., 2011 WL 3134625 (10th Cir. 2011).

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The Bullet & The Damage Done: Court Of Appeals Of Mississippi Finds No Error In Admission Of Dying Declaration Based On Nature Of Wound

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

In a prosecution for homicide or in a civil action or proceeding, [for] a statement made by a declarant while believing that his death was imminent, concerning the cause or circumstances of what he believed to be his impending death.

But let's say that a declarant makes a statement relatively soon before dying without being told that his death is imminent or any overt indication that he believes his death to be imminent. Can the court infer such a belief based solely on the nature of the declarant's injuries? According to the recent opinion of the Court of Appeals of Mississippi in Moore v. State, 2011 WL 3066211 (Miss.App. 2011), the answer is "yes."

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Not Surprising: Court Of Appeals Of Ohio Reverses Conviction Based On Prosecution's Improper Impeachment Of Own Witness

Ohio Rule of Evidence 607(A) provides in relevant part that

The credibility of a witness may be attacked by any party except that the credibility of a witness may be attacked by the party calling the witness by means of a prior inconsistent statement only upon a showing of surprise and affirmative damage.

And because the prosecution impeached its own witness through a prior inconsistent without a showing of surprise and affirmative damage in State v. Holloway, 2011 WL 2899596 (Ohio App. 8 Dist. 2011), the Court of Appeals of Ohio, Eighth District, had to reverse the defendant's conviction.

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D.C. Follies: D.C. Court Errs In Analysis Of (In)Admissibility Of Plaintiff's Conviction For Distributing A Controlled Substance

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....

Sometimes, courts apply Rule 609(a)(1) correctly. Other times, they badly botch the analysis as was the case with the United States District Court for the District of Columbia in its recent opinion in Jennings v. Thompson, 2011 WL 2976936 (D.D.C. 2011).

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Call The Police: Eastern District Of Pennsylvania Finds Testimony From Police Expert Inadmissible Under 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.

But while witnesses can embrace ultimate issues in their testimony, they cannot feed ultimate legal conclusions to jurors. And this limitation was a problem for the plaintiff in the recent opinion of the United States District Court for the Eastern District of Pennsylvania in Quagliarello v. Dewees, 2011 WL 2937396 (E.D.Pa. 2011) 

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In Plain Sight? Colorado Court Fins Probation Records Qualify For Admission Under Public Records Exception To Hearsay Rule

Like its federal counterpart, Colorado Rule of Evidence 803(8)(B) provides an exception to the rule against hearsay

Unless the sources of information or other circumstances indicate lack of trustworthiness, [for] records, reports, statements, or data compilations, in any form, of public offices or agencies, setting forth...matters observed pursuant to duty imposed by law as to which matters there was a duty to report, excluding, however, in criminal cases matters observed by police officers and other law enforcement personnel....

So, are probation records admissible under Rule 803(8)(B) or inadmissible under its criminal case restriction? According to the recent opinion of the Colorado Court of Appeals in People v. Gregg, 2011 WL 2899622 (Colo.App. 2011), they are admissible. But was the court correct that the plain language of the Rule compels this conclusion?

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Triple Play: D.C. Court Of Appeals Reverses Murder Conviction Based Upon 3 Serious Error By Trial Court

Federal Rule of Evidence 806 provides that

When a hearsay statement, or a statement defined in Rule 801(d)(2)(C), (D), or (E), has been admitted in evidence, the credibility of the declarant may be attacked, and if attacked may be supported, by any evidence which would be admissible for those purposes if declarant had testified as a witness. Evidence of a statement or conduct by the declarant at any time, inconsistent with the declarant's hearsay statement, is not subject to any requirement that the declarant may have been afforded an opportunity to deny or explain. If the party against whom a hearsay statement has been admitted calls the declarant as a witness, the party is entitled to examine the declarant on the statement as if under cross-examination.

The District of Columbia does not have codified rules of evidence, but as the recent opinion of the District of Columbia Court of Appeals in Smith v. United States, 2011 2899126 (D.C. 2011) (Download Smith v. United States), makes clear, it has adopted the Rule in case law, and the trial court's failure to adhere to the Rule led to a reversal of the defendant's conviction.

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Total Recall: 7th Circuit Finds No Problem With Introducing Prior ID After Declarant Testifies

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...

But does the statement of identification have to be introduced contemporaneous with the declarant's testimony, or can it be introduced later as long as the opposing party is allowed to recall the declarant as a witness? According to the recent opinion of the Seventh Circuit in United States v. Foster, 2011 WL 2909455 (7th Cir. 2011), contemporaneity is not required.

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A Shock To The System: TN Court Finds No Problem With Admission Of Excited Utterance Following Subsequent Startling Event

Like its federal counterpart, Tennessee Rule of Evidence 803(2) provides an exception to the rule against hearsay for 

A statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition.

So, let's say that a child is allegedly sexually abused, and the next day her mother tells her to urinate before taking a bath. Instead of complying, the child cries and screams out that she was sexually abused by her uncle. Does this qualify as an excited utterance under Rule 803(2)? According to the Court of Criminal Appeals of Tennessee in its recent opinion in State v. Taylor, 2011 WL 2767032 (Tenn.Crim.App. 2011), the answer is "yes."

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Polly Wants A New Trial: DDC Seemingly Errs Badly In Finding Harmless Error In Connection With Rule 703 Ruling

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.

So, let's assume that the plaintiff's expert relies upon an inadmissible report to offer opinion testimony at trial. And, assume that the court improperly allows the plaintiff to "parrot" the report's conclusions to the jury. Also, assume that the report is really good. So good, in fact, that the defendant's expert endorses the report. That has to be reversible error, right? Not according to the recent opinion of the United States District Court for the District of Columbia in Huthnance v. District of Columbia, 2011 WL 2836363 (D.D.C. 2011).

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Character Of The Matter: 8th Circuit Case Reveals Rule 405(a) Limitation On Rule 404(a)(2) Evidence

Back on Sunday, I posted an entry about how defendants seeking to present good character evidence about themselves under the "mercy rule" of Federal Rule of Evidence 404(a)(1) can only present reputation and/or opinion testimony under Federal Rule of Evidence 405(a) unless character is an essential element of his defense. As the recent opinion of the Eighth Circuit in United States v. Drapeau, 2011 WL 2652317 (8th Cir. 2011), makes clear, the same principle applies when defendant seek to present bad character evidence about victims under the "mercy rule" of Federal Rule of Evidence 404(a)(2).

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Attention, Wal-Mart Shoppers: Court Of Appeals Of Texas Seemingly Botches Best Evidence Analysis

Like its federal counterpart, Texas Rule 1002, Texas' Best Evidence Rule, provides tha

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 law.

But, like its federal counterpart, Texas Rule of Evidence 1003 provides that

A duplicate is admissible to the same extent as an original unless (1) a question is raised as to the authenticity of the original or (2) in the circumstances it would be unfair to admit the duplicate in lieu of the original.

In its recent opinion in Massey v. State, 2011 WL 2698608 (Tex.App.-Dallas 2011), the Court of Appeals of Texas, found that a videotape cobbled together from numerous surveillance cameras at Wal–Mart was properly admitted under Rule 1003, but was this the correct decision?

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Not Too Helpful: Fourth Circuit Finds Character Evidence Regarding Helpfulness Was Properly Excluded

Federal Rule of Evidence 404(a)(1) provides 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, except...[i]n a criminal case, evidence of a pertinent trait of character offered by an accused, or by the prosecution to rebut the same, or if  evidence of  a trait of character of the alleged victim of the crime is offered by an accused and admitted under Rule 404 (a)(2),  evidence of the same  trait of character of the accused offered  by the prosecution....

Meanwhile, Federal Rule of Evidence 405 provides that

(a) Reputation or opinion.

In all cases in which evidence of character or a trait of character of a person is admissible, proof may be made by testimony as to reputation or by testimony in the form of an opinion. On cross-examination, inquiry is allowable into relevant specific instances of conduct.

(b) Specific instances of conduct.

In cases in which character or a trait of character of a person is an essential element of a charge, claim, or defense, proof may also be made of specific instances of that person's conduct.

What this means is that while a criminal defendant can use Rule 404(a)(1)'s "mercy rule" to present evidence of a pertinent character trait, he can only prove that trait through opinion and/or reputation testimony unless that trait is an essential element of the charge against him or his defense. And this limitation was a problem for the defendant in United States v. Lecco, 2011 WL 2708416 (4th Cir. 2011).

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No Shit!: Court Of Appeals Of Iowa Implies Statement, "I Got You WIth Shit" Was Not An Admission Of Feces Throwing

During a road trip this week, my wife and I got into a discussion of why the word "shit" is a curse word (I don't remember what prompted the discussion). Why is "shit" a curse word, "crap" a quasi-curse word, and "poo" not a curse word? And why do we use certain animal feces in expressions? Why is something that is nonsense "bullshit" or "horseshit" and not "catshit?" I guess that calling someone "batshit crazy" makes sense because batshit -- guano -- really can make someone crazy. And calling a wimpy person "chickenshit" also makes sense because we also call wimpy people "chicken."

One consequence of using the word "shit" as a profanity is that we don't always know whether a person using the term is cursing or actually referring to feces. Or, at least that was the belief of the Court of Appeals of Iowa in its recent opinion in State v. Landis, 2011 WL 2694717 (Iowa.App. 2011). 

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Express Yourself: Massachusetts Appeals Court Finds Bruton Doctrine Inapplicable To Witness Intimidation

Under the Bruton doctrine, the Confrontation Clause is violated, when, at a joint jury trial, the prosecution admits the statement of a non-testifying co-defendant that facially incriminates another defendant. Thus, if Carl and Dan are charged with bank robbery and jointly tried before a jury, the prosecution could not introduce Carl's statement that "Dan and I robbed the bank" unless Carl testifies at trial. Conversely, if Carl's confession was that "someone and I robbed the bank," the prosecution could introduce it because it would not have facially incriminated Dan. But what if Carl's statement were a threat to a prospective witness against Carl and Dan that testimony would leave her vulnerable to 'deal with Dan's cousins and that she could end up dead? According to the recent opinion of the Massachusetts Appeals Court in Commonwealth v. Teixeira, 2011 WL 2610557 (Mass.App. 2011), such a statement is not facially incriminatory. I disagree.

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Maintaining Consistency: Court Of Appeals Of Minnesota Finds "Reasonably Consistent" Prior Statement Qualifies As Prior Consistent Statement

Minnesota Rule of Evidence 801(d)(1)(B) 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...consistent with the declarant's testimony and helpful to the trier of fact in evaluating the declarant's credibility as a witness....

But does a prior statement have to be essentially the same as the declarant's testimony to qualify as a prior consistent statement, or can there be (minor) discrepancies? According to the recent opinion of the Court of Appeals of Minnesota in State v. Standifer, 2011 WL 2672025 (Minn.App. 2011), the statements can differ as long as they are "reasonably consistent."

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Passive Aggressive?: Court Of Appeals Of Utah Finds Invited Errors Doctrine Precludes Rule 609(d) Appeal

Like its federal counterpart, Utah 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 Utah in State, ex rel. P.N., 2011 WL 2670451 (Utah.App. 2011), makes clear, however, the proscriptive language of Rule 609(d) does not matter if the invited error doctrine applies.

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Tried And Prejudice: Supreme Court Of Connecticut Finds Presumed Prejudice When Prosector Invades A-C Privilege

A prosecutor invades a defendant's attorney-client privilege by reading privileged materials containing trial strategy. Even assuming that the invasion was not intentional, should the court presume prejudice? And assuming that the court does presume prejudice, should there be a presumption in favor of dismissal? According to the recent opinion of the Supreme Court of Connecticut in State v. Lenarz, 2011 WL 2638158 (Conn. 2011), the answer to both questions is "yes."

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