EvidenceProf Blog

Please Welcome Guest Blogger Jeffrey Bellin

Please welcome Jeffrey Bellin as a guest blogger for the months of September and October. Professor Bellin is an Assistant Professor at the SMU Dedman School of Law, where he teaches Evidence, Criminal Law, and Criminal Procedure. Before joining SMU, Professor Bellin was a prosecutor with the United States Attorney’s Office in Washington, D.C, an associate at the San Diego office of Latham & Watkins, and a Senior Attorney for the California Courts of Appeal. His articles include:

•Facebook, Twitter, and the Uncertain Future of Present Sense Impressions, 160 UNIVERSITY OF PENNSYLVANIA LAW REVIEW (forthcoming 2011-2012);

•Widening Batson’s Net to Ensnare More than the Unapologetically Bigoted or Painfully Unimaginative Attorney, 96 CORNELL LAW REVIEW 1075 (2011) (with Junichi P. Semitsu);

•Reconceptualizing the Fifth Amendment Prohibition of Adverse Comment on Criminal Defendants' Trial Silence, 71 OHIO STATE LAW JOURNAL 229 (2010) (reviewed here); and

•Circumventing Congress: How the Federal Courts Opened the Door to Impeaching Criminal Defendants with Prior Convictions, 42 U.C. DAVIS LAW REVIEW 289 (2008).

-CM

Please Welcome Guest Blogger Marc C. McAllister

Please welcome Marc C. McAllister as a guest blogger for the month of September. Professor McAllister is a Professor at the Florida Coastal School of Law, where his teaching and scholary interests are in the fields of Criminal Law, Criminal Procedure, Evidence, Constitutional Law, Administrative Law, and Comparative Law. His specific areas of expertise are in Confrontation Clause jurisprudence and the use of emerging technologies in criminal investigation, enforcement, and adjudication. Before coming to Florida Coastal, he was a judicial clerk for Judge Charles R. Wilson, Eleventh Circuit Court of Appeals and the Director of Legal Research and Writing at the Western State University College of Law. His articles include:

•Evading Controntation: From One Amorphous Standard to Another (anticipated publication spring 2012);

•The Disguised Witness and Crawford's Uneasy Tension with Craig: Bringing Uniformity to the Supreme Court's Confrontation Jurisprudence, 58 Drake L. Rev. 481 (2010) (reviewed here);

•Down But Not Out: Why Giles Leaves Forfeiture by Wrongdoing Still Standing, 59 Case W. Res. L. Rev. 393 (2009); and

•Two-Way Video Trial Testimony and the Confrontation Clause: Fashioning a Better Craig Test in Light of Crawford, 34 Florida State University Law Review 835 (2007).

-CM

Unspecified Error, Tale 2: Supreme Court Of Minnesota Reverses Prior Precedent, Allows For Impeachment Through Unspecified Prior Convictions

About two years ago, I posted an entry about the opinion of the Court of Appeals of Minnesota in State v. Utter, 2009 WL 2926510 (Minn.App. 2009). In Utter, the defendant was on trial for violating a harassment restraining order, and the prosecution sought to impeach him through his prior conviction for violating an order of protection. The trial court ruled that the prosecution could impeach Utter by asking him whether he had a prior conviction but could not ask him any questions concerning the crime leading to that conviction or the circumstances surrounding that conviction. This is what is known as impeachment through an unspecified prior conviction.

After he was convicted, Utter appealed, claiming that impeachment through unspecified convictions is improper, and the Court of Appeals of Minnesota agreed, concluding that

The court's solution substantially reduced the risk of admitting a prior conviction to impeach that is identical or similar to the current conviction, namely that the jury may conclude that because the defendant “did it before, he most likely has done it again.” But the court's solution also discarded the measure by which the jury could assess the impeachment value of the prior conviction. The impeachment value of the prior crime varies with the nature of the offense....By shielding the jury from the nature of appellant's prior conviction, the district court allowed the jury to speculate that the prior crime had much greater impeachment value than it may actually have had.

In its recent opinion in State v. Hill, 2011 WL 3687535 (Minn. 2011), however, the Supreme Court of Minnesota overruled Utter and endorsed the idea of impeachment through unspecified prior convictions.

Continue reading

Emergency Urgent: District Of Oregon Seemingly Errs In Deeming Testimony Concerning E-Mails Beyond Scope of Best Evidence Rule

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 a party wants to introduce testimony concerning e-mails but does not produce those e-mails. Can the party get around the Best Evidence Rule by claiming that it is not proving the contents of those e-mails and is instead merely proving the witness' opinions/impressions of the content of the e-mails? According to the recent opinion of the United States District Court for the District of Oregon in HTI Holdings, Inc. v. Hartford Cas. Ins. Co., 2011 WL 3704821 (D.Or. 2011), the answer is "yes." I disagree.

Continue reading

Can You Hear Me?: Court Of Appeals Of Texas Finds Failure To Hold In Camera Rape Shield Hearing Isn't Reversible Error

Similar to its federal counterpart, Texas Rule of Evidence 412(c) provides that if a criminal defendant is trying to present evidence under an exception to the rape shield rule,

the defendant must inform the court out of the hearing of the jury prior to introducing any such evidence or asking any such question. After this notice, the court shall conduct an in camera hearing, recorded by the court reporter, to determine whether the proposed evidence is admissible....The court shall determine what evidence is admissible and shall accordingly limit the questioning. The defendant shall not go outside these limits or refer to any evidence ruled inadmissible in camera without prior approval of the court without the presence of the jury.

So, let's say that the defendant informs the court of his intention to present evidence under an exception to the rape shield rule. And let's say that the court hears arguments from both sides before deeming the evidence inadmissible but does not hold an in camera hearing. Is this evidentiary error that could form the basis for a new trial? Or is the requirement of an in camera hearing a requirement put in place to protect the alleged victim, meaning that the failure to hold one should not lead to reversal? For the answer, let's look at the recent opinion of the Court of Appeals of Texas, Houston, in Nevelow v. State, 2011 WL 2899377 (Tex.App.-Houston [14 Dist. 2011]).

Continue reading

Tattoo You: Court Of Appeals Of Texas, Dallas, Finds Evidence Of Defendant's "187" Tattoo Admissible

Like its federal counterpart, Texas Rule of Evidence 403 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, or needless presentation of cumulative evidence.

So, let's say that a defendant is charged with murder and claims that he acted in self-defense. And let's say that after the killing the defendant gets "187" tattooed on his hand. Should the prosecution be able to present evidence of this tattoo at trial? According to the recent opinion of the Court of Appeals of Texas, Dallas, in Salazar v. State, 2011 WL 3770297 (Tex.App.-Dallas 2011), the answer is "yes."

Continue reading

Under One Condition: Eastern District Of Pennsylvania Finds Evidence Of Doctor's Alcoholism Conditionally Relevant

Back in January, Joseph J. Kubacki, the former chair of the Temple University School of Medicine Ophthalmology Department, was charged with fraud and making false statements in health-care matters in a 144-count indictment from the United States Department of Justice.

Kubacki, a pediatric eye specialist, is accused of falsely claiming between 2002 and 2007 to have provided more than $1.5 million in services to patients at a clinic run by the ophthalmology department. The indictment says Kubacki, who had an office at Temple University Hospital, made notations in the charts of patients, seen by other doctors, indicating that he also had seen and evaluated those patients – when he hadn’t. In some cases, he wasn’t even in town when the patients were seen.

Recently, the government sought to introduce evidence relating to Dr. Kubacki's alcohol abuse when at the Ophthalmology Department. And as the United States District Court for the Eastern District of Pennsylvania noted in its recent opinion in United States v. Kubacki, 2011 WL 3627317 (E.D. Pa. 2011), the admissibility of this evidence required a finding of conditional relevance.

Continue reading

3 For 1: Supreme Court Of South Carolina Opinion Addresses 3 Important Evidentiary Issues, Including 2 Errors

South Carolina Rule of Evidence 106, the "rule of completeness," 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.

Meanwhile, South Carolina Rule of Evidence 803(3) provides an exception to the rule against hearsay for

A statement of the declarant's then existing state of mind, emotion, sensation, or physical condition (such as intent, plan, motive, design, mental feeling, pain, and bodily health), but not including a statement of memory or belief to prove the fact remembered or believed unless it relates to the execution, revocation, identification, or terms of declarant's will.

Finally, South Carolina Code section 16–3–659.1(1), South Carolina's rape shield rule, provides that

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 is not admissible in prosecutions under Sections 16-3-615 and 16-3-652 to 16-3-656; however, evidence of the victim's sexual conduct with the defendant or evidence of specific instances of sexual activity with persons other than the defendant introduced to show source or origin of semen, pregnancy, or disease about which evidence has been introduced previously at trial is admissible if the judge finds that such evidence is relevant to a material fact and issue in the case and that its inflammatory or prejudicial nature does not outweigh its probative value. Evidence of specific instances of sexual activity which would constitute adultery and would be admissible under rules of evidence to impeach the credibility of the witness may not be excluded.

If you want a pretty discussion of some of the relevant features of each of these rules, you need look no further than the recent opinion of the Supreme Court of South Carolina in State v. Tennant, 2011 WL 3568527 (S.C. 2011).

Continue reading

It's Too Late: Court Of Appeals Of Ohio Finds No Error In Exclusion Of Alleged Prior Consistent Statement

Like its federal counterpart, Ohio Rule of Evidence 801(d)(1)(b) provides that

A statement is not hearsay if...[t]he declarant testifies at trial or hearing and is subject to cross-examination concerning the statement, and the statement is...consistent with declarant's testimony and is offered to rebut an express or implied charge against declarant of recent fabrication or improper influence or motive....

As the recent opinion of the Court of Appeals of Ohio, First District, in State v. Strutz, 2011 WL 3111983 (Ohio App. 1 Dist. 2011), (sort of) makes clear, however, a statement can only qualify as a prior consistent statement under this rule if it was made before any motive to lie arose.

Continue reading

A Private Matter?: Military Court Opinion Reveals Problem With Military Rape Shield Rule

Federal Rule of Evidence 412(a), the federal Rape Shield Rule, provides that evidence of an alleged victim's sexual predisposition or other sexual behavior is inadmissible to establish her propensity to consent to sexual acts and her conformity with that propensity, and thus consent, at the time of the alleged rape or sexual assault. In turn,Federal Rule of Evidence 412(b)(1)(A)-(C) set forth exceptions to the Rape Shield Rule when such evidence is offered for other purposes at criminal trials, as long as the evidence is "otherwise admissible" pursuant 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.

Meanwhile, Federal Rule of Evidence 412(b)(2) sets forth a general exception to the Rape Shield Rule when such evidence is offered for other purposes at civil trials, but only "if it is otherwise admissible under these rules and its probative value substantially outweighs the danger of harm to any victim and of unfair prejudice to any party." A comparison between the language in Federal Rule of Evidence 403 and Federal Rule of Evidence 412(b)(2) reveals at least a few key differences. Under Rule 403, evidence will be admissible unless its probative value is substantially outweighed by one of several dangers. Conversely, Rule 412(b)(2) flips that balancing test, with evidence only being admissible if its probative value substantially outweighs two dangers. Second, Rule 403 asks judges to consider the danger of unfair prejudice (and several other dangers never really raised in Rape Shield cases) while Rule 412(b)(2) asks judges to consider the danger of unfair prejudice "to any party" and "the danger of harm to any victim," the latter not being a danger listed in Rule 403. As the recent opinion of the United States Court of Appeals for the Armed Forces in United States v. Gaddis, 70 M.J. 248 (U.S. Armed Forces 2011), makes clear, the military rape shield partially incorrectly conflates these two tests. But are these tests as different as the court asserts, and does that difference have a Constitutional component?

Continue reading

The University of Wisconsin Law School Invites Applications For Tenure-Track Faculty Positions

From an e-mail I just received:

THE UNIVERSITY OF WISCONSIN LAW SCHOOL invites applications for one or more tenure-track faculty positions to begin Fall 2012 (negotiable). Applications are welcome across legal fields and at the intersection of law and other academic disciplines. The University of Wisconsin Law School has a strong institutional commitment to diversity of all types, and we encourage applications from those whose backgrounds can further contribute to the diversity of the faculty. Applicants should submit a letter of interest, current résumé (including a list of teaching interests), a research agenda, and references to:

Professor Anuj C. Desai, Chair, Faculty Appointments Committee, University of Wisconsin Law School, 975 Bascom Mall, Madison, WI 53706-1399 (or via e-mail to <[email protected]>). The University of Wisconsin-Madison is an affirmative action/equal employment opportunity employer.

Hairy Situation: D.C. Judge Precludes Investigator From Testifying About Defendant's Inability To Grow A Beard

The Felony Calendars is blogging about the murder trial of Gary Dickens and Antwarn Fenner. Here is the blog's inroductory description of the case:

On August 8, 2008, in the late evening hours, Stanley Daniels was shot to death in the 3500 block of Georgia Avenue, Northwest, in Washington, D.C.  Daniels was 48 years old at the time.

Two men are charged with premeditated murder for Daniels' death:  Gary Dickens, now 41; and Antwarn Fenner, now 37. 

The government's theory is that Daniels' killing was a revenge killing.  On July 8, 2008 -- one month to the day before Daniels was killed -- Gary Dickens' estranged wife was stabbed to death.  In the days leading up to the shooting, Dickens and Antwarn Fenner -- Dickens' cousin -- understood that Stanley Daniels was the one who killed the wife.  

And so, the government will say, Dickens and Fenner conspired to kill Daniels.  Documents filed with the court suggest prosecutors will try to prove that both men planned the murder, and then Fenner pulled the trigger.

Fenner and Dickens were both indicted on first-degree murder and conspiracy charges.  Fenner alone faces weapons possession charges.

You can check out The Felony Calendars for detailed descriptions of the daily goings-on in the case, but in this post I wanted to focus on an interesting evidentiary ruling in the case dealing with the (in)admissibility of evidence about Fenner's alleged inability to grow a beard.

Continue reading

No (P)reservations: 7th Circuit Finds Plaintiff Failed To Preserve Impeachment Issue In Section 1983 Appeal

Federal Rule of Evidence 103(a)(2) provides that

Error may not be predicated upon a ruling which admits or excludes evidence unless a substantial right of the party is affected, and...

(2) Offer of proof. - In case the ruling is one excluding evidence, the substance of the evidence was made known to the court by offer or was apparent from the context within which questions were asked.

When, at trial, the court prevents the admission of evidence and there was no prior definitive ruling, the adverse party must make an offer of proof in compliance with Rule 103(a)(2). And that was a problem for the plaintiffs in Duran v. Town of Cicero, 2011 WL 3444353 (7th Cir. 2011).

Continue reading

Some Call It Subterfuge: Court Of Appeals Of North Carolina Finds Impeachment Of Reluctant Witness Fine Under Rule 607

North Carolina Rule of Evidence 607 provides that "The credibility of a witness may be attacked by any party, including the party calling him." That said,  courts have consistently ruled that such impeachment is impermissible where it is used as a mere subterfuge to present evidence to the jury that is otherwise inadmissible. So, let's say that the prosecution knows that it has a reluctant witness who is only testifying because he was subpoenaed and advised that he would be arrested if he failed to appear at trial. Can the prosecution call this witness and then impeach him with statements that incriminate the defendant? According to the recent opinion of the Court of Appeals of North Carolina in State v. Austin, 2011 WL 3570111 (N.C.App. 2011), the answer is "yes," at least based upon the facts before it.

Continue reading

Unadulterated?: Court Of Appeals Of Mississippi Case Touches On The Crime Of Adultery & Spousal Privilege

Mississippi Annotated Code Section 97-29-1 (still) provides that

If any man and woman shall unlawfully cohabit, whether in adultery or fornication, they shall be fined in any sum not more than five hundred dollars each, and imprisoned in the county jail not more than six months; and it shall not be necessary, to constitute the offense, that the parties shall dwell together publicly as husband and wife, but it may be proved by circumstances which show habitual sexual intercourse.

In other words, adultery is still apparently a crime in Mississippi. So, how did Section 97-29-1 and Mississippi Rule of Evidence 504, Mississippi's husband-wife privilege (kind of) come into play in the recent opinion of the Court of Appeals of Mississippi in McDonald v. McDonald, 2011 WL 3570011 (Miss.App. 2011)?

Continue reading

Free Your Mind: 9th Circuit Finds Harmless Error In Connection With Expert Hypos In Aryan Brotherhood Appeal

It is well established that experts may be asked hypothetical questions on cross-examination, but such questions "must not require the expert to assume facts that are not in evidence." United States v. Stinson, 2011 WL 3374231 (9th Cir. 2011), provides a nice illustration of a prosecutor engaging in misconduct by asking an expert to assume facts not in evidence. It also illustrates the laissez faire approach that the Ninth Circuit has taken with regard to such misconduct on appeal.

Continue reading

Same Sex: 8th Circuit Uses Same Logic To Uphold Rule 414 As It Used To Uphold Rule 413 Against Constitutional Attack

Federal Rule of Evidence 414(a), enacted by Congress as part of the Violent Crime Control and Law Enforcement Act of 1994, provides in relevant part 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.

In its opinion in United States v. Mound, 149 F.3d 799 (8th Cir. 1998), the Eight Circuit found that Federal Rule of Evidence 413(a), which allows for the admission of evidence of prior sexual assaults by defendants charged with sexual assault, to be constitutional. And, in its recent opinion in United States v. Coutentos, 2011 WL 3477190 (8th Cir. 2011), the Eighth Circuit reached the same conclusion with regard to Rule 414(a).

Continue reading

In The Public Eye: Court Of Appeals Of Texas Finds Public Records Weren't Self-Authenticating In Negligence Appeal

Texas Rules of Evidence 902(4) & (10) provide that

Extrinsic evidence of authenticity as a condition precedent to admissibility is not required with respect to the following:....

(4) Certified Copies of Public Records. A copy of an official record or report or entry therein, or of a document authorized by law to be recorded or filed and actually recorded or filed in a public office, including data compilations in any form certified as correct by the custodian or other person authorized to make the certification, by certificate complying with paragraph (1), (2) or (3) of this rule or complying with any statute or other rule prescribed pursuant to statutory authority.....

(10) Business Records Accompanied by Affidavit.

(a) Records or photocopies; admissibility; affidavit; filing. Any record or set of records or photographically reproduced copies of such records, which would be admissible under Rule 803(6) or (7) shall be admissible in evidence in any court in this state upon the affidavit of the person who would otherwise provide the prerequisites of Rule 803(6) or (7), that such records attached to such affidavit were in fact so kept as required by Rule 803(6) or (7), provided further, that such record or records along with such affidavit are filed with the clerk of the court for inclusion with the papers in the cause in which the record or records are sought to be used as evidence at least fourteen days prior to the day upon which trial of said cause commences, and provided the other parties to said cause are given prompt notice by the party filing same of the filing of such record or records and affidavit, which notice shall identify the name and employer, if any, of the person making the affidavit and such records shall be made available to the counsel for other parties to the action or litigation for inspection and copying. The expense for copying shall be borne by the party, parties or persons who desire copies and not by the party or parties who file the records and serve notice of said filing, in compliance with this rule. Notice shall be deemed to have been promptly given if it is served in the manner contemplated by Rule of Civil Procedure 21a fourteen days prior to commencement of trial in said cause.

(b) Form of affidavit. A form for the affidavit of such person as shall make such affidavit as is permitted in paragraph (a) above shall be sufficient if it follows this form though this form shall not be exclusive, and an affidavit which substantially complies with the provisions of this rule shall suffice....

In its recent opinion in Husain v. Petrucciani,  2011 WL 3449497 (Tex.App.-Houston [14 Dist.],2011), the Court of Appeals of Texas, Houston correctly concluded that non-certified copies of public records no accompanied by an affidavit were not self-authenticating under these rules. But couldn't they still have been authenticated under Texas Rule of Evidence 901(b)(7)?

Continue reading

Is There A Doctor In Your Past?: Supreme Court Of Mississippi Permits Jury Impeachment Regarding Lies During Voir Dire

Similar to its federal counterpart, Mississippi 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 or any other juror's mind or emotions as influencing 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.

But while jurors may not testify as part of an inquiry into the validity of a verdict, almost all courts have found that jurors can testify to prove that a juror lied during voir dire, with the result being that a verdict is overturned. Most courts find that such testimony simply falls outside the scope of Rule 606(b). But in its recent opinion Merchant v. Forest Family Practice Cliic, P.A., 2011 WL 3505309 (Miss. 2011), the Supreme Court of Mississippi found that when a juror conceals information during voir dire, such information constitutes an improper outside influence, permitting juror testimony under the Rule.

Continue reading

Mommie Dearest: 10th Circuit Finds District Court Erred In Excluding Testimony Of Mother Who Ignored Sequestration Order

Federal Rule of Evidence 615 provides that

At the request of a party the court shall order witnesses excluded so that they cannot hear the testimony of other witnesses, and it may make the order of its own motion. This rule does not authorize exclusion of (1) a party who is a natural person, or (2) an officer or employee of a party which is not a natural person designated as its representative by its attorney, or (3) a person whose presence is shown by a party to be essential to the presentation of the party's cause, or (4) a person authorized by statute to be present.

So, let's say that a trial court enters an order of sequestration pursuant to Rule 615, but a witness remains in the courtroom during other testimony. But let's say that the witness does this without the knowledge of the party calling her. Should the court allow the witness testify? According to the recent opinion of the Tenth Circuit in United States v. Washington, 2011 WL 3455826 (10th Cir. 2011), the answer is "yes."

Continue reading