EvidenceProf Blog

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

Sunday, August 14, 2011

Self Preservation Instinct: 3rd Circuit Finds Defendant's Failure To Testify Precludes Review Of Cross-X Ruling

In its opinion in Luce v. United States, 469 U.S. 38 (1984), the Supreme Court held that if a trial court determines that the prosecution will be able to impeach a defendant under Federal Rule of Evidence 609 through his prior convictions in the event that he testifies at trial, the defendant only preserves that issue for appeal if he testifies at trial. Meanwhile, Federal Rule of Evidence 611(b) states generally that

Cross-examination should be limited to the subject matter of the direct examination and matters affecting the credibility of the witness. The court may, in the exercise of discretion, permit inquiry into additional matters as if on direct examination.

So, let's say that a defendant files a motion in limine before trial, seeking generally to restrict the scope of the prosecution's cross-examination of him in the event that he testifies at trial. If the court denies that motion, and the defendant thereafter declines to testify, is his appeal foreclosed by the logic of Luce? According to the recent opinion of the Third Circuit in United States v. Ferrer, 2011 WL 3468319 (3rd Cir. 2011), the answer is "yes."

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

Saturday, August 13, 2011

Ghost Writer: Court Of Appeals Of Texas Finds Unsigned Letter Was Properly Authenticated

Like its federal counterpartTexas Rule of Evidence 901(b)(2) provides that

By way of illustration only, and not by way of limitation, the following are examples of authentication or identification conforming with the requirements of this rule:....

(2) Nonexpert opinion on handwriting. Nonexpert opinion as to the genuineness of handwriting, based upon familiarity not acquired for purposes of the litigation.

And, like its federal counterpartTexas Rule of Evidence 901(b)(4) allows for authentication through

(4) Distinctive characteristics and the like. Appearance, contents, substance, internal patterns, or other distinctive characteristics, taken in conjunction with circumstances.

The recent opinion of the Court of Appeals of Texas, Dallas, in Delagarza v. State, 2011 WL 3484797 (Tex.App.-Dallas 2011), provides good illustrations of how (and maybe how not) to authenticate writings under these Rules.

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

Friday, August 12, 2011

In Conclusion: Court Of Appeals Of Texas Seemingly Errs In Applying Rule 704 To Legal Conclusions

Like its federal counterpart, Texas Rule of Evidence 704 provides that

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 may embrace ultimate issues in their testimony, they may not offer ultimate legal conclusions, a distinction seemingly missed by the Court of Appeals of Texas, Houston, in its recent opinion in Ruiz-Angeles v. State, 2011 WL 3447468 (Tex.App.-Houston [14 Dist.] 2011).

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August 12, 2011 | Permalink | Comments (0) | TrackBack (0)

Thursday, August 11, 2011

Guilt By Association?: Court Of Appeals Of Minnesota Finds Possibly Erroneous Admission Of Guilty Plea To Be Harmless

Let's say that a defendant is charged with murder and assault based upon allegedly having another man punch a woman he had impregnated. And let's say that the other man pleads guilty to crimes connected with the punching during a guilty plea hearing, implicating the defendant in the process.  If the court errs by admitting the transcript of the other man's guilty plea hearing at the defendant's trial, can the error be harmless? According to the recent opinion of the Supreme Court of Minnesota in State v. Gatson, 2011 WL 3300351 (Minn. 2001), the answer is "yes."

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August 11, 2011 | Permalink | Comments (0) | TrackBack (0)

Wednesday, August 10, 2011

The Informant!: Ohio Court Finds Confidential Informant's Statement Was a Nontestimonial Present Sense Impression

Like its federal counterpart, Ohio Rule of Evidence 803(1) provides an exception to the rule against hearsay for

A statement describing or explaining an event or condition made while the declarant was perceiving the event or condition, or immediately thereafter unless circumstances indicate lack of trustworthiness.

So, let's say that a detective drives a confidential informant to a controlled drug buy. After leaving the undercover car, the informant approaches the co-defendant and engages him in conversation. The informant then returns to the detective and tells him that the co-defendant "had a gun." Is this statement a present sense impression under Rule 803(1)? According to the recent opinion of the Court of Appeals of Ohio, Eighth District in State v. Bulger, 2011 WL 3359861 (Ohio App. 8 Dist. 2011), the answer is "yes," and I agree. But is the statement "testimonial" for Confrontation Clause purposes?

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August 10, 2011 | Permalink | Comments (3) | TrackBack (0)

Tuesday, August 9, 2011

Date Of Birth: Eastern DIstrict Of Arkansas Finds No Error WIth Admission Of Birth Certificate In Child Pornography Case

Federal Rule of Evidence 803(9) provides an exception to the rule against hearsay for

Records or data compilations, in any form, of births, fetal deaths, deaths, or marriages, if the report thereof was made to a public office pursuant to requirements of law.

I don't believe that I have talked about Rule 803(9) yet on this blog, but the recent opinion of the United States District Court for the Eastern District of Arkansas in United States v. Blum, 2011 WL 3418399 (E.D.Ark. 2011), gives me my first chance.

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August 9, 2011 | Permalink | Comments (0) | TrackBack (0)

Freeze Frame: Inadmissibility Of Autopsy Leads To Admission Of More Autopsy Photos In D.C. Case

I have been sent an interesting post by the author of the The Felony Calendars Blog, a blog about criminal trials in D.C.. The post is

about an incident in which the analyst who completed an autopsy was not available to testify at trial.  Defense counsel refused to stipulate to the admissibility of the analyst's report, so the judge allowed the prosecutor to qualify the deputy medical examiner as an expert.  Then the medical examiner testified about the meaning of a series of autopsy photos, relying on the absent analyst's inadmissible report

The post deals with several popular issues on this blog:  the Confrontation Clause, Federal Rule of Evidence 703 (which D.C. courts have adopted in case law), and the peculiar problems created by multi-defendant trial.  Interested readers should check out the post, Rogers: On Autopsy Photos and the Perils of Being a Co-Defendant.


August 9, 2011 | Permalink | Comments (0) | TrackBack (0)

Monday, August 8, 2011

Facebook Status: Inadmissible: Appellate Court Of Connecticut Upholds Exclusion Of Facebook Messages

A defendant is charged with assault. A witness for the prosecution testifies against the defendant and claims that she had not spoken to the defendant in person, by telephone, or by computer since the assault. The defendant then seeks to impeach the witness with a printout of messages sent back-and-forth between a Facebook account indisputably belonging to the defendant and a Facebook account indisputably belonging to the witness. The witness claims that she could not have authored the messages from her account because her account was hacked, but the evidence reveals that the hacking occurred after the subject messages were sent. Has the defendant properly authenticated the messages as coming from the witness? According to the recent opinion of the Appellate Court of Connecticut in State v. Eleck, 2011 WL 3278663 (Conn.App. 2011), the answer is "no" because the "hacking" "highlights the general lack of security of the medium...." I disagree.

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August 8, 2011 | Permalink | Comments (4) | TrackBack (0)

Sunday, August 7, 2011

Calling Mr. Oswald With The Swastika Tattoo: MN Court Finds No Error With Testimony About Defendant's Swastika Tattoo In Assault Appeal

A defendant with a Swastika tattoo gets into a physical altercation with a Caucasian man after an earlier incident between the defendant and the Caucasian' man's African-American fiancé. The defendant is charged with crimes connected to the physical altercation, and the fiancé testified at trial regarding the prior incident that the defendant

had asked me to give him a hug, and I replied no, because he didn't like me anyway, you know, for the fact that being he had a—a swastika emblem on his arm, you know, that I had seen way before then. So we had already had that conversation about that, so I told him, Why should I hug you? You don't even like me. You know, why would we even go there?

Was this testimony, which referenced the defendant's Swastika tattoo, properly admitted, or was its probative value substantially outweighed by the danger of unfair prejudice? That was the question addressed by the Court of Appeals of Minnesota in its recent opinion in State v. Swinger, 2011 WL 3241791 (Minn.App. 2011).

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August 7, 2011 | Permalink | Comments (0) | TrackBack (0)

Saturday, August 6, 2011

Tell Me Lies; NJ Case Reveals Differences Between New Jersey & Federal Rule Of Evidence 608(b)

Federal Rule of Evidence 608(a) provides that

The credibility of a witness may be attacked or supported by evidence in the form of opinion or reputation, but subject to these limitations: (1) the evidence may refer only to character for truthfulness or untruthfulness, and (2) evidence of truthful character is admissible only after the character of the witness for truthfulness has been attacked by opinion or reputation evidence or otherwise.

Meanwhile, New Jersey Rule of Evidence 608(a) provides that

The credibility of a witness may be attacked or supported by evidence in the form of opinion or reputation, provided, however, that the evidence relates only to the witness' character for truthfulness or untruthfulness, and provided further that evidence of truthful character is admissible only after the character of the witness for truthfulness has been attacked by opinion or reputation evidence or otherwise. Except as otherwise provided by Rule 609, a trait of character cannot be proved by specific instances of conduct.

So, Federal Rule of Evidence 608(a) and New Jersey Rule of Evidence 608(a) are pretty similar. But, as the recent opinion of the Superior Court of New Jersey, Appellate Division, in Department of Children and Families, Div. of Youth and Family Services v. F.D., 2011 WL 3274010 (N.J.Super.A.D. 2011), makes clear, Federal Rule of Evidence 608(b) and New Jersey Rule of Evidence 608(b) are quite different.

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August 6, 2011 | Permalink | Comments (0) | TrackBack (0)

Friday, August 5, 2011

Submission Guide For Online Law Review Supplements, Version 5.0, Now Available On SSRN

Back in May 2009, I posted the initial Submission Guide For Online Law Review Supplements at SSRN. At the time, online law review supplements were a relatively new trend and a rarity at top law schools. Those days are over. By my count, there are now 36 online law review supplements, including (according to U.S. News), online law review supplements at:

∙7 of the top 10 schools;

∙15 of the top 20 schools;

∙18 of the top 30 schools;

∙19 of the top 40 schools; and

∙21 of the top 50 schools

In the near future, it will be 23 of the top 50 law schools as Notre Dame and Florida are set to add online supplements this year. You can download a copy of the Submission Guide For Online Law Review Supplements, Version 5.0 by clicking here. The new additions for Version 5.0 are:

The Docket (Buffalo);

The Circuit (California Berkeley);

DULR Online (Denver);

Hastings Law Journal Voir Dire;

HLRe (Houston);

Iowa Law Review Bulletin;

Kentucky Law Journal Online;

Louisiana Law Review Forum;

The Bulletin (Nebraska);

Addendum (North Carolina);

Just EnRICHment (Richmond);

Online Forum (Temple);

Discourse (UCLA); and

The Forum (Wake Forest)


August 5, 2011 | Permalink | Comments (0) | TrackBack (0)

Thursday, August 4, 2011

Independence Day, Take 4: NJ Court Upholds Admission Of Expert Testimony Based on Report By Non-Testifying Analyst

Back in June, the Supreme Court decided Bullcoming v. New Mexico, holding in a 5-4 opinion that the Confrontation Clause was violated through the admission of a report concerning Bullcoming's blood alcohol content with the accompanying testimony of an analyst but without the accompanying testimony of the analyst who prepared the report. This was the result I forecasted. As I noted in a previous post,

I think that Bullcoming is an easy case given that the prosecution clearly introduced the absent analyst's report to prove the truth of the matter asserted in it. Given this, the case is just like Melendez-Diazand the Court should reach the same conclusion. And I feel safe in my belief because Confrontation Clause expert Richard Friedman has argued the same on The Confrontation Blog. As he notes, the tougher case is when an expert witness relies upon an absent analyst's report as the basis for opinion testimony but the report is not admitted into evidence. But, as he also notes, "that case is not the one before the Court [in Bullcoming], in which the prosecution clearly introduced a full report by the absent analyst. So, will the Court "simply resolve the case before it," or will it reach broader conclusions....? On that question, we will just have to wait and see.

Well, it turned out that the Court simply resolved the case before it, but Justice Sotomayor's concurring opinion in Bullcoming provided a strong indication that she would allow the expert witness testimony in the tougher case identified by Professor Friedman. At the end of my post, I concluded that lower courts would use Justice Sotomayor's concurrence to allow expert testimony in the tougher case. The first court (I believe) to deal with the tougher case in the wake of Bullcoming was the Superior Court of New Jersey, Appellate Division in its recent opinion in State v. Roach, 2011 WL 3241467 (N.J.Super.A.D. 2011). And, unsurprisingly, the court used Justice Sotomayor's concurrence to uphold the admission of expert testimony in the tougher case.

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August 4, 2011 | Permalink | Comments (0) | TrackBack (0)

Wednesday, August 3, 2011

Strength Of His Convictions: 9th Circuit Upholds Admission Of Prior Conviction Evidence Under Rule 703

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.

Usually, courts find that the balancing test set forth in Rule 703 is not satisfied and that otherwise inadmissible evidence underlying expert opinion testimony remains inadmissible. That was not the case, however, with the Ninth Circuit in its recent opinion in United States v. Smith, 2011 WL 2877819 (9th Cir. 2011).

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August 3, 2011 | Permalink | Comments (0) | TrackBack (0)

Tuesday, August 2, 2011

Living With A Hernia: 9th Circuit Finds No Error In Failing To Appoint Expert Under Rule 706(a)

Federal Rule of Evidence 706(a) provides that

The court may on its own motion or on the motion of any party enter an order to show cause why expert witnesses should not be appointed, and may request the parties to submit nominations. The court may appoint any expert witnesses agreed upon by the parties, and may appoint expert witnesses of its own selection. An expert witness shall not be appointed by the court unless the witness consents to act. A witness so appointed shall be informed of the witness' duties by the court in writing, a copy of which shall be filed with the clerk, or at a conference in which the parties shall have opportunity to participate. A witness so appointed shall advise the parties of the witness' findings, if any; the witness' deposition may be taken by any party; and the witness may be called to testify by the court or any party. The witness shall be subject to cross-examination by each party, including a party calling the witness.

As the use of the word "may" in the first sentence of Rule 706(a) makes clear, it is usually within the court's discretion to appoint or not appoint expert witness, and Sanders v. York, 2011 WL 3152814 (9th Cir. 2011), was no exception.

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August 2, 2011 | Permalink | Comments (0) | TrackBack (0)

Monday, August 1, 2011

Losing Your Privilege: Supreme Court Of Arkansas Finds Marital Privilege Doesn't Apply In Rape Appeal

Arkansas Rule of Evidence 504, Arkansas' husband-wife privilege, states:

(a) Definition. A communication is confidential if it is made privately by any person to his or her spouse and is not intended for disclosure to any other person.  

(b)  General Rule of Privilege. An accused in a criminal proceeding has a privilege to prevent his spouse from testifying as to any confidential communication between the accused and the spouse.  

(c)  Who May Claim the Privilege. The privilege may be claimed by the accused or by the spouse on behalf of the accused. The authority of the spouse to do so is presumed.  

(d)  Exceptions. There is no privilege under this rule in a proceeding in which one [1] spouse is charged with a crime against the person or property of (1) the other, (2) a child of either, (3) a person residing in the household of either, or (4) a third person committed in the course of committing a crime against any of them. 

In Clem v. Hobbs, 2011 WL 3135996 (Ark. 2011), the trial court allowed the defendant's wife to testify regarding confidential communications, but the problem for the defendant was that he was charged with crimes against their children.

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August 1, 2011 | Permalink | Comments (0) | TrackBack (0)