EvidenceProf Blog

Going Unnoticed: Court Of Appeals Of Texas Finds Lack Of Notice of Character Evidence Doesn't Support Reversal

Texas Rule of Evidence 404(b) provides 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. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident, provided that upon timely request by the accused in a criminal case, reasonable notice is given in advance of trial of intent to introduce in the State's case-in-chief such evidence other than that arising in the same transaction. (emphasis added)

Meanwhile, Article 37.07, section 3(a) of the Texas Code of Criminal Procedure provides in relevant part that

[E]vidence may be offered by the state and the defendant as to any matter the court deems relevant to sentencing, including...evidence of an extraneous crime or bad act that is shown beyond a reasonable doubt by evidence to have been committed by the defendant or for which he could be held criminally responsible, regardless of whether he has previously been charged with or finally convicted of the crime or act.

Finally, Article 37.07, section 3(g) of the Texas Code of Criminal Procedure provides that

On timely request of the defendant, notice of intent to introduce evidence under this article shall be given in the same manner required by Rule 404(b), Texas Rules of Evidence. If the attorney representing the state intends to introduce an extraneous crime or bad act that has not resulted in a final conviction in a court of record or a probated or suspended sentence, notice of that intent is reasonable only if the notice includes the date on which and the county in which the alleged crime or bad act occurred and the name of the alleged victim of the crime or bad act.

But what happens if the State violates Article 37.07, but the trial court still allows it to admit character evidence against the defendant at sentencing? That was the question addressed by the recent opinion of the Court of Appeals of Texas, Waco, in its recent opinion in Wham v. State, 2011 WL 4413745 (Tex.App.-Waco 2011).

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Unimpeachable: 7th Circuit Finds Evidence That Sauna Was Used As Place Of Prostitution Inadmissible Under Rape Shield Rule

Like all states, Wisconsin has a rape shield rule. Under Wisconsin's rule, WIS. STAT. Section 972.11(2)(b), in civil and criminal cases involving alleged sex crimes,

any evidence concerning the complaining witness's prior sexual conduct or opinions of the witness's prior sexual conduct and reputation as to prior sexual conduct shall not be admitted into evidence during the course of the hearing or trial, nor shall any reference to such conduct be made in the presence of the jury....

The general purpose of rape shield rules is two-fold: (1) preventing a defendant from presenting evidence of an alleged victim's sexual behavior/predisposition to prove her propensity to consent to sexual acts and her likely conformity with that propensity, and thus consent, at the time of the crime charge; and (2) preventing a defendant from using such evidence to prove that the alleged victim is a liar.

Rape shield rules, of course, are subject to exceptions, including an exception for when the exclusion of evidence would violate the Constitutional rights of the accused. As noted, a main purpose of rape shield rules is to prevent impeachment of alleged victims of sexual crimes. But what if the defendant wants to impeach a witness other than the alleged victim through evidence of the alleged victim's sexual behavior? That was the unique question recently addressed by the Seventh Circuit in its recent opinion in Jardine v. Dittman, 2011 WL 4056677 (7th Cir. 2011).

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A Family Matter: Supreme Court Of Vermont Finds Inadmissible Hearsay Improperly Admitted Under Rule 703

Like its federal counterpart, Vermont 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. (emphasis added)

As the last sentence of Rule 703 makes clear, while inadmissible evidence can sometimes form the basis for an expert witness' conclusion, that inadmissible evidence itself almost always remains inadmissible. This was a distinction recently missed by a Vermont family court as is made clear by the recent opinion of the Supreme Court of Vermont in Chickanosky v. Chicakanosky, 2011 WL 4389396 (Vt. 2011).

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A Civil Action: 7th Circuit Finds Ohler Preservation Rule Applies In Civil As Well As Criminal Cases

When a court authorizes the impeachment of a criminal defendant, the prosecution thereafter usually cross-examines the defendant about his conviction, thereby discrediting his direct testimony. In order to reduce the sting of such cross-examinations, defense attorneys began to elicit such convictions from criminal defendants during direct examinations. This practice greatly diminished, however, in the wake of the opinion in Ohler v. United States, 529 U.S. 753 (2000), in which the Supreme Curt found that a defendant waives his objection to a court's impeachment ruling by using such a technique.  So, does the same hold with prior convictions of a plaintiff in a civil trial? According to the recent opinion of the Seventh Circuit in Clarett v. Roberts, 2011 WL 4424790 (7th Cir. 2011), the answer is "yes."

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Resource Of Interest: Law 101: A Legal Guide for the Forensic Expert By NCSTL

I've written before (see here and here) about the terrific work being done by the National Clearinghouse for Science, Technology, and the Law (NCSTL) at the Stetson University College of Law. I now write to inform you that

Law 101:  A Legal Guide for the Forensic Expert, produced by the National Clearinghouse for Science, Technology, and the Law (NCSTL) at http://www.ncstl.org, went live in August.  It is free and it is located at:  https://law101.dna.gov.   Anyone serving as an expert witness will benefit from learning the legal procedures, expectations, and principles presented in this course. There is also a text version of the Legal Guide, which is located at: https://law101.dna.gov/rawmedia_repository/9af62ee8_fd43_4041_b977_1982154535cf?document.pdf.

I had a chance to peruse the Guide this weekend, and I can say that it is a terrific resource for not only expert witnesses and attorneys working with expert witnesses but also for professors teaching a class in Evidence.

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Call Me: 10th Circuit Finds Officer Properly Authenticated Defendant's Voice On Recorded Conversations

Federal Rule of Evidence 901(b)(5) 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:....

(5) Voice identification. Identification of a voice, whether heard firsthand or through mechanical or electronic transmission or recording, by opinion based upon hearing the voice at any time under circumstances connecting it with the alleged speaker.

So, how well must a witness know a voice before he can authenticate it consistent with Rule 901(b)(5)? According to the recent opinion of the Tenth Circuit in United States v. McDaniel, 2011 WL 4396976 (10th Cir. 2011), the answer is "not very."

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What The Hell Is A Stipulation?: 9th Circuit Affirms Seemingly Questionable Impeachment Instruction

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....

The (only) purpose of impeachment under Rule 609(a)(1) is to show the jury that, based upon the witness' prior conviction(s), he might not be a trustworthy witness. Thus, if a criminal defendant chooses not to testify at trial, his prior conviction(s) cannot be admitted under Rule 609(a)(1) because he would not be a witness, meaning that he could not be impeached. That being the case, I am confused by what (I think) went on in United States v. Williams, 2011 WL 4342648 (9th Cir. 2011). 

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The Usefulness of . . . Evidence

Since this is EvidenceProf Blog, it seems appropriate to mention celebrate this post by Orin Kerr over at the Volokh Conspiracy.  The post describes the results of a survey of George Washington Law School alumni who were asked to identify the "most useful" elective they had taken in law school.  The survey results received surprisingly widespread coverage given that the results seem intuitive (at least to me).  Here is coverage on the Wall Street Journal Law Blog; here on the ABA Journal; here on Prof. Bainbridge (celebrating the third place finish of Corporations).

Whatever the survey's weaknesses (and why admit that there are any?), the results are good for Evidence professors.  Evidence was the winner, hands down.  Administrative Law came in second – although one suspects that Administrative Law would not have done nearly as well in a survey of alumni of any school not located in Washington, D.C., but I will let someone on CorporationsProf Blog take up that fight . . .

- Jeff Bellin

Court Of Appeals Of Maryland Affirms Trial Court's Judicial Notice Of Fact That Proceedings Before Judge X Are "Absolutely Unconstitutional"

I'm going to put on record exactly why I ruled the way I did in the State's motion in limine. I just want to make sure it's clear for the appellate record.

I find and I'll take judicial notice that the proceedings that take place in front of [the judge who accepted Ms. Williams's guilty plea] are absolutely unconstitutional. He does such things as ask people certain things, tell them to nod their head, and then he just takes pleas and just does it. There is no state's attorney present. There is no defense attorney present. There is no semblance of any type of due process or any rights given to the defendants. It is so widespread that even the federal judges in Greenbelt won't recognize that as convictions.

Now, I understand [Petitioner's] argument, and I am not taking anything away from it. I just wanted to make sure that the record indicated why I was ruling, not that I was saying that [Petitioner] couldn't use a conviction against the witness. It's this conviction. It's unique only to what happened in that courtroom. I have long lamented what happens there. I just wanted that on the record. Thomas v. State, 2011 WL 4389167 (Md. 2011) (emphasis added)

This language originally came from a Maryland trial court, and the Court of Appeals of Maryland (Maryland's highest court) cited it yesterday in deeming the conviction of a witness for the prosecution unconstitutional and thus inadmissible. The Court of Appeals of Maryland had to agree with the trial court's decision to take judicial notice because the trial court had no evidence that the witness' conviction was unconstitutional, just the prosecutor's bare allegation of unconstitutionally. In other words, the Court of Appeals of Maryland must have agreed with the trial court that this "fact" was "not subject to reasonable dispute...." Maryland Rule of Evidence 5-201(b).

The rest of the post will lay out some more of the details of Thomas, but here's my question: Who is Judge X, and what can be done to remove him from power immediately (if he's still in power)? What happens to the (possibly thousands) of individuals who have been convicted after guilty pleas before this judge? What is the obligation of the Maryland judges and prosecutors who recognize the unconstitutionality of proceedings before this judge? What is our obligation? 

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Putting It All In Context: Supreme Judicial Court Of Massachusetts Finds No Problem With Prior ID

Massachusetts does no have codified rules of evidence, it does have the Massachusetts Guide to Evidence. And, as I have noted before, "[a]lthough the Guide is only guidance and not rules, it was 'approved for use' by [the] Supreme Judicial Court [of Massachusetts] in 2008." Pursuant to "Rule 801(d)(1)(C)" of the Guide, a statement is not hearsay if it is "[a] statement of identification made after perceiving the person if the declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement." But what about statements surrounding the statement of identification? Are they admissible as well or are they inadmissible hearsay? That was the question addressed by the Supreme Judicial Court of Massachusetts in its recent opinion in Commonwealth v. Walker, 2011 WL 4357665 (Mass. 2011).

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The Trade-Off Is...: Court Of Appeals Of Texas Finds Jurors Can't Testify About Trading-Off Of Answers

Similar to its federal counterpart, Texas 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 jury's deliberations, or on any juror's mind or emotions or mental processes, as influencing any juror's assent to or dissent from the verdict or indictment. Nor may a juror's affidavit or any statement by a juror concerning any matter about which the juror would be precluded from testifying be admitted in evidence for any of these purposes. However, a juror may testify: (1) whether any outside influence was improperly brought to bear upon any juror; or (2) to rebut a claim that the juror was not qualified to serve.

So, let's say that jurors "trade-off answers," i.e., they reach a compromise verdict. Can jurors impeach their verdict through testimony concerning their trading-off of answers? Unsurprisingly, according to the recent opinion of the Court of Appeals of Texas, Fort Worth, in Damian v. Bell Helicopter Textron, Inc., 2011 WL 3836464 (Tex.App.-Fort Worth 2011), the answer is "no." What is surprising to me is that this wasn't always the case in Texas.

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To Summarize: 10th Circuit Notes That Rule 1006 Doesn't Provide An Exception To Rule Against Hearsay

Federal Rule of Evidence 1006 provides that

The contents of voluminous writings, recordings, or photographs which cannot conveniently be examined in court may be presented in the form of a chart, summary, or calculation. The originals, or duplicates, shall be made available for examination or copying, or both, by other parties at reasonable time and place. The court may order that they be produced in court.

As the recent opinion of the Tenth Circuit in United States v. Irvin, 2011 WL 3833812 (10th Cir 2011), makes clear, however, Rule 1006 only provides parties with a (sort of) way around the Best Evidence Rule; it provides no exception to the rule against hearsay.

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Character Of The Matter: Supreme Court Of Iowa Finds Trial Court Erred In Admitting Defendant's Harassment Conviction

Similar to Federal Rule of Evidence 609(a)(1), Iowa Rule of Evidence 5.609(a)(1) provides that

Evidence that a witness other than the accused has been convicted of a crime shall be admitted, subject to rule 5.403, if the crime was punishable by death or imprisonment in excess of one year pursuant to 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....

A prior conviction is probative to the extent that jurors use it as evidence that the defendant might not be a trustworthy witness at trial. A prior conviction is prejudicial to the extent that jurors (mis)use it as propensity character evidence, i.e., to conclude, "Once a criminal, always a criminal." In State v. Redmond, 2011 WL 3962864 (Iowa 2011), the prosecution had argued that a defendant's prior conviction was admissible under Rule 5.609(a)(1) to prove, in effect, "Once a criminal, always a criminal." And because the trial court bought this reasoning, the Supreme Court of Iowa had to reverse.

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Memory Loss: Supreme Court Of Mississippi Finds Confrontation Clause Violated By Admission Of Statement From Witness w/Memory Loss

In United States v. Owens, 448 U.S. 554 (1988),

the Supreme Court addressed whether a Confrontation Clause violation can be based upon a witness's loss of memory....In that case, a prison correction counselor had sustained severe memory impairment after being beaten with a metal pipe....When the counselor first spoke with the FBI, he was unable to remember his attacker's name....Weeks later, in a second interview with an FBI agent, he was able to describe the attack, name his attacker, and identify his attacker from a photo line-up....At trial, the counselor recounted what he had been doing just prior to the attack, described feeling blows to his head, and recalled seeing blood on the floor....He also vividly remembered identifying the defendant as his assailant during the second interview....On cross-examination, however, he acknowledged that he could not remember seeing his assailant at the time of the assault....And, even though he had received numerous visitors during his hospital stay, the counselor could not remember any of them except one, nor could he recall if any of those visitors had suggested that the defendant was his attacker....Defense counsel unsuccessfully sought to refresh the counselor's recollection with hospital records, which showed that he had, at one point, attributed the assault to someone other than the defendant....The Supreme Court held that no Confrontation Clause violation had occurred.....The Court explained that the opportunity for cross-examination "is not denied when a witness testifies as to his current belief but is unable to recollect the reason for that belief."

So, did Owens stand for the proposition that a live body on the witness stand is all that is required to satisfy Confrontation Clause concerns? And did the Supreme Court's landmark opinion in Crawford v. Washington, 541 U.S. 36 (2004), change anything? These were the questions addressed by the recent opinion of the Supreme Court of Mississippi in its recent opinion in Goforth v. State, 2011 WL 4089967 (Miss. 2011).

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Wait For The DVD: Court Of Appeals Of Arkansas Finds Drug Sale DVDs Properly Authenticated

Like its federal counterpart, Arkansas Rule of Evidence 901(b)(1) provides that a party can authenticate evidence through the "[t]estimony of a witness with knowledge that a matter is what it is claimed to be." And, like its federal counterpart, Arkansas Rule of Evidence 901(b)(9) provides that a party can authenticate evidence through "[e]vidence describing a process or system used to produce a result and showing that the process or system produces an accurate result." And, as the recent opinion of the Court of Appeals of Arkansas in Williams v. State, 2011 WL 4067412 (Ark.App. 2011), makes clear, if the prosecution seeks to introduce DVDs containing video recordings of a defendant selling drugs to a confidential informant, it can authenticate the DVDs by satisfying both rules.

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Source Code: 1st Circuit Finds Plaintiff Couldn't Satisfy Best Evidence Rule In Aircraft Tracking Software Appeal

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.

Federal Rule of Evidence 1004, however, provides that

The original is not required, and other evidence of the contents of a writing, recording, or photograph is admissible if [one of four situations apply]....

If however, a party seeks to prove the content of a writing and cannot satisfy one of the Rule 1004 factors (or produce a duplicate), it will be unsuccessful as was the case in the recent opinion of the First Circuit in Airframe Systems, Inc. v. L-3 Communications Corp., 2011 WL 4058676 (1st Cir. 2011).

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Judicial Notice: 5th Circuit Finds Failure To Disclose FBI Interview Not A Brady Violation In Judicial Sexual Favor Appeal

Pursuant to the Supreme Court's opinion in Brady v. Maryland, 373 U.S. 83 (1963), a new trial is warranted when the prosecution fails to timely disclose to the defendant material exculpatory evidence. Moreover, pursuant to the Supreme Court's opinion in Giglio v. United States, 405 U.S. 150 (1972), Brady covers material impeachment evidence. That said, the Fifth Circuit has determined that evidence turned over to the defense during trial has not been "suppressed" within the meaning of Brady so long as "the evidence is received in time for its effective use at trial." And that was a problem for the defendant in United States v. Barraza, 2011 WL 3925675 (5th Cir. 2011).

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That's A (W)rap: Florida Court Reverses Conviction Based Upon Impeachment Through Rap Sheet

Florida Rule of Evidence 90.610(1) provides that

A party may attack the credibility of any witness, including an accused, by evidence that the witness has been convicted of a crime if the crime was punishable by death or imprisonment in excess of 1 year under the law under which the witness was convicted, or if the crime involved dishonesty or a false statement regardless of the punishment....

But what proof of the witness' prior convictions must the party possess for impeachment to be permissible? That was the question addressed by the recent opinion of the District Court of Appeal of Florida, Fourth District, in Barcomb v. State, 2011 WL 3903118 (Fla.App. 4 Dist. 2011).

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In The Habit?: Central District Of Illinois Deems Safety Rating Evidence Admissible As Habit Evidence

Federal Rule of Evidence 406 provides that

Evidence of the habit of a person or of the routine practice of an organization, whether corroborated or not and regardless of the presence of eyewitnesses, is relevant to prove that the conduct of the person or organization on a particular occasion was in conformity with the habit or routine practice.

So, let's say that a car driver sues a truck driver and his employer for negligence after a car accident and seeks to present into evidence the employer's safety ratings? Should the court allow for the admission of the evidence pursuant to Federal Rule of Evidence 406? According to the recent opinion of the United States District Court for the Central District of Illinois in Campbell v. RAP Trucking Inc., 2011 WL 3924177 (C.D.Ill. 2011), the answer is "yes." I agree that the evidence was admissible but don't agree that it was admissible under Rule 406.

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The Evidentiary Significance of “Tweets,” Texts and Status Updates (starring Justin Bieber)

Internet blogs recently lit up with reports of a minor traffic collision involving a Honda Civic and a Ferrari driven by pop sensation Justin Bieber (see, e.g., here).  The next day, bloggers reported an interesting development (see, e.g., here):  according to these blogs, another celebrity – “Everlast” – sent out the following electronic message (i.e., “tweet”) on Twitter “moments before the crash”:

OGEverlast  I just raced @justinbieber down Ventura in his Ferrari I won but a fedex truck got in his way . . . .                                                                                          30 Aug

What is particularly interesting about this sequence of events from an evidentiary perspective is the potential admissibility of Everlast’s “tweet” in any subsequent litigation.

Of course the tweet, if offered for its truth, is hearsay.  At the same time, as with many tweets (which are intended to communicate “what’s happening” at any given moment, see twitter.com), Everlast’s tweet may fall within the hearsay exception for present sense impressions.

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