EvidenceProf Blog

EvidenceProf Blog's 5th Annual Halloween Movie Pick: Takashi Shimizu's "The Grudge"

It's Halloween again, which means that it's time for EvidenceProf's Blog's fifth annual Halloween movie pick (after "The Gift," "Homecoming," "Henry: Portrait of a Serial Killer," and "The Spiral Staircase."). For this year's pick, I'm once again digging into the archives from my days reviewing DVDs and pulling out a review. Ths year's pick is the director cut of "The Grudge," Takashi Shimizu's English-language remake of "Ju-On." 

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Forward Bias: Middle District Of Alabama Applies Rule 613(b) To Extrinsic Evidence Of Bias

Federal Rule of Evidence 613 provides that

(a) Examining witness concerning prior statement.

In examining a witness concerning a prior statement made by the witness, whether written or not, the statement need not be shown nor its contents disclosed to the witness at that time, but on request the same shall be shown or disclosed to opposing counsel.

(b) Extrinsic evidence of prior inconsistent statement of witness.

Extrinsic evidence of a prior inconsistent statement by a witness is not admissible unless the witness is afforded an opportunity to explain or deny the same and the opposite party is afforded an opportunity to interrogate the witness thereon, or the interests of justice otherwise require. This provision does not apply to admissions of a party-opponent as defined in rule 801(d)(2).

So, under Rule 613(b), extrinsic evidence of a witness' prior inconsistent statement is only admissible if "the witness is afforded an opportunity to explain or deny the same and the opposite party is afforded an opportunity to interrogate the witness thereon, or the interests of justice otherwise require." So, does the same hold with regard to extrinsic evidence of a witness' bias? According to the recent opinion of the United States District Court for the Middle District of Alabama in Johnson v. Alabama Community College System, 2011 WL 5078776 (M.D.Ala. 2011), the answer is "yes."

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Be An Original: 5th Circuit Finds Computer Printout Of Insurance Policy Was An "Original" Under Rule 1001(3)

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.

That said, Federal Rule of Evidence 1001(3) provides that

An "original" of a writing or recording is the writing or recording itself or any counterpart intended to have the same effect by a person executing or issuing it. An "original" of a photograph includes the negative or any print therefrom. If data are stored in a computer or similar device, any printout or other output readable by sight, shown to reflect the data accurately, is an "original".

It was this last sentence of Rule 1001(3) that proved fatal to the defendants' Best Evidence Rule appeal in Time Ins. Co. v. Estate of White, 2011 WL 5105790 (5th Cir. 2011).

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One Mississippi: Court Of Appeals Of Mississippi Applies Ridiculous Exception To Rule 404(b) In Child Molestation Case

Like its federal counterpart, Mississippi 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 that he acted 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.

In other words, under Rule 404(b), evidence of past rapes by a defendant charged with rape would be inadmissible to prove, "Once a rapist, always a rapist." And evidence of past acts of child molestation would be inadmissible tor prove, "Once a child molester." That said, Federal Rule of Evidence 413 and Federal Rule of Evidence 414, passed as part of the Violent Crime Control and Law Enforcement Act of 1994, do allow for the admission of evidence of past rapes and acts of child molestation to prove propensity and conformity. Mississippi does not, however, have counterparts to Rules 413 and 414? So why do Mississippi courts routinely allow for the admission of evidence of past rapes and acts of child molestation by defendants? Let's check out the recent opinion of the Court of Appeals of Mississippi inYoung v. State, 2011 WL 5027251 (Miss.App. 2011).

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You Complete Me: Court Of Appeals Of Hawai'i Finds No Confrontation Clause Problem With Rule Of Completeness

In Crawford v. Washington, 541 U.S. 36 (2004), the Supreme Court found that that the Confrontation Clause of the U.S. Constitution is violated when hearsay is "testimonial," admitted against a criminal defendant, and the hearsay declarant does not testify at the defendant's trial, unless (1) the declarant was unavailable for trial, and (2) the defendant was previously able to cross-examine the declarant. In other words, the Confrontation Clause is violated when testimony or testimonial hearsay is admitted against a defendant and he is not given the chance to cross-examine the declarant.

Meanwhile, like its federal counterpart, Hawai'i 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 party at that time to introduce any other part or any other writing or recorded statement which ought in fairness to be considered contemporaneously with it.

So, let's say that a criminal defendant admits part of a testimonial statement by a nontestifying declarant under an exception to the rule against hearsay and the prosecution then seeks to other parts of that testimonial statement under the rule of completeness. Can the prosecution do so consistent with the Confrontation Clause? According to the recent opinion of the Court of Appeals of Hawai'i in State v. Brooks, 2011 WL 5029439 (Hawai'i App. 2011), the answer is "yes."

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Law & Crit, Take 2: "The Green Mile" & The Death Penalty

I can vividly remember the announcement of Stephen King trying his hand at the serialized novel with "The Green Mile" back in 1996. Two things especially excited me about the announcement. Back in grade school, I had done a report about the invention of the cliffhanger. In those pre-internet days, I remember the joy I experienced upon uncovering the needle in the Dewey Decimal system when I learned that the original cliffhanger was an actual cliffhanger: Thomas Hardy published "A Pair of Blue Eyes" in serialized fashion in Tinsley's Magazine from 1872-1873, and, at the end of one serial, Hardy chose to leave one of the main protagonists, Henry Knight, literally hanging off a cliff staring into the stony eyes of a trilobite. I wanted to see the master of horror tackle the format.

Second, my favorite Stephen King book was "Different Seasons." "Different Seasons" was actually a collection of four Stephen King novellas, and part of the reason that I think I liked it the most was that it was the most cinematic of King's works. Indeed, three of the novellas were eventually turned into pretty good movies: "The Body" became the Rob Reiner classic, "Stand by Me," "Apt Pupil" became Bryan Singer's creepy movie of the same name, and "Rita Hayworth and Shawshank Redemption" became Frank Dararabont's Oscar-nominated and slightly less awkwardly-titled "The Shawshank Redemption." The last of these was my favorites, and "The Green Mile" promised to return me to King doing a period prison drama, which whetted my appetite. Every month from March to August in 1996, I would go to the local Waldenbooks and pick up the latest entry in the series, hanging on each new cliff that King threw at me.

That said, when it was later announced that Dararabont would be adapting "The Green Mile" as a feature length film, I was perplexed. Not because I disliked "The Shawshank Redemption." I loved it and like many others caught it several times during its constant loop on TNT. But I was confused because more than any other King work (except maybe "The Dark Tower"), it seemed to scream out for the miniseries treatment a la "It" or "The Stand" given its serialized nature. In the end, though, I don't know if it was the format that dulled the movie version of "The Green Mile" for me as much as the fact that it was too on the nose. "The Shawshank Redemption" was a bit on the nose as well, but that doesn't matter when you have Morgan Freeman giving the best voiceover narration in the history of cinema.

Dararabont later turned his adaptation of King's "The Mist" into a post-9/11 allegory (much like Ronald D. Moore's "Battlestar Galactica"), which elevated my appreciation of the movie (and freaked me out). But his adaptation of the "The Green Mile" didn't really dig beneath the surface of King's book. It's a movie about the death penalty, but it's not much more than a story about the execution of a wrongfully convicted man with magical powers. Like Dararabont's "The Walking Dead," it's a fun enough ride but lacking in (figurative) bite.

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Undiagnosed: Court Of Appeals Of Iowa Finds Granddaughters' Statements Inadmissible Under Rule 5.803(4)

Like its federal counterpart, Iowa Rule of Evidence 5.803(4) provides an exception to the rule against hearsay for 

Statements made for purposes of medical diagnosis or treatment and describing medical history, or past or present symptoms, pain, or sensations, or the inception or general character of the cause or external source thereof insofar as reasonably pertinent to diagnosis or treatment.

So, let's say that four granddaughters tell a forensic interviewer and a child protective worker that their grandfather physically and sexually abused them. Would these statements qualify as statements for purposes of medical diagnosis or treatment? According to the recent opinion of the Court of Appeals of Iowa in State v. Moore, 2011 WL 4950180 (Iowa App. 2011), the answer is "no," at least based upon the facts before it.

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The Privilege Was Mine: Eastern District Of Virginia Finds Rule 612 Refreshment Didn't Vitiate Privilege

Federal Rule of Evidence 612 states that

Except as otherwise provided in criminal proceedings by section 3500 of title 18, United States Code, if a witness uses a writing to refresh memory for the purpose of testifying, either--

(1) while testifying, or

(2) before testifying, if the court in its discretion determines it is necessary in the interests of justice,

an adverse party is entitled to have the writing produced at the hearing, to inspect it, to cross-examine the witness thereon, and to introduce in evidence those portions which relate to the testimony of the witness. If it is claimed that the writing contains matters not related to the subject matter of the testimony the court shall examine the writing in camera, excise any portions not so related, and order delivery of the remainder to the party entitled thereto. Any portion withheld over objections shall be preserved and made available to the appellate court in the event of an appeal. If a writing is not produced or delivered pursuant to order under this rule, the court shall make any order justice requires, except that in criminal cases when the prosecution elects not to comply, the order shall be one striking the testimony or, if the court in its discretion determines that the interests of justice so require, declaring a mistrial.

So, let's say that a party uses privileged documents to refresh the recollection of a witness prior to a deposition. Does the party now need to produce those documents to the adverse party? If you want to know the answer, the recent opinion of the United States District Court for the Eastern District of Virginia in Brown v. Tethys Bioscience, Inc., 2011 WL 4829340 (E.D.Va. 2011), is probably your best bet.

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How To Be Elusive: Colorado Court Of Appeals Finds Trial Court Erred In Granting New Trial Based On Jury Misconduct

Similar to its federal counterpart, Colorado Rule of Evidence 606(b) provides that

Upon an inquiry into the validity of a verdict or indictment, a juror may not testify as to any matter or statement occurring during the course of the jury's deliberations or to the effect of anything upon his or any other juror's mind or emotions as influencing him to assent to or dissent from the verdict or indictment or concerning his mental processes in connection therewith, except that a juror may testify on the question whether extraneous prejudicial information was improperly brought to the jurors' attention or whether any outside influence was improperly brought to bear upon any juror. Nor may his affidavit or evidence of any statement by him concerning a matter about which he would be precluded from testifying be received for these purposes.

So, let's say that a defendant is convicted of vehicular eluding. And let's say that several jurors had looked at or heard a dictionary definition of "elude" during deliberations. Can the defendant present juror affidavits concerning what happened, and will those affidavits be sufficient to award the defendant a new trial? Those were the questions addressed by the Colorado Court of Appeals, Division II, in its recent opinion in People v. Holt, 2011 WL 4837640 (Colo.App. 2011).

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Can I Get A Summary?: 1st Circuit Finds No Obligation To Produce Summaries Before Trial Under Rule 1006

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.

So, the proponent of a summary under Rule 1006 must make the originals or duplicates that are summarized available for examination and/or copying by other parties at a reasonable place and time. But what about the summary itself? Mist that also be made available? According to the recent opinion of the First Circuit in Colon-Fontanez v. Municipality of San Juan, 2011 WL 4823189 (1st Cir. 2011), the answer is "no." I disagree.

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The Hound Baskerville: 3rd Circuit Finds District Court Didn't Err In Failing To Hold Forfeiture By Wrongdoing Hearing

Federa Rule of Evidence 804(b)(6) provides an exception to the rule against hearsay (and the Confrontation Clause) for 

A statement offered against a party that has engaged or acquiesced in wrongdoing that was intended to, and did, procure the unavailability of the declarant as a witness.

So, let's say that the prosecution files a motion in limine seeking to introduce statements under this forfeiture by wrongdoing exception. Does the trial court need to hold a pretrial evidentiary hearing before it deems the statements admissible? According to the recent opinion of the Third Circuit in United States v. Baskerville, 2011 WL 4850257 (3rd Cir. 2011), the answer is "no."

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Law & Crit: Alyssa Rosenberg's Pop Culture and the Death Penalty Project

Alyssa Rosenberg is one of my favorite writers on the internet because she writes about two of my passions -- politics and pop culture -- in an idiosyncratic but accessible way. You can find some of her pieces in The Atlantic, but in the post I want to focus upon her work at ThinkProgress, and specifically her new Pop Culture and the Death Penalty Project. Basically, in the shadow of the Troy Davis execution, Rosenberg decided to "to pay some serious attention to the death penalty in popular culture." And her attention will consist of weekly blog posts on a series of books, movies, and TV shows that could provide serious fodder for a "Law & Film" or "Law & Literature" seminar.

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Gross Out, Take 2: Texas Also Allows Experts To Testify About Defendant Doctors' Gross Negligence

In a post a couple of days ago, I noted that expert testimony that Dr. Conrad Murray acted with "gross negligence" was likely proper under California law even though it would be improper under the law of many (most?) other jurisdictions. After some further, research, I uncovered a Supreme Court of Texas opinion revealing that the such testimony would also be admissible under Texas law.

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Wild West Virginia: SD WVa Deems Child Molestation Conviction Inadmissible Under Rule 609(a)(1)

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....

So, let's say that a plaintiff brings tort and constitutional claims against defendants. And let's say that the plaintiff has a prior child molestation conviction. Should the defendants be able to use evidence of that conviction to impeach the plaintiff? According to the recent opinion of the United States District Court for the Southern District of West Virginia in Merritt v. Matheny, 2011 WL 4833043 (S.D.W.Va. 2011), the answer is "no."

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Gross Out?: Was Expert Testimony That Conrad Murray Acted With "Gross Negligence" Objectionable?

Professor David H. Kaye at Penn State has posted Some clips from the Conrad Murray trial and asked whether testimony by experts that Dr. Murray's acts/omissions constituted "gross negligence" would have been ruled inadmissible if defense counsel objected to it. My conclusion: While the answer would be "yes" in many (most?) jurisdictions, the answer is "no" in California.

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Don't Be Tardy: Western District Of Michigan Finds State Court Properly Deemed Witness For Prosecution "Unavailable"

Federal Rule of Evidence 804(a)(5) provides that a declarant is "unavailable" if he

is absent from the hearing and the proponent of a statement has been unable to procure the declarant's attendance (or in the case of a hearsay exception under subdivision (b)(2), (3), or (4), the declarant's attendance or testimony) by process or other reasonable means.

Meanwhile, Michigan Rule of Evidence 804(a) provides that a declarant is "unavailable" if he

is absent from the hearing and the proponent of a statement has been unable to procure the declarant's attendance (or in the case of a hearsay exception under subdivision (b)(2), (3), or (4), the declarant's attendance or testimony) by process or other reasonable means, and in a criminal case, due diligence is shown. (emphasis added)

So, when are attempts to procure a declarant's attendance reasonable but not an exercise in due dilligence? That question was not answered by the United States District Court for the Western District of Michigan in its recent opinion in Smith v. McQuiggin, 2011 WL 4824492 (W.D.Mich. 2011), but it does point us toward a partial answer.

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The Number 23: Eastern District Of Virginia Finds 23 Year-Old Conviction Admissible To Impeach Plaintiff

Federal Rule of Evidence 609(b) provides that

Evidence of a conviction under this rule is not admissible if a period of more than ten years has elapsed since the date of the conviction or of the release of the witness from the confinement imposed for that conviction, whichever is the later date, unless the court determines, in the interests of justice, that the probative value of the conviction supported by specific facts and circumstances substantially outweighs its prejudicial effect. However, evidence of a conviction more than 10 years old as calculated herein, is not admissible unless the proponent gives to the adverse party sufficient advance written notice of intent to use such evidence to provide the adverse party with a fair opportunity to contest the use of such evidence.

Furthermore, the Advisory Committee's Note to Rule 609(b) provides that

Although convictions over ten years old generally do not have much probative value, there may be exceptional circumstances under which the conviction substantially bears on the credibility of the witness.

In its recent opinion in Salmons, Inc. v. First Citizens Bank & Trust Co., 2011 WL 4828838 (E.D.Va. 2011), the United States District Court for the Eastern District of Virginia found that the defendant could use the plaintiff's 23 year-old criminal fraud conviction to impeach him. So, what were the exceptional circumstances?

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In Context: 5th Circuit Finds Specific Ground For Rule 404(b) Objection Was Apparent From The Context

Federal Rule of Evidence 103(a)(1) 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...[i]n case the ruling is one admitting evidence, a timely objection or motion to strike appears of record, stating the specific ground of objection, if the specific ground was not apparent from the context....

You don't find many cases in which an appellate court finds that the specific ground of an objection is "apparent from the context...." The recent opinion of the Fifth Circuit in United States v. Mireles, 2011 WL 4584763 (5th Cir. 2011), is an exception.

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Georgia On My Mind: Supreme Court Of Georgia Looks To New Georgia Rules Of Evidence For Prior Consistent Statement Ruling

As I have previously noted, Georgia recently passed a Comprehensive Revised Evidence Code patterned on the Federal Rules of Evidence. This new Code will not take effect until 2013, but, as the recent opinion of the Supreme Court of Georgia in Stephens v. State, 2011 WL 4532671 (Ga. 2011), makes clear, this new Code is already having an effect on how Georgia courts interpret the existing Georgia Rules of Evidence.

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Anything Resembling Furtherance?: Court Of Appeals Of Iowa Finds Trial Court Erred In Admitting Co-Conspirator Admissions

Like its federal counterpart, Iowa Rule of Evidence 5.801(d)(2)(E) provides that a statement is not hearsay if

The statement is offered against a party and is...a statement by a coconspirator of a party during the course and in furtherance of the conspiracy.

As the language of the Rule makes clear, it is not enough for a statement to be made during the course of a conspiracy. Instead, for a statement to qualify as a co-conspirator admission, the statement must have been made during the course of and in furtherance of the conspiracy. And this latter fact was something that the prosecution did not sufficiently in State v. Dayton, 2011 WL 4578505 (Iowa App. 2011), according to the recent opinion of the Court of Appeals of Iowa.

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