EvidenceProf Blog

The Big C: Supreme Court Of Minnesota Finds Statements By Cancer-Ridden Declarant Weren't Dying Declarations

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

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

So, let's say that a declarant makes a statement while terminally ill with cancer, but the statement does not concern his cancer. Does the statement qualify as a dying declaration? According to the recent opinion of the Supreme Court of Minnesota in Roby v. State, 2011 WL 6783876 (Minn. 2011), the answer is "no."

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Child Bride: Supreme Court Of Louisiana Finds Evidence Of Marriage To Child Bride Admissible To Prove Lustful Disposition

La. C.E. art 412(2)(A) states that

When an accused is charged with a crime involving sexually assaultive behavior, or with acts that constitute a sex offense involving a victim who was under the age of seventeen at the time of the offense, evidence of the accused's commission of another crime, wrong, or act involving sexually assaultive behavior or acts which indicate a lustful disposition toward children may be admissible and may be considered for its bearing on any matter to which it is relevant subject to the balancing test provided in Article 403.

This Rule is somewhat similar but also somewhat different from Federal Rule of Evidence 414(a), which provides that

In a criminal case in which a defendant is accused of child molestation, the court may admit evidence that the defendant committed any other child molestation. The evidence may be considered on any matter to which it is relevant.

So, what's the difference? Well, in many jurisdictions, the age at which an individual can consent to a marriage is often lower than age at which an individual can consent to sexual acts. And there can't be statutory rape between a husband and a wife. What this means is that an adult who engages in sexual acts with a minor of a certain age is engaging in statutory rape if the minor is not his wife while an adult who engages in sexual acts with a minor of the same age is not engaging in statutory rape if the minor is his wife. 

So, let's say that a defendant is charged with aggravated incest against a minor and previously married his wife (and engaged in sexual acts with her) when he was an adult and she was 14 year-old. Is evidence of the marriage and marital relations admissible under Federal Rule of Evidence 414(a)? No. Is it admissible under La. C.E. art 412(2)(A)? As the recent opinion of the Supreme Court of Louisiana in State v. Wright, 2011 WL 6091243 (La. 2011), makes clear, the answer is "yes."

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Taking Exception: Is Evidence Of Prior Oral Sex By 15 Year-Old Victim Admissible In Prosecution Of 38 Year-Old?

A 38 year-old defendant is charged with four counts of sexual conduct with a minor, and it is undisputed that he engaged in four acts of oral sexual intercourse with the victim, who was 15 years-old. The defendant, however, seeks to present evidence that the victim had engaged in oral sex with two other individuals, claiming that it went to his belief that the victim was eighteen or older. Should the court deem this evidence admissible? According to a trial court the answer is "yes," and it may reach the same conclusion after a remand from the Court of Appeals of Arizona.

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This Is A Recording: Court Of Appeals Of Arizona Finds Videotape Qualifies As Recorded Recollection

Like its federal counterpart, Arizona Rule of Evidence 803(5) provides an exception to the rule against hearsay for

A memorandum or record concerning a matter about which a witness once had knowledge but now has insufficient recollection to enable the witness to testify fully and accurately, shown to have been made or adopted by the witness when the matter was fresh in the witness' memory and to reflect that knowledge correctly. If admitted, the memorandum or record may be read into evidence but may not itself be received as an exhibit unless offered by an adverse party.

Usually, this recorded recollection exception applies to writings (or typewritten documents), and you can see from the language of Rule 803(5) that this was the original intent of the Rule ("may be read into evidence"). That said, as is made clear by opinions such as the recent opinion of the Court of Appeals of Arizona, Division 1, Department E., in State v. Silva-Acosta, 2011 WL 6747389 (Ariz.App. Div. 1 2011), courts have also found that the exception covers videotapes.

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Collateral Damage: Court Of Appeals Of Arizona Finds Collateral Evidence Rule Doesn't Apply To Bias Evidence

Like its federal counterpart, Arizona Rule of Evidence 608(b) provides that

Specific instances of the conduct of a witness, for the purpose of attacking or supporting the witness' credibility, other than conviction of crime as provided in Rule 609, may not be proved by extrinsic evidence. They may, however, in the discretion of the court, if probative of truthfulness or untruthfulness, be inquired into on cross-examination of the witness (1) concerning the witness' character for truthfulness or untruthfulness, or (2) concerning the character for truthfulness or untruthfulness of another witness as to which character the witness being cross-examined has testified.

The portion of Rule 608(b) that excludes extrinsic evidence of specific instances of conduct, however, only applies to instances of conduct unrelated to the case at hand used to prove that a witness is generally a liar. For instance, under Rule 608(b), defense counsel could ask an (eye)witness for the prosecution whether he ever cheated on his taxes but could not prove the act (of cheating) through extrinsic evidence. Conversely, defense counsel could both ask the (eye)witness whether some specific act (such as the defendant stealing his girlfriend) rendered him biased against the defendant and prove this act through extrinsic evidence, as is made clear by the recent opinion of the Court of Appeals of Arizona,Division 1, Department E., in State v. Herrera, 2011 WL 6747405 (Ariz.App. Div. 1 2011).

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E Tu, Bruton, Take 2: Eastern District Of Michigan Finds Nontestimonial Statements Beyond Scope Of Bruton

The statements from John Henry Williams to Kareemah Greer, Deville Thedford, Richard Peeples, and Donnell Hornbuckle concerning petitioner's involvement in the robbery and murder do not qualify as testimonial statements covered by the Confrontation Clause because they were casual remarks made to a friend or family member and not ones made to law enforcement....Morever, because the Confrontation Clause has no applicability to non-testimonial statements, they may be admitted even if they lack indicia of reliability. See Whorton v. Bockting, 549 U.S. 406, 420...(2007). Thus, the admission of Williams' statements to Greer, Thedford, Peeples, and Hornbuckle did not violate petitioner's Sixth Amendment right to confrontation. Frazier v. Scutt, 2011 WL 5507 383 (E.D.Mich. 2011) (emphasis added).

Following up on my post from yesterday, the recent opinion of the United States District Court for the Eastern District of Michigan in Frazier v. Scutt is yet another example of a court finding that nontestimonial statements are beyond the scope of the the Bruton doctrine in the wake of Crawford v. Washington, 541 U.S. 36 (2004). And, I would argue that it is yet another example of a court getting it wrong.

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E Tu, Bruton?: Supreme Court Of Nevada Finds Bruton Doctrine Doesn't Cover Nontestimonial Hearsay

The Confrontation Clause of the Sixth Amendment states that

In all criminal prosecutions, the accused shall enjoy the right...to be confronted with the witnesses against him...

Under the Bruton doctrine, the Confrontation Clause is violated, when, at a joint jury trial, the prosecution admits the statement of a non-testifying co-defendant that facially incriminates another defendant. In Crawford v. Washington, 541 U.S. 36 (2004), however, 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 the wake of Crawford, several courts have been presented with the question of whether the Bruton doctrine still covers nontestimonial hearsay in the wake of Crawford. Almost every court, including the Supreme Court of Nevada in its recent opinion in Perez v. State, 2011 WL 4527520 (Nev. 2011), has answered this question in the negative. I continue to contend that these courts are wrong.

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Trust In Me?: DNH Finds That OSHA Report Qualifies For Admission Under Rule 803(8)

Federal Rule of Evidence 803(8) provides an exception to the rule against hearsay for

A record or statement of a public office if:

(A) it sets out:

(i) the office’s activities;

(ii) a matter observed while under a legal duty to report, but not including, in a criminal case, a matter observed by law-enforcement personnel; or

(iii) in a civil case or against the government in a criminal case, factual findings from a legally authorized investigation; and

(B) neither the source of information nor other circumstances indicate a lack of trustworthiness.

So, how hard is it for the opposing party to prove that a public record lacks trustworthiness, making it inadmissible under Rule of Evidence 803(8)(B)? According to the recent opinion of the United States District Court for the District of New Hampshire in Masello v. Stanley Works, Inc., 2011 WL 5843494 (D.N.H. 2011), the answer is "pretty tough."

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Entrapment: 9th Circuit Finds Character An Essential Element Of (Disproving) Entrapment Defense

Federal Rule of Evidence 405(b) provides that

When a person’s character or character trait is an essential element of a charge, claim, or defense, the character or trait may also be proved by relevant specific instances of the person’s conduct.

So, when is character an essential element of a charge, claim, or defense? Pretty rarely. It is an essential element in a negligent hiring/supervision case because how can a plaintiff prove, for example, that a company was negligent in hiring/supervising a driver with a history of DUIs without presenting evidence of these DUIs? It's also an essential element in a defamation case because how can a defendant prove, for example, that the story it published accusing a plaintiff-politician of adultery was true and thus not defamatory without presenting evidence of the plaintiff's extramarital affairs. And, as the recent opinion of the Ninth CIrcuit in United States v. Reed, 2011 WL 5869494 (9th Cir. 2011), makes clear, character is also an essential element of (disproving) an entrapment defense.

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Take Me To Another Rule: Supreme Court Of Tennessee Finds Court Of Appeals Applied Wrong Version Of Rule 703

Similar to its federal counterpart, Tennessee 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. 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. The court shall disallow testimony in the form of an opinion or inference if the underlying facts or data indicate lack of trustworthiness. (emphasis added).

The third, bolded sentence in Rule 703 was not added until 2009, however, and the appeal that the Supreme Court of Tennessee heard in Holder v. Westgate Resorts Ltd., 2011 WL 6148588 (Tenn. 2011), was from a case that took place before it was added. So, what effect did this have on the court's decision?

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Law & Crit, Take 7: "12 Angry Men" & The Juror Who Was Dismissed For Acting Like Henry Fonda

Consider two scenes:

Scene One

Juror # 8: I just want to talk.

Juror # 7: Well, what's there to talk about? Eleven men in here think he's guilty. No one had to think twice about it except you.

Juror # 10: I want to ask you something: do you believe his story?

Juror # 8: I don't know whether I believe it or not—maybe I don't.

Juror # 7: So how come you vote not guilty?

Juror # 8: Well, there were eleven votes for guilty. It's not easy to raise my hand and send a boy off to die without talking about it first....We're talking about somebody's life here. We can't decide in five minutes. Supposin' we're wrong.

Scene Two

Juror # 6: I said...this is a very important case and we should be very convinced that if the defendant is found guilty that it is beyond a reasonable doubt....

Foreman: We have spent some time now trying to understand the reasonable basis for his doubt, and I personally did not yet understand it....I would say that two-thirds of the jurors have tried to persuade—have actively tried to persuade...him that his current view is incorrect....

Juror # 4: Well, I guess he believes from the evidence that he's seen that there hasn't been sufficient proof....

Juror # 5: I think the question may have been raised: "Do you have a political agenda?" I think [it] might have been in the heat of the argument, because it does get heated back and forth from a bunch of different people. It may have been said.

Juror # 9: Well, he said this is a serious thing, and I don't really feel that there is enough cause for—or something to that effect....What he said was, "I wouldn't want to take anyone's freedom away, unless," you know, "I was sure that certain things took place."....

This language is taken from Judge Reinhardt in the Ninth Circuit's recent opinion in Williams v. Cavazos, 646 F.3d 626 (9th Cir. 2011). As Judge Reinhardt went on to note,

The first passage above is dialogue from the classic Academy Award-winning 1957 film, 12 Angry Men, in which Henry Fonda plays a holdout juror who, over two tense hours, convinces his eleven peers that the defendant in a murder trial should be acquitted. The second excerpt comes from the transcript of proceedings during the petitioner's murder trial, in which each juror was examined and cross-examined, seriatim and mid-deliberation, after it was reported that one juror was taking a different view from the others.

So, what happened to the holdout juror, and how does this relate to Alyssa Rosenberg's latest post in her Pop Culture and the Death Penalty Project, which deals with what is (in my opinion) Sidney Lumet's masterpiece and the finest slice of celluloid ever concerning the American legal system?

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Plea(se) Plea(se) Me: Court Of Appeals Of Texas Finds Rule 410 Violation Not Plain Error

Like its federal counterpart, Texas Rule of Evidence 410(4) states that:

Except as otherwise provided in this rule, evidence of the following is not admissible against the defendant who made the plea or was a participant in the plea discussions:...

any statement made in the course of plea discussions with an attorney for the prosecuting authority that does not result in a plea of guilty or a plea of nolo contendere or that results in a plea, later withdrawn, of guilty or nolo contendere.

So, let's say that the prosecutor violates Rule 410(4), but the defense does not object. If the defendant is convicted and appeals, should the court reverse for plain error? According to the recent opinion of the Court of Appeals of Texas, Fort Worth, in Parker v. State, 2011 WL 5984539 (Tex.App.-Fort Worth 2011), the answer is "no."

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Going Unnoticed: Court Of Appeals Of Indiana Affirms Trial Court's Rape Shield Ruling

Indiana Rule of Evidence 412(a)(3), an exception to Iowa's rape shield rule, states that evidence of an alleged victim's sexual history can be admitted if it is "evidence that the victim's pregnancy at the time of trial was not caused by the defendant." Meanwhile, Indiana Rule of Evidence 412(b)(1) states that

If a party proposes to offer evidence under this rule, the following procedure must be followed:

A written motion must be filed at least ten days before trial describing the evidence. For good cause, a party may file such motion less than ten days before trial.

So, let's say that a defendant charged with child molesting and related crimes believes that another man caused the alleged victim's pregnancy but does not file a written motion at least ten days before trial because the "other man" was uncooperative with his deposition requests. Does this constitute "good cause," such that evidence of the sexual acts between the "other man" and the alleged victim could be presented at trial? According to the recent opinion of the Court of Appeals of Indiana in Jeffers v. State, 2011 WL 6088615 (Ind.App. 2011), the answer is "no."

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However Much: Court Of Appeals Of Utah Reverses Conviction Based On Improper Exclusion Of Alibi Testimony

Utah Code Annotated Section 77-14-2 states

(1) A defendant, whether or not written demand has been made, who intends to offer evidence of an alibi shall, not less than 10 days before trial or at such other time as the court may allow, file and serve on the prosecuting attorney a notice, in writing, of his intention to claim alibi. The notice shall contain specific information as to the place where the defendant claims to have been at the time of the alleged offense and, as particularly as is known to the defendant or his attorney, the names and addresses of the witnesses by whom he proposes to establish alibi. The prosecuting attorney, not more than five days after receipt of the list provided herein or at such other time as the court may direct, shall file and serve the defendant with the addresses, as particularly as are known to him, of the witnesses the state proposes to offer to contradict or impeach the defendant's alibi evidence.

(2) The defendant and prosecuting attorney shall be under a continuing duty to disclose the names and addresses of additional witnesses which come to the attention of either party after filing their alibi witness lists.

(3) If a defendant or prosecuting attorney fails to comply with the requirements of this section, the court may exclude evidence offered to establish or rebut alibi. However, the defendant may always testify on his own behalf concerning alibi.

(4) The court may, for good cause shown, waive the requirements of this section. 

It seems clear to me that under this Section, (1) a defendant must provide pre-trial notice of any alibi evidence; (2) the prosecution must then respond with pre-trial notice of any witnesses who will contradict this alibi evidence; (3) both sides have a continuing duty to disclose after these initial disclosures; (4) failure to comply with (1)-(3) can lead to the exclusion of alibi-related evidence; (5) the court can waive (1)-(3) for good cause shown; and (6) a defendant can always testify on his own behalf concerning alibi even if he fails to comply with (1) and/or (3). According to the recent opinion of the Court of Appeals of Utah in State v. Gallup, 2011 WL 6091688 (Utah App. 2011), however, part (6) of the above was not clear to a Utah trial court, necessitating a reversal of a defendant's conviction.

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The Vermont Frat Questionnaire & The Foreseeability Of Stranger Rape Based Upon Increased Acquaintance Rape At A College

If I could rape someone, who would it be?

This now infamous question, asked at the end of a fraternity questionnaire at the University of Vermont, led to the fraternity being suspended. But let's say that the university took no action in response to this question. And let's say that the university also took no or only minimal action in response to a rise in the number of (acquaintance) rapes on its campus over a period of two years. Finally, let's say that a victim was raped at college by a stranger, who turned out to be one of the members of this fraternity, and sued the school for negligence. If the university moved for summary judgment dismissing the complaint, claiming that the rape was not foreseeable, should the court grant the motion? According to the opinion of the United States District Court for the Eastern District of Wisconsin in Lees v. Carthage College, 2011 WL 3844115 (E.D.Wis. 2011), the apparent answer is, "yes, the court should grant summary judgment" even in the face of expert testimony to the contrary. In fact, according to the court, such expert testimony should be deemed inadmissible.

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Making Weight: Court Of Appeals Of Indiana Doesn't Allow Jury Impeachment Regarding Jury Experiments On Weight Bench

A husband arrives home and allegedly finds his wife dead, her lifeless body lying on a weightlifting bench with the weight bar pinned across her throat. The State disagreed, believing that the wife's death was a case of foul play. It charges the husband with murder. The case proceeds to trial, where the prosecution introduces the weight machine into evidence as an exhibit. During deliberations, the jurors use the weight machine to perform experiments. Are the results of these experiments extraneous prejudicial information, allowing for juror impeachment? According to the recent opinion of the Court of Appeals of Indiana in Pattison v. State, 2011 WL 6130778 (Ind.App. 2011), the answer is "no." I disagree.

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The Weight Of The Evidence, Take 2: Court Of Criminal Appeals Of Texas Reverses Conviction In Rule 804(b)(1) Case

Last year, I posted an entry about Sanchez v. State, 2010 WL 4336169 (Tex.App.-San Antonio 2010). As I noted at the time,

In Sanchez, Ivan William Sanchez was convicted of three counts of indecency with a child by sexual contact and one count of aggravated sexual assault of a child. Before Sanchez's trial, there was a pretrial hearing during which Angelica Newsome testified about a statement the complainant made to her regarding alleged acts of abuse committed against her by Sanchez. The purpose of this testimony was to determine whether the complainant's statement qualified for admission under Texas Code of Criminal Procedure article 38.072 Section 2(a)(3), which provides an an exception to the rule against hearsay for "outcry testimony" if, among other conditions, the statement describing the alleged offense was "made to the first person, 18 years of age or older, other than the defendant, to whom the child...made a statement about the offense or extraneous crime, wrong, or act." The trial court deemed the statement admissible. At trial, however, Newsome was unavailable, prompting the State to read  into evidence the testimony Newsome gave at the pretrial hearing.

After he was convicted, Sanchez appealed, claiming that the admission of this testimony was improper under Texas Rule of Evidence 804(b)(1) and violated his rights under the Confrontation Clause because his motive to develop the testimony of Newsome at the pretrial hearing was not the same as his motive would have been at trial.

The Court of Appeals of Texas, San Antonio, disagreed, but yesterday the Court of Criminal Appeals of Texas reversed in Sanchez v. State, 2011 WL 6183607 (Tex.Crim.App. 2011). Why?

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Law & Crit, Take 6: "To Kill A Mockingbird" And Voice-Over Narration

On Monday, Bert Schneider passed away after having produced such classics as "Easy Rider," "Five Easy Pieces," and "The Last Picture Show." He was also the producer on Terrence Malick's pastoral "Days of Heaven," and his passing led Jeffrey Wells at "Hollywood Elsewhere" (where I used to write DVD reviews) to quip,

Bert Schneider, the last producer to semi-successfully micro-manage Terrence Malick and keep him from his own self-indulgent tendencies by somehow persuading him to keep Days of Heaven down to a managable 94 minutes, died Monday at age 78.

I can certainly appreciate where Jeff is coming from. I remember seeing "The New World" (the original cut) at the Regal Union Station 14 with a friend, who looked like she had just escaped from the ninth circle of hell as we exited the theater doors. Personally, I'm a fan of Malick, both his newer films as well as his 1970s twin bill of "Badlands" and "Days of Heaven" And one thing that these earlier films share is that they feature voice-over narration by young female characters (Sissy Spacek's Holly in "Badlands" and Linda Manz's Linda in "Days of Heaven").

Reading Jeff's post got me thinking about the best use of voice-over narration in movies. Certainly, Linda's narration in "Days of Heaven" would be the near the top of the list. As noted by Tim Dirks, in "Days of Heaven,"

The simple love story set on a pastoral landscape becomes a profound allegorical tale of harmony and discontinuity, love and hate, hopes and fears, and good and evil. Its emotional impact is shaped by the unique perspective of the narrator - a typical teenager telling the tale out of her own youthful concerns (having fun, her uncertain future), combining her beliefs about the dual contradictory nature of humanity ("you just got half-devil and half-angel in ya"), and imaginative and fearsome fantasies of religious judgment and divine retribution (the flaming end of the world, and the Devil's presence on Earth).

Also up there would be Morgan Freeman's narration in "The Shawshank Redemption." Of course, unlike Linda in "Days of Heaven," Freeman's Red is a man who has suffered for decades based upon the mistakes he made in his youth, and he is often relaying the wisdom he has gained as tears go by. In one particularly poignant scene, Red is before the parole board and responds to a question about whether he's sorry about what he did with the following:

There's not a day goes by I don't feel regret. Not because I'm in here, or because you think I should. I look back on the way I was then: a young, stupid kid who committed that terrible crime. I want to talk to him. I want to try and talk some sense to him, tell him the way things are. But I can't. That kid's long gone and this old man is all that's left. I got to live with that. Rehabilitated? It's just a bullshit word. So you go on and stamp your form, sonny, and stop wasting my time. Because to tell you the truth, I don't give a shit. 

This leads me to Alyssa Rosenberg's post today in her Pop Culture and Death Penalty Project.

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Conspiracy Theory: Court Of Appeals Of Iowa Finds Statements After Discovery Of Body Qualified As 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.

So, let's say that three men allegedly conspire to kill a victim and then kill the victim. And let's say that the day after the body is discovered, with a police officer in the front yard of one of the co-conspirators, one alleged co-conspirator says to another that he is only one of three people who knew about the body. Does this statement qualify as a co-conspirator admission under Rule 5.801(d)(2)(E)? According to the recent opinion of the Court of Appeals of Iowa in State v. Huser, 2011 WL 6079120 (Iowa App. 2011), the answer is "yes."

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Are You Available: Per Curiam Supreme Court Opinion Addresses Confrontation Clause Unavailability Question

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. Crawford overruled Ohio v. Roberts, which held that held that the admission of a hearsay statement against a criminal defendant violates the Confrontation Clause unless (1) the hearsay declarant is "unavailable," and (2) the statement has adequate indicia of reliability in that it (a) falls within a firmly rooted hearsay exception or (b) bears particularized guarantees of trustworthiness. 

But when exactly is a declarant unavailable for Crawford/Roberts purposes? That was the question addressed by the United States Supreme Court today in Hardy v. Cross.

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