EvidenceProf Blog

A Foolish Consistency?: Does Minnesota's Prior Consistent Statement Rule Make Sense?

Federal Rule of Evidence 801(d)(1)(B) indicates that 

A statement that meets the following conditions is not hearsay:

(1) A Declarant-Witness’s Prior Statement. The declarant testifies and is subject to cross-examination about a prior statement, and the statement:

(B) is consistent with the declarant’s testimony and is offered to rebut an express or implied charge that the declarant recently fabricated it or acted from a recent improper influence or motive in so testifying; or

Meanwhile, Minnesota Rule of Evidence 801(d)(1)(B) indicates that

A statement is not hearsay if--

(1) Prior statement by witness. The declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement, and the statement is...consistent with the declarant's testimony and helpful to the trier of fact in evaluating the declarant's credibility as a witness...

The recent opinion of the Court of Appeals of Minnesota in State v. Johnson, 2012 WL 254476 (Minn.App. 2012), reveals the problem that I have with Minnesota's version of Rule 801(d)(1)(B).

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You And I: Supreme Court Of Maine Reverses Conviction Based On Improperly Admitted Hearsay

Federal Rule of Evidence 804(b)(3) provides an exception to the rule against hearsay for

A statement that:

(A) a reasonable person in the declarant’s position would have made only if the person believed it to be true because, when made, it was so contrary to the declarant’s proprietary or pecuniary interest or had so great a tendency to invalidate the declarant’s claim against someone else or to expose the declarant to civil or criminal liability; and

(B) is supported by corroborating circumstances that clearly indicate its trustworthiness, if it is offered in a criminal case as one that tends to expose the declarant to criminal liability.

Meanwhile, Maine's counterpart, Maine Rule of Evidence 804(b)(3), provides an exception for

A statement which was at the time of its making so far contrary to the declarant's pecuniary or proprietary interest, or so far tended to subject him to civil or criminal liability or to render invalid a claim by him against another or to make him an object of hatred, ridicule, or disgrace, that a reasonable man in his position would not have made the statement unless he believed it to be true. A statement tending to expose the declarant to criminal liability and offering to exculpate the accused is not admissible unless corroborating circumstances clearly indicate the trustworthiness of the statement. A statement or confession offered against the accused in a criminal case, made by a codefendant or other person implicating both himself and the accused, is not within this exception. (emphasis added).

And what this last, bolded sentence of Maine Rule 804(b)(3) means is that the statement prompting the defendant's appeal in State v. Guyette, 2012 WL 182159 (Me. 2012), was clearly inadmissible.

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Revelations: Should A Jury Verdict Based On A Divine Revelation Be Impeachable?

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

(1)   Prohibited Testimony or Other Evidence. During an inquiry into the validity of a verdict or indictment, a juror may not testify about any statement made or incident that occurred during the jury’s deliberations; the effect of anything on that juror’s or another juror’s vote; or any juror’s mental processes concerning the verdict or indictment. The court may not receive a juror’s affidavit or evidence of a juror’s statement on these matters.

(2)   Exceptions. A juror may testify about whether:

(A)   extraneous prejudicial information was improperly brought to the jury’s attention; or

(B)   an outside influence was improperly brought to bear on any juror.

So, let's say that a juror claims to have received a revelation that if defense counsel did not make eye contact with her when he presented his argument, the defendant was guilty. If the defendant seeks to present evidence of this revelation to impeach his guilty verdict, should the court deem the evidence admissible? Let's take a look at the recent opinion of the Supreme Court of Utah in Taylor v. State, 2012 WL 192798 (Utah 2012).

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Do You Yahoo?: NJ Court Applies Federal Rule Of Evidence 901(b)(4) To Find Proper Authentication Of Yahoo! Chats

Similar to its federal counterpart, New Jersey Rule of Evidence 901 provides that

The requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter is what its proponent claims.

That said, the New Jersey Rules of Evidence do not have a counterpart to Federal Rule of Evidence 901(b)(4), which provides that evidence can be authenticated through

The appearance, contents, substance, internal patterns, or other distinctive characteristics of the item, taken together with all the circumstances.

As the recent opinion of the Superior Court of New Jersey, Appellate Division in State v D.D., 2012 WL 246378 (N.J.Super.A.D. 2012), makes clear however, New Jersey courts do look to Rule 901(b)(4) for guidance.

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Objection!: Appellate Court Of Connecticut Finds Issue Waived Because Defendant Cited To Federal Rule Of Evidence

In order to preserve an issue for appellate review, a party must make a timely objection and state the specific ground for the objection. The recent opinion of the Appellate Court of Connecticut in Corbett v. Commissioner of Correction, 2012 WL 224914 (Conn.App. 2012), is instructive in this regard. But did the court go too far?

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Ham Handed?: 6th Circuit Finds Character Evidence Properly Excluded Despite Mercy Rule

While Federal Rule of Evidence 404(a)(1) precludes the admission of propensity character evidence, Federal Rule of Evidence 404(a)(2)(A), the "mercy rule," states that

a defendant may offer evidence of the defendant’s pertinent trait, and if the evidence is admitted, the prosecutor may offer evidence to rebut it...

That said, Federal Rule of Evidence 405(a) states that

When evidence of a person’s character or character trait is admissible, it may be proved by testimony about the person’s reputation or by testimony in the form of an opinion. On cross-examination of the character witness, the court may allow an inquiry into relevant specific instances of the person’s conduct.

And what this means is that the defendant in United States v. Silber, 2012 WL 171397 (6th Cir. 2012), was out of luck.

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This Is A Recording?: California Court Finds No Error In Admission Of Recorded Recollection Despite Contradictory Testimony

In a post in August 2010, I wrote about the opinion of the Supreme Court of California in People v. Cowan, 2010 WL 3034725 (Cal. 2010). That post concerned California Evidence Code Section 1237, which, similar to Federal Rule of Evidence 803(5), provides an exception to the rule against hearsay for

(a) Evidence of a statement previously made by a witness is not made inadmissible by the hearsay rule if the statement would have been admissible if made by him while testifying, the statement concerns a matter as to which the witness has insufficient present recollection to enable him to testify fully and accurately, and the statement is contained in a writing which:

(1) Was made at a time when the fact recorded in the writing actually occurred or was fresh in the witness' memory;

(2) Was made

(i) by the witness himself or under his direction or

(ii) by some other person for the purpose of recording the witness' statement at the time it was made;

(3) Is offered after the witness testifies that the statement he made was a true statement of such fact; and

(4) Is offered after the writing is authenticated as an accurate record of the statement.

(b) The writing may be read into evidence, but the writing itself may not be received in evidence unless offered by an adverse party.

That post questioned whether the California Supremes were correct in deeming a statement made three months after an event admissible under California Evidence Code Section 1237. In its recent opinion in People v. Gallardo, the Court of Appeal, Fourth District, Division 1, California, also allowed for the admission of a statement that was about three months old. And, as in People v. Cowan, I'm not sure that the court got it right, albeit for a different reason.

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Reelin' In The Years: NJ Case Reveals Differences Between Federal & New Jersey Rule Of Evidence 609

Federal Rule of Evidence 609(b) states:

(b) Limit on Using the Evidence After 10 Years. This subdivision (b) applies if more than 10 years have passed since the witness’s conviction or release from confinement for it, whichever is later. Evidence of the conviction is admissible only if:

(1) its probative value, supported by specific facts and circumstances, substantially outweighs its prejudicial effect; and

(2) the proponent gives an adverse party reasonable written notice of the intent to use it so that the party has a fair opportunity to contest its use.

Moreover, the Advisory Committee Note to this Rule states that "[a]lthough 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 other words, it is rare that a conviction that is more than ten years old is admissible under Federal Rule of Evidence 609(b).

Conversely, New Jersey Rule of Evidence 609 simply states that

For the purpose of affecting the credibility of any witness, the witness' conviction of a crime shall be admitted unless excluded by the judge as remote or for other causes. Such conviction may be proved by examination, production of the record thereof, or by other competent evidence.

And, as the recent opinion of the Superior Court of New Jersey, Appellate Division, in State v. Rock, 2012 WL 177866 (N.J.Super.A.D. 2012), makes clear, convictions that are more than ten years old are routinely admitted under this Rule.

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Bad Trip: Court Of Appeals Of Iowa Oddly Hedges On Issue Of Whether Statement Qualified As Present Sense Impression

Like its federal counterpart, Iowa Rule of Evidence 5.803(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.

So, let's say that a defendant is charged with second-degree murder and related charges. And let's say that at several points during trial, the prosecution introduces a hearsay statement that the defendant was on a "bad crack trip" at the time of the killing. Finally, let's say that, on appeal, the prosecutor himself conceded that the person making that statement had no information to suggest that the defendant actually used crack cocaine on that evening. Is there any chance that the statement qualified for admission as a present sense impression under Rule 5.803(1)? Well, let's take a look at the recent opinion of the Court of Appeals of Iowa in State v. Mayton, 2012 WL 163047 (Iowa.App. 2012).

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Judge Me Not: Court Of Appeals Of Kentucky Finds Problems With Judicial Research, Comment

Like its federal counterpart, Kentucky Rule of Evidence 605 provides that

The judge presiding at the trial may not testify in that trial as a witness. No objection need be made in order to preserve the point.

As the recent opinion of the Court of Appeals of Kentucky in Whitlock v. Haney, Sr., 2012 WL 2012 WL 163024 (Ky.App. 2012), makes clear, however, Rule 605 covers not only actual judicial testimony but also improper judicial research and improper judicial comment.

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Unsequestered Witness: Southern District Of Florida Finds No Need For New Trial Despite Rule 615 Violation

Federal Rule of Evidence 615 provides that

At a party’s request, the court must order witnesses excluded so that they cannot hear other witnesses’ testimony. Or the court may do so on its own. But this rule does not authorize excluding:

(a) a party who is a natural person;

(b) an officer or employee of a party that is not a natural person, after being designated as the party’s representative by its attorney;

(c) a person whose presence a party shows to be essential to presenting the party’s claim or defense; or

(d) a person authorized by statute to be present.

So let's say that this witness sequestration rule is violated. What should the court do? According to the recent opinion of the United States District Court for the Southern District of Florida in United States v. McQueen, 2012 WL 163885 (S.D. Fla. 2012), there are 3 options.

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The Interpreter: 9th Circuit Finds Interpreters Don't Need To Give An Oath Before Testifying At A Trial

Federal Rule of Evidence 603 states that

Before testifying, a witness must give an oath or affirmation to testify truthfully. It must be in a form designed to impress that duty on the witness’s conscience.

So, under Rule 603, a witness must give an oath or affirmation before he testifies. Meanwhile, Federal Rule of Evidence 604 states that

An interpreter must be qualified and must give an oath or affirmation to make a true translation.

So, before an interpreter may translate the testimony of a witness, he must give an oath or affirmation. Well, not exactly, according to the recent opinion of the Ninth Circuit in United States v. Solorio, 2012 WL 161843 (9th Cir. 2012).

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No Expert: 3rd Circuit Finds No Error In Refusing To Appoint Expert Under Rule 706

Federal Rule of Evidence 706(a) provides that

On a party’s motion or on its own, the court may order the parties to show cause why expert witnesses should not be appointed and may ask the parties to submit nominations. The court may appoint any expert that the parties agree on and any of its own choosing. But the court may only appoint someone who consents to act.

As the recent opinion of the Third Circuit in Born v. Monmouth County Correctional Inst., 2012 WL 130697 (3rd Cir. 2012), males clear, courts are under no affirmative obligation to appoint experts under Rule 706(a). But as the opinion also makes clear, some courts have done some interesting things with the Rule.

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Copping A Plea: 11th Circuit Addresses Admissibility Of Plea Discussions At Sentencing

Federal Rule of Evidence 410(4) provides that

In a civil or criminal case, evidence of the following is not admissible against the defendant who made the plea or participated in the plea discussions:

(4) a statement made during plea discussions with an attorney for the prosecuting authority if the discussions did not result in a guilty plea or they resulted in a later-withdrawn guilty plea.

It is well established that the rules of evidence generally do not apply at the sentencing stage of trial. But does this hold true with regard to Rule 410(4)? Let's take a look at the recent opinion of the Eleventh Circuit in United States v. Davis, 2012 WL 118444 (11th Cir. 2012).

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Hearsay For Dummies: "The Good Wife" Episode "Bitcoin For Dummies" Badly Botches Hearsay Issue

I like "The Good Wife." I've written about it on this blog several times (see here, here, and here). I think that the show generally gets the law right more than most other legal shows. That certainly wasn't the case, though, with the show's most recent episode, "Bitcoin for Dummies," which contained the most egregious (non)application of the rule against hearsay that I've ever seen in a legal movie or TV show.

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Living Social: Supreme Court Of Alaska Finds Medical Hearsay Exception Applies To Statements To Social Worker

Like its federal counterpart, Alaska Rule of Evidence 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.

But does Rule 803(4) apply to statements made to a clinical social worker? According to the recent opinion of the Supreme Court of Alaska in Martha S. v. State, 2012 WL 104471 (Alaska 2012), the answer is "yes."

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In The Public Eye: Puerto Rico Court Finds Pilot's Statements Should Be Excluded From Public Report

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.

The theory behind this public records exception to the rule against hearsay is "the assumption that a public official will perform his duty properly and the unlikelihood that he will remember details independently of the record." What this makes clear is that the public records exception only covers statements made by public officials in public records, not statements made to public officials by non-public officials that are recorded in public records, as is made clear by the recent opinion of the United States District Court for the District of Puerto Rico in Echevarria v. Caribbean Aviation Maintenance Corp., 2012 WL 89839 (D.Puerto Rico 2012).

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In The Main(e): Supreme Court Of Maine Reveals Lack Of Mercy Rule For Victim Character Evidence

Federal Rule of Evidence 404(a)(2)(B) provides in relevent part that

subject to the limitations in Rule 412, a defendant may offer evidence of an alleged victim’s pertinent trait...

In other words, despite the propensity character evidence proscription,  a criminal defendant charged with murdering a victim could present evidence concerning the victim's violent character pursuant to the above "mercy rule." Maine Rule of Evidence 404(a), however, does not contain a similar provision, which was fatal to the defendant's appeal in State v. Holland, 2012 WL 90160 (Me. 2012).

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Parting Gesture: Court Of Appeals Of Indiana Finds Trial Court Properly Found Hand Gestures Were Excited Utterances

Like its federal counterpart, Indiana Rule of Evidence 803(2) provides an exception to the rule against hearsay for

A statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition.

And, as the recent opinion of the Court of Appeals of Indiana in Evans v. State, 2012 WL 77216 (Ind.App. 2012), makes clear, this "excited utterance" exception covers not only oral statements but also nonverbal conduct intended as an assertion.

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Dead Again: NJ Appellate Court Finds Dying Declarations Were Nontestimonial

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

In a criminal proceeding, [for] a statement made by a victim unavailable as a witness is admissible if it was made voluntarily and in good faith and while the declarant believed in the imminence of declarant's impending death.

Since the Supreme Court's opinion in Crawford v. Washington, 541 U.S. 36 (2004), every case that I have seen dealing with Rule 804(b)(2) has found that the admission of a testimonial dying declaration per se does not violate the Confrontation Clause. But what about the recent opinion of the Superior Court of New Jersey, Appellate Division in State v. Whitehurst, 2012 WL 28670 (N.J.Super A.D. 2012)?

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