EvidenceProf Blog

Leafy Greens: Court Of Appeals Of Mississippi Finds (Harmless) Error In Admission Of Marijuana Evidence To Prove Motive

Similar to its federal counterpart, Mississippi Rule of Evidence 404(b)

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.

So, let's say that a defendant is charged with armed robbery. And let's say that when the defendant was arrested for this crime, a "green leafy substance" was recovered from his vehicle. Is evidence of this substance admissible to prove his motive for committing the robbery. Let's take a look at the recent opinion of the Court of Appeals of Mississippi in State v. Smith, 2012 WL 613324 (Miss.App. 2012).

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Shepard's Pie: Kyle Graham And The Real Facts Of Shepard v. United States

If you've taught Evidence, you've likely taught Shepard v. United States, 290 U.S. 96 (1933), the (in)famous dying declaration case. If you taught the case, you know the basic facts. Zenana Shepard had taken ill and told a nurse that her husband, Dr. Charles A. Shepard poisoned her. Zenana thereafter died and her husband was charged with her murder. An autopsy determined that Zenana died from poisoning by bichloride of mercury, which Dr. Shepard kept in his medicine chest. At trial, the nurse testified to Zenana's accusatory statement, and Dr. Shepard was convicted of murder, with the alleged motive being that he wanted to take up with another woman. Dr. Shepard thereafter appealed, with the Supreme Court ultimately concluding in an opinion drafted by Justice Cardozo that Zenana's statement was not admissible as a dying declaration because it was not given while Zenana believed that she was knockin' on heaven's door. Instead,

Her illness began on May 20. She was found in a state of collapse, delirious, in pain, the pupils of her eyes dilated, and the retina suffused with blood. The conversation with the nurse occurred two days later. At that time her mind had cleared up, and her speech was rational and orderly. There was as yet no thought by any of her physicians that she was dangerously ill, still less that her case was hopeless. To all seeming she had greatly improved, and was moving forward to recovery. There had been no diagnosis of poison as the cause of her distress. Not till about a week afterwards was there a relapse, accompanied by an infection of the mouth, renewed congestion of the eyes, and later hemorrhages of the bowels.

The opinion in Shepard tells a good story, and it is a good way to illustrate the scope and limitations of the dying declaration exception to the rule against hearsay. But what's the full story? That question is taken up by Kyle Graham, a professor at the Santa Clara University School of Law in a recent post on his blog, noncuratlex.com.

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Conduct Unbecoming An Officer: Appellate Court Affirms Court-Martial's Finding Despite Character Evidence Error

Similar to its federal counterpart, Military Rule of Evidence 414 states in relevant part that

(a) In a court-martial in which the accused is charged with an offense of child molestation, evidence of the accused's commission of one or more offenses of child molestation is admissible....

(d) For purposes of this rule, “child” means a person below the age of sixteen....

In its recent opinion in United States v. Reynard, 2012 WL 592774 (Army Ct.Crim.App.,2012), the U.S. Army Court of Criminal Appeals found that a military judge improperly admitted evidence that was not admissible under Rule 414, and yet the court still affirmed the court-martial's finding of guilty and the appellant's sentence. Why?

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Believe In Me: Court Of Appeals Of Indiana Finds Fundamental Error With Expert Witness Vouching

Indiana Rule of Evidence 704(b) provides that

Witnesses may not testify to opinions concerning intent, guilt, or innocence in a criminal case; the truth or falsity of allegations; whether a witness has testified truthfully; or legal conclusions.

So, if such testimony is offered and opposing counsel fails to object, would the admission of such testimony constitute plain error necessitating a new trial? According to the recent opinion of the Court of Appeals of Indiana in Gutierrez v. State, 2012 WL 560048 (Ind.App. 2012), the answer is "yes."

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System Error: Court Of Appeals Of Minnesota Uses Invited Error Doctrine To Squelch Appeal

Like its federal counterpart, Minnesota Rule of Evidence 404(a) provides in relevant part that

Evidence of a person's character or a trait of character is not admissible for the purpose of proving action in conformity therewith on a particular occasion....

That said, Minn.Stat. § 634.20 provides in relevant part that

Evidence of similar conduct by the accused against the victim of domestic abuse, or against other family or household members, is admissible unless the probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issue, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence....

§ 634.20 might have made a difference in State v. McCoy, 2012 WL 539140 (Minn.App. 2012), but because the invited error doctrine applied, it didn't matter.

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Not Very Refreshing: Supreme Court Of Arkansas Seemingly Errs In Refreshing Recollection Ruling

Like its federal counterpart, Arkansas Rule of Evidence 612(a) provides that

If, while testifying, a witness uses a writing or object to refresh his memory, an adverse party is entitled to have the writing or object produced at the trial, hearing, or deposition in which the witness is testifying.  

So, let's say that, in response to a forgetful child witness, the prosecutor reads questions and answers from a transcript of the witness' prior testimony aloud and asks the child to confirm that the transcript was accurate. Is this procedure proper? According to the recent opinion of the Supreme Court of Arkansas in Sullivan v. State, 2012 WL 580595 (Ark. 2012), the answer is "yes." I disagree.

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Character Of The Matter: Michigan Case Reveals Different Character Evidence Rule For Crime Victims

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

subject to the limitations in Rule 412, a defendant may offer evidence of an alleged victim’s pertinent trait, and if the evidence is admitted, the prosecutor may:

(i) offer evidence to rebut it; and

(ii) offer evidence of the defendant’s same trait....

In People v. Malone, 2012 WL 555791 (Mich.App. 2012), Harvey Malone, Jr. appealed from his convictions for one count of carrying a concealed weapon and one count of felony-firearm, claiming that the trial court erred by precluding him from presenting character evidence concerning the alleged victim. If his case were governed by the Federal Rules of Evidence, he would have been correct. But his case wasn't governed by the Federal Rules.

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Shop Smart, Shop S-Mart: Court Of Appeals Of North Carolina Finds No Reversible Error Despite Character Evidence

Like its federal counterpart, North Carolina Rule of Evidence 404(b) North Carolina 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, entrapment or accident.

So, let's say that a defendant is charged with larceny by antishoplifting or inventory control device based upon a theft at Target store. And let's say that the prosecutor asks the senior asset protection specialist at the Target store what drew his attention to the defendant and his wife. Can the witness testify that he focused upon the defendant and his wife because of prior crimes that they committed consistent with Rule 404(b)? Let's look at the recent opinion of the Court of Appeals of North Carolina in State v. Colon, 2012 WL 549383 (N.C.App. 2012).

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Is There A Doctor In The Courtroom?: Alabama Court Finds No Problem With Prosecution Expert Hearing Defense Experts' Testimony

Yesterday, I posted an entry about an expert defense witness not being allowed to testify concerning certain subjects pursuant to the "Rule on Witnesses" because he was exposed to the testimony of an expert witness for the prosecution before giving his own testimony. But isn't one main purpose of calling a defense expert (often) to have that expert rebut the testimony of the expert witness for the prosecution, meaning that we would want the defense expert to be exposed to the prosecution's expert's testimony before testifying (and vice versa)? This is of course true, which is why application of the "Rule on Witnesses" to expert witnesses (and, indeed, all witnesses) is discretionary as is made clear by the recent opinion of the Court of Criminal Appeals of Alabama in Thompson v. State, 2012 WL 520873 (Ala.Crim.App. 2012).

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You've Got Mail: Trial Judge Applies "Rule On Witnesses" To Circumscribe Defense Expert Testimony In Huguely Trial

You may have heard about the current prosecution of former University of Virginia lacrosse player George Huguely for the murder of fellow UVA lacrosse player Yeardley Love. It has been a case that brought the prosecutor to tears as he showed photographs of the victim's battered body to jurors during closing arguments. It has been a case in which prosecution and defense experts have clashed over whether the victim died from blunt force trauma to the head. And it has been a case in which the trial judge circumscribed the testimony of a key expert witness for the defense. In this post, I will address this last matter.

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Another State Of Mind: Supreme Court Of Arkansas Finds Statement Regarding Threat Admissible Under Rule 803(3)

Like its federal counterpart, Arkansas Rule of Evidence 803(3) provides an exception to the rule against hearsay for

A statement of the declarant's then existing state of mind, emotion, sensation, or physical condition, such as intent, plan, motive, design, mental feeling, pain, and bodily health, but not including a statement of memory or belief to prove the fact remembered or believed unless it relates to the execution, revocation, identification, or terms of declarant's will.  

So, does a declarant's statement that there were threats against her life admissible under Rule 803(3)? According to the recent opinion of the Supreme Court of Arkansas in Wedgeworth v. State, 2012 WL 503886 (Ark. 2012), the answer is "yes." I disagree.

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Violent Reaction: Supreme Court Of Arkansas Finds No Problem With Impeachment Of Defendant Charged With Murder

Similar to its federal counterpart, Arkansas Rule of Evidence 609(a) provides that

For the purpose of attacking the credibility of a witness, evidence that he has been convicted of a crime shall be admitted but only if the crime (1) was punishable by death or imprisonment in excess of one [1] year under the law under which he was convicted, and the court determines that the probative value of admitting this evidence outweighs its prejudicial effect to a party or a witness, or (2) involved dishonesty or false statement, regardless of the punishment.  

So, let's say that a defendant is charged with murdering his stepfather. If he is willing to stipulate that he is a prior felon, should the court allow the prosecutor to delve into the details of those prior convictions if they involved crimes of violence against other family members? According to the recent opinion of the Supreme Court of Arkansas in Ellis v. State, 2012 WL 503880 (Ark. 2012), the answer is yes.

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Chicken And Waffles And Opinions?: 9th Circuit Oddly Cites To Rule 701 In ASCAP Copyright Action Against Roscoe's Parent Company

Federal Rule of Evidence 701 provides that

If a witness is not testifying as an expert, testimony in the form of an opinion is limited to one that is:

(a) rationally based on the witness’s perception;

(b) helpful to clearly understanding the witness’s testimony or to determining a fact in issue; and

(c) not based on scientific, technical, or other specialized knowledge within the scope of Rule 702.

So, under Rule 701, can a lay witness identify certain songs that he heard in a restaurant? According to the recent opinion of the Ninth Circuit in Range Road Music, Inc. v. East Coast Foods, Inc., 2012 WL 502510 (9th Cir. 2012), the answer is "yes."

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Picture (Im)Perfect: Court Of Appeals Of Iowa Finds No Problem With Admission Of Photos Of Subsequent Remedial Measures

Similar to its federal counterpart, Iowa Rule of Evidence 5.407 provides that

When, after an event, measures are taken which, if taken previously, would have made the event less likely to occur, evidence of the subsequent measures is not admissible to prove negligence or culpable conduct in connection with the event. This rule does not require the exclusion of evidence of subsequent measures when offered in connection with a claim based on strict liability in tort or breach of warranty or for another purpose, such as proving ownership, control, or feasibility of precautionary measures, if controverted, or impeachment.

But what if evidence of a subsequent remedial measure is offered to prove the condition of the site of an accident? According to the recent opinion of the Court of Appeals of Iowa in Maiers v. Gansen, 2012 WL 469747 (Iowa App. 2012), such a use is proper. Based upon the facts of the case, I disagree.

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Impeachable Offenses: District Of Colorado Addresses Admissibility Of Several Convictions

Federal Rule of Evidence 609(a) provides that

The following rules apply to attacking a witness’s character for truthfulness by evidence of a criminal conviction:

(1) for a crime that, in the convicting jurisdiction, was punishable by death or by imprisonment for more than one year, the evidence:

(A) must be admitted, subject to Rule 403, in a civil case or in a criminal case in which the witness is not a defendant; and

(B) must be admitted in a criminal case in which the witness is a defendant, if the probative value of the evidence outweighs its prejudicial effect to that defendant; and

(2) for any crime regardless of the punishment, the evidence must be admitted if the court can readily determine that establishing the elements of the crime required proving — or the witness’s admitting — a dishonest act or false statement.

Meanwhile, according to Federal Rule of Evidence 609(b):

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.

In its recent opinion in Ulibarri v. City & County of Denver, 2012 WL 422605 (D.Colo. 2012), the United States District Court for the District of Colorado dealt with several convictions that were covered by either Rule 609(a) or Rule 609(b). So, did it get the analysis right?

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Just The Facts: EDNC Applies Rule 414 In Limited Fashion In Child Molestation Case

Federal Rule of Evidence 414(a) 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, when are prior acts of child molestation relevant, and when are they irrelevant? And, when is the probative value of such acts outweighed by the danger of unfair prejudice? These were the questions addressed by the United States District Court for the Eastern District of North Carolina in its recent opinion in United States v. Mason, 2012 WL 380325 (E.D.N.C. 2012).

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A Foolish Consistency, Take 2: 6th Circuit Finds Harmless With Admission Of Alleged Prior Consistent Statement

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

A statement that meets the following conditions is not hearsay:...

The declarant testifies and is subject to cross-examination about a prior statement, and the statement:...

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....

As I noted yesterday, the main precondition for admitting a prior consistent statement under Rule 801(d)(1)(B) is that the prior statement be made before the improper influence or motive arose. That wasn't the case in the Diallo case that I posed about yesterday, and it also wasn't the case in United States v. Sperl, 2012 WL 373313 (6th Cir. 2012). But in each case, the court found harmless error. As with other rules of evidence, these cases prompt me to ponder how likely it is that a court would reverse a conviction based upon a Rule 801(d)(1)(B) violation.

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A Foolish Consistency: 2nd Circuit Finds No Plain Error With Admission Of Prior Consistent Statement

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

A statement that meets the following conditions is not hearsay:...

The declarant testifies and is subject to cross-examination about a prior statement, and the statement:...

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....

Of course, the main precondition for admitting a prior consistent statement under Rule 801(d)(1)(B) is that the prior statement be made before the improper influence or motive arose. That wasn't the case in United States v. Diallo, 2012 WL 386421 (2nd Cir. 2012), so what did the Second Circuit do?

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It's My Space, That's Why They Call It MySpace, Take 7: Court Of Criminal Appeals Of Texas Upholds Authentication Ruling

Back in October 2010, I posted an entry about the Court of Special Appeals of Maryland finding in Griffin v. State, 2010 WL 2105801 (Md.App. 2010), that the prosecution properly authenticated a MySpace page as one belonging to the defendant's girlfriend pursuant to distinctive characteristics under Maryland Rule of Evidence 5-901(b)(4). Then, last May, I posted an entry about the opinion of the Court of Appeals of Maryland (the state's supreme court), in Griffin v. State, 2011 WL 1586683 (Md. 2011), in which the court reversed the Court of Special Appeals and found that distinctive characteristics were insufficient to authenticate the MySpace page. Recently, in Tienda v. State, 2012 WL 385381 (Tex.Crim.App. 2012), the Court of Criminal Appeals of Texas reviewed a ruling in which a court relied solely upon the opinion of the Court of Special Appeals of Maryand in Griffin to find that a MySpace page was properly authenticated. SO, how did the court rule?

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The Oh In Ohio: Court Of Appeals Of Ohio Finds Improper Admission Of Learned Treatise As Exhibit Was Harmless Error

Like its federal counterpart, Ohio Rule of Evidence 803(18) provides an exception to the rule against hearsay for 

Learned treatises. To the extent called to the attention of an expert witness upon cross-examination or relied upon by the expert witness in direct examination, statements contained in published treatises, periodicals, or pamphlets on a subject of history, medicine, or other science or art, established as a reliable authority by the testimony or admission of the witness or by other expert testimony or by judicial notice. If admitted, the statements may be read into evidence but may not be received as exhibits.

I'm inclined to believe that, as with a recorded recollection under Rule 803(5), an appellate court is unlikely to reverse based upon a trial court correctly allowing for the admission of a learned treatise but incorrectly allowing for admission of a learned treatise as an exhibit. And that inclination is born out in the recent opinion of the Court of Appeals of Ohio, Tenth District, in Bradley v. Ohio Dept. of Transp., 2012 WL 385636 (Ohio App. 10 Dist. 2012).

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