EvidenceProf Blog

Right Here, Right Now?: 3rd Circuit Finds Unidentified Declarants Can't Give Admissible Excited Utterances

Federal 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 that it caused.

And, like all Rule 803 hearsay exceptions, this excited utterance exception applies "regardless of whether the declarant is available as a witness...." But what if the declarant is unidentified? Well, then we have a problem, according to the recent opinion of the Third Circuit in Canton v. Kmart Corp., 2012 WL 1035527 (3rd Cir. 2012).

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The Color Purple, The Rule Against Hearsay, And Workplace Discrimination

Sticking with the Spielberg/movie theme from the last few days, today's post deals with the recent opinion of the United States District Court for the District of Kansas in Hudson v. AIH Receivable Management Services, 2012 WL 830515 (D. Kan. 2012). In Hudson, Linda Hudson brought an action against AIH, asserting claims sounding in, inter alia, race discrimination, harassment, hostile work environment and retaliation in connection with her termination from her job. In support of her claims, the

Plaintiff testified that, within a couple of days after he started at AIH, [a co-employee] quoted lines from The Color Purple every few days, like "I may be black, I may be poor, I may be ugly, but dear God, I'm here." Plaintiff was offended by [the co-employee]'s frequent quoting of lines from The Color Purple because she felt that he was making fun of the terrible plight of the characters in the movie.

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George Lucas, Mike Judge, And The Best Evidence Rule

After my post yesterday about Steven Spielberg, I thought that I would follow up with a post about George Lucas. If you've taught the Best Evidence Rule, you're likely aware of Seiler v. Lucasfilm, Ltd., 808 F.2d 1316 (9th Cir. 1986). This is the classic case in which 

Lee Seiler, a graphic artist and creator of science fiction creatures, alleged copyright infringement by George Lucas and others who created and produced the science fiction movie "The Empire Strikes Back." Seiler claimed that creatures known as "Imperial Walkers" which appeared in The Empire Strikes Back infringed Seiler's copyright on his own creatures called "Garthian Striders." The Empire Strikes Back appeared in 1980; Seiler did not obtain his copyright until 1981.

At trial, Seiler could not produce his original drawings of his creatures and instead sought to prove his case through "reconstructions" he created for trial.  Seiler alleged that the Best Evidence Rule did not apply to his drawings because they did not consist of letters, words, or numbers, meaning that they were not "writings" as defined in Federal Rule of Evidence 1001(1). Rule 1001(1), however, defines a "writing" as "letters, words, numbers, or their equivalent set down in any form," and the Ninth Circuit found that Seiler's  drawings "'consist[ed] not of letters, words, or numbers’ but of ‘their equivalents.'"  It found that the drawings were "equivalents" because "[j]ust as a contract objectively manifests the subjective intent of the makers, so Seiler's drawings are objective manifestations of the creative mind." So, are there any cases similar to Seiler? Well, you can ask Mike Judge.

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Steven Spielberg, The Norman Rockwell Painting That Got Away, And Federal Rule Of Evidence 803(8)

According to Steven Spielberg and the Norman Rockwell painting that got away, in 1973, the Normal Rockwell painting, Russian Schoolroom

was stolen from an art gallery in Missouri in 1973. Then,

Cut to 1988, where an auctioneer in New Orleans slams the gavel, and the same painting is sold to a New York art dealer for about $70,000. She shows the painting publicly, advertises it, and by the following year it's hanging on Spielberg's wall.

Next big scene: in February 2007, an assistant to the film director sits at a computer and notices that "Russian Schoolroom" is listed on an FBI website of stolen art works. Spielberg immediately contacts the feds; they thank him for being a good citizen and tell him to hold the painting for safekeeping until they can figure out whom it belongs to.

Soon, Spielberg and the FBI are being sued in U.S. District Court in Las Vegas by Nevada resident Jack Solomon, who had loaned the painting to the Missouri gallery whence "Russian Schoolroom" was stolen. Solomon, a lithographer and art dealer who worked with Rockwell to produce prints of the artist's work, claims the painting still belongs to him, and he wants it back.

So, what happened in that case and what was one of the evidentiary arguments on appeal? Let's take a look at the recent opinion of the Ninth Circuit in Solomon v. Spielberg, 2012 WL 1008667 (9th Cir. 2012).

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It's Not About The Money: Court Of Criminal Appeals Finds Dementia Rendered Statement Not Against Interest

Similar to its federal counterpart, Tennessee Rule of Evidence 804(b)(3) provides an exception to the rule against hearsay 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 the declarant to civil or criminal liability or to render invalid a claim by the declarant against another, that a reasonable person in the declarant's position would not have made the statement unless believing it to be true.

Whenever I initially explain Rule 804(b)(3) to students, the example I give of a statement that is against a declarant's pecuniary interest is a statement by a declarant that he gave or owed money to a defendant charged with stealing that money. The recent opinion of the Court of Criminal Appeals of Tennessee in State v. Cooper, 2012 WL 950103 (Tenn.Crim.App. 2012), contains that exact fact pattern, but with a twist.

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10 Years Have Got Behind You: Supreme Court Of Georgia Discusses Different Tests For Remote Conviction Impeachment

Similar to its federal counterpart, OCGA § 24–9–84.1(b) provides that

Evidence of a conviction under subsection (a) of this Code section 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 or the defendant from the confinement imposed for that conviction, whichever is the later date, unless the court determines, in the interest 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 ten years old, as calculated in this subsection, 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.

So, it is very difficult for a party to impeach a witness through evidence of a conviction "if a period of more than ten years has elapsed since the date of the conviction or of the release of the witness or the defendant from the confinement imposed for that conviction, whichever is the later date..." The front end of OCGA § 24–9–84.1(b) is thus easy to calculate. If Witness was convicted on 3/26/2010 and released from incarceration on 3/26/2012, the starting date for OCGA § 24–9–84.1(b) would be 3/26/2012 because the date of release would be the later of the two dates. And if Witness was subjected to pre-trial detention from 8/26/2010 through 2/26/2010 and then convicted on 3/26/2010 and sentenced to time served, the starting date for OCGA § 24–9–84.1(b) would be 3/26/2010 because the date of conviction would be the later of the two dates. But what about the back end? For OCGA § 24–9–84.1(b) or federal counterpart to apply, more than ten years need to elapse beteen the starting date of conviction and...what end date? That was the question of first impression taken up by the Supreme Court of Georgia in its recent opinion in Clay v. State, 2012 WL 933080 (Ga. 2012)

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Keeping The Faith: 4th Circuit Finds Questions About Buddhist Meditation Ritual Didn't Violate Rule 610

Federal Rule of Evidence 610 provides that

Evidence of a witness’s religious beliefs or opinions is not admissible to attack or support the witness’s credibility.

So let's say that the prosecution seeks to cross-examine a defense expert witness by, inter alia, asking him about his participation in a "dark retreat," a Buddhist meditation ritual. Would such questioning run afoul of Rule 610? According to the recent opinion of the Fourth Circuit in United States v. Argueta, 2012 WL 941533 (4th Cir. 2012), the answer is "no."

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Without Prejudice?: 6th Circuit Deems Rape Shield Evidence Minimally Prejudicial To Victim, Reverses Conviction

The district court excluded the 2007 acts because those encounters occurred at a different place than the indicted offenses. Although there is certainly a difference between private sexual acts and those that take place in public, that does not eliminate, or even substantially reduce, the probative value of such acts in this case. This is especially true given Anderson's claim that his encounters with S.M. took place in atypical locations, such as the Medicine Lodge and a garage, in order to keep the activity hidden from her husband. Further, the prejudicial impact of this testimony was minimal, and any prejudice to S.M. was substantially outweighed by the probative value of this evidence to Anderson's defense of consent. Accordingly, we find that the district court abused its discretion in excluding this evidence. United States v. Anderson, 2012 WL 913709 (6th Cir. 2012) (emphasis added).

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Death Of The Furby: Supreme Court Of Kentucky Reverses Murder Conviction Based On Furby Shooting Evidence

According to Wikipedia,

A Furby (plural Furbys or Furbies) was a popular electronic robotic toy resembling a hamster/owl-like creature which went through a period of being a "must-have" toy following its launch in the holiday season of 1998, with continual sales until 2000. Furbies sold 1.8 million units in 1998, 14 million units in 1999, and altogether in its three years of original production, Furbies sold over 40 million units. Its speaking capabilities were translated into 24 languages.

Furbies were the first successful attempt to produce and sell a domestically-aimed robot. A newly purchased Furby starts out speaking entirely Furbish, the unique language that all Furbies use, but is programmed to start using English words and phrases in place of Furbish over time. This process is intended to resemble the process of learning English. In 2005, new Furbies were released, with voice-recognition and more complex facial movements, and many other changes and improvements. The Emoto-Tronic Furbies (Furby, Furby Baby, and Funky Furby) continued to be sold until late 2007, when these toys became extremely rare.

The year is 2001. Like many people back in the halcyon days of the Furby, Richard Gabbard became annoyed by the noises coming from one of the toys. Unlike most people, Gabbard decided to shoot at a Furby with his pistol, striking it between the eyes. About four and a half years later, Gabbard shot and killed his girlfriend and was later convicted of wanton murder. Part of the evidence against him consisted of testimony concerning the Furby shooting. Was this evidence properly admitted? According to the recent opinion of the Supreme Court of Kentucky in Gabbard v. Commonwealth, the answer is "no."

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March Madness: Court Of Appeals Of Texas Implies Insanity Defense Triggers Rule 405(b)

Similar to its federal counterpart, Texas Rule of Evidence 405 provides that

(a) Reputation or Opinion. In all cases in which evidence of a person's character or character trait is admissible, proof may be made by testimony as to reputation or by testimony in the form of an opinion. In a criminal case, to be qualified to testify at the guilt stage of trial concerning the character or character trait of an accused, a witness must have been familiar with the reputation, or with the underlying facts or information upon which the opinion is based, prior to the day of the offense. In all cases where testimony is admitted under this rule, on cross-examination inquiry is allowable into relevant specific instances of conduct.

(b) Specific Instances of Conduct. In cases in which a person's character or character trait is an essential element of a charge, claim or defense, proof may also be made of specific instances of that person's conduct.

So, in which cases is a person's character trait an essential element of a charge, claim, or defense, allowing for the admission of specific instances of conduct? The classic ones are negligent hiring/supervision, defamation, and entrapment. But what about insanity cases? Let's take a look at the recent opinion of the Court of Appeals of Texas, Dallas, in Beckett v. State, 2012 WL 955358 (Tex.App.-Dallas 2012).

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A Matter Of Conviction: District Of Montana Only Allows For Impeachment Through Fact Of Conviction

Federal Rule of Evidence 609(a)(1) 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....

A conviction's probative value under Rule 609(a)(1) depends on how much bearing it has on the witness' honesty while a conviction's prejudicial effect depends on how much the jury will use the conviction to conclude, "Once a criminal, always a criminal." What this means is that courts will often allow for the admission of evidence that a criminal has a prior conviction without allowing evidence of the nature of that prior conviction as was the case in United States v Durbin, 2012 WL 894410 (D.Mont. 2012).

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I'm Not An Expert: 11th Circuit Points Out District Court's Ignorance Of 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 I have noted before, however, Rule 706(a) is rarely used, and courts are generally under no obligation to appoint experts. And indeed, the recent opinion of the Eleventh Circuit in Robinson v United States, 2012 WL 851623 (11th Cir. 2012), makes clear, some judges aren't even aware of the Rule.

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Cherry Picking: Court Of Appeals Of Minnesota Finds Harmless Error Despite Rule 704 Violation

Minnesota Rule of Evidence 704 provides that

Testimony in the form of an opinion or inference otherwise admissible is not objectionable because it embraces an ultimate issue to be decided by the trier of fact.

That said, under Rule of Evidence 704, witnesses cannot testify regarding ultimate legal conclusions and/or the state of mind of a criminal defendant. But did the witnesses in State v. Hall, 2012 WL 896271 (Minn.App. 2012), cross the line?

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Spring Break

I will be traveling for the next week or so and won't have any new entries during that time.

Lack Of Immediacy: Court Of Appeals Of North Carolina Finds Statements Were Excited Utterances & Present Sense Impressions

Like their federal counterparts, North Carolina Rules of Evidence 803(1) and (2) provide exceptions 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.

and

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.

Often both of these exceptions apply in the same case as was the case with the recent opinion of the Court of Appeals of North Carolina in State v. Moore, 2012 WL 698593 (N.C.App. 2012). Or was it?

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Death Valley: Court Of Appeals Of South Carolina Finds Statement About Will Inadmissible Under State Of Mind Exception

Similar to its federal counterpart, South Carolina 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.

In Estate of Gill ex rel. Grant v. Clemson University Foundation, 2012 WL 720378 (S.C.App. 2012), the Court of Appeals of South Carolina found that a special referee did not err in excluding testimony about a statement made by the drafter  of a will because the statement came one year after the will was executed. But does this decision make sense given the language of Rule 803(3)?

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Going Retro: Appellate Court Of Illinois Finds Illinois Rules Of Evidence Apply Retroactively

Similar to its federal counterpart, Illinois Rule of Evidence 409 provides that

In addition to the provisions of section 8–1901 of the Code of Civil Procedure (735 ILCS 5/8–1901), evidence of furnishing or offering or promising to pay medical, hospital, or similar expenses occasioned by an injury is not admissible to prove liability for the injury.

But unlike its federal counterpart, Illinois Rule of Evidence 409 only took effect on January 1, 2011. But does it apply retroactively? That was the question addressed by the recent opinion of the Appellate Court of Illinois, Fourth District, in its recent opinion in Lambert v. Coonrod, 2012 WL 697855 (Ill.App. 4 Dist. 2012).

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Copping A Plea: District Of Puerto Rico Finds Prosecutorial Compliance W/Witness Request Didn't Breach Plea Deal

The vast majority of criminal cases in this country are now resolved via plea agreement rather than through a criminal trial. In the typical plea bargaining scenario, the defendant agrees to plead guilty to a certain crime or crimes in exchange for the prosecutor recommending that the judge impose a certain sentence. But to what extent is the prosecutor bound to defend the plea agreement and the recommended sentence in the face of skepticism from the trial judge? That was the question addressed by the recent opinion of the United States District Court for the District of Puerto Rico in its recent opinion in United States v. Sevilla-Oyola, 2012 WL 642467 (D.Puerto Rico 2012).

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What Were You Thinking DNJ Finds Statement By Minor Victim Wasn't Admissible Under State Of Mind Exception

Federal 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 (such as motive, intent, or plan) or emotional, sensory, or physical condition (such as mental feeling, pain, or bodily health), but not including a statement of memory or belief to prove the fact remembered or believed unless it relates to the validity or terms of the declarant’s will.

As Rule 803(3) makes clear, this state of mind exception only covers statements indicating the declarant's then-existing state of mind, not statements that reflect the declarant's state of mind at a prior time. This was also made clear in the recent opinion of the United States District Court for the District of New Jersey in Mayfield v. United States, 2012 WL 664806 (D.N.J. 2012).

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Going Unnoticed: District Of Colorado Finds Exhibit List Is Insufficient Notice Under Rule 609(b)

Federal Rule of Evidence 609(b) states that

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.

So, what exactly constitutes reasonable written notice under Rule 609(b)(2)? That was a question referenced by the recent opinion of the United States District Court for the District of Colorado in its recent opinion in Doyle v. Denver Dept. of Human Services, 2012 WL 652673 (D.Colo. 2012).

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