EvidenceProf Blog

Editor: Colin Miller
Univ. of South Carolina School of Law

Thursday, May 31, 2012

Unimpeachable: Supreme Court Of South Carolina Finds Trial Court Conducted Incorrect Felony Impeachment Analysis

Similar to its federal counterpartSouth Carolina Rule of Evidence 609(a)(1) provides that

For the purpose of attacking the credibility of a witness,

(1) evidence that a witness other than an accused has been convicted of a crime shall be admitted, subject to Rule 403, if the crime was punishable by death or imprisonment in excess of one year under the law under which the witness was convicted, and evidence that an accused has been convicted of such a crime shall be admitted if the court determines that the probative value of admitting this evidence outweighs its prejudicial effect to the accused....

And, like most federal courts, South Carolina courts apply a five factor test for determining whether evidence of prior convcitions is admissible under Rule 609(a)(1):

(1) the impeachment value of the prior crime; (2) the point in time of the conviction and the witness's subsequent history; (3) the similarity between the past crime and the charged crime; (4) the importance of the defendant's testimony; and (5) the centrality of the credibility issue.

In State v. Howard, 720 S.E.2d 511 (S.C. 2011), the Supreme Couth of South Carolina find that the trial court badly botched its analysis of the first factor, requiring a new trial. So, what happened?

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May 31, 2012 | Permalink | Comments (0) | TrackBack (0)

Wednesday, May 30, 2012

Kevin Costner, Kevin Reynolds, "Waterworld," "Hatfields & McCoys," & Communicated Character

With "Hatfields & McCoys," director Kevin Reynolds and star Kevin Costner have now teamed up for the most watched non-sports program in basic cable history as well as what was at the time the most expensive movie ever made: "Waterwold." Indeed, "Hatfields & McCoys" is the duo's fifth pairing, with the others besides "Waterwold" being the underrated "Fandango" (which no less than Quentin Tarrantino has called "one of the best directorial debuts in the history of cinema"), one of my two favorite Amazing Stories of the '80s (the other being Robert Zemeckis' "Go the Head of the Class"), and "Robin Hood: Prince of Thieves" (best remembered for Costner's attempt at a British accent, that Bryan Adams' song, and those POV arrow shots that really would have benefited from today's 3D). And while they're not on the level of, say, a Scorsese and De Niro, that's a pretty impressive body of work. Indeed, Reynolds' collaborations with Costner are his only real directorial efforts that have made an impact (he did co-wrote the screenplay for "Red Dawn," which we somehow were allowed to watch in elementary school in the 1980s). The only other thing that he's directed that even created a ripple was his 2002 adaptation of Alexandre Dumas' "The Count of Monte Cristo," which I only remember from its trailer with the awesome tag line, "Count on adventure. Count on intrigue."

But with "Hatfields & McCoys," Reynolds and Costner seem to have really struck a nerve and tapped into something that Americans really want to see (at least in the wake of May sweeps). And that shouldn't be surprising. The story of the Hatfields and the McCoys, and indeed, even just those names are still part of the national conversation and something that you might hear about at dinner tables across the nation as well as in our courts' judicial opinions.

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May 30, 2012 | Permalink | Comments (0) | TrackBack (0)

Tuesday, May 29, 2012

Rubber & Glue: Supreme Court of California FInds No Problem With Crossover Character Evidence Rule

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

(B) 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....

Somewhat similarly, California Evidence Code Section 1103(b) provides that

In a criminal action, evidence of the defendant's character for violence or trait of character for violence (in the form of an opinion, evidence of reputation, or evidence of specific instances of conduct) is not made inadmissible by Section 1101 if the evidence is offered by the prosecution to prove conduct of the defendant in conformity with the character or trait of character and is offered after evidence that the victim had a character for violence or a trait of character tending to show violence has been adduced by the defendant under paragraph (1) of subdivision (a).

In other words, the California rule, like the federal rules, allows for the prosecution to attack the character of the defendant after the defendant has attacked the character of the victim (although the California rule is limited the evidence of violent character). So, what's the basis for these rules, and how many states follow the federal rule? Let's take a look at the recent opinion of the Supreme Court of California in People v. Fuiava, 269 P.3d 568 (Cal. 2012).

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May 29, 2012 | Permalink | Comments (0) | TrackBack (0)

Monday, May 28, 2012

Plea Plea Me: Plea Allocution & Waiver Triggers Rule 410(a)(3) & 410(b)(1) In Arson Case

Federal Rule of Evidence 410(a)(3) 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:...

a statement made during a proceeding on either of those pleas under Federal Rule of Criminal Procedure 11 or a comparable state procedure....

Rule 410(a)(3) explains why incriminatory statements that Volkan Mergen made during a plea allocution ould have been inadmissible against him in United States v. Mergen, 2010 WL 395974 (E.D.N.Y. 2010), if he hadn't signed a waiver. That waiver explains why his statements were admissible against him. And Federal Rule of Evidence 410(b)(1) likely explains why the defendant could place his statements in context.

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May 28, 2012 | Permalink | Comments (0) | TrackBack (0)

Sunday, May 27, 2012

Juvenile Record: Court Of Appeals Of North Carolina Finds Error In Allowing Impeaching Of Defendant Through Juvenile Adjudication

Similar to its federal counterpartNorth Carolina Rule of Evidence 609(d) provides that

Evidence of juvenile adjudications is generally not admissible under this rule. The court may, however, in a criminal case allow evidence of a juvenile adjudication of a witness other than the accused if conviction of the offense would be admissible to attack the credibility of an adult and the court is satisfied that admission in evidence is necessary for a fair determination of the issue of guilt or innocence.

As the language of Rule 609(d) makes clear, juvenile adjudications are per se inadmissible to impeach the credibility of criminal defendants, which is why the Court of Appeals of North Carolina in State v. Lacy, 711 S.E.2d 207 (N.C.App. 2011), found that the trial court erred. But was that error reversible or harmless?

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May 27, 2012 | Permalink | Comments (0) | TrackBack (0)

Saturday, May 26, 2012

It's In My Report: 9th Circuit Finds Police Report Insufficient To Prove Conviction Fell Under Rule 609(a)(2)

Federal Rule of Evidence 609(a)(2) provides that

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

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.

Obviously, for certain crimes involving crimen falsi such as perjury, embezzlement, false pretenses, and larceny by trick, it is clear that the porsecution has to prove a dishonest act or false statement to secure a conviction, making such a conviction per se admissible to impeach under Rule 609(a)(2). But let's say that you have a crime such as larceny or robbery that can be accomplished through violent or deceptive means. If a party wants to use such a conviction to impeach a witness under Rule 609(a)(2), how does it go about establishing that the prosecution had to prove a dishonest act or false statement to secure the conviction. According to the opinion of the Ninth Circuit in United States v. David, 639 Fed.Appx. 639 (9th Cir. 2009), using a police report is not a proper method.

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May 26, 2012 | Permalink | Comments (0) | TrackBack (0)

Friday, May 25, 2012

Best Evidence?: 1st Circuit Asserts That Fairness Exception To Rule 1003 Only Applies In Cases Of Fraud/Manipulation

Federal Rule of Evidence 1003 provides that

A duplicate is admissible to the same extent as the original unless a genuine question is raised about the original’s authenticity or the circumstances make it unfair to admit the duplicate.

So, what circumstances make it unfair to admit the duplicate? According to the recent opinion of the First Circuit in Asociacion De Periodistas De Puerto Rico v. Mueller, 2012 WL 1699915 (1st Cir. 2012), the answer is "not many."

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May 25, 2012 | Permalink | Comments (0) | TrackBack (0)

Thursday, May 24, 2012

Deal Or No Deal?: 8th Circuit Prevents Defendant From Presenting Evidence That She Rejected A Plea Bargain

Pursuant to Federal Rule of Evidence 410(4),

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:...

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.

So, evidence of a statement made during plea discussions "is not admissible against the defendant who made the plea or participated in the plea discussions." But is evidence of such a statement admissible on behalf of the defendant who made the plea or participated in the plea discussions? According to most if not all courts, including the Eighth Circuit in its recent opinion in United States v. Alexander, 2012 WL 1660944 (8th Cir. 2012), I explain why opinions such as Alexander no longer make sense, assuming that they ever did.

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May 24, 2012 | Permalink | Comments (2) | TrackBack (0)

Wednesday, May 23, 2012

Can't Stop The Music, Take 3: Supreme Court Of California Rejects Challenge To Victim Impact Video With Flashbacks & Special Effects

Back in 2007, I posted an entry about the Supreme Court of California rejecting a Constitutional challenge to the admission of a 20-minute victim impact video with a montage of photographs of the victim's life that was accompanied by her mother's narration and Enya and Celine Dion music. In 2008, I followed up on that post with a second post concerning the United Supreme Court's refusal to grant cert in the case despite two strongly written dissents. Well, I just realized that last year, the California Supremes addressed a similar challenge to a similar victim impact video in People v. Garcia, P.3d 751 (Cal. 2011). So, was the result the same?

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May 23, 2012 | Permalink | Comments (2) | TrackBack (0)

Tuesday, May 22, 2012

Make Me Whole, Take 8: Court Of Appeals Of Minnesota Yet Again Badly Botches The Felony Impeachment Analysis

Like its federal counterpartMinnesota Rule of Evidence 609(a) provides that

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

I've written on seven previous occasions about how Minnesota courts continually bungle the Rule 609(a) analysis (herehereherehereherehere, and here), and the recent opinion of the Court of Appeals of Minnesota in State v. McNeal, 2012 WL 1658819 (Minn.App. 2012), is the latest entry into the state's hall of shame.

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May 22, 2012 | Permalink | Comments (0) | TrackBack (0)

Monday, May 21, 2012

Hawaii 5-0: Supreme Court Of Hawai'i Seemingly Errs in Deeming Police Report Admissible As Recorded Recollection

Like its Federal Rule of Evidence 803(5)Hawai'i Rule of Evidence 802.1(4) provides an exception to the rule against hearsay for 

A memorandum or record concerning a matter about which the 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.

In its recent opinion in State v. Keohokapu, 2012 1701368 (Hawai'i 2012), the Supreme Court of Hawai'i found all of the elements of the elements of this exception satisfied. I think that one was missing.

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May 21, 2012 | Permalink | Comments (0) | TrackBack (0)

Sunday, May 20, 2012

The Vermonster: Supreme Court Of Vermont Finds Exception To Confidential Marital Communications Privilege Applied In Assault Case

Like many states, Vermont has a privilege for confidential marital communications. Vermont's privilege is housed in Vermont Rule of Evidence 504(b), which provides that

Any person has a privilege to refuse to disclose and to prevent his spouse or any other person from disclosing any confidential statement, conversation, letter, or other confidential communication between such person and his spouse occurring while they were lawfully married, and to refuse to testify and prevent his spouse from testifying in any case as to any matter which in the opinion of the court would lead to a violation of marital confidence. This privilege exists whether or not the person and spouse are still lawfully married at the time at which the spouse's testimony is to be given.

And, like many states, Vermont has an exception to this privilege in cases in which a spouse is charged with a crime against the other spouse or the couple's children. As is made clear by the recent opinion of the Supreme Court of Vermont in State v. Kolibas, 2012 WL 1738979 (Vt. 2012), Vermont's exception is broader.

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May 20, 2012 | Permalink | Comments (2) | TrackBack (0)

Saturday, May 19, 2012

A Certain Cache: Court Of Appeals Of New York Finds Web "Cache" Evidence Insufficient To Uphold Child Pornography Convictions

A defendant is charged with two counts of promoting a sexual performance by a child and 134 counts of possessing a sexual performance by a child. Some of these charges are the result of the discovery of images of child pornography in the Web "cache" on the defendant's computer. Does the prosecution have to prove that the defendant had knowledge that when he viewed child pornography on his computer,the pornography was automatically stored in the cache to secure his conviction? According to the recent opinion of the Court of Appeals of New York in People v. Kent, 2012 WL 1580439 (N.Y. 2012), the answer is "yes."

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May 19, 2012 | Permalink | Comments (1) | TrackBack (0)

Thursday, May 17, 2012

Last Dance With Mary Jane: Will Evidence of THC In Trayvon Martin's Blood Be Admissible In George Zimmerman Trial?

According to several sources,

The medical examiner's report showed traces of THC - the active ingredient in marijuana - in [Trayvon] Martin's blood and a positive test for cannabinoids in his urine.

Of course, this begs the question of whether George Zimmerman will be able to present this drug evidence in support of his claim of self-defense in his impending second-degree murder trial. The admissibility of this drug evidence will depend on a variety of factors, but the opinion of the Court of Appeal, Fourth District, Division 3, California, in People v. Sanchez, 2010 WL 2842158 (Cal.App. 4 Dist. 2010), supports the proposition that the judge could exclude it.

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May 17, 2012 | Permalink | Comments (1) | TrackBack (0)

Deborah Tuerkheimer's Judging Sex & The En Banc Opinion That Reversed The Rape Shield Killing Ruling

Back in 2010, I posted an entry about the Sixth Circuit's opinion in Gagne v. Booker, 596 F.3d 335 (6th Cir. 2010), the (in)famous rape shield case in which the dissent accused the majority of "effectively abrogat[ing] every rape-shield statute in this circuit…." At the time, I thought that this statement was a bit hyperbolic but agreed with the dissenting judge that the opinion was a nasty piece of work, so I am glad to report that the Sixth Circuit overturned it in in en banc opinion issued yesterday: Gagne v. Booker. In this post, I will address the court's holding as well as a terrific forthcoming article, Judging Sex (forthcoming, Cornell Law Review), by Professor Deborah Tuerkheimer.

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May 17, 2012 | Permalink | Comments (2) | TrackBack (0)

Friday, May 11, 2012

Out of Town

I will be out of town for the next several days and will resume posting when I return next Wednesday.


May 11, 2012 | Permalink | Comments (0) | TrackBack (0)

North Carolina's Racial Justice Act, Social Framework Evidence, Ferris Bueller & Quantifying Criminal Law

On April 20th, Superior Court Judge Greg Weeks issued a landmark ruling. That ruling, the first issued after application of North Carolina's Racial Justice Act, found that race was a significant factor in the prosecution's use of peremptory strikes in the trial of Marcus Robinson, an African-American defendant. Accordingly, Judge Weeks vacated Robinson's death sentence and replaced it with a sentence of life imprisonment without the possibility of parole.

North Carolina's Racial Justice Act, enacted in 2009, is the second of its kind in this country, coming on the heels of Kentucky's Racial Justice Act, which took effect in 1998. "But [the] American Bar Association said in a report it was unclear exactly how often [Kentucky's Act] has been used except for during the 2003 trial of an African-American man accused of kidnapping and killing his ex-girlfriend, who was white." Indeed, all indications are that Kentucky's Racial Justice Act is little more than a dead letter.

Conversely, in North Carolina, Marcus Robinson's life was spared a mere 3 years after the passage of North Carolina's counterpart, and "[n]early all of North Carolina’s 157 death row inmates have filed claims under the act." So, what explains the difference? The answer is the different types of evidence admitted under the respective acts, and, in this post, I want to make two points about this distinction.

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May 11, 2012 | Permalink | Comments (0) | TrackBack (0)

Thursday, May 10, 2012

Forgive Me Father: Court Of Appeals Of Michigan Finds Cleric-Congregant Privilege Applied Despite Mother's Presence During Confession

A nine year-old victim is allegedly sexually assaulted by her 15 year-old cousin on two occasions. When the alleged victim is 11 year-old, she hears a church sermon on purity and tells her mother about the assaults. The alleged victim's mother and father later contact the police as well as the pastor of the Baptist Church that they attend. The pastor then contacts the mother of the defendant and asks her to bring him to the church as soon as possible for a meeting. The mother and the defendant, both parishioners at the church, meet with the pastor, with the defendant confessing to the assaults. Is this confession covered by Michigan's cleric-congregant privilege, or is it admissible because (a) the pastor initiated the conversation; and/or (b) the mother was present for the confession? Let's take a look at the recent opinion of the Court of Appeals of Michigan in People v. Bragg, 2012 WL 1605259 (Mich.App. 2012).

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May 10, 2012 | Permalink | Comments (0) | TrackBack (0)

Wednesday, May 9, 2012

Things To Do In Denver When You're Dead: Court Considers Appeal Of Woman Represented By Fake Attorney

According to an article in the Denver Post, "[e]ver since Gwen Bergman learned that the man who represented her during her murder-for-hire trial was a fake lawyer, she has been fighting to have her conviction tossed out." Specifically, "Bergman was convicted in May 2008 of trying to hire a hit man to kill her son's father." This conviction came after a bench trial where Bergman was represented by Howard O. Kieffer, whom Bergman and her family hired, not knowing he was an ex-con who never attended law school." 

After Bergman was convicted, "a Denver Post investigation uncovered Kieffer's true identity and notified Bergman that he was a fake." Accordingly, Bergman has asked that he conviction be thrown out, and "U.S. District Judge William J. Martinez this week held a two-day evidentiary hearing to decide whether Bergman's Sixth Amendment right to counsel was violated." According to the Denver Post article,

A mistrial would seem a likely outcome for a person who didn't have a real lawyer, but the government says Bergman had adequate representation during the trial because Kieffer hired a licensed attorney to help him with the case.

That attorney, "EJ Hurst II, testified this week that he wasn't competent to represent [Bergman]." He said he was acting only in a paralegal capacity and that he agreed to a low hourly wage to do research."

"Would you say you were competent to try a federal criminal case?" asked Bergman's attorney, Phil Cherner.

"I would not," Hurst said. "I only had a law-school course on federal rules of evidence."

"Did you provide effective assistance?" Cherner asked.

"I do not believe I provided competent counsel," Hurst said.

So, will Bergman win, or will the court "put a dagger in the hearts of the public that holds the trust in our courts," as Bergman's attorney put it?

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May 9, 2012 | Permalink | Comments (1) | TrackBack (0)

Tuesday, May 8, 2012

Jenny Carroll's The Resistance Defense, Alford Pleas & Conscientious Objection

Broken skyline, movin' through the airport
She's an honest defector
Conscientious objector
Now her own protector

Tom Petty, "Time To Move On"

A few weeks ago, I posted an entry, prompted by an episode of "The Good Wife," about the much maligned Alford plea. With an Alford plea, the defendant pleads guilty but maintains his innocence, and it is for this and other reasons that the plea is disfavored by prosecutors and the criminal justice system. In the post, I concluded that

Prosecutors are told to avoid Alford plea and a number of states ban them. But given the realities of the current American justice system, maybe we should embrace them. The public defender system is in a state of emergency, and it means that the bulk of defendants charged with crimes cannot present a reasonable defense....

Obviously, there are a plethora of reasons to be uncomfortable with the Alford plea, but there are also a plethora of reasons to be uncomfortable with the current state of criminal defense. And maybe a proliferation of Alford pleas will force us to confront that reality.

I see a recent post by Jenny Carroll on Concurring Opinions and her forthcoming article, "The Resistance Defense," as spiritual cousins to this claim regarding Alford pleas. In turn, I see that the resistance defense as the spiritual cousin to conscientious objection. 

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May 8, 2012 | Permalink | Comments (0) | TrackBack (0)