EvidenceProf Blog

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

Tuesday, July 31, 2012

Unlawful Entry: 8th Circuit Finds 2 References To Defendant Being Illegal Alien Don't Require Reversal

In United States v. Sanchez-Garcia, 2012 WL 2913255 (8th Cir. 2012), no less than two witnesses for the prosecution improperly made reference to the fact that the defendant was an illegal alien. So, why didn't the Eighth Circuit reverse his conviction?

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

Monday, July 30, 2012

Rule 609(b): Probation Edition: Middle District Of Florida Implies Probation Is "Confinement"

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 constitutes "confinement" for Rule 609(b)? This was an issue that the United States District Court for the Middle District of Florida did not need to address in its recent opinion in United States v. Sararo, 2012 WL 3041182 (M.D.Fla. 2012). But that didn't stop the court from implying that a period of probation constituted "confinement" for Rule 609(b) purposes.

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

Sunday, July 29, 2012

Picture Perfect: Court Of Appeals Of South Carolina Finds Disk Created From Motion-Activated Camera Satisfied Best Evidence Rule

Similar to its federal counterpartSouth Carolina Rule of Evidence 1002 provides that

To prove the content of a writing, recording, or photograph, the original writing, recording, or photograph is required, except as otherwise provided in these rules or by statute.

And, similar to its federal counterpartSouth Carolina Rule of Evidence 1001(3) provides that

An "original" of a writing or recording is the writing or recording itself or any counterpart intended to have the same effect by a person executing or issuing it. An "original" of a photograph includes the negative or any print therefrom. If data are stored in a computer or similar device, any printout or other output readable by sight, shown to reflect the data accurately, is an "original".

So, let's say that the victim places a motion-activated camera on his refrigerator, the camera takes photographs that allegedly depict the defendant/burglar, the victim uploads these photographs to his computer and the downloads them onto a disk. If the prosecution presents this disk at trial, has it satisfied South Carolina Rule of Evidence 1002, the Best Evidence Rule? According to the recent opinion of the Court of Appeals of South Carolina in State v. Mitchell, 3025099 (S.C.App. 2012), the answer is "yes."

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

Saturday, July 28, 2012

Eyeball Reliance?: Second Circuit Finds That Rule 406 Applied In Misleading Statements Appeal

Federal Rule of Evidence 406 provides that

Evidence of a person’s habit or an organization’s routine practice may be admitted to prove that on a particular occasion the person or organization acted in accordance with the habit or routine practice. The court may admit this evidence regardless of whether it is corroborated or whether there was an eyewitness.

This "habit" rule is often used to prove a "matter of practice," as was the case with the recent opinion of the Second Circuit in Gould v. Winstar Communications, Inc., 2012 WL 2924254 (2nd Cir. 2012).

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

Friday, July 27, 2012

William Friedkin, "Killer Joe," "The Exorcist," "The Possessed Razor," "Beyond The Door" & Valuing A Stolen Movie

Today marks the release of William Friedkin's "Killer Joe," his first theatrical effort since 2006's creepy "Bug." Friedkin has had his share of terrific films, including "The French Connection," "To Live and Die in L.A.," and "Sorcerer." But, of course, Friedkin's signature film and the one he's most known for is 1973's "The Exorcist." Unsurprisingly, that film is also the Friedkin film that is cited most often by courts. Also unsurprisingly, most court references to "The Exorcist" cite to the appearance and behavior of the Linda Blair character in the film:

-Gillette Co. v. Norelco Consumer Products Co., 69 F.Supp.2d 246, 249 (D.Mass. 1999) ("The commercial called 'The Possessed Razor' features what appears to be the same animated wet razor as in the 'Fire Breathing Razor' commercial. This time, however, the razor corrodes and twists its 'neck and head,'apparently in an effort to evoke recollection of a scene from the motion picture The Exorcist.");

-People v. Vargas, 2012 WL 1107712 (Cal.App. 2 Dist. 2012) ("According to Vargas, he was diagnosed as suffering from paranoid schizophrenia. When Thompson fails to take her medication, she acts 'like something out of 'The Exorcist.'");

-Sophia S. v. Superior Court, 2011 WL 184549 (Cal.App. 2 Dist. 2011) ("The court noted that it had become concerned when A.A. suffered bruises and the caretakers provided several different explanations about how this occurred. After that, when the children appeared in court, the girls looked like the girl in The Exorcist, exhibiting zombie-like behavior."); and

-People v. Scott, 121 P.2d 366, 370 n.2 (Colo.O.P.D.J. 2005) ("Respondent's described his own voice as sounding like a character from 'The Exorcist.'").

And then, there are the cases involving the movie itself. One of these, Warner Bros. Inc. v. Film Ventures Intern., 403 F.Supp. 522 (C.D. Cal. 1975), saw the producers of "The Exorcist" suing the producers of "Beyond the Door" for copyright infringement. The court found no such infringement but did grant a preliminary injunction because of two problems with the following poster:

1. "It showed a partially opened door with light coming through into a dark room, just like a poster for "The Exorcist;" and

2. "The use of the letter "T" in the poster is intentionally designed to resemble a crucifix, which "created a suggestion that 'Beyond' is a sequel to 'The Exorcist' and possibly that it was produced by the same craftsmen who skillfully produced 'The Exorcist', and that it might be a film of the superior quality of ‘The Exorcist’, which it is not." (emphasis added).

And then there's United States v. Atherton, 561 F.2d 747 (9th Cir. 1977).

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

Thursday, July 26, 2012

Return To Sender: Court Of Appeals Of Virginia Finds E-Mail Inadmissible Under State Of Mind Exception

[Update: 9/13/12: As shown by this Replacement Opening Brief of Appellant [Download Replacement Opening Brief], there is a colorable claim that the e-mail was not admitted to prove the truth of the matter asserted, which would make it non-hearsay.]

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.

Virginia doesn't yet (but will soon have) codified rules of evidence, but its courts do recognize the same state of mind exception to the rule against hearsay. See, e.g., Andrews v. Creacy, 696 S.E.2d 218, 227-28 (Va.App. 2010). What this also means is that, as with Federal Rule of Evidence 803(3), Virginia's state of mind exception doesn't cover statements of memory or belief. And that was precisely the problem for the appellee in Tucker v. Clarke, 2012 Wl 2886713 (Va.App. 2012).

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

Wednesday, July 25, 2012

iTrial: Tria Judge Grants Apple's Motion For Adverse Inference Instruction Based On Samsung's Auto-Deletion Of E-Mails

A huge trial looms between tech giants Samsung and Apple. Apple "believes Samsung owes “substantial monetary damages” in the region of $2.5 billion for illegally copying Apple products such as the iPhone and iPad." In turn, Samsung claims that "Apple could not have become a successful participant in the mobile telecommunications industry" without the use of Samsung’s patented technology and that the iPhone maker was trying "to stifle legitimate competition and limit consumer choice to maintain its historically exorbitant profits." 

So,who will win? I don't know, but the judge's pretrial order grating Apple's motion for an adverse inference instruction based upon spoliation of evidence can't hurt the company that Steve Jobs built. So, what was the basis for the judge's ruling?

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July 25, 2012 | Permalink | Comments (1) | TrackBack (0)

Tuesday, July 24, 2012

This IS A Recording: Court Of Appeals Of Utah Bypasses Rule 803(5) Issue By Finding Harmless Error

Similar to its federal counterpartUtah Rule of Evidence 803(5) provides an exception to the rule against hearsay for

A record that:

(A)   is on a matter the witness once knew about but now cannot recall well enough to testify fully and accurately;

(B)   was made or adopted by the witness when the matter was fresh in the witness’s memory; and

(C)   accurately reflects the witness’s knowledge.

If admitted, the record may be read into evidence but may be received as an exhibit only if offered by an adverse party.

In In re J.H., 2012 WL 2924061 (Utah App. 2012), the juvenile court almost certainly erred by allowing for the admission of a journal into evidence in violation of Rule 803(5). So, why didn't the Court of Appeals of Utah acknowledge this mistake?

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July 24, 2012 | Permalink | Comments (0) | TrackBack (0)

Monday, July 23, 2012

Under The Shield: Should The Rape Shield Rule Apply At Sentencing Hearings?

Federal Rule of Evidence 412(a), the Rape Shield Rule, provides that

The following evidence is not admissible in a civil or criminal proceeding involving alleged sexual misconduct:

(1) evidence offered to prove that a victim engaged in other sexual behavior; or

(2) evidence offered to prove a victim’s sexual predisposition.

At the same time, it is well established that the Federal Rules of Evidence do not apply at a sentencing hearing. See Federal Rule of Evidence 1101(d). So, let's say that a defendant is convicted of (1) persuading a minor to engage in sexually explicit activity for the purpose of producing a visual depiction, (2) use of a means of interstate commerce to persuade a minor to perform sexual acts, (3) receipt of child pornography, and (4) possession of child pornography. And, let's say that the defendant thereafter seeks to present evidence of the victim's other sexual behavior or predisposition at his sentencing hearing. Because the Federal Rules of Evidence do not apply at a sentencing hearing, does that mean that the Rape Shield Rule does not apply? Let's take a look at the recent opinion of the Sixth Circuit in United States v. Ogden, 2012 WL 2895261 (6th Cir. 2012).

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

Sunday, July 22, 2012

And, Cousin, I'm A Union Man: Supreme Court Of Alaska Recognizes A Union-Relations Privilege

In Peterson v. State, 2012 WL 2947636 (Alaska 2012), 

Russell Peterson, Jr. began working for the Alaska Department of Labor in 2007. He became a member of the Alaska State Employees Association (ASEA) union. In 2009 he requested service time credit for a previous period of employment with the State; while investigating his request the State discovered Peterson's 2007 job application did not disclose a previous felony. The State subsequently terminated Peterson's employment.

Peterson filed a grievance under ASEA's collective bargaining agreement (CBA) with the State. The CBA states only the union, and not private counsel, may represent an employee in the grievance process. A non-lawyer ASEA representative handled Peterson's grievance. The ASEA representative communicated with Peterson's attorney, Douglas Mertz, regarding strategy. ASEA and the State were unable to resolve Peterson's grievance and ASEA decided not to pursue arbitration. Peterson then filed suit in superior court for wrongful termination.

The State subpoenaed the ASEA representative to appear for a deposition with the union grievance file pertaining to Peterson, including all written communication between ASEA and Mertz. Peterson sought a protective order on privilege grounds. The superior court denied the motion, holding that any attorney-client privilege covering Mertz's letters was waived by giving the letters to the union and that there was no basis for recognizing a new union-relations privilege.

The Supreme Court of Alaska reversed and decided to recognize a new union-relations privilege.

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

Saturday, July 21, 2012

No Lie, Take 2: Supreme Court Of Vermont Declares Polygraph Evidence Per Se Inadmissible Under Rule 403

Previously, I have noted that polygraph test results are inadmissible in every United States jurisdiction except New Mexico barring a prior stipulation by both parties. It turns out, though, that Vermont courts had never addressed the issue until the recent opinion of the Supreme Court of Vermont in Rathe Salvage, Inc. v. R. Brown & Sons, Inc., 2012 WL 975429 (Vt. 2012). So, how did the court rule?

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

Friday, July 20, 2012

The Dark Knight Rises, Again: D.C. Circuit Case Involves Drunk Man Dressed As Batman & Alleged Employee Admissions

Da Da Da Da DA DA BATMAN! As with a large swath of the country, I've been hooked on Batman since an early age. It started with watching the campy Adam West series from the 1960s in syndication as a kid. My brother and I were the Dynamic Duo of Batman and Robin (in Underoos) for Halloween. Then, it was all about Tim Burton's "Batman" movie, which (as was the case in many households), was the first movie that we bought on VHS. Soon thereafter, I got the Batman video game, which was in constant rotation on my NES. Many people found "Batman Returns" too dark, but I thought that it was better than the original, with Michelle Pfeiffer being the perfect Catwoman, Danny DeVito being suitably creepy as the Penguin, and Christopher Walken doing his best Christopher Walken. But then, Joel Schumaker deep sixed the franchise with the silly "Batman Forever" and the deplorable "Batman & Robin."

Eight years later, Christophen Nolan (the genius director behind movies such as "Memento" and "Inception") would resuscitate the Caped Crusader with the terrific "Batman Begins" and then follow it up with the Heat-ish "The Dark Knight" (which I saw them filming on my way to work for a while). Now, Nolan has completed his Batman trilogy with "The Dark Knight Rises," with many speculating that the villain of Bane will have an effect on the Presidential election. If that's the case, it wouldn't be the first time that the Batman will have an effect on a governmental institution. Instead, the Caped Crusader has long been a part of our nation's judicial system as was the case in Belton v. Washington Metropolitan Area Transit Authority, 20 F.3d 1197 (D.C. Cir. 1994).

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July 20, 2012 | Permalink | Comments (0) | TrackBack (0)

Thursday, July 19, 2012

Who Are You?: Court Of Criminal Appeals Of Tennessee Find's Juror's Knowledge Of Defendant Doesn't Require New Trial

A defendant, who had previously been convicted of a felony drug offense, is charged with being a felon in possession of a firearm. During voir dire a prospective juror states that he did not know the defendant and is selected from the venire. After the defendant is convicted, the defendant moves for a new trial and calls the juror, who testifies that he in fact knew that the defendant "had spent a good deal of time in the penitentiary" but didn't recognize the defendant until after he was selected as a juror. Should the court find that the defendant is entitled to a new trial.

The defendant, who had previously been convicted of a felony drug offense, was convicted as a felon in possession of a firearm after a jury trial and sentenced to six years in prison. According to the Court of Criminal Appeals of Tennessee in State v. Taylor, 2012 WL 2308088 (Tenn.Crim.App. 2012), the answer is "no."

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July 19, 2012 | Permalink | Comments (0) | TrackBack (0)

Wednesday, July 18, 2012

Hold On Luce-ly: Court Of Appeals Of Georgia Finds Luce Applies To 10+ Year Old Convictions

In its opinion in Luce v. United States, 469 U.S. 38 (1984), the Supreme Court held that if a trial court determines that the prosecution will be able to impeach a defendant through his prior convictions under Federal Rule of Evidence 609(a) in the event that he testifies at trial, the defendant only preserves that issue for appeal if he testifies at trial. So, does the same reasoning apply under Federal Rule of Evidence 609(b) and state counterparts? According to the recent opinion of the Court of Appeals of Georgia in Warbington v. State, 2012 WL 2580798 (Ga.App. 2012), the answer is "yes."

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July 18, 2012 | Permalink | Comments (0) | TrackBack (0)

Tuesday, July 17, 2012

Encyclopedia Brown And The Case Of The Third-Party Attorney-Client Privilege

When I was preparing my post about Ridley Scott last month, I was reminded that the filmmaker was once slated to direct an Encyclopedia Brown movie. Maybe the financial failure of the "Nancy Drew" movie scared him off or maybe be was frightened by the fact that the HBO series about the boy detective was cancelled after only 8 episodes. Indeed, the HBO series led to a lawsuit, with Encyclopedia Brown Productions president and controlling shareholder Howard David Deutsch being "dissatisfied with HBO's effort to publicize the episodes." Encyclopedia Brown Productions v. Home Box Office, Inc., 1998 WL 734355 (S.D.N.Y. 1988). Personally, I think that Deutsch had a pretty good argument. That series aired in 1989, when I was thirteen and a huge Encyclopedia Brown fan. My brother and I used to read the books regularly (my personal favorite was Encyclopedia Brown and the Case of the Buried Treasure) as did many other kids in our neighborhood. We had HBO at the time, and I don't remember hearing a word about the series. And now, from the looks of it, we won't hear another word about the proposed Ridley Scott film. Apparently, it is in development hell along with the planned Hardy Brothers movie with Ben Stiller and Tom Cruise.

Yesterday, the world learned of the death of Encyclopedia Brown author Donald J. Sobol. With his passing, I thought that I would discuss an interesting case involving Sobol, Encyclopedia Brown, and attorney-client privilege. 

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July 17, 2012 | Permalink | Comments (0) | TrackBack (0)

Monday, July 16, 2012

Uninsured: Supreme Court Of Iowa Finds State Of Mind Exception Doesn't Apply To Statements Of Memory Concerning Life Insurance Change

Like its federal counterpartIowa Rule of Evidence 5.803(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, this "state of mind" hearsay exception only applies to a statement of memory or belief if it "relates to the execution, revocation, identification, or terms of declarant’s will." But what about a statement related to the designation of a beneficiary of a life insurance policy? That was the question addressed by the Supreme Court of Iowa in its recent opinion in Pitts v. Farm Bureau Life Ins. Co., 2012 WL 2604622 (Iowa 2012).

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July 16, 2012 | Permalink | Comments (0) | TrackBack (0)

Sunday, July 15, 2012

Avoiding A Confrontation, Take 2: Court Of Appeals Of Washington Finds Nontestimonial Hearsay Doesn't Trigger Bruton

Following up on yesterday's post, the recent opinion of the Court of Appeals of Washington, Division 1, in State v. Brown, 2012 WL 1255168 (Wash.App. Div.1 2012), gives us yet another example of a court erroneously concluding that nontestimonial hearsay is beyond the scope of the Bruton doctrine.

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July 15, 2012 | Permalink | Comments (0) | TrackBack (0)

Saturday, July 14, 2012

Avoiding A Confrontation: 6th Circuit Becomes Latest Court To Find Nontestimonial Hearsay Beyond Bruton's Scope

Our conclusion that the contested statements were nontestimonial under Davis compels us to reject the challenges levied by Rodriguez and Cruz under Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968). In Bruton, the Court held that the Confrontation Clause bars the use of the confession of a nontestifying criminal defendant in a joint trial to the extent that it directly inculpates a co-defendant, though it might be otherwise admissible against the confessing defendant. Id. at 126, 88 S.Ct. 1620. "We have interpreted Bruton expansively, holding that it applies not only to custodial confessions, but also when the statements of the non-testifying co-defendant were made to family or friends, and are otherwise inadmissible hearsay." United States v. Mussare, 405 F.3d 161, 168 (3d Cir.2005) (citing Monachelli v. Graterford, 884 F.2d 749, 753 (3d Cir.1989), and United States v. Ruff, 717 F.2d 855, 857–58 (3d Cir.1983)). However, because Bruton is no more than a by-product of the Confrontation Clause, the Court's holdings in Davis and Crawford likewise limit Bruton to testimonial statements. See, e.g., United States v. Wilson, 605 F.3d 985, 1017 (D.C.Cir.2010) (holding that alleged Bruton claim did not violate the Confrontation Clause because the statements were not testimonial). Any protection provided by Bruton is therefore only afforded to the same extent as the Confrontation Clause, which requires that the challenged statement qualify as testimonial. To the extent that we have held otherwise, we no longer follow those holdings. See Monachelli, 884 F.2d at 753 (holding that Bruton applies to statements "made in a non-custodial setting to family and friends"); Ruff, 717 F.2d at 857–58 (same). And because, as discussed above, we have found the Title III recordings not to constitute testimonial hearsay, Bruton provides no solace for Rodriguez or Cruz. United States v. Berrios, 676 F.3d 118 (3rd Cir. 2012).

And, just like that, the Third Circuit, like many courts before it, decided to dispense with decades of precedent by finding that the Bruton doctrine does not apply to nontestimonial hearsay in the wake of Davis and Crawford. And, like many courts before it, the Third CIrcuit has it wrong.

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July 14, 2012 | Permalink | Comments (1) | TrackBack (0)

Friday, July 13, 2012

No Lie: California Case Reveals The State Has A Specific Rule Banning The Admission Of Polygraph Results

As I have noted before, New Mexico is the only United States jurisdiction that makes polygraph evidence presumptively admissible barring a prior stipulation by the parties. That said, in most jurisdictions, there is not a specific rule of evidence deeming polygraph results per se inadmissible; instead, courts in most jurisdictions simoly deem such results inadmissible under a variety of evidentiary rules. As the recent opinion in People v. Wherry, 2012 WL 2528304 (Cal.App. 1 Dist. 2012), makes clear, however, California does have a specific rule of evidence dealing with polygraph results.

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July 13, 2012 | Permalink | Comments (0) | TrackBack (0)

Thursday, July 12, 2012

Protective Shield: Supreme Court Of Kentucky Finds Rape Shield Rule Precludes Evidence Of Victims' Prostitution

Similar to its federal counterpartKentucky Rule of Evidence 412(a), Kentucky's rape shield rule, provides that

(a)  Evidence generally inadmissible. The following evidence is not admissible in any civil or criminal proceeding involving alleged sexual misconduct except as provided in subdivisions (b) and (c).

(1)  Evidence offered to prove that any alleged victim engaged in other sexual behavior.

(2)  Evidence offered to prove any alleged victim's sexual predisposition. 

And, like its federal counterpartKentucky Rule of Evidence 412(a) is subject to certain exceptions. So, were those exceptions triggered in Edmonds v. Commonwealth, 2012 WL 2362429 (Ky. 2012)?

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July 12, 2012 | Permalink | Comments (1) | TrackBack (0)