EvidenceProf Blog

Make Me Whole, Take 10: Court Of Appeals of Minnesota Issues Most Ludicrous Rule 609(a)(1) Ruling Yet

Another day. Another terrible decision by the Court of Appeals of Minnesota under Minnesota Rule of Evidence 609(a)(1). The court's most recent exercise in lunacy is State v. Heard, 2012 WL 3263775 (Minn.App. 2012). If I am reading this most recent opinion correctly, there is (almost) no set of facts under which any of the five factors considered under Rule 609(a)(1) will favor the defendant. So, congratulations, Court of Appeals of Minnesota. You have finally suceeded in making Rule 609(a)(1) a complete mockery of itself.

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Submission Guide for Online Law Review Supplements, Version 6.1, Now Available On SSRN

Thanks to Allen Rostron, I have some additions to my Submission Guide for Online Law Review Supplements. These additions are:

Arizona State Law Journal Blog;

Discourse (Drake);

On Remand (New England)

Dicta (Texas)

Utah OnLaw

Tolle Lege (Villanova)

The newest version of the Guide is now available on SSRN.

-CM

A Certain Relation: 3rd Circuit FInds Only "Close Relatives" Of Principles Need To Be Excluded As Jurors

It is well established that a juror cannot be seated if the juror is some degree of relation to one of the principle in the case, i.e., a party or an attorney. But how closely related does the jurors need to be to a principle for the seating of that juror to automatically mean that the opposing party was denied the right to a trial by an impartial jury? That was the question addressed by the Third Circuit in United States v. Mitchell, 2012 WL 3171563 (3rd Cir. 2012).

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My New Essay: Bullshit!: Why the Retroactive Application of Federal Rules of Evidence 413-414 and State Counterparts Violates the Ex Post Facto Clause

As I noted on Sunday, what started as a blog post on the Ex Post Facto Clause and the retroactive application of Federal Rules of Evidence 413 and 414 and state counterparts. That essay, Bullshit!: Why the Retroactive Application of Federal Rules of Evidence 413-414 and State Counterparts Violates the Ex Post Facto Clause, is now available on SSRN. Here is the abstract:

In Calder v. Bull, the Supreme Court recognized four types of laws that cannot be applied retroactively consistent with the Ex Post Facto Clause, including “[e]very law that alters the legal rules of evidence, and receives less, or different, testimony, than the law required at the time of the commission of the offence, in order to convict the offender.” But, in its opinion in Carmell v. Texas, the Court determined that ordinary rules of evidence do not violate the Clause because they (1) are “evenhanded, in the sense that they may benefit either the State or the defendant in a given case;” and (2) “do not at all subvert the presumption of innocence….”

Federal Rules of Evidence 413 and 414 as well as state counterparts, however, are neither evenhanded nor consistent with the presumption of innocence. Instead, these rules can only be used to benefit the prosecution, and they subvert the traditional presumption of innocence maintained by the propensity character evidence proscription. Accordingly, courts across the country have erred in finding that the retroactive application of these rules does not violate the Ex Post Facto Clause.

-CM

Sequestered In Lexington: Professor Richard Underwood On Federal Rule Of Evidence 615

Federal Rule of Evidence 615 is a funny little rule of evidence. It provides that

At a party’s request, the court must order witnesses excluded so that they cannot hear other witnesses’ testimony. Or the court may do so on its own. But this rule does not authorize excluding:  (a) a party who is a natural person;  (b) an officer or employee of a party that is not a natural person, after being designated as the party’s representative by its attorney;  (c) a person whose presence a party shows to be essential to presenting the party’s claim or defense; or  (d) a person authorized by statute to be present.

In Geders v. United States, 425 U.S. 80 (1976), the Supreme Court observed that the practice of sequestering witnesses, which goes back to "our inheritance of the common Germanic law," serves two purposes: it "exercises a restraint on witnesses 'tailoring' their testimony to that of earlier witnesses; and it aids in detecting testimony that is less than candid." But is Federal Rule of Evidence 615 in fact a rule of witness sequestration, or is it merely a rule of witness exclusion? That's the topic taken up in the forthcoming article, Following the Rules:  Exclusion of Witnesses, Sequestration and "No-Consultation Orders, by Richard Underwood, a professor at the University of Kentucky College of Law.

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Bullshit!: Why the Retroactive Application of Federal Rules of Evidence 413-414 and State Counterparts Violates the Ex Post Facto Clause

Sometimes a blog post runs a bit long. In the case of State v. Kibbee, 815 N.W.2d 872 (Neb. 2012), what initially started as a blog post turned into an essay. This blog post will outline my basic arguments against the decision in Kibbee, and I will post the link to my essay on SSRN later this week. Any thoughts and comments on either would be appreciated either here or e-mailed to [email protected]:

In State v. Kibbee, 815 N.W.2d 872 (Neb. 2012), Eddie Kibbee brought an Ex Post Facto Clause challenge to his convictions for first-degree sexual assault and felony child abuse. Article I, section 9 of the United States Constitution states in relevant part that “[n]o Bill of Attainder or ex post facto Law shall be passed,” and, in its opinion in Calder v. Bull, the Supreme Court recognized four types of laws that cannot be applied retroactively consistent with this Ex Post Facto Clause:

1st. Every law that makes an action done before the passing of the law, and which was innocent when done, criminal; and punishes such action. 2d. Every law that aggravates a crime, or makes it greater than it was, when committed. 3d. Every law that changes the punishment, and inflicts a greater punishment, than the law annexed to the crime, when committed. 4th. Every law that alters the legal rules of evidence, and receives less, or different, testimony, than the law required at the time of the commission of the offence, in order to convict the offender.

Kibbee's claim was that the trial court erred by retroactively applying Nebraska Rule of Evidence 414(1), which provides that

In a criminal case in which the accused is accused of an offense of sexual assault, evidence of the accused's commission of another offense or offenses of sexual assault is admissible if there is clear and convincing evidence otherwise admissible under the Nebraska Evidence Rules that the accused committed the other offense or offenses. If admissible, such evidence may be considered for its bearing on any matter to which it is relevant.

Nebraska Rule of Evidence 414(1) is thus similar to Federal Rules of Evidence 413 and 414, which allow for the admission of prior acts of sexual assault and child molestation by criminal defendants. Kibbee claimed that Rule 414(1) was clearly a law that alters the legal rules of evidence, meaning that it was the fourth type of law that cannot be applied retroactively consistent with the Ex Post Facto Clause. So, why, like every defendant before him in a similar case, did he lose?

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Character Of The Matter: Court Of Appeals Of Kentucky Finds Generalized Character Evidence Properly Excluded

Kentucky Rule of Evidence 404(a)(1) provides 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, except:        

(1) Character of accused. Evidence of a pertinent trait of character or of general moral character offered by an accused, or by the prosecution to rebut the same....

Of course, a key word in Rule 404(a)(1) is the word "pertinent." A defendant's character for peacefulness would be pertinent in a homicide trial but likely not pertinent in a fraud trial. And, at that fraud, trial, the defendant's character for truthfulness would be pertinent while his character for violence would not be. As the recent opinion of the Court of Appeals of Kentucky in Crabtree v. Commonwealth, 2012 WL 3538316 (Ky.App. 2012), makes clear, however, a character witness' generalized claim that the defendant is a good person or has a good reputation in the community is never pertinent character evidence under Rule 404(a)(1).

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No One But The Bailiff: Is A Bailiff's Comment That The Defendant Fired The Best Criminal Attorney In Town Prejudicial?

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

Upon an inquiry into the validity of a verdict or indictment, a juror may not testify as to any matter or statement occurring during the jury's deliberations, or on any juror's mind or emotions or mental processes, as influencing any juror's assent to or dissent from the verdict or indictment. Nor may a juror's affidavit or any statement by a juror concerning any matter about which the juror would be precluded from testifying be admitted in evidence for any of these purposes. However, a juror may testify: (1) whether any outside influence was improperly brought to bear upon any juror; or (2) to rebut a claim that the juror was not qualified to serve.

So, let's say that jurors are standing in a courthouse hallway when one juror asks, "Why did [the defendant] hire these dummies [(i.e., defense counsel)]?" And let's say that the bailiff responded, "He had the best criminal attorney in the city and he fired him." Does the bailiff's statement provide the proper predicate for jury impeachment under Rule 606(b)? According to the recent opinion of the Court of Appeals of Texas, San Antonio, in Seaton v. State, 2012 WL 322677 (Tex.App.-San Antonio 2012), the answer is "no." I disagree.

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Forfeiture From The Black Whole: 4th Circuit Applies Forfeiture By Wrongdoing Doctrine Via Pinkerton

Federal Rule of Evidence 804(b)(6) provides an exception to the rule against hearsay for

A statement offered against a party that wrongfully caused — or acquiesced in wrongfully causing — the declarant’s unavailability as a witness, and did so intending that result.

Meanwhile, pursuant to the Supreme Court's opinion in Pinkerton v. United States, 328 U.S. 640 (1946),  person is "liable for substantive offenses committed by a co-conspirator when their commission is reasonably foreseeable and in furtherance of the conspiracy." 

I have seen Rule 804(b)(6) cited in many cases and Pinkerton cited in many cases, but never in the same case...that is, until the recent opinion of the Fourth Circuit in United States v. Dinkins, 2012 WL 3292417 (4th Cir. 2012).

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Can I Get A Summary?: 6th Circuit Finds That A Properly Admitted Summary Is Not Hearsay

Federal Rule of Evidence 1006 provides that

The proponent may use a summary, chart, or calculation to prove the content of voluminous writings, recordings, or photographs that cannot be conveniently examined in court. The proponent must make the originals or duplicates available for examination or copying, or both, by other parties at a reasonable time and place. And the court may order the proponent to produce them in court.

The placement of Rule 1006 in Article X of the Federal Rules of Evidence means that the Rule is a way of satisfying the Best Evidence Rule contained in Federal Rule of Evidence 1002, which provides that

An original writing, recording, or photograph is required in order to prove its content unless these rules or a federal statute provides otherwise.

And what that means is that Rule 1006 does not provide an an exception to the rule against hearsay, which is contained  in Article VIII of the Federal Rules of Evidence (see my prior post on the subject). In other words, if a summary, chart, or calculation contains inadmissible hearsay, it is just as inadmissible as a hearsay not contained in a summary, chart, or calculation. So, what are we to make of the recent opinion of the Sixth CIrcuit in Alliant Tax Credit Fund 31-A, Ltd. v. Murphy, 2012 WL 3519463 (6th Cir. 2012).

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Confronting The Truth: Appeals Court Of Massachusetts Finds Colloquy Not Required Before Waiving Confrontation Right

A defendant can only plead guilty and waive his right to a jury if there is a colloquy between the judge and the defendant to determine the the waiver is knowing, voluntary, and intelligent. So, should a similar colloquy be required when the defendant waives his right to confrontation? According to the recent opinion of the Appeals Court of Massachusetts in Commonwealth v. Myers, 2012 WL 2877376 (Mass.App.Ct. 2012), the answer is "no."

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Call The Doctor: Does Rule 803(4) Apply To Statements Made To The Sexual Assault Response Team?

Like its federal counterpart, Alaska Rule of Evidence 803(4) provides an exception to the rule against hearsay for

Statements made for purposes of medical diagnosis or treatment and describing medical history, or past or present symptoms, pain, or sensations, or the inception or general character of the cause or external source thereof insofar as reasonably pertinent to diagnosis or treatment.

So, what happens when an alleged sexual assault victim makes statements to a person working as part of a quasi-medical, quasi-investigatory body? Are those statements made for purposes of diagnosis or treatment, or are they made for purposes of evidence-collection and prosecution? The answer is probably a bit of both, which is why, as I've noted, such statements have created problems for courts under Rule 803(4). This was certainly the case with the recent opinion of the Supreme Court of Alaska in Davison v. State, 2012 WL 3240111 (Alaska 2012).

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Jet Ski Or Not Jet Ski, That Is The Question, But Is Wikipedia Equipped To Answer It?

The subject is well-illuminated in that great repository of contemporary wisdom, Wikipedia....Fire Ins. Exchange v. Oltmanns, 2012 WL 3510440 (Utah App. 2012).

Me (doing my best Joe Pesci): You were serious about that?

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Burying The Lead?: Judge Posner Delivers An Amusing Opinion Regarding Leading Questions

A leading question is a question phrased in such a way as to hint at the answer the witness should give. Jas Brar, Note, "Friend or Foe? Responsible Third Parties and Leading Questions," 60 Baylor L.Rev. 261, 264–67 (2008). The question is calculated to "lead" the witness to the answer desired by the lawyer. There is no blanket prohibition of such questions. They are permissible when used against adverse witnesses, usually in cross-examination, or when used with friendly witnesses to move direct examination along rather than to elicit testimony damaging to the opposing party that the witness might not have given in response to a neutral question. Fed.R.Evid. 611(c). United States v. Cephus, 2012 WL 2609316 (7th Cir. 2012). 

If you want a colorful case to explain the nitty gritty of leading questions in detail, you need look no further than Judge Posner's opinion for the Seventh Circuit in Cephus.

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Nonconfrontational?: 11th Circuit Implies That Former Testimony Under Rule 804(b)(1) Can Violate Confrontation Clause

Federal Rule of Evidence 804(b)(1) provides an exception to the rule against hearsay  for

Testimony that:

(A) was given as a witness at a trial, hearing, or lawful deposition, whether given during the current proceeding or a different one; and

(B) is now offered against a party who had — or, in a civil case, whose predecessor in interest had — an opportunity and similar motive to develop it by direct, cross-, or redirect examination.

A prerequisite for such former testimony being admitted is that the declarant be "unavailable" for trial under Federal Rule of Evidence 804(a).

Meanwhile, In Crawford v. Washington, 541 U.S. 36 (2004), the Supreme Court found that that the Confrontation Clause of the U.S. Constitution is violated when hearsay is "testimonial," admitted against a criminal defendant, and the hearsay declarant does not testify at the defendant's trial, unless (1) the declarant was unavailable for trial, and (2) the defendant was previously able to cross-examine the declarant.

Based upon my readings of Rule 804(b)(1) and Crawford, I don't see how the admission of former testimony under Rule 804(b)(1) could ever violate the Confrontation Clause. But the recent opinion of the Eleventh Circuit in United States v. Santos, 2012 WL 2913504 (11th Cir. 2012), seems to imply that it could.

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About Schmidt: Court Of Appeals Of Texas Notes That Rule 607 Killed The Common Law Voucher Rule

Like its federal counterpart, Texas Rule of Evidence 607 provides that

The credibility of a witness may be attacked by any party, including the party calling the witness.

And what this means is that the Texas Rule, like the federal Rule, abandons the old "voucher rule," under which a party vouched for the credibility of the witnesses it called and could not impeach their testimony. This point is made clear by the recent opinion of the Court of Appeals of Texas, Amarillo, in Schmidt v. State, 2012 WL 2888213 (Tex.App.-Amarillo 2012), which also shows why the voucher rule was abandoned.

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Subpoena Blues: 8th Circuit Finds That Defendant Can't Interrogate Rule 413 Witnesses Dismissed From Subpoena

Federal Rule of Evidence 413(a) provides that

In a criminal case in which a defendant is accused of a sexual assault, the court may admit evidence that the defendant committed any other sexual assault. The evidence may be considered on any matter to which it is relevant.

So, let's ay that an FBI agent meets with two women, both of whom claim that they were sexually assaulted by the defendant. As a result of those meetings, the defendant is charged with aggravated sexual abuse of a minor against one of the women, with the other woman being subpoenaed to testify against the defendant pursuant to Rule 413(a). If the second woman recants at least part of her account the evening before trial, should the defendant be allowed to call the second woman and interrogate her at trial? According to the recent opinion of the Eighth Circuit in United States v. Frederick, 2012 WL 2579686 (8th Cir. 2012), the answer is "no."

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My New Article: Justice of the Peace?: Why Federal Rule of Evidence 404(a)(2)(C) Should be Repealed

Yesterday, I posted my new article, Justice of the Peace?: Why Federal Rule of Evidence 404(A)(2)(C) Should Be Repealed, on SSRN. Here is the abstract:

In two 2012 opinions, Commonwealth v. Bedford and State v. Williams, courts rejected appeals by convicted homicide defendants sentenced to life imprisonment. Each defendant claimed that his victim was the first aggressor, prompting the prosecution to present character evidence concerning the victim’s character for peacefulness even though neither defendant claimed that his victim was generally a violent person. The prosecution in both cases presented this character evidence under a state counterpart to Federal Rule of Evidence 404(a)(2)(C), a frequently applied exception to the general rule that propensity character evidence is inadmissible.  

Rule 404(a)(2)(C) and its state counterparts are thus the one exception to the general “Pandora’s box” theory which deems propensity character evidence inadmissible in any criminal trial unless the defendant decides to inject character evidence into trial by presenting evidence of his good character and/or evidence of the victim’s bad character. The Rule is also the rare exception to our evidentiary and constitutional framework that almost always treats criminal defendants at least as well as, and usually better than, their civil counterparts. Worst of all, this anomalous Rule treats criminal defendants worse than civil defendants in the very type of case in which the accused has the most at stake and faces the largest deployment of investigatory and prosecutorial resources. Accordingly, this article argues for the repeal of Federal Rule of Evidence 404(a)(2)(C) and state counterparts.  

And thoughts or comments on it would be appreciated and can be sent to: [email protected].

I also posted my recent essay, No Expertise Required: How D.C. Has Erred in Expanding its Expert Testimony Requirement, which appeared in the Rutgers Law Record, on SSRN. Here is the abstract:

In addressing an appeal by Allen Iverson from a negligent supervision verdict against him, the United States Court of Appeals for the District of Columbia noted that the former NBA star’s “argument stem[med] from a peculiar aspect of common law negligence in the District of Columbia.” That peculiar aspect is D.C.’s expert testimony requirement, which requires expert testimony to establish the pertinent standard of care unless the subject in question is within the realm of common knowledge and everyday experience of the jurors. Such a requirement is not anomalous in the professional malpractice context, and the Iverson court claimed that D.C.’s requirement was in fact born out of such cases.  

According to the court, though, the D.C. Court of Appeals has deviated from the norm by “[r]ecently…requir[ing] expert testimony in a wider variety of cases,…even those that might initially seem to fall within jurors’ common knowledge.” Such cases include disputes regarding the application of hair relaxer, the placement of monkey bars eight feet above hard packed mud, and the failure to remove a dead, prominently leaning tree. In each case, the result is the same: The D.C. Court of Appeals finds that the plaintiff cannot recover without expert testimony concerning the pertinent standard of care. This essay argues that D.C. has improperly expanded its expert testimony requirement and should circumscribe it to malpractice cases and trials involving truly technical matters.

-CM

What's In Your Wallet?: Court Of Appeals Of Iowa Finds Notes In Wallet Not Extraneous Prejudicial Information

A defendant is charged with homicide by vehicle, eluding, and operating a motor vehicle without the owner's consent. At trial, the prosecution offers into evidence "a black wallet with miscellaneous papers in it." It turns out that, unbeknownst to anyone, those papers are damaging to the defendant's case. Indeed, jurors come forward after trial and claim that they used the papers during deliberations. Do those papers constitute "extraneous prejudicial information" and thus a proper predicate for jury impeachment? According to the recent opinion of the Court of Appeals of Iowa in Pinegar v. State, 2012 WL 3026393 (Iowa App. 2012), the answer is "no."

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The Areas Of My Expertise: Supreme Court Of Vermont Finds Police Officer & Counselor Qualified To Testify About Rape Trauma Syndrome

Although there is not a set definition of [Rape Trauma Syndrome], it generally holds that victims often are confused and disoriented in the immediate wake of a rape or sexual assault, resulting in delayed reporting when the victim finally reconstructs the nature of the event. Colin Miller, A Shock to the System, 12 Wm. & Mary J. Women & L. 49, 71 (2005)

Courts generally agree that testimony concerning Rape Trauma Syndrome ("RTS") by a qualified expert is admissible under Federal Rule of Evidence 702, which provides that

A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if:  

(a) the expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue;  

(b) the testimony is based on sufficient facts or data;  

(c) the testimony is the product of reliable principles and methods; and  

(d) the expert has reliably applied the principles and methods to the facts of the case.

The question addressed by the Supreme Court of Vermont in its recent opinion in State v. Hammond, 2012 WL 2620529 (Vt. 2012), is who qualifies as an RTS expert under Vermont's counterpart to Federal Rule of Evidence 702.

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