EvidenceProf Blog

Dog Day Afternoon: Supreme Court Oral Arguments Today In Jardines & Harris

Today, the Supreme Court will hear oral arguments in the two drug sniffing dog cases: Jardines v. State, 73 So.3d 34, 49 (Fla. 2011) and Harris v. State, 71 So.3d 756 (Fla. 2011). Here was my blog post about theamici brief in Jardines: Jardines post. And here was my blog post about the amici brief in Harris: Harris post.

-CM

EvidenceProf Blog's 6th Annual Halloween Movie Pick

Earlier this year, The Weinstein Company released the schlocktastic "Piranha 3DD" in theaters. The film, scripted by Marcus Dunstan and Patrick Melton and directed by John Gulager, was a reunion of sorts, coming seven years after their collaboration on the horror movie, "Feast." "Feast" was the product of the third season of the late, great "Project Greenlight," the show in which neophyte screenwriters and directors were given the chance to become the next Matt Damon and Ben Affleck. 

The third season of "Project Greenlight" was its last, with the attempt to shift to genre filmmaking in the wake of the financial failures of "Stolen Summer" and "The Battle of Shaker Heights" being unsuccessful, but the PGL franchise has several lasting legacies: Shia LaBeouf. Chris Moore. "Project Runway," Dunstan and Melton went on to pen the last four "Saw" movies. And who's to say that Affleck didn't learn a thing or two about what not to do as a director from the show before helming such well received productions as "Gone Baby Gone," "The Town," and "Argo."

Many are calling "Argo" the Oscar favorite this year. That film concerns a 1980 joint CIA-Canadian secret operation to extract six fugitive American diplomatic personnel out of revolutionary Iran. Specifically, the operation consisted of the creation of the titular fake science fiction film as a cover for sneaking operatives into Iran and sneaking American hostages out. Here's an idea: How about reteaming Gulager, Melton, and Dunstan to make the fake science fiction movie into an actual movie? Sure, it's sci-fi and not horror, so it's not quite in their wheelhouse, but with the success and publicity of "Argo," you'd have to think that an actual "Argo" movie could do quite well.

As for  "Feast," well, I can't recommend it for the reasons stated in the review below (from my days reviewing DVDs), but I wholeheartedly recommend all three seasons of "Project Greenlight." 

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Which Lie Did I Tell? Texas Case Reveals That Polygraph Results Are Admissible In Probation Revocation Proceedings

As I have noted on several occasions, polygraph evidence is per se inadmissible in the vast majority of jurisdictions in the United States. Only New Mexico allows for the admission of polygraph evidence without the prior stipulation of the parties. Moreover, about a dozen states allow for the admission of polygraph evidence based upon a prior stipulation by the prosecution and defense. In these jurisdictions, polygraph results will be admissible if both sides stipulate to admissibility before the defendant takes the polygraph test.

The above, however, refers to the (in)admissibility of polygraph evidence at trial. Can a court, however, place a condition on probation pursuant to which the probationer must submit to periodic polygraph examinations and have his probation revoked if he either (a) fails to submit to such examinations; or (b) fails one of these examinations?

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It Was 20 Years Ago Today: Documents Created On October 29, 1992 Are Now "Ancient" Documents

The other day, as we were toggling through the various music channels in our U-verse package, my wife and I came upon the "Classic Alternative" station. A song came on, possibly from Nirvana, and my wife expressed surprise that something from the early 1990s would be classified as "classic." The evidence analogue to this reaction can be found in Federal Rule of Evidence 803(16) and Federal Rule of Evidence 901(b)(8).

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I Rest My Case, Take 6: Eastern District Of Michigan Applies Rule 614(b) Test To Rule 614(a)

In a series of five posts, I have addressed the question of whether judges should be able to use their power under Federal Rule of Evidence 614(a) and state counterparts to call additional witnesses after both parties have rested. One of the reasons that I have written these posts is that I wonder whether courts should be able to call witnesses after both parties have rested, particularly in a criminal case. Another reason, however, is the simple lack of much precedent at all about whether and when judges can exercise their Rule 614(a) power either after or after the parties have rested. In United States v. Flores, 702 F.Supp.2d 794 (E.D.Mich. 2010), the Eastern District of Michigan noted this gap in precedent and attempted to fill the void. So, how did it do?

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I Rest My Case, Take 5: Supreme Court Of West Virginia Allows For Additional Evidence After Start Of Closing Arguments

Recently, I have written several posts about whether judges should be able to use their power under Federal Rule of Evidence 614(a) and state counterparts. In one of those posts, I discussed two West Virginia cases. In the first of these cases, State v. Loveless, 534 S.E.2d 23 (W.Va. 1955), the Supreme Court of West Virginia reversed a conviction, finding that

witnesses were called after the state and the defense had rested their cases. The introduction of these two witnesses at this stage of the trial was untimely and constitutes another valid objection to the action of the trial court. These witnesses should have been called before the state or the defense had concluded the introduction of testimony to sustains ths issue on their respective parts. This record discloses that the trial judge, though having a right to call Sherman and Jones as witnesses, should not have examined them to the extent he did and in the manner he did. Nor should such witnesses and their testimony been used after the state and the defense had rested their case. Such action of the trial court constitutes reversible error.

Later, in State v. Parr, 534 S.E.2d 23 (W.Va. 2000), the West Virginia Supremes retreated from this position a bit, concluding that

The decision in Loveless does not preclude trial courts from calling witnesses after the State or defendant has rested. As was noted by Professor Cleckley in his interpretation of Loveless, calling a witness by the trial court "after the parties have rested must be sparingly used." 

So, what did the same court recently do in In re T.H., 2012 WL 5205673 (W.Va. 2012)?

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These Memories Can't Wait: Michigan Case Reveals Michigan Courts May Have Bungled Rule 803(5) Analysis

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

A memorandum or record concerning a matter about which a 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.

But, based upon the recent opinion of the Court of Appeals of Michigan in People v. Conley, 2012 WL 5193202 (Mich.App. 2012), I think that Michigan courts have bungled part of the Rule 803(5) analysis.

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Risk Analysis: The L'Aquila Earthquake Trial & Witness Immunity

My colleague Aparna Polavarapu sent me a link to a CNN article, which noted that

Earthquake experts worldwide expressed shock at the manslaughter convictions of six Italian scientists who failed to predict the deadly L'Aquila quake, warning that the decision could severely harm future research.

Two scientists resigned their posts with the government's disaster preparedness agency Tuesday after a court in L'Aquila sentenced six scientists and a government official to six years in prison. The court ruled Monday that the scientists failed to accurately communicate the risk of the 2009 quake, which killed more than 300 people.

In response, "[s]eismologists were aghast..., noting that earthquakes remain impossible to forecast with any kind of accuracy." Specifically, Professor David Oglesby opined that

"If scientists can be held personally and legally responsible for situations where predictions don't pan out, then it will be very hard to find scientists to stick their necks out in the future...."

But prosecutors successfully 

argued that the scientists gave "inaccurate, incomplete and contradictory information about the dangers" facing L'Aquila at a meeting a week before the magnitude-6.3 quake. The experts determined that it was "unlikely" but not impossible that a major quake would take place, despite concern among the city's residents over recent seismic activity." 

The takeaway for Professor David Spiegelhalter was that the 

"L'Aquila trial shows public scientists need to take media communication very seriously," he wrote on his Twitter account. "And get indemnity."

So, could the same thing happen to American experts?

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No Remedy At Law: 7th Circuit Opinion Skirts Issue Of Admissibility Of Subsequent Remedial Measures In Suicide Suit

A juvenile incarcerated at Illinois Youth Center has a history of mental illness and was known to have attempted suicide at least three times. While incarcerated in a room with a bunk bed, the juvenile fatally hangs himself from the top bunk in his room. The juvenile's mother thereafter brings a § 1983 action against various  state officials, alleging deliberate indifference to the minor's serious mental illness. If the state officials thereafter took various steps to decrease the risk of their inmates committing suicide, can the mother present evidence of these steps to prove their prior culpability? The Seventh Circuit didn't answer this question in its recent opinion in Miller v. Harbaugh, 2012 WL 5064985 (7th Cir. 2012), but I think that the answer is a clear "yes." "no."

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Caller ID, Take 2: Court Of Appeals Of North Carolina Finds Text Message Authenticated Through Distinctive Characteristics

On the heels of the Supreme Court of Arkansas finding a text message authenticated based on distinctive characteristics, the Court of Appeals reached a similar conclusion in its recent opinion in State v. Wilkerson, 2012 WL 4867697 (N.C.App. 2012).

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Better Evidence Or Best Evidence?: Court Of Appeals Of Texas Botches Best Evidence Analysis In Tampering Case

Similar to its federal counterpart, Texas Rule of Evidence 1002, the Best Evidence Rule, 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 law.

And, similar to its federal counterpart, Texas Rule of Evidence 1004(a) provides that

The original is not required, and other evidence of the contents of a writing, recording, or photograph is admissible if....[a]ll originals are lost or have been destroyed, unless the proponent lost or destroyed them in bad faith

So, what happens if an original is not lost or destroyed, but the government still does not produce it because it does not want to pay the retrieval fee? Well, then you have a case like State v. Chavera, 2012 WL 4900856 (Tex.App.-San Antonio 2012). So, why did the court is Chavera not reverse the defendant's conviction?

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The Hamburglar: Supreme Court Of Tennessee Deems Worthless Check Convictions Admissible To Impeach Alleged McDonald's Thief

Pursuant to Section 39-14-121(a)(1), the offense of passing worthless checks is committed when a person either  

with fraudulent intent or knowingly...passes a check...knowing at the time there are not sufficient funds...on deposit...for the payment in full of the check...or...[s]tops payment on a check...provided, that the...goods or services were as represented at the time of the issuance of the check.... 

Meanwhile, Tennessee Rule of Evidence 609(a)(2) provides that

For the purpose of attacking the credibility of a witness, evidence that the witness has been convicted of a crime may be admitted if the following procedures and conditions are satisfied:....

(2) The crime must be punishable by death or imprisonment in excess of one year under the law under which the witness was convicted or, if not so punishable, the crime must have involved dishonesty or false statement.

So, is the crime of passing a worthless check under Section 39-14-121(a)(1) a crime that must have involved dishonesty or false statement? According to the recent opinion of the Supreme Court of Tennessee in State v. Russell, 2012 WL 4753429 (Tenn. 2012).

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Subtext: Supreme Court Of Nevada Finds Text Messages Admissible As Excited Utterances In Kidnapping/Battery Case

A professor on the Evidence Professor listserv a few days ago asked about cases considering whether text messages are admissible under the excited utterance exception to the rule against hearsay. One such case is Funches v. State, 2012 WL 436635 (Nev. 2012), which is interesting for a few reasons.

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I Rest My Case, Take 4: Court Of Appeals Of Michigan Finds No Problem With Additional Witness After Both Parties Rested

In yesterday's post, I preliminarily endorsed a dichotomy under Rule 614(a). Under this dichotomy, after the parties rested in a criminal case, a judge could call additional witnesses to clarify facts when there had been conflicting testimony/evidence. (e.g., Eyewitness A saw one thing while Eyewitness B saw something else). But, under the same circumstances, the judge could not call additional witnesses to testify on a matter on which there had not been conflicting testimony/evidence. (e.g., Eyewitness A testified that the shooter was 5'9" while Defendant is 6'2", and Eyewitness B, the only other eyewitness, had not been called by either side).

Under this dichotomy, I would agree with the opinion of the Court of Appeals of Michigan in People v. Betts, 400 N.W.2d650 (Mich.App. 1986).

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I Rest My Case, Take 3: Court Of Appeals Of Hawai'i Finds No Problem With Judge Calling Witness After Both Parties Rested

The last few days, I have posted entries (here and here) about judges using Rule 614(a) to call witnesses in a criminal case after both parties have rested. In my first post, I noted that "[g]iven that the prosecution has the burden of proof of every element beyond a reasonable doubt, it would seem to me that this would be fundamentally unfair." In my second post, I repeated this concern, "speculati[ng] that judges would principally if not exclusively use this power in this situation to try to erase reasonable doubt rather than to try to create reasonable doubt." It seems that defense counsel in State v. Medeiros, 909 P.2d 579 (Hawai'i App 1995), raised a similar concern. So, how did he fair?

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I Rest My Case, Take 2: Two West Virginia Cases On Judges Calling Witnesses After Both Sides Have Rested

In yesterday's post, I noted that I wasn't all that thrilled with the idea of a judge being able to use his Rule 614(a) powers to call witnesses after both the prosecution and defense had rested in a criminal case. A big reason for this was my speculation that judges would principally if not exclusively use this power in this situation to try to erase reasonable doubt rather than to try to create reasonable doubt. I still have no idea about whether this is true, but, in this post, I will present two West Virginia cases where this scenario seemed to play out. In one case, a guilty verdict was upheld. In the other, it was thrown out.

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I Rest My Case: Arkansas Judge Calls For Additional Witnesses After Both Sides Have Rested In Child Custody Case

Similar to its federal counterpart, Arkansas Rule of Evidence 614(a) provides that

The court, at the suggestion of a party or on its own motion, may call witnesses, and all parties are entitled to cross-examine witnesses thus called.  

The recent opinion of the Court of Appeals of Arkansas in Cowan v. Arkansas Dept. of Human Services, 2012 Ark. App. 576 (Ark.App. 2012), raises an interesting issue under Rule 614(a): Should the court be able to call additional witnesses after all parties have rested their respective cases?

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Class Act?: 9th Circuit Finds Plaintiff With 10+ Year Old Convictions & False Names An Adequate Class Representative

A group of plaintiffs seek provisional class certification for a class action against a defendant, claiming that its debt collection efforts violated the Telephone Consumer Protection Act, 47 U.S.C. § 227. The defendant opposes class certification, claiming, inter alia, that one of the class representatives will not "fairly and adequately protect the interests of the class," as required by Federal Rule of Civil Procedure 23(a)(4). Why? The representative had two 10+ year old prior convictions for dishonesty and had used multiple names in the past. According to the Ninth Circuit in Meyer v. Portfolio Recovery Associates, LLC, 2012 WL 4840814 (9th Cir. 2012), however, these facts were not fatal to the individual being provisionally deemed an adequate class representative.

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Did You Notice That?: Court Of Criminal Appeals Of Tennessee Finds Defendant Failed to Comply With Rule 609(b)'s Notice Requirement

Similar to its federal counterpart, Tennessee Rule of Evidence 609(b) provides that

Evidence of a conviction under this rule is not admissible if a period of more than ten years has elapsed between the date of release from confinement and commencement of the action or prosecution; if the witness was not confined, the ten-year period is measured from the date of conviction rather than release. Evidence of a conviction not qualifying under the preceding sentence is admissible if the proponent gives to the adverse party sufficient advance notice of intent to use such evidence to provide the adverse party with a fair opportunity to contest the use of such evidence and the court determines in the interests of justice that the probative value of the conviction, supported by specific facts and circumstances, substantially outweighs its prejudicial effect.

While the defendant in State v. Raymer, 2012 WL 4841544 (Tenn.Crim.App. 2012), likely could not have used the victim's 10+ year-old drug conviction to impeach him even if he complied with Rule 609(b)'s notice requirement, his failure to comply made that likelihood an inevitability.

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Communist Block: EDNY Finds Chinese Ministry Of Commerce Documents Inadmissible In Vitamin C Litigation

Federal Rule of Evidence 803(8) provides an exception to the rule against hearsay for

A record or statement of a public office if:

(A) it sets out:  

(i) the office’s activities;

(ii) a matter observed while under a legal duty to report, but not including, in a criminal case, a matter observed by law-enforcement personnel; or  

(iii) in a civil case or against the government in a criminal case, factual findings from a legally authorized investigation; and  

(B) neither the source of information nor other circumstances indicate a lack of trustworthiness.

The Ministry of Commerce of the People's Republic of China ("Ministry") is the equivalent of a U.S. cabinet-level department. So, would records or statements coming from the Ministry qualify for admission under this public records hearsay exception? Let's take a look at the recent opinion of the United States District Court for the Eastern District of New York in In re Vitamin C Antitrust Litigation, 2012 WL 4511308 (E.D.N.Y. 2012).

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