EvidenceProf Blog

eRape?: Should Courts Allow Rape Defendants to Discover the Google Searches of Their Victims?

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Jennifer Bennett was beaten, choked, and raped by Thomas Bray at his condo. Upon returning to her home, “[s]he stood at the entrance to her bathroom for 15 minutes, fighting the urge to scrub her body clean.”

“I had a decision to make: ‘Do I take a shower?’” Bennett recalled. “I stared at my shower. And I decided not to do it.”

Bennett decided against the shower, instead subjecting herself to a rape exam at the St. Charles Medical Center and questioning by police.

Later, Bennett faced another choice, an unprecedented choice for a crime victim in Oregon: whether to turn over her Google searches from the days before and after her rape. The judge ordered her to comply with a subpoena requiring her to disclose her searches. She refused. The judge then refused to enforce the subpoena. Eventually, Bray was convicted.

According to Bennett, by refusing to comply with the subpoena, she was making a stand on behalf of not only herself but all future rape victims. But will such stands be recognized in a world in which we increasingly live our lives online?

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Service Unavailable Error?: Court Of Appeals Of Ohio Finds Witness Unavailable Under Rule 804(A)(5)

Similar to its federal counterpart, Ohio Rule of Evidence 804(A)(5) provides that a witness is "unavailable" if he

is absent from the hearing and the proponent of the declarant's statement has been unable to procure the declarant's attendance (or in the case of a hearsay exception under division (B)(2), (3), or (4) of this rule, the declarant's attendance or testimony) by process or other reasonable means.

I agree with the Court of Appeals of Ohio, Twelfth District in State v. Tabor, 2012 WL 4761741 (Ohio App. 12 Dist. 2012), that a witness in a case that it was reviewing on appeal was "unavailable;" however, I disagree with part of its attempt to distinguish a prior case.

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I Can See Clearly Now: 8th Circuit Finds District Court Properly Precluded Sexual Misconduct Conviction Under Rule 609

Federal Rule of Evidence 609(a)(1)(A) provides that

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

(1) for a crime that, in the convicting jurisdiction, was punishable by death or by imprisonment for more than one year, the evidence:  

(A) must be admitted, subject to Rule 403, in a civil case or in a criminal case in which the witness is not a defendant....

So let's say that a district court precludes a defendant charged with wire and mail fraud from impeaching a key witness for the prosecution with evidence of an eight year-old conviction for felony sexual misconduct. If the defendant is able to impeach the witness with other evidence, was the district court's opinion proper? According to the Eighth Circuit's recent opinion in United States v. Chaika, 2012 WL 4476680 (8th Cir. 2012). I mostly agree but have one major reservation.

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Baby You Can Drive My Car: Court Of Appeals Of Minnesota Uses Rule Of Lenity To Reverse Tracking Device Conviction

Pursuant to the rule of lenity, courts must construe ambiguous criminal statutes in favor of criminal defendants because the government drafts criminal statutes and is responsible for any terms that are equally susceptible to multiple definitions. See, e.g., Fowler v. United States, 131 S.Ct. 2045, 2055 (2011). Courts rarely invoke the rule of lenity, which is why at least one criminal law professor has mused, Why do I waste my time teaching the so-called "Rule of Lenity"?

That said, the rule does rear its head in the appropriate case, including United States v. Millis, 621 F.3d 914 (9th Cir. 2010), which I give to my students through the following hypothetical:

Daniel Millis was convicted under 50 C.F.R. Section 27.94 for placing full, gallon-sized plastic bottles of water on trails in the Buenos Aires National Wildlife Refuge to help alleviate exposure deaths among undocumented immigrants crossing into the United States. That section criminalizes "[t]he littering, disposing, or dumping in any manner of garbage…on any national wildlife refuge….” There is no legislative history for the section. Millis challenges his conviction on grounds of lenity. How should the court rule? See United States v. Millis, 621 F.3d 914 (9th Cir. 2010).

What the court did rule was that full bottles of water could be considered "garbage" under one definition (discarded inorganic material -- the bottles) but could not be considered "garbage" under another definition (useless or unpleasant material). Accordingly, the Ninth Circuit found that the rule of lenity applied and that Millis' conviction had to be reversed.

Now, based upon the opinion of the Court of Appeals of Minnesota in State v. Hormann, 805 N.W.2d 883 (Minn.App. 2011), I have another good lenity case to teach to students.

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Caller ID: Supreme Court Of Arkansas Finds Distinctive Characteristics Sufficient To Authenticate Text Messages

Similar to its federal counterpart, Arkansas Rule of Evidence 901(b)(4) provides that there can be authentication of evidence through

Distinctive characteristics and the like. Appearance, contents, substance, internal patterns, or other distinctive characteristics, taken in conjunction with circumstances.  

And, as the recent opinion of the Supreme Court of Arkansas in Gulley v. State, 2012 WL 4712207 (Ark. 2012), makes clear, Rule 901(b)(4) is often used to authenticate e-mails, text messages, and the like.

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Hypothetically Speaking: Southern District Of Texas Finds No Problem With Hypothetical Testimony Under Rule 704(b)

Federal Rule of Evidence 704(b) provides that 

In a criminal case, an expert witness must not state an opinion about whether the defendant did or did not have a mental state or condition that constitutes an element of the crime charged or of a defense. Those matters are for the trier of fact alone.

Often, prosecutors will circumvent Rule 704(b) in cases in which defendants are charged with possession of drugs with intent to distribute by having officers testify that, based upon their experience, the amount of drugs possessed would typically be associated with an intent to distribute. But in United States v. Lopez, 2012 WL 4663530 (S.D.Tex. 2012), it was the defendant finding a way around Rule 704(b).

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Remedial Chaos Theory, Playing A Baseball Game Under Protest & Conditional Pleas

Last night's first-of-its kind wild-card playoff game between the Atlanta Braves and St. Louis Cardinals was marred by controversy.

Here's what happened: The Braves were trailing 6-3 in the bottom of the eighth inning with one out and men on first and second when Andrelton Simmons hit a pop-up into shallow leftfield. Cardinals shortstop Peter Kozma raced back to make the catch and appeared to have the ball measured when he suddenly ducked out of the way as if he had been called off by leftfielder Matt Holliday. However, Holliday had not done so, and the ball dropped untouched for an apparent single that loaded the bases. Except that at the last second before Kozma ducked away, leftfield umpire Sam Holbrook signaled for the infield fly rule, which meant Simmons was automatically out, taking the tying run off base and erasing one of the Braves' five remaining outs. 

The Braves played the rest of the game under protest, meaning that, although they eventually lost the game, if the protest were upheld, the game would have restarted with one out in the bottom of the eighth inning and the bases loaded.

As many have noted, Holbrook's call was erroneous:

Holbrook erred in invoking the infield fly in that situation for two reasons. The first was that Kozma, though he did ultimately appear to be in position to catch the ball, had to race well into shallow leftfield to make the play. The infield fly rule specifically states that it is to be used on a fair fly ball "which can be caught by an infielder with ordinary effort." Kozma's was not an ordinary effort (which was the argument Braves manager Fredi Gonzalez made in his protest, which was quickly overturned by the MLB officials on hand). Second, the rule states that "when it seems apparent that a batted ball will be an Infield Fly, the umpire shall immediately declare Infield Fly for the benefit of the runners." In this case, Holbrook didn't signal for the infield fly rule until the ball was more than half-way through its descent, mere moments before Kozma flinched and the ball hit the outfield grass.  

But, in order for the Braves' protest to be successful, two elements needed to be satisfied: (1) the League President had to find that the "violation adversely affected the protesting team’s chances of winning the game;" and (2) the error must not have been a judgment call. Because the League, applying Rule 2.00, found that Holbrook's infield fly call was a "judgment call," the Braves' protest was rejected.

So, how is playing an MLB game under protest like entering a conditional plea?

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We The Jury: Court Of Appeals Of Arkansas Refuses To Grant New Trial Based On Jury Deceit During Voir Dire

In order to warrant the granting of a new trial on the grounds of juror misconduct, a party must first demonstrate that a juror failed to honestly answer a question or deliberately concealed a matter during voir dire, and must then further show that a correct response would have provided a valid basis for a challenge for cause....Additionally, the complaining party has the burden of establishing that (1) diligence was used to ascertain the desired information and that (2) he made known to the juror the specific information desired....We will affirm where there is substantial evidence to support a circuit court's finding as to whether a party has met its burden. Houchins v. Home Care Professionals of Arkansas, Inc., 2012 WL 4664481 (Ark.App. 2012).

In Houchins, the Court of Appeals of Arkansas refused to grant a new trial based upon the above test, but I am quite confused by this conclusion.

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Wrigley Field: N.D. IL Finds Rule 408 Covers Settlement Evidence Used To Prove Lack of Irreparable Injury For Preliminary Injunction

Swerve IP holds a word mark (SWERVE), the name of its "all-natural" erythirtol-based non-sugar sweetener. It has used the mark since 2001. The United States Patent and Trademark office (the "USPTO") registered it in September 2009....That registration covers "natural sweetener" in International Class 030 (which includes a large number of food and candy products).

Swerve sweetener is sold (in one-pound bags and in single-use packets) through online retailers such as Amazon.com and certain physical stores like Whole Foods. Similar sweeteners are evidently sold in convenience stores, and Swerve IP hopes to expand to those stores in the near future. The sweetener is also used in the commercial manufacture of some food products, including diet pralines, but Swerve IP hopes to expand into more mainstream markets, including chewing gum. The sweetener is promoted via social media sites such as Facebook and Twitter.

Wrigley manufactures and sells the popular "5" brand of chewing gum. There are a dozen different flavors, one of which is called "Swerve"—because, Wrigley claims, it changes from a "tangy" to a "sweet tropical" flavor when chewed. The gum is not "all-natural" but is sugar-free, and is marked as containing natural and artificial flavors. Wrigley markets 5 Gum as an extreme sensory experience, targeting customers in their teens and 20s. 5 Gum is sold mainly in grocery and convenience stores, though it is also available through Amazon.com. Wm. Wrigley Jr. Co. v. Swerve IP, LLC, 2012 WL 4499063 (N.D.Ill. 2012).

So, what happened when Wrigley tried to register "swerve" in International Class 030, covering "chewing gum," and what role did Federal Rule of Evidence 408 play?

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That's Not A (Butcher) Knife: Court Of Appeals Of Mississippi Finds Doctor Properly Declared "Unavailable" For Hearsay Purposes

Similar to its federal counterpart, Mississippi Rule of Evidence 804(a)(5) provides that a declarant is "unavailable," meaning that his hearsay statements can be admitted under a Rule 804 hearsay exception if he

Is absent from the hearing and the proponent of his statement has been unable to procure his attendance (or in the case of a hearsay exception under subdivision (b)(2), (3), or (4), his attendance or testimony) by process or other reasonable means...

So, what is the test for determining whether the proponent of a hearsay statement under Rule 804 has satisfied Rule 804(a)(5)? That was the question addressed by the Court of Appeals of Mississippi in its recent opinion in Thomas v. State, 2012 WL 4497345 (Miss.App. 2012).

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It Was Five Years Ago Today: Celebrating Five Years Of EvidenceProf Blog

Five years ago this day was the launch of EvidenceProf Blog. Now, 5 years and 1800+ posts later, I don't have any intention of slowing down. I think that one of the most worthwhile endeavors that I have undertaken on this blog and in my scholarship has been my argument that there should be a Constitutional exception to Federal Rule of Evidence 606(b) for allegations of racial, religious, or other bias by jurors. One of my proudest moments as a scholar was when the First Circuit used the reasoning from my article, Dismissed with Prejudice, to reach such a conclusion in United States v. Villar, 2009 WL 3738787 (1st Cir. 2009). Interestingly enough, the First Circuit reached this conclusion after the district court denied the defendant's motion to set aside the verdict on...October 2, 2007. Here was my post on Villar:

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With No Face, The State Has No Case: Court Of Appeals Of Indiana Applies Forfeiture By Wrongdoing Based On Violation Of No Contact Order

Following up on Friday's post about the Court of Appeals of Utah finding the doctrine of forfeiture by wrongdoing triggered by a husband calling his wife 276 times in violation of a no contact order, I give you the recent opinion of the Court of Appeals of Indian in Patton v. State, 972 N.E.2d 418 (Ind.App. 2012).

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