EvidenceProf Blog

It's in My Report: Court of Appeals of Utah Reverses Receiving Stolen Property Report Based on Improper Admission of Incident Report

Similar to its federal counterpart, Utah 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.

What this means is that, pursuant to Utah Rule of Evidence 803(8)(A)(ii), a police or incident report is not admissible at a criminal trial. And what that means is that the defendant in State v. Gonzalez-Camargo, 2012 WL 6720459 (Utah App. 2012), was entitled to a new trial.

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Hawaii Five-O: Hawai'i Court Finds Official Duty Presumption Inapplicable to Warrantless Arrest

Hawai'i Rule of Evidence 304(c) sets forth a number of presumptions that impose a burden of proof:

(1) Owner of legal title is owner of beneficial title. The owner of the legal title to property is presumed to be the owner of the full beneficial title. This presumption may be rebutted only by clear and convincing proof.  

(2) Official duty regularly performed; lawful arrest. It is presumed that official duty has been regularly performed. This presumption does not apply on an issue as to the lawfulness of an arrest if it is found or otherwise established that the arrest was made without a warrant.  

(3) Intention of ordinary consequences of voluntary act. A person is presumed to intend the ordinary consequences of the person's voluntary act.  

(4) Doing of an unlawful act. An unlawful intent is presumed from the doing of an unlawful act.  

(5) Any court, any judge acting as such. Any court of this State or the United States, or any court of general jurisdiction in any other state or nation, or any judge of such a court, acting as such, is presumed to have acted in the lawful exercise of its jurisdiction. This presumption applies only when the act of the court or judge is under collateral attack.  

(6) Ceremonial marriage. A ceremonial marriage is presumed to be valid.  

(7) Death. A person who is absent for a continuous period of five years, during which the person has not been heard from, and whose absence is not satisfactorily explained after diligent search or inquiry, is presumed to be dead.

In Kaneshiro v. Administrative Director of Courts, 2012 WL 6621141 (Hawai'i App. 2012), the respondent sought to rely upon the presumption contained in Rule of Evidence 304(c)(2). But there was one little problem...

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Dead Man Talking: Court of Appeals of Michigan Finds No Problem With Forfeiture by Wrongdoing Jury Instruction

I've written a good deal recently about the doctrine of forfeiture by wrongdoing. My main focus has been upon whether there is a transferred intent doctrine of forfeiture by wrongdoing, i.e., whether forfeiture applies when a defendant on trial for murdering a prospective witness killed that prospective witness to prevent him from testifying at some other trial (e.g., a robbery trial). The recent opinion of the Court of Appeals of Michigan in People v. Cooley, 2012 WL 6633989 (Mich.App. 2012), however, addressed a different question relating to the doctrine of forfeiture by wrongdoing, albeit one that raises an interesting question connected to transferred intent.

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As My Next Witness: Court of Appeals of Kansas Finds Defendant Couldn't Call Prosecutor as Witness

Kansas has statutes precluding judges (KSA 60-442) and jurors KSA 60-443. By implication, then, does the absence of a rule precluding the prosecutor in a trial from testifying mean that prosecutors can be called to testify at trial? According to the recent opinion of the Court of Appeals of Kansas in State v. Rivera, 2012 WL 6642109 (Kan.App. 2012), the answer is "maybe, but not in this case."

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Not a Juror Was Stirring: 5th Circuit Finds No Problem WIth Allen Charge Despite Impending Christmas Holiday

An Allen charge, derived from the Supreme Court's opinion in Allen v. United States, 164 U.S. 492 (1896), is an instruction given by a court to a deadlocked jury to encourage it to continue deliberating until it reachesa verdict. Also referred to as a dynamite charge, a nitroglycerine charge, a shotgun charge, and a third-degree instruction, an Allen charge has been banned by some states, which consider the charge to be unduly coercive. Should the Allen charge also be banned when a major holiday is fast approaching? Should the charge be banned the day before a major holiday? Let's take a look at the recent opinion of the Fifth Circuit in United States v. Montalvo, 2012 WL 4788659 (5th Cir. 2012).

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Measure for Measure?: 2nd Circuit Fails to Resolve Whether FAA Directive was Inadmissible Under Rule 407

Federal Rule of Evidence 407 provides that

When measures are taken that would have made an earlier injury or harm less likely to occur, evidence of the subsequent measures is not admissible to prove:  

•negligence;

•culpable conduct;

•a defect in a product or its design;

•or a need for a warning or instruction.

But the court may admit this evidence for another purpose, such as impeachment or — if disputed — proving ownership, control, or the feasibility of precautionary measures.

So, let's say that there's an accident, prompting the plaintiff to sue the defendant. And let's say that some third party with regulatory authority over the defendant subsequently issues directives, regulations, etc., mandating that the defendant adopt a remedial measure. Are those directives, regulations, etc. inadmissible pursuant to Rule 407? And does it change the analysis if the defendant's reporting is what led to the issuance of the guidelines, regulations, etc.? Let's take a look at the recent opinion of the Second Circuit in Lidle v. Cirrus Design Corp., 2012 WL 6603388 (2nd Cir. 2012).

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Hit & Miss: Rules 104(b), 404(b), and the Hall of Fame Cases of Players From Baseball's Steroid Era

I remember the summer of 1999 like it was yesterday. After graduating from UVA, I was working at Cascino Vaughan Law Offices, Ltd during the day and teaching LSAT prep classes for Princeton Review at night. The law firm had season tickets for the Chicago Cubs, which they occasionally gave to clients. Other times, employees were free to go to the games as long as we got our work done. Like today, the end of 1999 was supposed to be the end of the world, then based on Y2K. Like Peter Gibbons in "Office Space," my job was to change every "99" in the firm's computer code to "1999."

1999 was the year after Mark McGuire and Sammy Sosa "saved" baseball as they simultaneously tried to break Roger Maris' single season home run record. 2000 was the encore as each men again exceeded the mark set by Maris back in 1961. At the time, it seemed beyond question that both of these men would eventually be enshrined in Cooperstown as members of the Baseball Hall of Fame.

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Back in the Habit: Eastern District of Arkansas Finds School Disciplinary Records Inadmissible as Habit Evidence

Federal Rule of Evidence 404(b)(1) provides that

Evidence of a crime, wrong, or other act is not admissible to prove a person’s character in order to show that on a particular occasion the person acted in accordance with the character.

That said, 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.

So, when is prior act evidence inadmissible character evidence under Rule 404(b)(1) and when is it admissible habit evidence under Rule 406? Let's take a look at the recent opinion of the United States District Court for the Eastern District of Arkansas in Walls v. Shelby, 2012 WL 6569775 (E.D.Ark. 2012).

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O Brother: Court of Appeals of Michigan Finds No Error With Character Evidence Ruling in Murder Case

Michigan Rule of Evidence 404(a)(2) provides that

When self-defense is an issue in a charge of homicide, evidence of a trait of character for aggression of the alleged victim of the crime offered by an accused, or evidence offered by the prosecution to rebut the same, or evidence of a character trait of peacefulness of the alleged victim offered by the prosecution in a charge of homicide to rebut evidence that the alleged victim was the first aggressor [is admissible].

That said, Michigan Rule of Evidence 405(a) provides that

In all cases in which evidence of character or a trait of character of a person is admissible, proof may be made by testimony as to reputation or by testimony in the form of an opinion. On cross-examination, inquiry is allowable into reports of relevant specific instances of conduct.

So, where did these two rules leave the defendant in People v. Harvey, 2012 WL 6177090 (Mich.App. 2012)?

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I'm Incomplete: 7th Circuit Funds Excerpted Copies From Transcript Inadmissible Under Best Evidence Rule

Yesterday, I posted an entry about the best evidence rule. That rule, contained in Federal Rule of Evidence 1002, states that

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

On such rule that "provides otherwise" is Federal Rule of Evidence 1003, which states 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, when is it" unfair to admit the duplicate" under Rule 1003? Well, let's take a look at the recent opinion of the Seventh Circuit in Brown v. Advocate South Suburban Hosp., 2012 WL 5870725 (7th Cir. 2012).

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Better Evidence or Best Evidence?: Court of Appeals of Minnesota Finds Best Evidence Rule Doesn't Apply to Confession

Similar to its federal counterpart, Minnesota 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 Legislative Act.

As the recent opinion of the Court of Appeals of Minnesota in State v. Rowland, 2012 WL 6554539 (Minn.App. 2012), makes clear, however, this best evidence rule does not apply when a witness has independent personal knowledge of the contents of the writing, recording, or photograph.

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Pages In Your Diary: Supreme Court of West Virginia Badly Errs in Deeming Diary Entries Admissible Despite Rape Shield Rule

A defendant is charged with second-degree sexual assault and related crimes after another individual and he allegedly commit sexual crimes against a 13 year-old victim. After the alleged crimes, the alleged victim starts writing in a notebook and writes in that notebook that her only sexual encounters were with "Chris," who was not either of the individuals involved with the alleged sexual assault. At the defendant's trial, should he be allowed to admit the notebook? According to the recent opinion of the Supreme Court of West Virginia in State v. Jonathan B., 2012 WL 5898025 (W.Va. 2012), the answer is "yes." I strongly disagree.

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Not The Issue: Supreme Court Of Mississippi Finds Defendants Didn't Waive Physician-Patient Privilege

Mississippi Rule of Evidence 503(b) provides that

A patient has a privilege to refuse to disclose and to prevent any other person from disclosing (A) knowledge derived by the physician or psychotherapist by virtue of his professional relationship with the patient, or (B) confidential communications made for the purpose of diagnosis or treatment of his physical, mental or emotional condition, including alcohol or drug addiction, among himself, his physician or psychotherapist, and persons who are participating in the diagnosis or treatment under the direction of the physician or psychotherapist, including members of the patient's family.

While a party can waive the protection of this physician-patient privilege to the extent that he puts his medical condition at issue, as the recent opinion of the Supreme Court of Mississippi in Powell v. McLain, 2012 WL 6200432 (Miss. 2012), makes clear, a defendant is unlikely to engage in such waiver.

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The Purpose-Driven Rule Published By The Columbia Law Review Sidebar

Yesterday, my essay, The Purpose-Driven Rule: Drew Peterson, Giles v. California, and the Transferred Intent Doctrine of Forfeiture by Wrongdoing, was publised by the Columbia Law Review Sidebar. Here is the abstract:

On September 6, 2012, a jury convicted Drew Peterson of the murder of his third wife, Kathleen Savio. Media accounts of the verdict indicated that jurors were primarily swayed by the admission of hearsay statements by Savio as well as Peterson’s third wife, Stacy Peterson. Numerous stories reported that the prosecution admitted these hearsay statements pursuant to “Drew’s Law,” a statutory codification of the common law doctrine of forfeiture by wrongdoing that the Illinois legislature enacted solely for purposes of the Peterson prosecution. In fact, these statements were admitted under the common law doctrine of forfeiture by wrongdoing, and the viability of Peterson’s appeal hinges upon the constitutionality of the transferred intent doctrine of forfeiture by wrongdoing.  

The doctrine of forfeiture by wrongdoing typically applies in the witness tampering context: When a defendant on trial for some crime (e.g., robbery) intends to and does procure the unavailability of a prospective witness against him at that trial, the prosecution can admit the witness’s hearsay statements at that same trial (the robbery trial). But does the doctrine also apply at the defendant’s trial for murdering the prospective witness, with the defendant’s intent to render the witness unavailable at the first trial transferring to the second trial? This essay contends that the Supreme Court’s opinion in Giles v. California endorsed a transferred intent doctrine of forfeiture by wrongdoing by making the operation of the doctrine dependent upon causation and intent rather than causation and benefit.

-CM

I Need A Doctor: Mississippi Case Reveals That Rule 803(4) Can Cover Statements By Non-Patients

Similar to its federal counterpart, Mississippi 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, regardless of to whom the statements are made, or when the statements are made, if the court, in its discretion, affirmatively finds that the proffered statements were made under circumstances substantially indicating their trustworthiness. For purposes of this rule, the term "medical" refers to emotional and mental health as well as physical health.

So, for Rule 803(4) to apply, does the declarant need to be the doctor's patient or even the one seeking diagnosis or treatment? According to the recent opinion of the Court of Appeals of Mississippi in Webb v. State, 2012 WL 6118919 (Miss.App. 2012), the answer is "no."

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My Reincarnation: Court Of Appeals Of Wisconsin Deems Reincarnation Belief Evidence Inadmissible Character Evidence

Similar to its federal counterpart, WIS. STAT. § 906.10 provides that

Evidence of the beliefs or opinions of a witness on matters of religion is not admissible for the purpose of showing that by reason of their nature the witness's credibility is impaired or enhanced.

Now, consider the facts of State v. Jennings, 819 N.W.2d 563 (Wis.App. 2012):

Kami L. Jennings was charged with misdemeanor theft—party to a crime, contributing to the delinquency of a child, and receiving stolen property after she allegedly told her nine-year-old daughter Genesis to steal from her ex-husband's wife, Cynthia Troha. Cynthia gossiped to the prosecutor that she heard from Jennings' other daughter, Jade, that Jennings believed her ex-husband's family had persecuted her in previous lives and burned her at the stake. The prosecution bit on the gossip, but never disclosed it to the court or the defense before raising it three times during the trial: during cross-examination of Jennings, during recross-examination of Jennings, and during its closing argument. A jury convicted Jennings of all three counts.

Was the use of this reincarnation evidence proper? According to the court in Jennings, the answer is "no," but not because of § 906.10.

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Character Assassination, Take 2: The Mercy Rule & The Same Trait Requirement

Yesterday's post dealt with an interesting aspect of the propensity character evidence proscription and the so-called "mercy rule." Federal Rule of Evidence 404(a) states in relevant part:

(1) Prohibited Uses. Evidence of a person’s character or character trait is not admissible to prove that on a particular occasion the person acted in accordance with the character or trait.  

(2) Exceptions for a Defendant or Victim in a Criminal Case. The following exceptions apply in a criminal case:  

(A) a defendant may offer evidence of the defendant’s pertinent trait, and if the evidence is admitted, the prosecutor may offer evidence to rebut it;  

(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....

As Federal Rule of Evidence 404(a)(2)(B)(ii) makes clear, when the defendant attacks the character of the alleged victim for a pertinent character trait, the prosecution may respond by offering "evidence of the defendant's same trait." Therefore, if a defendant presents evidence that his alleged victim was dishonest, the prosecution could respond by presenting evidence that the defendant is a dishonest person but could not present evidence that the defendant is a violent person. 

The clear implication from Federal Rule of Evidence 404(a)(2)(B)(ii) is that the same deal applies for Federal Rule of Evidence 404(a)(2)(A). In other words, if a defendant presents evidence that he is an honest person, the prosecution could respond by presenting evidence that he is a dishonest person but could not respond by presenting evidence that he is a violent person. In this post, I will give two examples of what I mean, one hypothetical and one actual.

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Character Assassination?: Court Of Appeals Of Michigan Seemingly Errs In Character Evidence Ruling(s)

Similar to its federal counterpart, Michigan 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 offered by an accused, or by the prosecution to rebut the same; or if evidence of a trait of character of the alleged victim of the crime is offered by the accused and admitted under subdivision (a)(2), evidence of a trait of character for aggression of the accused offered by the prosecution....

So, let's say that a mother is on trial for second-degree child abuse. And let's say that the mother introduces character evidence tending to show that she is a compassionate and selfless person. Does the introduction of this character evidence open the door for admission of character evidence regarding the mother's impatience and inability to control her temper? And what about evidence that she mouthed the word "bitch" at a prior court proceeding? According to the recent opinion of the Court of Appeals of Michigan in People v. Rao, 2012 WL 5233608 (Mich.App. 2012), both of these types of rebuttal character evidence were inadmissibleadmissible. I disagree.

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Tell Me Lies: Can The Admission Of Lies Ever Implicate The Confrontation Clause?

I was talking to Derek Black yesterday when he raised an interesting question: Can the admission of a declarant's lie ever violate the Confrontation Clause of the Sixth Amendment? My initial thought was that the answer had to be "no." First, the Confrontation Clause is only implicated by the admission of statements offered to prove the truth of the matter asserted, and a lie seemingly would not be offered to prove the truth of the matter asserted. Second, for a statement to be "testimonial" and thus trigger the Confrontation Clause, the declarant must have some expectation or awareness that "his or her statements may later be used at a trial." I'm not sure that a liar would ever have this expectation. That said, I'm not entirely sure about these conclusions, so let's look at the opinion of the Court of Appeals of Arizona, Division 1, Department C, in State v. Valdez, 2007 WL 5248976 (Ariz.App. Div. 1 2007), which dealt with a factual context similar to the context that Derek mentioned.

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Certificate Of Completion: Court Of Appeals Of Ohio Finds Uncertified Court Documents Not Self-Authenticating

Similar to its federal counterpart, Ohio Rule of Evidence 902(4) provides for self-authentication of

A copy of an official record or report or entry therein, or of a document authorized by law to be recorded or filed and actually recorded or filed in a public office, including data compilations in any form, certified as correct by the custodian or other person authorized to make the certification, by certificate complying with paragraph (1), (2), or (3) of this rule or complying with any law of a jurisdiction, state or federal, or rule prescribed by the Supreme Court of Ohio.

Because such a record or report is self-authenticating, "[e]xtrinsic evidence of authenticity as a condition precedent to admissibility is not required..." But, if such a record or report is not accompanied by the requisite certification, it is not self-authenticating under Rule 902(4), which was the problem for the appellee in Emerson Family Ltd. Partnership v. Emerson Tool, L.L.C., 2012 WL 6033142 (Ohio App. 9 Dist. 2012).

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