EvidenceProf Blog

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

Saturday, November 17, 2012

Later On We'll Conspire: D.C. Case Raises Questions About Intersection Between Conspiracy Theory & Forfeiture Doctrine

Under the doctrine of forfeiture by wrongdoing, "a defendant forfeits his Sixth Amendment right to be confronted by a witness against him, as well as his objection to the introduction of hearsay, if he wrongfully procured the unavailability of that witness with the purpose of preventing the witness from testifying." Roberson v. United States, 961 A.2d 1092, 1095 (D.C.2008). In Ward v. United States, 2012 WL 5512579 (D.C. 2012), the defendant claimed that this doctrine applies "only where the murdered witness was to testify against her killer." The District of Columbia Court of Appeals of course rejected this argument, but the facts of the case raise an interesting question.

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

Friday, November 16, 2012

Not Without My Glock: Middle District Of Florida Finds Husband-Wife Privilege Applies In Glock Case

Section 90.504 of the Florida Statutes sets forth Florida's husband-wife privilege

(1)  A spouse has a privilege during and after the marital relationship to refuse to disclose, and to prevent another from disclosing, communications which were intended to be made in confidence between the spouses while they were husband and wife.

(2)  The privilege may be claimed by either spouse or by the guardian or conservator of a spouse. The authority of a spouse, or guardian or conservator of a spouse, to claim the privilege is presumed in the absence of contrary evidence.

(3)  There is no privilege under this section:

(a)  In a proceeding brought by or on behalf of one spouse against the other spouse.

(b)  In a criminal proceeding in which one spouse is charged with a crime committed at any time against the person or property of the other spouse, or the person or property of a child of either.

(c)  In a criminal proceeding in which the communication is offered in evidence by a defendant-spouse who is one of the spouses between whom the communication was made.

If you're looking for a pretty good explanation of the ins and outs of this privilege, you need look no further than the recent opinion of the United States District Court for the Middle District of Florida in Tropical Marketing & Consulting, LLC. v. Glock, Inc., 2012 WL 5431002 (M.D.Fla. 2012).

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

Thursday, November 15, 2012

Land Of Confusion?: 11th Circuit Finds Statements Against Interest Inadmissible Because They Were Later Recanted

Federal Rule of Evidence 804(b)(3) provides an exception to the rule against hearsay for

A statement that:

(A) a reasonable person in the declarant’s position would have made only if the person believed it to be true because, when made, it was so contrary to the declarant’s proprietary or pecuniary interest or had so great a tendency to invalidate the declarant’s claim against someone else or to expose the declarant to civil or criminal liability; and

(B) is supported by corroborating circumstances that clearly indicate its trustworthiness, if it is offered in a criminal case as one that tends to expose the declarant to criminal liability.

In United States v. Berry, 2012 WL 5476922 (11th Cir. 2012), the Eleventh Circuit rejected the defendant's Rule 804(b)(3) appeal, finding that the statements proferred by the defendant did not satisfy subsection (B) of the Rule. But was this ruling correct?

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

Wednesday, November 14, 2012

PC Confidential: Judge Seals Documents Detailing Source Code, Negotiations & Product Specs In Microsoft v. Motorola Case

Microsoft and Google's Motorola Mobility unit squared off on Tuesday at a trial with strategic implications for the smartphone patent wars and which could reveal financial information the two companies usually keep under wraps.  The proceeding in a Seattle federal court will determine how much of a royalty Microsoft Corp should pay Google Inc for a license to some of Motorola's patents. Google bought Motorola for $12.5 billion, partly for its library of communications patents.  If U.S. District Judge James Robart decides Google deserves only a small royalty, then its Motorola patents would be a weaker bargaining chip for Google to negotiate licensing deals with rivals.

Based upon the recent opinion of the United States District Court for the Western District of Washington in Microsoft Corp. v. Motorola, Inc., 2012 WL 5476846 (W.D.Wash. 2012), three things that will not be revealed during trial are documents containing (1) confidential source code, (2) settlement negotiations, and (3) product specifications. 

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

Tuesday, November 13, 2012

Failure To Register: Court Of Appeals Of Texas Finds Failure To Register Conviction Has High Impeachment Value

Texas Rule of Evidence 609(a) provides that

For the purpose of attacking the credibility of a witness, evidence that the witness has been convicted of a crime shall be admitted if elicited from the witness or established by public record but only if the crime was a felony or involved moral turpitude, regardless of punishment, and the court determines that the probative value of admitting this evidence outweighs its prejudicial effect to a party.

In determining whether a conviction is admissible to impeach a witness under Rule 609(a), Texas courts generally consider five factors:

(1) the impeachment value of the prior crime, (2) the temporal proximity of the past crime relative to the charged offense and the witness's subsequent history, (3) the similarity between past crimes and the charged offense, (4) the importance of the defendant's testimony, and (5) the importance of the credibility issue. Id. We accord the trial court wide discretion in its decision. 

So, what is the impeachment value for the crime of failure to register as a sex offender? Let's take a look at the recent opinion of the Court of Appeals of Texas, Houston, in Tristan v. State, 2012 WL 5285673 (Tex.App.-Houston [1 Dist.] 2012).

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

Monday, November 12, 2012

Believe It Or Not?: 10th Circuit Finds Judicial Credibility Determination Admissible Under Rule 608(b)

Federal Rule of Evidence 608(b) provides that

Except for a criminal conviction under Rule 609, extrinsic evidence is not admissible to prove specific instances of a witness’s conduct in order to attack or support the witness’s character for truthfulness. But the court may, on cross-examination, allow them to be inquired into if they are probative of the character for truthfulness or untruthfulness of:  

(1) the witness; or  

(2) another witness whose character the witness being cross-examined has testified about.  

By testifying on another matter, a witness does not waive any privilege against self-incrimination for testimony that relates only to the witness’s character for truthfulness.

So, is a judicial credibility determination admissible under Rule 608(b), in the sense that it can be inquired into on cross-examination? As a matter of first impression in United States v. Woodard, the Tenth Circuit answered this question in the affirmative.

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November 12, 2012 | Permalink | Comments (0) | TrackBack (0)

Sunday, November 11, 2012

He's A Character Guy: 4th Circuit Finds No Ineffective Assistance Despite Failure To Object To Character Evidence

Pursuant to West Virginia Rule of Evidence 404(a), "[e]vidence of a person's character or a trait of character is not admissible for the purpose of proving that he or she acted in conformity therewith on a particular occasion, except" in limited circumstances that usually consist of a criminal defendant opening the door to the admission of propensity character evidence. In Estep v. Ballard, 2012 WL 5417556 (4th Cir. 2012), the defendant did not open the door to the admission of character evidence and yet the prosecution still admitted it. So, did the defendant received the ineffective assistance of counsel because his trial attorney did not object to the admission of this evidence?

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November 11, 2012 | Permalink | Comments (0) | TrackBack (0)