EvidenceProf Blog

Did You Notice That?: Western District of Virginia Details Notice Obligation Under Rule 404(b)

Federal Rule of Evidence 404(b)(2) provides that character

evidence may be admissible for another purpose, such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident. On request by a defendant in a criminal case, the prosecutor must:

(A) provide reasonable notice of the general nature of any such evidence that the prosecutor intends to offer at trial; and

(B) do so before trial — or during trial if the court, for good cause, excuses lack of pretrial notice.

In other words, Rule 404(b)(2) contains a pre-trial notice requirement, pursuant to which the prosecution has a certain notice obligation when the defendant makes a relevant request. But what is the exact nature of that obligation? Let's take a look at the opinion of the United States District Court for the Western District of Virginia in United States v. Powell, 2007 WL 1839743 (W.D.Va. 2007).

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10 Days Late: SDNY Finds 10 Days Advance Notice Sufficient For Rule 404(b) Purposes

Federal Rule of Evidence 404(b)(2) provides that character evidence

may be admissible for another purpose, such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident. On request by a defendant in a criminal case, the prosecutor must:  

(A) provide reasonable notice of the general nature of any such evidence that the prosecutor intends to offer at trial; and  

(B) do so before trial — or during trial if the court, for good cause, excuses lack of pretrial notice.

So, how much notice is reasonable notice? Let's take a look at the recent opinion of the United States District Court for the Southern District of New York in United States v. Filippi, 2013 WL 208919 (S.D.N.Y. 2013).

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The Thin White Line: 3rd Circuit Seems to Imply Repainting White Line At Railroad Crossing Might Be Admissible Despite 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 a motorcyclist is approaching a railroad crossing, sees a train approaching, and tries to hit the brakes, but his front brake locks and he flies over his handlebars, crashing into the train and becoming partially paralyzed. In addition, assume that before the accident, there was a white line indicating the presence of a railroad crossing before the point at which the motorcyclist hit his brakes but that the line had faded at the time of the accident and was repainted after the accident. Will evidence of the repainting of the line be admissible or excluded under Rule 407? Let's take a look at the recent opinion of the Third Circuit in Zimmerman v. Norfolk Southern Corp., 2013 WL 238789 (3rd Cir. 2013).

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As I Lay Dying?: Court of Appeals of Michigan Finds Written Statement to be a Dying Declaration

Similar to its federal counterpart, Michigan Rule of Evidence 804(b)(2) provides an exception to the rule against hearsay

In a prosecution for homicide or in a civil action or proceeding, [for] a statement made by a declarant while believing that the declarant's death was imminent, concerning the cause or circumstances of what the declarant believed to be impending death.

Usually, this "dying declaration" exception applies to oral statements, but, as the recent opinion of the Court of Appeals of Michigan in People v. Thompson, 2013 WL 276042 (Mich.App. 2013), makes clear, it can also apply to written statements.

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I Keep Forgetting: 6th Circuit Finds Forgetfulness is Not a Character Trait for Rule 404 Purposes

Federal Rule of Evidence 404(a)(1) provides that "[e]vidence 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." So, is forgetfulness a character trait is covered by Rule 404(a)? According to the recent opinion of the Sixth Circuit in United States v. Nixon, 694 F.3d 623 (6th Cir. 2012), the answer is "no."

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Am I Right Or Am I Right?: Supreme Court of West Virginia Finds Evidence of Insurance Inadmissible to Prove Handling of Claim

Similar to its federal counterpart, West Virginia Rule of Evidence 411 provides that

Evidence that a person was or was not insured against liability is not admissible upon the issue whether the person acted negligently or otherwise wrongfully. This rule does not require the exclusion of evidence of insurance against liability when offered for another purpose, such as proof of agency, ownership, or control, if controverted, or bias or prejudice of a witness.

If you're looking for a pretty good case explaining the goals of Rule  411 and its application, you need look no further than the recent opinion of the Supreme Court of West Virginia in Toothman v. Jones, 2012 WL 5687865 (W.Va. 2012).

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Am I Right?: Eastern District of Michigan Finds Rule 410 Doesn't Contain a Constitutionally Protected Right

Federal Rule of Evidence 410 states:

(a) Prohibited Uses. In a civil or criminal case, evidence of the following is not admissible against the defendant who made the plea or participated in the plea discussions:

(1) a guilty plea that was later withdrawn;

(2) a nolo contendere plea;

(3) a statement made during a proceeding on either of those pleas under Federal Rule of Criminal Procedure 11 or a comparable state procedure; or

(4) a statement made during plea discussions with an attorney for the prosecuting authority if the discussions did not result in a guilty plea or they resulted in a later-withdrawn guilty plea.

(b) Exceptions. The court may admit a statement described in Rule 410(a)(3) or (4):

(1) in any proceeding in which another statement made during the same plea or plea discussions has been introduced, if in fairness the statements ought to be considered together; or

(2) in a criminal proceeding for perjury or false statement, if the defendant made the statement under oath, on the record, and with counsel present.

In its recent opinion in Dozier v. Booker, 2013 WL 184000 (E.D.Mich. 2013), the United States District Court for the Eastern District of Michigan held that "nothing in the text of Federal Rule of Evidence 410 or its Michigan analogue even alludes to a constitutionally protected right." But was the court right?

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For Your Eyes Only: NJ Court Notes That Documents Prepared for Settlement Negotiations are Inadmissible

Federal Rule of Evidence 408 provides that

(a) Prohibited Uses. Evidence of the following is not admissible — on behalf of any party — either to prove or disprove the validity or amount of a disputed claim or to impeach by a prior inconsistent statement or a contradiction:

(1) furnishing, promising, or offering — or accepting, promising to accept, or offering to accept — a valuable consideration in compromising or attempting to compromise the claim; and

(2) conduct or a statement made during compromise negotiations about the claim — except when offered in a criminal case and when the negotiations related to a claim by a public office in the exercise of its regulatory, investigative, or enforcement authority.

(b) Exceptions. The court may admit this evidence for another purpose, such as proving a witness’s bias or prejudice, negating a contention of undue delay, or proving an effort to obstruct a criminal investigation or prosecution.

So, under Federal Rule of Evidence 408(a), evidence relating to settlement negotiations is generally inadmissible, and, as the recent opinion of the United States District Court for the District of New Jersey in Alves v. Main, 2012 WL 6043272 (D.N.J. 2012), makes clear, this includes documents prepared for such negotiations.

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Formula 409: Illinois Court Applies Rule 409 to Medical Offer That Took Place Before Rule Took Effect

Federal Rule of Evidence 409 and its state counterparts have to be among the least cited rules of evidence. Rule 409 provides that

Evidence of furnishing, promising to pay, or offering to pay medical, hospital, or similar expenses resulting from an injury is not admissible to prove liability for the injury.

I think that there are two primary reasons why this rule isn't cited very often. First, I would guess that offers to pay medical expenses are pretty rare. Second, because the language of the rule is so clear, I doubt that many litigants try to introduce evidence relating to an offer to pay medical expenses. But, with the recent enactment of the first Illinois Rules of Evidence, we can have a case like Lambert v. Coonrod, 966 N.E.2d 583 (Ill.App. 4 Dist. 2012).

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Cart Before the Horse?: D.C. Court of Appeals Rejects Defendant's Conditional Relevance Appeal

Federal Rule of Evidence 104(b) provides that

When the relevance of evidence depends on whether a fact exists, proof must be introduced sufficient to support a finding that the fact does exist. The court may admit the proposed evidence on the condition that the proof be introduced later. (emphasis added).

In Hagraves v. United States, 2013 WL 173228 (D.C. 2013), a defendant appealed from his conviction, claiming that the trial court erred in precluding him from doing a conditional admission pursuant to the last sentence of Rule 104(b). So, what did the court find?

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Preemptive Strike: 3rd Circuit Finds Defendant Who Preemptively Introduced Drug Conviction Couldn't Appeal

Federal Rule of Evidence 609(a)(1) 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; and  

(B) must be admitted in a criminal case in which the witness is a defendant, if the probative value of the evidence outweighs its prejudicial effect to that defendant....

There has been a boatload of litigation surrounding Rule 609(a)(1), and that has led to some interesting issue regarding its applicability and appealability. Two of those issues were at the heart of the Third Circuit's recent opinion in United States v. Gaston, 2013 WL 142270 (3rd Cir. 2013).

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No Stop Signs, Speed Limit: "Mechanical Trace" Theory & Whether Speed Limit Signs Constitute Hearsay

Yesterday, I got an interesting e-mail from a student asking me whether a speed limit sign constitutes hearsay. Federal Rule of Evidence 801(c) states that

"Hearsay" means a statement that:  

(1) the declarant does not make while testifying at the current trial or hearing; and  

(2) a party offers in evidence to prove the truth of the matter asserted in the statement.

In turn, Federal Rule of Evidence 801(a) indicates that

"Statement" means a person’s oral assertion, written assertion, or nonverbal conduct, if the person intended it as an assertion.

So, is a speed limit sign hearsay? As I said, it is an interesting question.

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I'm on a Mexican, Whoa-Oh: 7th Circuit Finds Testimony About Mexican Methamphetamine Was Improperly Admitted

Federal Rule of Evidence 401 provides that

Evidence is relevant if:  

(a) it has any tendency to make a fact more or less probable than it would be without the evidence; and  

(b) the fact is of consequence in determining the action.

Moreover, Federal Rule of Evidence 403 provides that

The court may exclude relevant evidence if its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence.

So, let's say that in a case involving a Mexican citizen, a DEA officer testifies as follows:

There's two different types of methamphetamine that we see here in the United States. One is what we call...Mexican methamphetamine because it's made by Mexican nationals. Typically, either south of the border in Mexico or in super labs on the west coast like in California. The other kind of methamphetamine that we see is, for lack of a better term, homemade methamphetamine. And that's the stuff that is made in small labs, box labs we call them sometimes, that you can make it in your kitchen using...pseudoephedrine or pseudophed.

Is such evidence admissible under these Rules? According to the recent opinion of the Seventh Circuit in United States v. Ramirez-Fuentes, 2013 WL 28261 (7th Cir. 2013), the answer is "no."

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The Character of the Matter: Court of Appeals of Idaho Finds Sexual Morality Evidence Should Have Been Admitted

In my forthcoming article, Justice of the Peace?, I note that

it is generally understood that character evidence is especially unreliable for a variety of reasons, including the usual sources of character evidence. "Numerous courts have expressed the same opinion as that espoused by the Vermont Supreme Court in" Wright v. McKee, in which it held that character evidence "is uncertain in its nature-both because the true character of a large portion of mankind is ascertained with difficulty, and because those who are called to testify are reluctant to disparage their neighbors,-especially if they are wealthy, influential, popular, or even only pleasant and obliging."  Of course, when character evidence does not come from neighbors, it often comes from family members, who are especially unreliable given their biases in favor of (and sometimes against) their sons, daughters, parents, brothers, and sisters.

And yet, courts continually allow criminal defendants to present character evidence under the so-called "mercy rule," which also allows for prosecutors to respond in kind. As noted in the recent opinion of the Court of Appeals of Idaho in State v. Rothwell, 2013 WL 53731 (Idaho App. 2013), the vast majority of courts in child molestation cases allow defendants to present evidence of their sexual morality with children. But does this make any sense?

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A Foolish Consistency?: "An Unneeded Hearsay Exception" & The Case Against The Rule 801(d)(1)(B) Amendment

Currently, Federal Rule of Evidence 801(d)(1)(B) provides that

A statement that meets the following conditions is not hearsay:

(1) A Declarant-Witness’s Prior Statement. The declarant testifies and is subject to cross-examination about a prior statement, and the statement:....

(B) is consistent with the declarant’s testimony and is offered to rebut an express or implied charge that the declarant recently fabricated it or acted from a recent improper influence or motive in so testifying....

On the other hand, as I have noted on a few prior occasions (see here, here, and here), Minnesota Rule of Evidence 801(d)(1)(B) is broader, providing that

A statement is not hearsay if--

(1) Prior statement by witness. The declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement, and the statement is...(B) consistent with the declarant's testimony and helpful to the trier of fact in evaluating the declarant's credibility as a witness...

In other words, under the Minnesota Rule, a witness's prior consistent statement can be admitted as non-hearsay even if there is no express or implied charge that the witness recently fabricated his trial testimony or acted from a recent improper influence or motive in so testifying. Under a proposed amendment, however, Federal Rule of Evidence 801(d)(1)(B) would be functionally similar to Minnesota Rule of Evidence 801(d)(1)(B). So, why has this change been proposed, and does it make sense?

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Cause I'm a Criminal: Michigan Case Reveals How Criminal Defendants Get Preferential Treatment Under Rule 803(8)(a)(iii)

Recently, I completed the first round of edits on my article, Justice of the Peace?, and a large focus of the article is about how the rules of evidence, save for Federal Rule of Evidence 404(a)(2)(C), treat criminal defendants at least as well as their civil counterparts. And, as the recent opinion of the United States District Court for the Eastern District of Michigan in Santander Consumer USA, Inc. v. Superior Pontiac Buick GMC, Inc., 2013 WL 27921 (E.D.Mich. 2013), makes clear, Federal Rule of Evidence 803(8)(a)(iii) is actually a Rule that treats criminal defendants much better than their civil counterparts.

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What Kind of Crime? Utah Court Finds Possession of Child Pornography Not Child Molestation Under Rule 414

As noted in yesterday's post, Federal Rule of Evidence 414(a),

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

So, what exactly counts as "child molestation" for Rule 414(a) purposes? Let's take a look at the recent opinion of the United States District Court for the District of Utah in United States v. Gardner, 2013 WL 53845 (D.Utah 2013).

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Compromising Position: 11th Circuit Case Involves Rare Intersection Between Rules 408(a) & 413(a)

Federal Rule of Evidence 408(a) provides that

Evidence of the following is not admissible — on behalf of any party — either to prove or disprove the validity or amount of a disputed claim or to impeach by a prior inconsistent statement or a contradiction

(1) furnishing, promising, or offering — or accepting, promising to accept, or offering to accept — a valuable consideration in compromising or attempting to compromise the claim; and  

(2) conduct or a statement made during compromise negotiations about the claim — except when offered in a criminal case and when the negotiations related to a claim by a public office in the exercise of its regulatory, investigative, or enforcement authority.

Meanwhile, Federal Rule of Evidence 414(a) provides that

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

Usually, these Rules are two ships passing in the night, but they had a rare intersection in the recent opinipon of the Eleventh Circuit in United States v. Levinson, 2013 WL 49718 (11th Cir. 2013).

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"Ancient" History: Court of Appeals of Kentucky Doesn't Have to Apply Ancient Documents Rule in Adverse Possession Case

Adverse possession cases are always fun, that is, unless you are the property owner whose land a squatter allegedly adversely possessed.

Adverse possession is a doctrine under which a person in possession of land owned by someone else may acquire valid title to it, so long as certain common law requirements are met, and the adverse possessor is in possession for a sufficient period of time, as defined by a statute of limitations.

And while they say that possession is 9/10ths of the law, the recent opinion of the Court of Appeals of Kentucky in Perkins v. Howard, 2013 WL 45570 (Ky.App. 2012), reveals that fortune often doesn't favor the alleged adverse possessor.

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That is So Not True: 6th Circuit Finds Theft of Services Conviction Not Covered by Rule 609(a)(2)

Federal Rule of Evidence 609(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; and  

(B) must be admitted in a criminal case in which the witness is a defendant, if the probative value of the evidence outweighs its prejudicial effect to that defendant; and  

(2) for any crime regardless of the punishment, the evidence must be admitted if the court can readily determine that establishing the elements of the crime required proving — or the witness’s admitting — a dishonest act or false statement.

So, let's say that a witness has been "convicted of misdemeanor theft of services and fined fifty dollars after he had a friend, who worked for a utility company, surreptitiously hook services up to his home." Because this crime was a misdemeanor, it cannot be admissible under Rule 609(a)(1). But should it be admissible under Federal Rule of Evidence 609(a)(2)? According to the recent opinion of the Sixth Circuit in United States v. Washington, 2012 WL 6682015 (6th Cir. 2012), the answer is "no." I disagree.

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