EvidenceProf Blog

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

Sunday, June 30, 2013

Text Messages and the Hearsay Rule in the Aaron Hernandez Case

Thanks to Colin for the opportunity to guest post about text messages and the Aaron Hernandez murder prosecution.  I am particularly interested in the (reported) text messages from the victim in the case, Odin Lloyd.

Specifically, the NY Times provides this description of some of the evidence against Hernandez (former star player for the NFL’s New England Patriots):

In his final moments alive, Lloyd texted his sister to alert her.  When she asked whom he was with, he answered, “NFL,” and added, “Just so you know.”

The ominous text features prominently in the evidence alleged against Hernandez in various news stories about the case.  As I have written elsewhere, this kind of evidence (text messages and social media posts) is becoming increasingly prevalent as police, attorneys and other investigators start to develop the same degree of tech-savvy as the people they investigate.  Consequently, its admissibility is an important question for courts, policymakers and evidence scholars.

Obviously the reported text message from Lloyd to his sister is hearsay.  It is an out of court statement offered for the truth of what it asserts:  that Lloyd was with Hernandez (“NFL”) moments before Lloyd’s death.

Is it nevertheless admissible?

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June 30, 2013 | Permalink | Comments (4) | TrackBack (0)

Complete the Statement: 6th Circuit Finds Rule of Completeness Doesn't Allow for Admission of Otherwise Inadmissible Evidence

Federal Rule of Evidence 106 provides that

If a party introduces all or part of a writing or recorded statement, an adverse party may require the introduction, at that time, of any other part — or any other writing or recorded statement — that in fairness ought to be considered at the same time.

One recurring question that has divided the courts regarding Rule 106, the so-called "rule of completeness," is whether it allows for the introduction of otherwise inadmissible evidence. Let's take a look at the recent opinion, United States v. Parenteau, 2013 WL 3214934 (6th Cir. 2013), to see what the Sixth Circuit had to say about the issue.

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June 30, 2013 | Permalink | Comments (0) | TrackBack (0)

Wednesday, June 26, 2013

Kentucky Derby: Will Kentucky Court Allow Same-Sex Partner to Invoke Spousal Privileges at Murder Trial?

There is an interesting trial that is about to start in Kentucky. Bobbie Jo Clary is charged with murder in connection with the beating death of 64 year-old George Murphy in his home in October 2011. Geneva Case, who entered into a same-sex civil union with Clary in Vermont nine years ago, has bee subpoenaed to testify against Clary. In response, Case has sought to invoke Kentucky's spousal privileges. Kentucky Rules of Evidence 504(a) & (b) provide the following:

(a) Spousal testimony. The spouse of a party has a privilege to refuse to testify against the party as to events occurring after the date of their marriage. A party has a privilege to prevent his or her spouse from testifying against the party as to events occurring after the date of their marriage.

(b) Marital communications. An individual has a privilege to refuse to testify and to prevent another from testifying to any confidential communication made by the individual to his or her spouse during their marriage. The privilege may be asserted only by the individual holding the privilege or by the holder's guardian, conservator, or personal representative. A communication is confidential if it is made privately by an individual to his or her spouse and is not intended for disclosure to any other person. 

Clary and Case consider themselves married and presumably would be married if Kentucky allowed for same-sex marriage. It does not. So, should Case be able to invoke Kentucky's spousal privileges despite not being married to Clary?

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June 26, 2013 | Permalink | Comments (0) | TrackBack (0)

Monday, June 24, 2013

None of Your Business: 2nd Circuit Finds Late Notice Didn't Preclude Self-Authenticatiom Under Rule 902(11)

Federal Rule of Evidence 803(6) provides an exception to the rule against hearsay for

A record of an act, event, condition, opinion, or diagnosis if:

(A) the record was made at or near the time by — or from information transmitted by — someone with knowledge;

(B) the record was kept in the course of a regularly conducted activity of a business, organization, occupation, or calling, whether or not for profit;

(C) making the record was a regular practice of that activity;

(D) all these conditions are shown by the testimony of the custodian or another qualified witness, or by a certification that complies with Rule 902(11) or (12) or with a statute permitting certification; and

(E) neither the source of information nor the method or circumstances of preparation indicate a lack of trustworthiness.

Meanwhile, Federal Rule of Evidence 902(11) provides that the following item is self-authenticating and does not require extrinsic evidence of authentication to be admitted:

The original or a copy of a domestic record that meets the requirements of Rule 803(6)(A)-(C), as shown by a certification of the custodian or another qualified person that complies with a federal statute or a rule prescribed by the Supreme Court. Before the trial or hearing, the proponent must give an adverse party reasonable written notice of the intent to offer the record — and must make the record and certification available for inspection — so that the party has a fair opportunity to challenge them.

So, what exactly constitutes "reasonable written notice under Rule 902(11)? Let's take a look at the recent opinion of the Second Circuit in United States v. Rom, 2013 WL 3064855 (2nd Cir. 2013).

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June 24, 2013 | Permalink | Comments (0) | TrackBack (0)

Friday, June 21, 2013

I May Be Wrong: Supreme Court of Michigan Finds Forfeiture by Wrongdoing Didn't Apply in Sexual Abuse Case

Michigan Rule of Evidence 804(b)(6) provides an exception to the rule against hearsay for

A statement offered against a party that has engaged in or encouraged wrongdoing that was intended to, and did, procure the unavailability of the declarant as a witness.

If a criminal defendant forfeits his objection to hearsay under Rule 804(b)(6), he also forfeits his objection that the admission of the hearsay violates the Confrontation Clause. In People v. Burns, 2013 WL 3020917 (Mich. 2013), the Supreme Court of Michihgan found that the defendant forfeited neither. Why?

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June 21, 2013 in Books | Permalink | Comments (2) | TrackBack (0)

Wednesday, June 19, 2013

Blame Game: Revisiting The Issue of Impeaching the Declarant of an Adoptive Admission

Last week, I did a series of posts about Federal Rule of Evidence 806 and Federal Rule of Evidence 801(d)(2)(B)Rule 806 allows for the impeachment of hearsay declarants even if they don't testify at trial, but it seemingly precludes impeachment of the declarant of an adoptive admission under Rule 801(d)(2)(B). In my posts last week, I argued against such a reading of Rule 806, and I've finally found a case that supports what I've been saying: Lewis v. Gubanski, 905 S.W.2d 847 (Ark.App. 1995).

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June 19, 2013 | Permalink | Comments (0) | TrackBack (0)

Monday, June 17, 2013

My New Article: OK Computer: The Fourth Amendment and Searches of Seized and Imaged Electronic Evidence

Today, I posted the first draft of a short article that I am writing for South Carolina Lawyer magazine on SSRN. The article is OK Computer: The Fourth Amendment and Searches of Seized and Imaged Electronic Evidence. Here is the abstract:

In 1916, the Supreme Judicial Court of Massachusetts addressed a novel question in Massie v. Barker: How does the standard for negligence previously applied to walkers apply to drivers? For the court, the answer was clear: “The law as to drivers of motor vehicles is not different from that which governs other persons. The standard required is that of the reasonably prudent person under all the circumstances.” 

In its 2012 opinion in United States v. Metter, the Eastern District of New York also addressed a question of first impression: How long may the government retain seized and imaged electronic evidence before conducting a review of that evidence to determine whether any of it falls outside the scope of a search warrant?

Many advances in technology have forced courts to reconsider existing constitutional tests and standards given the brave new digital world in which we live. Other technological advances have not caused such legal retrofitting as courts have found that existing tests and standards can adequately accommodate some new innovations. This article argues that the problem confronted by the Metter court falls into this second category.

You can download the article by clicking here. Any feedback would be appreciated.


June 17, 2013 | Permalink | Comments (0) | TrackBack (0)

Friday, June 14, 2013

Your Best Defense: Should the Right to Present a Defense Allow Defendants to Impeach Rule 801(d)(2)(B) Declarants?

In Crane v. Kentucky, the Supreme Court found that:

"[w]hether rooted directly in the Due Process Clause of the Fourteenth Amendment or in the Compulsory Process or Confrontation Clauses of the Sixth Amendment, the Constitution guarantees criminal defendants a meaningful opportunity to present a complete defense."

As I noted in my article, Dismissed with Prejudice: Why Application of the Anti-Jury Impeachment Rule to Allegations of Racial, Religious, or Other Bias Violates the Right to Present a Defense, 61 Baylor L. Rev. 872 (2009), courts generally require defendants to prove three elements to establish that application of a rule of evidence violated or would violate the right to present a defense:

First, that the defendant was or would be deprived "of the opportunity to present evidence in his favor;" second, the excluded evidence was or would be "material and favorable to his defense;" and third, the deprivation was or would be "arbitrary or disproportionate to any legitimate evidentiary or procedural purpose."

So, does the right to present a defense provide relief to a defendant who wants to impeach a Rule 801(d)(2)(B) declarant?

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June 14, 2013 | Permalink | Comments (0) | TrackBack (0)

Wednesday, June 12, 2013

Mouthguard: Why Does Rule 806 Apply to Rule 801(d)(2)(C) But Not Rule 801(d)(2)(B)?

Following up on Monday's post, in today's post, I want consider the impeachment implications raised by Federal Rule of Evidence 801(d)(2)(B) and Federal Rule of Evidence 801(d)(2)(C). My question is: Why can a party impeach an absent Rule 801(d)(2)(C) declarant but not a Rule 801(d)(2)(B) declarant.

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June 12, 2013 | Permalink | Comments (0) | TrackBack (0)

Monday, June 10, 2013

Liar, Liar: Why Does Rule 806 Preclude Impeachment of a Rule 801(d)(2)(B) Declarant?

Federal Rule of Evidence 801(d)(2) provides that

A statement that meets the following conditions is not hearsay:....

The statement is offered against an opposing party and:

(A) was made by the party in an individual or representative capacity;

(B) is one the party manifested that it adopted or believed to be true;

(C) was made by a person whom the party authorized to make a statement on the subject;

(D) was made by the party’s agent or employee on a matter within the scope of that relationship and while it existed; or

(E) was made by the party’s coconspirator during and in furtherance of the conspiracy.

Meanwhile, Federal Rule of Evidence 806 provides that

When a hearsay statement — or a statement described in Rule 801(d)(2)(C), (D), or (E) — has been admitted in evidence, the declarant’s credibility may be attacked, and then supported, by any evidence that would be admissible for those purposes if the declarant had testified as a witness. The court may admit evidence of the declarant’s inconsistent statement or conduct, regardless of when it occurred or whether the declarant had an opportunity to explain or deny it. If the party against whom the statement was admitted calls the declarant as a witness, the party may examine the declarant on the statement as if on cross-examination.

Therefore, when a declarant makes a statement that a party adopts under Federal Rule of Evidence 801(d)(2)(B), the party cannot impach the declarant at trial if for whatever reason the declarant is not a witness at trial. I disagree with this limitation of Federal Rule of Evidence 806.

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June 10, 2013 | Permalink | Comments (0) | TrackBack (0)

Friday, June 7, 2013

Swing and a Miss: Court of Appeals of Mississippi Seemingly Botches Prior Inconsistent Statement Appeal

Similar to its federal counterpartMississippi Rule of Evidence 801(d)(1)(A) provides that

A statement is not hearsay if...[t]he declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement, and the statement is (A) inconsistent with the declarant's testimony, and was given under oath subject to the penalty of perjury at a trial, hearing or other proceeding, or in a deposition...

Conversely, if a prior inconsistent statement was not given under oath, it is only admissible to impeach the declarant and not to prove the truth of the matter asserted in the prior statement. To me, that seems like a pretty big distinction. In its opinion in Barron v. State, 2013 WL 2402916 (Miss.App. 2013), the Court of Appeals of Mississippi apparently disagreed.

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June 7, 2013 | Permalink | Comments (1) | TrackBack (0)

Thursday, June 6, 2013

Please Welcome Derek Black's Education Law Prof Blog to the Internet

Please welcome the Education Law Prof Blog to the internet. The blog was launched on April 30th with the following statement of purpose:

Welcome to the Education Law Prof Blog. On this blog, we plan to highlight education law developments, legal scholarship, research, conferences, and more. Our nation's educational laws have shaped our history, challenged our beliefs, and, at times, defined us. Education law continues to be a dynamic and rich topic, and we hope that this blog will be a place where advocates and scholars can discuss emerging issues and share information. We welcome contributions and ideas from our visitors. If you have recent articles, cases, news, or have a fresh perspective on an important educational issue, please contact us about having it posted. We are also open to having guest bloggers, so if you are interested, please contact us in the left editors' column. Thank you for visiting, and we look forward to hearing from you.

The blog is edited by my colleague Derek Black (who also teaches Evidence and recently completed an Education Law casebook) as well as LaJuana Davis from the Cumberland School of Law and Areto Imoukhuede from Nova Southeastern.

Already, the blog has tackled a good number of education law issues. Yesterday alone, the editors posted entries on discrimination against LGBT studentspre-kindergarten funding, and virtual charter schools. If you are at all interested in education law, the Education Law Prof Blog is definitely worth a look.


June 6, 2013 | Permalink | Comments (1) | TrackBack (0)

Wednesday, June 5, 2013

This is a Recording: When Is a Witness Ever Able to Testify Fully & Accurately for Rule 803(5) Purposes?

A few days ago, I posted an entry about relocating Federal Rule of Evidence 803(5) to Federal Rule of Evidence 801(d)(1). Today, I want to focus on another aspect of this Rule, which provides an exception to the rule against hearsay for

A record that:

(A) is on a matter the witness once knew about but now cannot recall well enough to testify fully and accurately;

(B) was made or adopted by the witness when the matter was fresh in the witness’s memory; and

(C) accurately reflects the witness’s knowledge.

If admitted, the record may be read into evidence but may be received as an exhibit only if offered by an adverse party.

Specifically, let's focus on the question of when a witness "cannot recall [a matter] well enough to testify fully an accurately."

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June 5, 2013 | Permalink | Comments (0) | TrackBack (0)

Tuesday, June 4, 2013

No Right: Supreme Court Finds RIght to Present a Defense Doesn't Preclude Application of Anti-Extrinsic Evidence Rule

The right to present a defense is a right that has always fascinated me. A few years ago, I wrote about it in the article, Dismissed with Prejudice: Why Application of the Anti-Jury Impeachment Rule to Allegations of Racial, Religious, or Other Bias Violates the Right to Present a Defense. That article addressed the intersection between the right and the rules of evidence. Specifically, it questioned whether the right to present a defense should trump Federal Rule of Evidence 606(b) in cases in which there is evidence of juror racial, religious or other bias during deliberations.

Yesterday, in Nevada v. Jackson, the Supreme Court addressed another such intersection. How did the Court rule?

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June 4, 2013 | Permalink | Comments (1) | TrackBack (0)

Monday, June 3, 2013

Should the Recorded Recollection Exception be Moved to Federal Rule of Evidence 801(d)(1)?

Federal Rule of Evidence 803(5) provides a hearsay exception for

A record that:

(A) is on a matter the witness once knew about but now cannot recall well enough to testify fully and accurately;

(B) was made or adopted by the witness when the matter was fresh in the witness’s memory; and

(C) accurately reflects the witness’s knowledge.

If admitted, the record may be read into evidence but may be received as an exhibit only if offered by an adverse party.

Because of its placement in Federal Rule of Evidence 803, this "recorded recollection" exception "applies regardless of whether the declarant is available as a witness...." My argument in today's blog post is that Federal Rule of Evidence 803(5) would fit better under Federal Rule of Evidence 801(d)(1) and that its current residence in Federal Rule of Evidence 803 is a historical relic that no longer makes any sense.

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June 3, 2013 | Permalink | Comments (0) | TrackBack (0)