EvidenceProf Blog

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

Tuesday, July 30, 2013

No (Giu)dice?: The Indictment of 2 Stars of The Real Housewives of New Jersey & NJ's Spousal Privilege

Yesterday, Teresa and Giuseppe (Joe) Giudice were indicted on 39 charges, primarily "stem[ming] from false income statements on loan and mortgage documents and failure to file tax returns." Here is a copy of the indictment. While the potential trial would be held in federal court -- the United States District Court for the District of New Jersey -- New Jersey state privilege law would apply pursuant to Federal Rule of Evidence 501. So, what does that mean?

New Jersey Rule of Evidence 509, New Jersey's confidential marital communications privilege, states that

No person shall disclose any communication made in confidence between such person and his or her spouse unless both shall consent to the disclosure or unless the communication is relevant to an issue in an action between them or in a criminal action or proceeding in which either spouse consents to the disclosure, or in a criminal action or proceeding coming within Rule 23(2). When a spouse is incompetent or deceased, consent to the disclosure may be given for such spouse by the guardian, executor or administrator. The requirement for consent shall not terminate with divorce or separation. A communication between spouses while living separate and apart under a divorce from bed and board shall not be a privileged communication. 

Many states have crime-fraud exceptions to their confidential marital communications privileges, meaning that, in those states, one Giudice could testify against the other Guidice regarding private conversations in which they planned the crimes (if, for instance, one of the two struck a plea deal).

In New Jersey, however, that is not the case. In State v. Terry, 68 A.3d 177 (N.J.Super.A.D. 2013), the trial judge engrafted a crime-fraud exception onto New Jersey Rule of Evidence 509. The Superior Court of New Jersey, Appellate Division, then removed this new appendage, concluding as follows:

We must disagree with the trial judge's reasoning. The fact that the spousal testimonial privilege was at issue in [prior cases] does not mean that we are free to create exceptions to other privileges. The fact that the Legislature codified a crime-fraud exception to the attorney-client privilege does not mean that we can add that exception to the marital communications privilege because the privileges are “akin”....Rather, under the Supreme Court's decisions in Byrd and Mauti, we may not engraft a crime-fraud exception onto the marital communications privilege.  

So, what would happen if the prosecutor wants to get one Giudice to testify about private communications with the other Giudice? No (Giu)dice. And while the fact that the Giudices now have most of their lives recorded might mean that their current conversations are not confidential, the charged crimes allegedly occurred before their reality show, meaning that the privilege contained in New Jersey Rule of Evidence 509 should apply (although it appears that some of the allegations in the indictment relate to failing to disclose income from their TV show in bankruptcy filings).


July 30, 2013 | Permalink | Comments (1) | TrackBack (0)

Monday, July 29, 2013

Stand in the Place Where You Live: Interesting New Florida & South Carolina Cases Involving Stand Your Ground Laws

Last week, over at the Education Law Prof BlogLaJuana Davis posed an entry about T.P. v. Florida, a case in which the Fourth District Court of Appeal applied Florida's Stand Your Ground law to a fight on a school bus. Today, over at The Faculty Lounge, my colleague and Davis's co-blogger, Derek Black, followed up with a post noting that

The stand your ground statute speaks only to criminal immunity, but, if I were representing a child in an expulsion hearing, I would press the fact that the child was only acting in a way that the law affirmatively protects and it would be inconsistent for a school to punish a child for something the law says he or she can do.  Of course, this only shows how absurd stand your ground is.  Many schools take the position that when a fight occurs and both students act with violence, there are no innocent parties.  In other words, schools expect students to deseclate a situation or be prepared to suffer the consequences.  Application of stand your ground to school grounds obviously sends the opposite message.

I agree with Professor Black and wanted to highlight another interesting Stand Your Ground case, this one from South Carolina.

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July 29, 2013 | Permalink | Comments (1) | TrackBack (0)

Sunday, July 28, 2013

Dangers of “Cold-Hit” DNA Cases

Osagie K. Obasogie (UC Hastings) has a powerful piece in the New York Times highlighting, among other things, a fascinating example of mistaken DNA identification.  Available here

It appears that paramedics inadvertently transferred DNA from a severely intoxicated patient they encoutered on one call to a homicide victim they tried to resuscitate on another.  Based on the subsequent DNA hit, prosecutors charged the drunk guy with murder.  (The charges were dropped after five months.) As Prof. Obasogie notes, the case might have taken an even more tragic path if the intoxicated patient did not have a well-documented alibi.

For local news coverage of the case including the “mystery about DNA in the case” see here

- JB

July 28, 2013 | Permalink | Comments (0) | TrackBack (0)

Friday, July 26, 2013

Salinas v. Texas, Indiana Rule of Evidence 617 & The Recording of Custodial Interrogations

Here's an interesting article about the Supreme Court's recent opinion in Salinas v. Texas and its holding that

When petitioner had not yet been placed in custody or received Miranda warnings, and voluntarily responded to some questions by police about a murder, the prosecution’s use of his silence in response to another question as evidence of his guilty at trial did not violate the Fifth Amendment because petitioner failed to expressly invoke his privilege not to incriminate himself in response to the officer's question.

According to the article, Frances Watson, a professor at IUPUI’s Robert H. McKinney School of Law, Salinas 

could lead to more informal questionings where it becomes the suspect’s word against the police. In Indiana, this is less of a problem since Rule of Evidence 617 requires such questionings to be electronically recorded.

Let's take a closer look at Indiana Rule of Evidence 617.

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

Thursday, July 25, 2013

Federal Defender Service Funding Petition

Fredrick Vars, Associate Professor, University of Alabama School of Law, is managing a petition drive to limit the effects of sequestration on the Federal Defender Service.

Information on how to sign the petition available:  here

July 25, 2013 | Permalink | Comments (0) | TrackBack (0)

Wednesday, July 24, 2013

Meanness in This World: How Nebraska's Sexual Character Evidence Rule Differs From Its Federal Counterpart

Last fall, I wrote an essay, Bullshit!: Why the Retroactive Application of Federal Rules of Evidence 413-414 and State Counterparts Violates the Ex Post Facto Clause. The essay argued that the Supreme Court of Nebraska's retroactive application of Nebraska Rule of Evidence 414(1) violated the Ex Post Facto Clause. In today's post, I wil actually say something nice about Nebraska's Rule.

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July 24, 2013 | Permalink | Comments (1) | TrackBack (0)

Tuesday, July 23, 2013

Three Forthcoming Articles of Interest: Limits on Forensic Testimony; Deliberative Privilege; and Admissibility of Facebook "Likes"

Likelihoodism, Bayesianism, and a Pair of Shoes

David H. Kaye (Penn State Law)

Jurimetrics, Vol. 53, No. 1, Fall 2012

 The Government's Increasing Reliance on — And Abuse of — The Deliberative Process Evidentiary Privilege: '[T]he Last Will Be First'

Edward J. Imwinkelried (University of California, Davis)

'Friending' the Federal Rules: An Analysis of Facebook 'Likes' Under the Federal Rules of Evidence

Molly D. McPartland

 Iowa Law Review, Forthcoming (student note)


Abstracts Below the Fold

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July 23, 2013 | Permalink | Comments (0) | TrackBack (0)

Monday, July 22, 2013

Submission Guide For Online Law Review Supplements, Version 7.0, Now Available On SSRN

Back in May 2009, I posted the initial Submission Guide For Online Law Review Supplements at SSRN. At the time, online law review supplements were a relatively new trend and a rarity at top law schools. Those days are over. By my count, there are now 49 online law review supplements, including (according to U.S. News), online law review supplements at:

∙10 of the top 10 schools;

∙19 of the top 20 schools;

∙23 of the top 30 schools;

∙28 of the top 40 schools; and

∙32 of the top 50 schools.

You can download a copy of the Submission Guide For Online Law Review Supplements, Version 7.0 by clicking here. The new additions for Version 7.0 are:

The University of Chicago Law Review Dialogue;

Cornell Law Review Online; and

N.Y.U. Law Review Online


July 22, 2013 | Permalink | Comments (0) | TrackBack (0)

Friday, July 19, 2013

Breaking News: Reporter’s Privilege Claim Rejected by Fourth Circuit

Opinion here

From the majority:

“There is no First Amendment testimonial privilege, absolute or qualified, that protects a reporter from being compelled to testify by the prosecution or the defense in criminal proceedings about criminal conduct that the reporter personally witnessed or participated in, absent a showing of bad faith, harassment, or other such non-legitimate motive, even though the reporter promised confidentiality to his source.”

“we hold that there is no First Amendment or federal common-law privilege that protects Risen from having to respond to the government’s subpoena and give what evidence he has of the criminal conduct at issue”

From the dissent:

“The majority reads narrowly the law governing the protection of a reporter from revealing his sources, a decision that is, in my view, contrary to the will and wisdom of our Founders.”

More coverage here

UPDATE and at Prawfsblog here

Next stop Supreme Court? 

- JB

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

George Zimmerman, Juror B37 & Federal Rule of Evidence 606(b)

Similar to Federal Rule of Evidence 606(b)Section 90.607(2)(b) of the Florida Statutes states that

Upon an inquiry into the validity of a verdict or indictment, a juror is not competent to testify as to any matter which essentially inheres in the verdict or indictment.

According to the Advisory Committee's Note to Federal Rule of Evidence 606(b)

The values sought to be promoted by excluding the evidence include freedom of deliberation, stability and finality of verdicts, and protection of jurors against annoyance and embarrassment. 

Here's my question today: In the 24/7 news cycle, including Anderson Cooper's interview with Juror B37 from the George Zimmerman trial and the 4 other jurors distancing themselves from Juror B37, is the anti-jury impeachment rule no longer necessary or more necessary than ever?

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July 19, 2013 | Permalink | Comments (4) | TrackBack (0)

Thursday, July 18, 2013

Articles of Note: Three Forthcoming Articles on Expert Testimony

Do Jurors Give Appropriate Weight to Forensic Identification Evidence?

William C. Thompson (UC-Irvine), Suzanne O. Kaasa  (Northrop Grumman), Tiamoyo Peterson (UC-Irvine)

Journal of Empirical Legal Studies, Forthcoming 

Is Expert Evidence Really Different?

Frederick Schauer (University of Virginia School of Law), Barbara A. Spellman (University of Virginia School of Law),

The Daubert Counterrevolution 

David Bernstein (George Mason University School of Law)

Notre Dame Law Review, Forthcoming 

Abstracts below the fold . . .

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July 18, 2013 | Permalink | Comments (0) | TrackBack (0)

A Case Study in Doctrinal Chaos: Rule 609 in Minnesota

It is a scenario that plays out in criminal courts across the country:  a defendant moves to preclude impeachment with his prior convictions under Rule 609, the trial court denies the motion, and the defendant decides not to testify.  The scenario is so familiar that the danger that a defendant will not testify is built into the five-factor framework courts use to evaluate the admissibility of prior convictions under Rule 609 in its 4th factor:  “the importance of the defendant’s testimony.”  As I have blogged before, it is an understatement to say that courts struggle to interpret this factor correctly. 

To illustrate, let’s look at two of the most recent cases on point:

In State v. Blevins, the court ruled that because the defendant’s testimony was “not particularly important,” the fourth factor supported the admission of impeachment (since it wouldn’t be such a big deal if he had been prevented from testifying by the impeachment).

But in State v. James, the fourth factor supported the admission of impeachment for the exact opposite reason, because “James's testimony was important.”

And here is the punchline:  these two cases are from the same court (the Minnesota Court of Appeals) in the same month (July 2013).

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July 18, 2013 | Permalink | Comments (0) | TrackBack (0)

Wednesday, July 17, 2013

Judging Judges: Should a Party Have to Object to Improper Judicial Interrogation?

Similar to its federal counterpartMinnesota Rule of Evidence 605 states that

The judge presiding at the trial may not testify in that trial as a witness. No objection need be made in order to preserve the point.

And, similar to its federal counterpartMinnesota Rule of Evidence 6014(b)

The court may interrogate witnesses, whether called by itself or by a party.    

Moreover, the Committee Comment to Rule 614 states that

A specific objection is required to preserve the issue for appeal. See rule 103. However, the objection need not be made contemporaneously with the objectionable act if the jury is present. The objection can be made at the next available opportunity when the jury is absent.

So, a party does not need to object to judicial testimony to preserve the issue for appellate review, but a party does need to object to judicial interrogation to preserve the issue for appellate review (although this objection can come outside the presence of the jury). Fair or unfair? Consider the opinion on the Court of Appeals of Minnesota in State v. Prewitt, 2013 WL 3491078 (Minn.App. 2013).

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July 17, 2013 | Permalink | Comments (2) | TrackBack (0)

Tuesday, July 16, 2013

Did "Stand Your Ground" Matter in the George Zimmerman Case?

I know many legal experts, including Colin (in the post immediately below), are downplaying the role that Florida’s Stand Your Ground (SYG) law played in the George Zimmerman case.  And it is true that the defense narrative of the case fit into a standard definition of self-defense law.  But I think SYG played a significant role in the case for a couple of reasons.  Here is the main one: 

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July 16, 2013 | Permalink | Comments (5) | TrackBack (0)

Media Misreporting and the George Zimmerman/Trayvon Martin Trial

It has been fascinating/disturbing to see just how much the media has gotten wrong throughout the course of the George Zimmerman/Trayvon Martin case and its aftermath. The biggest error, of course, has been the focus on Stand Your Ground laws when Florida's Stand Your Ground law was not invoked by the defense. Then, there were the minutes/hours/days after the judge's ruling during which many did not realize that the judge had ruled that the defense could use its animation as demonstrative evidence. Now, in the aftermath of the jury verdict, we have more misreporting, this time concerning the defense's motion against the prosecution based upon alleged Brady violations.

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July 16, 2013 | Permalink | Comments (5) | TrackBack (0)

Monday, July 15, 2013

Please Welcome My New Co-Blogger, Jeffrey Bellin

Please welcome Jeffrey Bellin as my new co-blogger on EvidenceProf Blog. Professor Bellin is an Associate Professor at the William and Mary School of Law. Previously, Professor Bellin taught at the SMU Dedman School of Law, where he was awarded the Don M. Smart Award for Excellence in Teaching by the 2012 graduating class.


Prior to teaching,

Professor Bellin served as a prosecutor with the United States Attorney’s Office in Washington, D.C. While at the U.S. Attorney’s Office, he argued a number of significant cases before the U.S. Court of Appeals for the D.C. Circuit and the D.C. Court of Appeals, including: United States v. Geraldo, 271 F.3d 1112 (D.C. Cir. 2001) and Fisher v. United States, 779 A.2d 348 (D.C. 2001). Professor Bellin subsequently practiced with the San Diego office of Latham & Watkins where he handled complex litigation matters, and served as a senior attorney for the California Courts of Appeal.

Professor Bellin did his undergraduate studies at Columbia University (summa cum laude) and graduated from Stanford Law School (Order of the Coif), followed by a clerkship with the Honorable Merrick B. Garland of the U.S. Court of Appeals for the District of Columbia Circuit. His scholarship includes:

  • eHearsay, 98 Minn. L. Rev. ___ (forthcoming 2013). SSRN.
  • Symposium, Applying Crawford's Confrontation Right in a Digital Age, 45 Tex. Tech L. Rev. 33 (2012). SSRN.
  • The Incredible Shrinking Confrontation Clause, 92 B.U. L. Rev. 1865 (2012). SSRN.
  • Facebook, Twitter, and the Uncertain Future of Present Sense Impressions, 160 U. Pa. L. Rev. 331 (2012).SSRN.
  • Co-author, Widening Batson’s Net to Ensnare More than the Unapologetically Bigoted or Painfully Unimaginative Attorney, 96 Cornell L. Rev. 1075 (2011) (with Junichi Semitsu). SSRN.
  • Crime-Severity Distinctions and the Fourth Amendment: Reassessing Reasonableness in a Changing World, 97 Iowa L. Rev. 1 (2011). SSRN.
  • Is Punishment Relevant After All? A Prescription for Informing Juries of the Consequences of Conviction, 90 B.U. L. Rev. 2223 (2010). SSRN.
  • Reconceptualizing the Fifth Amendment Prohibition of Adverse Comment on Criminal Defendants' Trial Silence, 71 Ohio St. L.J. 229 (2010). SSRN.
  • Circumventing Congress: How the Federal Courts Opened the Door to Impeaching Criminal Defendants with Prior Convictions, 42 U.C. Davis L. Rev. 289 (2008). SSRN.
  • Improving the Reliability of Criminal Trials Through Legal Rules that Encourage Defendants to Testify, 76 U. Cin. L. Rev. 851 (2008). SSRN.
  • The Significance (If Any) for the Federal Criminal Justice System of Advances in Lie Detector Technology, 80 Temp. L. Rev. 711 (2007). SSRN.

Professor Bellin guest blogged here in the fall of 2011. You can find some of his guest posts herehereherehere, here, and here. He also did a recent guest post about the admissibiloty of text messages in the Aaron Hernandez case. Professor Bellin's Twitter handle is @BellinJ. His posts will be followed by -JB while my posts will be followed by -CM


July 15, 2013 | Permalink | Comments (2) | TrackBack (0)

Friday, July 12, 2013

George Zimmerman, Trayvon Martin & The Admissibility of Computer Generated Animations as Demonstrative Evidence

One of the big issues in the now-concluding George Zimmerman-Trayvon Martin trial was whether the defense would be able to admit an animation depicting the fatal fight between Zimmerman and Martin. Unsurprisingly, the court concluded that the animation would be inadmissible as substantive evidence to prove that the animation in fact accurately depicted how the fight occurred. The court, however, did deem the animation admissible as demonstrative evidence. As I have noted before,

In contrast to testimonial or documentary evidence, demonstrative evidence is "principally used to illustrate or explain other testimonial, documentary or real proof, or judicially noticed fact. It is, in short, a visual (or other) sensory aid." A diagram of the scene of a crime drawn on a board by a percipient witness who is present at trial to testify would be classic demonstrative evidence. Whereas the diagram illustrates the witness' testimony, it should, technically speaking, add nothing further. In this way and despite its title as "evidence," demonstrative evidence is more of a visual aid than evidence per se because it merely illustrates or "demonstrate[s]" a witness' testimony. Jessica M. Silbey, Judges as Film Critics: New Approaches to Filmic Evidence, 37 U. Mich. J.L. Reform 493, 503 (2004).

Perhaps the most (in)famous example of demonstrative evidence was the failed glove experiment in the O.J. Simpson trial.

Beginning in the 1990s, courts began to set forth tests governing the admissibility of computer animations and other computer generated evidence (CGE), and that's exactly when the District Court of Appeal of Florida, Fourth District, decided Pierce v. State, 671 So.2d 186 (Fla.App. 4 Dist. 1996).

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

Wednesday, July 10, 2013

Family Ties: 2nd Circuit Finds Neither Familial Hearsay Exception Applies in Citizenship Dispute

Federal Rule of Evidence 803(19) provides an exception to the rule against hearsay for

A reputation among a person’s family by blood, adoption, or marriage — or among a person’s associates or in the community — concerning the person’s birth, adoption, legitimacy, ancestry, marriage, divorce, death, relationship by blood, adoption, or marriage, or similar facts of personal or family history.

Meanwhile, Federal Rule of Evidence 804(b)(4) provides an exception to the rule against hearsay if an unavailable declarant makes

A statement about:

(A) the declarant’s own birth, adoption, legitimacy, ancestry, marriage, divorce, relationship by blood, adoption, or marriage, or similar facts of personal or family history, even though the declarant had no way of acquiring personal knowledge about that fact; or

(B) another person concerning any of these facts, as well as death, if the declarant was related to the person by blood, adoption, or marriage or was so intimately associated with the person’s family that the declarant’s information is likely to be accurate.

It is rare to see a court discuss either of these hearsay exceptions. But, in Porter v. Quaranttillo, 2013 WL 3368888 (2nd Cir. 2013), the Second Circuit discussed both.

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July 10, 2013 | Permalink | Comments (3) | TrackBack (0)

Monday, July 8, 2013

Unimpeachable?: Nolo Contendere Pleas, Failure to Register, & Federal Rule of Evidence 609

The recent opinion of the United States District Court for the Southern District of Florida in Dingman v. Cart Shield USA, LLC, 2013 WL 3353835 (S.D.Fla. 2013), addresses three interesting questions under Federal Rule of Evidence 609: (1) are convictions resulting from nolo contendere pleas potentially admissible under Rule 609; (2) is a conviction for failure to register as a sex offender a crime of dishonesty or false statement under Rule 609(a)(2); (3) and should a conviction for failure to register as a sex offender be admissible under Rule 609(a)(1)?

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July 8, 2013 | Permalink | Comments (0) | TrackBack (0)

Friday, July 5, 2013

Born in East L.A.?: Are Field 826s Testimonial? Are They Hearsay?

Federal 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.

But what if a public record contains hearsay statements from civilians? Let's take a look at the recent opinion of the Ninth Circuit in United States v. Morales, 2013 WL 3306395 (9th Cir. 2013).

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