EvidenceProf Blog

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

Monday, September 30, 2013

Rules of Evidence: Are They Necessary?

Unlike most evidence law teachers, especially those who have taught in multiple states, my entire teaching career thus far has been in states without comprehensive evidence codes.  Specifically, I began teaching in New York (Brooklyn Law School) and now teach in Missouri (University of Missouri).

The overwhelming majority of states have adopted rules modeled on the Federal Rules of Evidence; Illinois and Georgia became states #43 and #44 in recent years.  Even certain of the holdouts eschewing FRE-style rules have some kind of evidence code.  For example, California has a robust evidence code organized differently from the FRE.  But not New York, and not Missouri.

New York and Missouri of course have rules of evidence.  But they don't have Rules of Evidence.  In other words, New York courts apply the hearsay rule (along with many exceptions to it), but one cannot find a New York equivalent of Rule 801.  One must turn instead to court opinions, treatises, and other summaries of the law.  See, for example, this guide to New York evidence law by Prof. Travis H.D. Lewin of Syracuse.  Similarly, the Missouri Bar publishes an "Evidence Guide" that summarizes the state's evidence law. 

My question today is:  Are Missouri and New York missing out?

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

Judicial Notice in the Information Age

My co-author Andrew Ferguson (University of the District of Columbia - David A. Clarke School of Law) and I have posted a draft of our forthcoming article, Trial by Google: Judicial Notice in the Information Age, on SSRN.  It is available here.  Comments and suggestions are welcome. 

The article explores the emerging phenomenon of courts taking judicial notice of facts gleaned from Internet web sites, like Google Maps.  It highlights the inviting and terrifying intersection of venerable judicial notice doctrine and the Internet, and ultimately suggests guidelines for courts applying Federal Rule of Evidence 201 (Judicial Notice) and state analogues to Internet sources.

Here is the abstract:

This Article presents a theory of judicial notice for the information age. It argues that the ease of accessing factual data on the Internet allows judges and litigants to expand the use of judicial notice in ways that raise significant concerns about admissibility, reliability, and fair process. State and federal courts are already applying the surprisingly pliant judicial notice rules to bring websites ranging from Google Maps to Wikipedia into the courtroom, and these decisions will only increase in frequency in coming years. This rapidly emerging judicial phenomenon is notable for its ad hoc and conclusory nature – attributes that have the potential to undermine the integrity of the factfinding process. The theory proposed here, which is the first attempt to conceptualize judicial notice in the information age, remedies these potential failings by setting forth both an analytical framework for decision, as well as a process for how courts should memorialize rulings on the propriety of taking judicial notice of Internet sources to allow meaningful review.

- JB

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

Friday, September 27, 2013

I Could Be Wrong. I Could Be Right: Illinois Court Finds Error in Judicial Notice Instruction

Illinois Rule of Evidence 201(b) states that

A judicially noticed fact must be one not subject to reasonable dispute in that it is either (1) generally known within the territorial jurisdiction of the trial court or (2) capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned.

Meanwhile, Illinois Rule of Evidence 201(g) provides that

In a civil action or proceeding, the court shall inform the jury to accept as conclusive any fact judicially noticed. In a criminal case, the court shall inform the jury that it may, but is not required to, accept as conclusive any fact judicially noticed.

The limiting instruction at the end of Rule 201(g) is thought to be necessary to safeguard a criminal defendant's Sixth Amendment right to trial by jury. So, what should happen when such an instruction is not given? Let's take a look at the recent opinion of the Appellate Court of Illinois, Third District in People v. Love, 2013 WL 5332141 (Ill.App. 3 Dist. 2013).

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September 27, 2013 | Permalink | Comments (0) | TrackBack (0)

Thursday, September 26, 2013

Is Rule 1006 a Shall or a Should?: The Court of Appeals of Mississippi's Baffling Interpretation

Similar to its federal counterpartMississippi Rule of Evidence 1006 provides that

The contents of voluminous writings, recordings, or photographs which cannot conveniently be examined in court may be presented in the form of a chart, summary, or calculation. The originals, or duplicates, shall be made available for examination or copying, or both, by other parties at a reasonable time and place. The court may order that they be produced in court.

I'm not sure how Rule 1006 could be read as anything other than a requirement that a party seeking to introduce charts, summaries, or calculations must make the originals or duplicates available for examination, copying, or both by other parties. So, how did the Court of Appeals of Mississippi disagree with me in Gardner v. Gardner, 2013 WL WL 5313142 (Miss.App. 2013)?

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

Wednesday, September 25, 2013

Taking Exception: A Connecticut Case Raises Questions About Exceptions to Spousal Testimonial Privilege

Here's a strange story out of Connecticut.  According to the story,

A Hartford man has pleaded guilty to a charge of sexual assault against a minor just weeks before his wife, whom authorities say engaged in the illegal acts with him, is scheduled to go on trial.

Steven D. Smith, 47, pleaded guilty recently to aggravated sex assault in a deal that calls for him to serve no more than 15 years in prison.

The agreement also lifts the final impediment for Smith to be compelled, if necessary, to testify against his wife. Lucinda Smith, 42, is scheduled to go on trial in October for charges of aggravated sex assault.

In an interview Tuesday, Deputy Windsor County State’s Attorney David Cahill acknowledged the benefit of having Smith available to testify against his wife, but said it was not the primary motivation behind the plea deal.

“The purpose of the plea agreement was to bring closure to the case for the victims and Mr. Smith, and spare the victims the pain of testifying,” Cahill said. “I think right now everyone is working through the collective consequences of Mr. Smith deciding to take responsibility for what he did.”

With his guilty plea, Smith can no longer invoke his fifth Amendment protection against self-incrimination to avoid testifying during his wife’s trial. And while the rules of evidence generally allow spouses to refrain from testifying against each other, there are a handful of exceptions to the rule, including in certain cases involving children. None of the exceptions apply to Steven Smith, Cahill said.

But is the story in fact correct about the law?

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September 25, 2013 | Permalink | Comments (2) | TrackBack (0)

Tuesday, September 24, 2013

Dead Man's Chest: Pennsylvania Court Considers Applicability of Dead Man's Statute in Interpleader Action

42 Pa. Cons.Stat. § 5930 states that

Except as otherwise provided in this subchapter, in any civil action or proceeding, where any party to a thing or contract in action is dead, or has been adjudged a lunatic and his right thereto or therein has passed, either by his own act or by the act of the law, to a party on the record who represents his interest in the subject in controversy, neither any surviving or remaining party to such thing or contract, nor any other person whose interest shall be adverse to the said right of such deceased or lunatic party, shall be a competent witness to any matter occurring before the death of said party or the adjudication of his lunacy, unless the action or proceeding is by or against the surviving or remaining partners, joint promisors or joint promisees, of such deceased or lunatic party, and the matter occurred between such surviving or remaining partners, joint promisors or joint promisees and the other party on the record, or between such surviving or remaining partners, promisors or promisees and the person having an interest adverse to them, in which case any person may testify to such matters; or, unless the action is a possessory action against several defendants, and one or more of said defendants disclaims of record any title to the premises in controversy at the time the suit was brought and also pays into court the costs accrued at the time of his disclaimer, or gives security therefor as the court in its discretion may direct, in which case such disclaiming defendant shall be a fully competent witness; or, unless the issue or inquiry be devisavit vel non, or be any other issue or inquiry respecting the property of a deceased owner, and the controversy is between parties respectively claiming such property by devolution on the death of such owner, in which case all persons shall be fully competent witnesses.

In other words, 42 Pa. Cons.Stat. § 5930 is Pennsylvania's version of a dead man's statute, which is (literally) a dying breed. But did the statute apply in Jackson Nat. Life Ins. Co. v. Heyser, 2013 WL 5278240 (E.D.Pa. 2013)?

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

Monday, September 23, 2013

The Town Drunk? Western District of Kentucky Finds Evidence of Drinking Problem Inadmissible as Habit Evidence

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, in a case involving a car accident, should a party be able to admit evidence of one of the driver's drinking problem admissible as habit evidence under Rule 406? That was the question addressed by the United States District Court for the Western District of Kentucky in its recent opinion in Bryant v. Turney, 2013 WL 5278311 (W.D.Ky. 2013).

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

Friday, September 20, 2013

Using Transcripts in Evidence Class, a Guest Post by Kevin Lapp

As my previous posts have indicated, I’m a believer in the problem-based approach to teaching Evidence. As great as problems are, though, they have their limitations. Usually, they are procedurally quite neat, setting up the witness’s proposed testimony on a platter within the context of an ongoing trial. For these problems, the students simply have to decide whether some proposed testimony would be admissible under the given, limited facts. This has tremendous efficiency advantages for the classroom, but it also comes with a cost: students do not see the full work that goes into eliciting admissible testimony, which involves the important task of laying the foundation for a particular witness’s testimony or a particular document or piece of physical evidence. These issues can be discussed by simply asking things like “what foundational information must the proponent have established first?” or “how would you authenticate the physical evidence?” But there’s something to be said for showing the students just how that happens. And that’s one reason I like to use trial transcripts in Evidence class to help the students learn the rules.

For showing the students how to lay proper foundations, I have found Imwinkelried’s Evidentiary Foundations to be a great resource. I don’t require my students to purchase the book, but I recommend it, and have relied on it to craft my own short examples for the students. As good and helpful as I think these transcripts are, they aren’t the perfect transcript tool for teaching the rules, at least not alone. Or maybe it’s better to say that they are too perfect to stand as the sole examples. The transcripts contain no mistakes in laying a foundation, and there are no judges making improper rulings in the transcripts. In my mind, a good pedagogical transcript has faulty foundations, improper objections that are sustained, and good objections that are overruled. So I aim to put imperfect transcripts to use in the classroom. 

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September 20, 2013 | Permalink | Comments (0) | TrackBack (0)

Thursday, September 19, 2013

Three New Articles of Interest: Importance of 911 Call Evidence; Atomism and Holism in the Evidence Rules; and a Call for More Inquisitorialism

"Promising Protection: 911 Call Records as Foundation for Family Violence Intervention" 

JAMES G. DWYER (William & Mary)

Kentucky Law Journal, Forthcoming


"Atomism, Holism, and the Judicial Assessment of Evidence" 


60 UCLA Law Review 1524 (2013)


"Lessons from Inquisitorialism" 


Southern California Law Review, Forthcoming


Abstracts Below the Fold

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

Who Needs Informants When There is Facebook?

This story describes NYPD’s use of social media, like Facebook, to build cases against youthful offenders.  The strategy is surprisingly successful, according to the article, because “an online persona is a necessary component of social life for the young crew members.”

The part that grabbed my attention is:  “Facebook, officers like to say now, is the most reliable informer” – supporting my prognostication in this article -- Applying Crawford's Confrontation Right in a Digital Age, 45 Tex. Tech. L.Rev. 33 (2012) – that “Prosecutors of the future may have placards in their office that read, ‘Who needs informants, when there is Facebook?’”

- JB


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

Wednesday, September 18, 2013

Neuroscience Evidence on TV

Some readers might be interested in this program running on PBS that explores the current state of advances in neuroscience in areas like fMRI lie detection, face recognition and other fascinating futuristic possibilities, with Alan Alda and others, including Nita Farahany of Duke Law.  Raises as many questions as answers, but lots of food for thought.



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

A Long Time Ago: District of New Jersey Finds 14 Year Old Conviction Inadmissible to Impeach

Federal Rule of Evidence 609(a)(2) provides that

for any crime regardless of the punishment, the evidence must be admitted [to impeach a witness] 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.

That said, Federal Rule of Evidence 609(b) states that

This subdivision (b) applies if more than 10 years have passed since the witness’s conviction or release from confinement for it, whichever is later. Evidence of the conviction is admissible only if:

(1) its probative value, supported by specific facts and circumstances, substantially outweighs its prejudicial effect; and

(2) the proponent gives an adverse party reasonable written notice of the intent to use it so that the party has a fair opportunity to contest its use.

Therefore, a conviction for a crime of dishonesty or false statement is per se admissible if it is not more then 10 years old but presumptively inadmissible if it is more than ten years old, as was the case in Deluxe Bldg. Systems, Inc. v. Constructamax, Inc., 2013 WL 5179077 (D.N.J. 2013).

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

Tuesday, September 17, 2013

Power to the (Lay)People: Court of Appeals of Minnesota Finds lay Authentication Testimony Was Admissible

Similar to its federal counterpartMinnesota Rule of Evidence 901(b)(2) allows a party to authenticate a writing via

Nonexpert opinion as to the genuineness of handwriting, based upon familiarity not acquired for purposes of the litigation.

In other words, even a lay witness can authenticate a writing, as long as that witess had familiarity with the handwriting of the person who allegedly drafted the writing before the incident giving rise to a lawsuit. Based upon this Rule, the appellant was out of luck in Bellino ex rel. Bellino v. Bellino, 2013 WL 40455809 (Minn.App. 2013).

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

Monday, September 16, 2013

Collateral Damage: Arizona Court Finds Acquittal Doesn't Bar Evidence of Defendant's Prior Confession

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.

Assume that a defendant is charged with Aggravated Sexual Abuse of a Minor. Also, assume that the defendant was previously charged with Attempted Aggravated Sexual Assault and signed a written confession to that crime. If the defendant was later acquitted of the prior offense, would collateral estoppel bar the prosecution from admitting his confession under Federal Rule of Evidence 414(a)? That was the question addressed by the United States Distruct Court for the District of Arizona in United States v. Young, 2013 WL 4834029 (D.Ariz. 2013).

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September 16, 2013 | Permalink | Comments (0) | TrackBack (0)

Friday, September 13, 2013

Mutual Quarrel: Supreme Judicial Court of Massachusetts Finds Statistical Evidence From Computer Database Inadmissible

Federal Rule of Evidence 803(17) provides an exception to the rule against hearsay for 

Market quotations, lists, directories, or other compilations that are generally relied on by the public or by persons in particular occupations.

Massachusetts does not have state rules of evidence modeled after the Federal Rules of Evidence, but it does have General Laws c. 233, § 79B, which provides an exception to the rule against hearsay for

Statements of facts of general interest to persons engaged in an occupation contained in a list, register, periodical, book or other compilation, issued to the public, shall, in the discretion of the court, if the court finds that the compilation is published for the use of persons engaged in that occupation and commonly is used and relied upon by them, be admissible in civil cases as evidence of the truth of any fact so stated.

So, when does this rule apply, and when does this rule apply? Let's take a look at the recent opinion of the Supreme Judicial Court of Massachusetts in N.E. Physical Therapy Plus, Inc. v. Liberty Mut. Ins. Co., 2013 WL 4787512 (Mass. 2013).

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September 13, 2013 | Permalink | Comments (0) | TrackBack (0)

Thursday, September 12, 2013

The Oh in Ohio: Marianna Brown Bettman, Legally Speaking Ohio & the Confrontation Clause

Marianna Brown Bettman, a Professor of Practice at the University of Cincinnati College of Law, passed along to me this terrific post from her blog, Legally Speaking Ohio. Here's the introduction to the post:

On September 5, 2013 the Supreme Court of Ohio handed down a merit decision in State v. Ricks, Slip Opinion No. 2013-Ohio-3712 The issue was whether it was proper in this case to admit a non-testifying accomplice’s out-of-court statements through the testimony of an investigating police officer. Although the Court unanimously held the admission of the statements in this case was improper, the Court split 4-3 on the reasons for its ruling. Justice Pfeifer wrote the lead decision for himself and Justices O’Donnell, Kennedy, and O’Neill. Pfeifer’s opinion found the admission of the statements violated the defendant’s confrontation rights under the state and federal constitutions. Justice French wrote the separate concurrence for herself, Chief Justice O’Connor, and Justice Lanzinger. The concurrence would find the statements inadmissible only because they violated Evid. R.403. The case was argued January 23, 2013.  Read the oral argument preview here and the analysis of the oral argument here.

I recommend that readers interested in the nuts and bolts of Confrontation Clause jurisprudence to check out the post to see Professor Bettman's detailed breakdown of exactly how the court handled the defendant's claim. In this post, I wanted to add a further thought about the concurrence.

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

Wednesday, September 11, 2013

Bradley Cooper, Google Maps & Expert Testimony, Take 2: Supreme Court Review?

Last week, I posted an entry about the Bradley Cooper case out of North Carolina. Readers will recall that this was the case in which Bradley Cooper was convicted of the murder of his wife after, inter alia, the prosecution presented into evidence a Google Maps search conducted on the defendant's laptop. The searcher "entered the zip code associated with Defendant's house, and then moved the map and zoomed in on the exact spot on Fielding Drive where Ms. Cooper's body was found."

The trial judge precluded the defendant from presenting expert evidence tending to indicate that someone planted the Google Maps search on Cooper's computer, and the Court of Appeals of North Carolina concluded that this decision was erroneous. Moreover, the appellate court found that the error was serious enough to award Cooper a new trial.

Now, "Attorney General Roy Cooper announced Tuesday that he will petition the state Supreme Court to review the recent N.C. Court of Appeals decision ordering a new trial for Brad Cooper."  Will theNorth Carolina Supremes bite?

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September 11, 2013 | Permalink | Comments (0) | TrackBack (0)

Tuesday, September 10, 2013

Ski School: Utah Judge Finds Crime-Fraud Exception Applies to Letter & E-Mails

Utah Rule of Evidence 504(b) sets forth Utah's attorney-client privilege:

A client has a privilege to refuse to disclose, and to prevent any other person from disclosing, confidential communications:

(1)   made for the purpose of facilitating the rendition of professional legal services to the client; and

(2)   the communications were between:

(A)   the client and the client's representatives, lawyers, lawyer's representatives, and lawyers representing others in matters of common interest; or

(B)   among the client's representatives, lawyers, lawyer's representatives, and lawyers representing others in matters of common interest. 

That said, Utah Rule of Evidence 504(d)(1) contains a crime-fraud exception which vitiates the attorney-client privilege 

If the services of the lawyer were sought or obtained to enable or aid anyone to commit or plan to commit what the client knew or reasonably should have known to be a crime or fraud...

Talisker Land Holdings, LLC and Park City Mountain Resort are currently locked in a legal dispute over the terms of the ski area's lease of Talisker-owned property comprising much of the ski terrain above the base area. A few days ago, the judge found that the crime-fraud exception applied to a lease renewal letter and e-mails connected to it. Was he right?

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

Monday, September 9, 2013

Writing Assignments in Evidence Courses, a Guest Post by Kevin Lapp

As I said before, Evidence strikes me as an ideal second-year course to incorporate skills exercises into the curriculum, so that students don’t just learn the rules, but learn how practicing lawyers prepare for and resolve Evidence law issues. Aided by the problem-based approach of many Evidence textbooks, it’s quite easy in the classroom to provide students with the facts of a case and some proposed testimony and to then have one or more students argue for the admissibility of the testimony while others argue for exclusion. This gets them to do the important work of applying the rule they’ve just learned, has the benefit of them doing so while in role as a lawyer with a particular goal, and ensures that they hear and consider both sides of the issue. 

Yet, while many evidentiary issues arise in the middle of witness testimony, and require the quick-thinking objections and oral argument skills that can be developed via classroom discussion or exercises, a lot of evidentiary issues are resolved pretrial via motions in limine. And it is quite a challenge to include legal writing exercises in the Evidence course curriculum for a host of reasons. But I think it is a challenge that deserves to be confronted and overcome. Simply put, no student should leave an Evidence course without having drafted a short motion in limine.

There are several reasons for including a motion in limine assignment (beyond the fact that they are a important component of actual practice).

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September 9, 2013 | Permalink | Comments (3) | TrackBack (0)

Friday, September 6, 2013

Letter of the Law: Court of Appeals of Wisconsin Finds Defendant's Testimony Inadmissible Under Plea Deal

Wisconsin Rule of Evidence 904.10 provides that

Evidence of a plea of guilty, later withdrawn, or a plea of no contest, or of an offer to the court or prosecuting attorney to plead guilty or no contest to the crime charged or any other crime, or in civil forfeiture actions, is not admissible in any civil or criminal proceeding against the person who made the plea or offer or one liable for the person's conduct. Evidence of statements made in court or to the prosecuting attorney in connection with any of the foregoing pleas or offers is not admissible.

So, assume that a prosecutor sends defense counsel a letter “making the following offer of resolution based on [the defendant] being willing to cooperate in the prosecution of numerous cases involving [another defendant].” Also, assume that the letter indicates that the prosecutor will make a sentencing recommendation if the defendant, inter alia, testifies at the preliminary examination for another defendant. Finally, assume that the defendant complies with this requirement but then stops cooperating with the prosecution after he believes that the State leaked incriminatory information to the press for the newspaper article. At the defendant's ensuing trial, can the prosecution introduce the defendant's preliminary examination testimony, or is such testimony inadmissible under Wisconsin Rule of Evidence 904.10? This was the question addressed by the Court of Appeals of Wisconsin in State v. Myrick, 2013 WL 4734062 (Wis.App. 2013).

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September 6, 2013 | Permalink | Comments (0) | TrackBack (0)