EvidenceProf Blog

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

Thursday, October 31, 2013

NYC "Stop and Frisk" Halloween Surprise

Like many readers of this blog, I work on both Evidence and Criminal Procedure issues, and have been most recently working on a piece about NYC Stop and Frisk.  I was taken off guard by today's appeals court ruling staying Judge Scheindlin's Stop and Frisk Ruling, and removing her from the case.  Would be curious if there are any informed readers who have a sense of what is going on . . . .

Here is the ruling.

Here is press coverage.

- JB

October 31, 2013 | Permalink | Comments (0) | TrackBack (0)

EvidenceProf Blog's 7th Annual Halloween Movie Pick: John Maybury's The Jacket

Again, I'm digging back to my days as a film critic to pull out a horror movie review. I would only mildly recommend the movie, The Jacket, but I would highly recommend its source material, Jack London's The Star Rover. You can read it for free by clicking here.

The Jacket

(Warner Home Video, 6.21.2005)

Loosely based upon Jack London's final novel, "The Star Rover," The Jacket similarly focuses on an incarcerated alleged murderer able to time-travel while in straitjacketed solitary confinement. Jack Starks (Adrien Brody) awakens with memory deficiencies after his apparent Desert Storm death and is subjected to mental asylum experimentation. Cocktails of anti-psychotic drugs and morgue drawer immobilization revive violent flashes of his past, while enabling him to experience -- and possibly alter -- the future.

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October 31, 2013 | Permalink | Comments (0) | TrackBack (0)

Wednesday, October 30, 2013

Redacted: Supreme Court of Georgia Finds Redacted Co-Defendant Confession Poses No Problem Under Bruton

Pursuant to the Bruton doctrine, there is a Confrontation Clause violation when, at a joint jury trial, the prosecution introduces a co-defendant's statement that facially incriminates another defendant unless the co-defendant testifies at trial. That said, in Richardson v. Marsh, 481 U.S. 200 (1987), the Supreme Court held that

that the Confrontation Clause is not violated by the admission of a nontestifying codefendant's confession with a proper limiting instruction when, as here, the confession is redacted to eliminate not only the defendant's name, but any reference to his or her existence.

This was the fundametal problem for the defendant in Teasley v. State, 2013 WL 5508603 (Ga. 2013).

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

Tuesday, October 29, 2013

Residual Effects: Federal Rule of Evidence 807 & Plea Agreements

Federal Rule of Evidence 807 reads as follows:

(a) In General. Under the following circumstances, a hearsay statement is not excluded by the rule against hearsay even if the statement is not specifically covered by a hearsay exception in Rule 803 or 804:

(1) the statement has equivalent circumstantial guarantees of trustworthiness;

(2) it is offered as evidence of a material fact;

(3) it is more probative on the point for which it is offered than any other evidence that the proponent can obtain through reasonable efforts; and

(4) admitting it will best serve the purposes of these rules and the interests of justice.

(b) Notice. The statement is admissible only if, before the trial or hearing, the proponent gives an adverse party reasonable notice of the intent to offer the statement and its particulars, including the declarant’s name and address, so that the party has a fair opportunity to meet it.

Statements are rarely deemed admissible under this residual exception. But, according to the recent opinion of the United States Bankruptcy Court for the District of New Mexico in In re Vaughan Co. Realtors, 2013 WL 5744727 (Bkrtcy D.N.M. 2013), the is at least one circumstance where this exception is frequently invoked.

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October 29, 2013 | Permalink | Comments (0) | TrackBack (0)

Monday, October 28, 2013

Allow Me To Illustrate: Supreme Court of Ohio Finds Learned Treatise Limitation Applies to Illustrations

Similar to its federal counterpartOhio Rule of Evidence 803(18) contains a exception to the rule against hearsay

To the extent called to the attention of an expert witness upon cross-examination or relied upon by the expert witness in direct examination, [for] statements contained in published treatises, periodicals, or pamphlets on a subject of history, medicine, or other science or art, established as a reliable authority by the testimony or admission of the witness or by other expert testimony or by judicial notice. If admitted, the statements may be read into evidence but may not be received as exhibits.

But does the limitation on admitting evidence from learned treatises as exhibits merely cover theories and opinions or also illustrations? That was the question addressed by the Supreme Court of Ohio in its recent opinion in Moretz v. Muakkassa, 2013 WL 5746117 (Ohio 2013).

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October 28, 2013 | Permalink | Comments (1) | TrackBack (0)

Friday, October 25, 2013

Conspiracy Theory: 11th Circuit Finds Co-Conspirator Admissions Properly Admitted Despite Defendant's Conspiracy Acquittal

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

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

The statement is offered against an opposing party and:....

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

So, assume that a defendant is charged with Conspiracy to make false statements and making false statements based on his alleged participation in a mortgage fraud conspiracy. Second, assume that the prosecution admits co-conspirator statements at trial pursuant to Rule 801(d)(2)(E). Third, assume that the defendant is convicted of making false statements but acquitted of conspiracy to make false statements. Can the defendant claim on appeal that the subject statements were improperly admitted under Rule 801(d)(2)(E)? According to the recent opinion of the Eleventh Circuit in United States v. Derosa,  2013 WL 5716884 (11th Cir. 2013), the answer is "no."

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

Thursday, October 24, 2013

Impeachable Offense?: Court of Appeals of Idaho Finds Misdemeanor Conviction Admissible Under Rule 608(b)

Idaho Rule of Evidence 608(b) provides that

Specific instances of the conduct of a witness, for the purpose of attacking or supporting the credibility, of the witness, other than conviction of crime as provided in Rule 609, may not be proved by extrinsic evidence. They may, however, in the discretion of the court, if probative of truthfulness or untruthfulness, be inquired into on cross-examination of the witness concerning (1) the character of the witness for truthfulness or untruthfulness, or (2) the character for truthfulness or untruthfulness of another witness as to which character the witness being cross-examined has testified. 

Meanwhile, Idaho Rule of Evidence 609(a) provides that

For the purpose of attacking the credibility of a witness, evidence of the fact that the witness has been convicted of a felony and the nature of the felony shall be admitted if elicited from the witness or established by public record, but only if the court determines in a hearing outside the presence of the jury that the fact of the prior conviction or the nature of the prior conviction, or both, are relevant to the credibility of the witness and that the probative value of admitting this evidence outweighs its prejudicial effect to the party offering the witness. If the evidence of the fact of a prior felony conviction, but not the nature of the conviction, is admitted for the purpose of impeachment of a party to the action or proceeding, the party shall have the option to present evidence of the nature of the conviction, but evidence of the circumstances of the conviction shall not be admissible. 

So, assume that a witness has a prior misdemeanor conviction which is probative of his untruthfulness. Evidence of this conviction would clearly be inadmissible under Rule 609(a) because it is a misdemeanor and not a felony. But could it be used to cross-examine the witness under Rule 608(b)?According to the recent opinion of the Court of Appeals of Idaho in State v. Bergerud, 2013 WL 5716821 (Idaho App. 2013), the answer is "yes."

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

Wednesday, October 23, 2013

Sorry No Longer Seems to be the Hardest Word: Pennsylvania Passes Benevolent Gesture Law

According to an article from earlier today, in Pennsylvania,

A decade after a back-and-forth legislative battle that saw both doctors and lawyers visiting the state capitol by the hundreds – perhaps thousands – to argue for or against tort reforms that led to state law modifications in 2003, the two professions recently changed lobbying tactics by mutually agreeing on a new reform that both sides say will help.

As a result, Senate Bill 379 sailed smoothly through the Pennsylvania House and Senate, and was recently signed by Governor Corbett.

SB 379, also known as the Benevolent Gesture Medical Professional Liability Act, allows health care providers to make benevolent gestures prior to the start of medical malpractice lawsuits, mediations, arbitrations or administrative actions and not have those statements or gestures of contrition used against them as long as such actions are not statements of negligence or fault.

So, what exactly does the Act cover?

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

Tuesday, October 22, 2013

I Need a Remedy: Court of Appeals of Tennessee Finds Error in Exclusion of Subsequent Remedial Measure Evidence

Similar to its federal counterpartTennessee Rule of Evidence 407 provides that

When, after an event, measures are taken which, if taken previously, would have made the event less likely to occur, evidence of the subsequent remedial measures is not admissible to prove strict liability, negligence, or culpable conduct in connection with the event. This rule does not require the exclusion of evidence of subsequent measures when offered for another purpose, such as proving controverted ownership, control, or feasibility of precautionary measures, or impeachment.

In Burchfield v. Renfree, 2013 WL 5676268 (Tenn.Ct.App. 2013), the Court of Appeals of Tennessee found that the trial court should have permitted the plaintiffs to admit evidence that the defendant doctor stopped performing endoscopic carpal tunnel release surgery after the plaintiff's injury during the procedure Why?

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October 22, 2013 | Permalink | Comments (2) | TrackBack (0)

Monday, October 21, 2013

Who Made You The Expert?: Rule 705 & The Admissibility of Underlying Facts or Data

Texas Rule of Evidence 705 reads as follows:

(a) Disclosure of Facts or Data. The expert may testify in terms of opinion or inference and give the expert's reasons therefor without prior disclosure of the underlying facts or data, unless the court requires otherwise. The expert may in any event disclose on direct examination, or be required to disclose on cross-examination, the underlying facts or data.

(b) Voir dire. Prior to the expert giving the expert's opinion or disclosing the underlying facts or data, a party against whom the opinion is offered upon request in a criminal case shall, or in a civil case may, be permitted to conduct a voir dire examination directed to the underlying facts or data upon which the opinion is based. This examination shall be conducted out of the hearing of the jury.

(c) Admissibility of opinion. If the court determines that the underlying facts or data do not provide a sufficient basis for the expert's opinion under Rule 702 or 703, the opinion is inadmissible.

(d) Balancing test; limiting instructions. When the underlying facts or data would be inadmissible in evidence, the court shall exclude the underlying facts or data if the danger that they will be used for a purpose other than as explanation or support for the expert's opinion outweighs their value as explanation or support or are unfairly prejudicial. If otherwise inadmissible facts or data are disclosed before the jury, a limiting instruction by the court shall be given upon request.

I haven't yet had the chance on this blog to discuss this rule or its federal counterpart, but that's no longer the case thanks to In re Commitment of Mitchell, 2013 WL 5658425 (Tex.App.-Beaumont 2013).

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October 21, 2013 | Permalink | Comments (0) | TrackBack (0)

Friday, October 18, 2013

False Positive: NJ Court Finds No Error With Lack of "False in One, False in All" Charge

Like its federal counterpartNew Jersey Rule of Evidence 613 allows for a witness to be impeached through evidence of a prior inconsistent statement. One a witness has been so impeached, a judge might give the jury the following charge:

If you believe that any witness or party willfully or knowingly testified falsely to any material facts in the case, with intent to deceive you, you may give such weight to his or her testimony as you may deem it is entitled. You may believe some of it, or you may, in your discretion, disregard all of it. 

But is this "false in one, false in all" charge mandatory like certain rules of evidence or simply a charge that the judge might decide to give? This was the question addressed by the Superior Court of New Jersey, Appellate Division, in its recent opinion in State v. Barthelus, 2013 WL 5575897 (N.J.Super.A.D. 2013).

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

Thursday, October 17, 2013

Alex Rodriguez, Biogenesis, Judicial Testimony & The Rules of Evidence

Here's an interesting article about baseball player Alex Rodriguez appealing his  211-game suspension due to the Biogenesis probe. According to the article,

Major League Baseball chief operating officer Rob Manfred is on the witness list for Alex Rodriguez's appeal of his 211-game suspension in the Biogenesis probe, a person familiar with the process said Wednesday.

Manfred is the league's representative on the three-person panel overseeing the arbitration process, but he has no say in the final decision made by chief arbitrator Fredric Horowitz, who can uphold the suspension, overturn it or reduce it. David Prouty of the Major League Baseball Players Association is the third member of the panel.

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

Wednesday, October 16, 2013

Three Forthcoming Articles of Interest: Are Prior Convictions Valid Impeachment? Should Judges Talk to Jurors More? Do Liberal Procedures Lead to Punitive Substance?


"Impeachment by Unreliable Conviction" Boston College Law Review, Forthcoming

ANNA ROBERTS (Seattle University School of Law)


"Judges Talking to Jurors in Criminal Cases: Why U.S. Judges Do it so Differently from Just About Everyone Else"  Arizona Journal of International and Comparative Law

PAUL MARCUS (William & Mary Law School)


"Does Liberal Procedure Cause Punitive Substance? Preliminary Evidence from Some Natural Experiments"  Southern California Law Review, Forthcoming

DONALD A. DRIPPS (University of San Diego School of Law)

Abstracts after the jump.

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

Tuesday, October 15, 2013

The Areas of My Expertise: Eastern District of Louisiana Finds Expert Reports Inadmissible in False Arrest Case

Federal Rule of Evidence 704(a) provides that "[a]n opinion is not objectionable just because it embraces an ultimate issue." That said, "[t]his rule does not...permit an expert to render conclusions of law." So, let's say that a plaintiff files a complaint alleging claims of excessive force, false arrest, and state law negligence in connection with his arrest. Can an expert in police procedures testify as to whether he believes that the plaintiff's arrest was based upon probable cause? Let's take a look at the recent opinion of the United States District Court for the Eastern District of Louisiana in Cefalu v. Edwards, 2013 WL 5592947 (E.D.La. 2013).

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October 15, 2013 | Permalink | Comments (0) | TrackBack (0)

Monday, October 14, 2013

Big Data in Oakland and Beyond

This article in the NY Times chronicles Oakland's efforts to use technology to improve law enforcement intelligence gathering.  The article, like virtually all media coverage of this topic, focuses on the privacy implications of gathering the data.  Another angle, as hinted at by the paragraph excerpted below, has to do with the availability of all of the gathered information as evidence:

“For law enforcement, data mining is a big step toward more complete intelligence gathering.  The police have traditionally made arrests based on small bits of data — witness testimony, logs of license plate readers, footage from a surveillance camera perched above a bank machine.  The new capacity to collect and sift through all that information gives the authorities a much broader view of the people they are investigating.”

- JB


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

Facebook Status: Spoliated -- New Jersey Court Finds Deactivation of Facebook Account Was Spoliation of Evidence

A few days ago, my colleague, Marcia Yablon-Zug, asked me a question to which I didn't know the answer: What happens if a litigant deactivates his Facebook account because of some combination of items on it that could be embarrassing, both litigation-wise and personally. Of course, a good deal likely depends on the exact nature of the lawsuit and the precise nature of what was on the litigant's Facebook page. But, as the recent opinion of the United States District Court for the District of New Jersey in Gatto v. United Air Lines, Inc., 2013 WL 1285285 (D.N.J. 2013), makes clear, the litigant could be guilty of spoliation of evidence, allowing for the giving of an adverse inference instruction.

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

Friday, October 11, 2013

The Federal Shutdown & The Rules of Evidence

Here's an interesting article dealing with the intersection between the federal shutdown and the rules of evidence. It is written by Howard Altschule, the owner of Forensic Weather Consultants, a forensic weather consulting firm that provides past weather records, analyses and reports to those who need it. So, who needs it? According to the article,

When forensic meteorologists provide official weather records and affidavits to our legal clients, they are often used to file motions and other documents with courts.  In some cases, attorneys discover that their client may not have had any liability when an accident occurred, such as if someone fell on ice while an ice storm was in progress.  In some of these cases, the attorney often files a Motion with the court to dismiss a case.  In New York State courts, the rules of evidence are such that weather records must be “certified” in order to be admissible as evidence to the court.  Because of the federal shutdown, there is nobody at the [National Climatic Data Center] to answer the phone, process the orders or certify weather records.  If there really is merit for a judge to dismiss a case, will the judge still dismiss the case if no certified weather records were submitted or will the judge accept the non-certified copies?  Many courts have denied these kinds of motions in the past when some professionals failed to obtain certified weather records, instead relying on the same records in non-certified format.

Now, New York doesn't have codified rules of evidence, but what they do apply in court is basically a version of Federal Rule of Evidence 902(4), which allows for the self-authentication of

(4) Certified Copies of Public Records. A copy of an official record — or a copy of a document that was recorded or filed in a public office as authorized by law — if the copy is certified as correct by:  

(A) the custodian or another person authorized to make the certification; or  

(B) a certificate that complies with Rule 902(1), (2), or (3), a federal statute, or a rule prescribed by the Supreme Court.


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

Thursday, October 10, 2013

Stand in the Place Where You Live, Take 2: SC Stand Your Ground Law Applied in Innocent Bystander Case

I have written a few times about South Carolina's Stand Your Ground Law, also known as the Protection of Persons and Property Act. Today, that Act immunized a defendant from prosecution for

the 2010 shooting of Darrell Niles, 17, a Keenan High School student and basketball player, who was across the street in a car when Shannon Scott, then 33, fired his handgun. Shortly before, an SUV filled with youths who had been threatening his 15-year-old daughter drove by his house and they fired shots, according to testimony in the case.

Smith then saw Niles’ 1992 Honda, and, believing its occupants posed a danger, fired his gun from his front yard across the street, hitting Niles in the head with a .380 bullet, killing him instantly. No evidence indicated Niles was a threat to Scott or his daughter

Why was this the outcome? Well, let's look at the key provisions of the the Protection of Persons and Property Act.

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

Wednesday, October 9, 2013

Trouble Afoot?: Supreme Court of Indiana Finds Foot Fetish Evidence Inadmissible Under Rule 404

Indiana Rule of Evidence 404 reads as follows:

Rule 404. Character Evidence Not Admissible to Prove Conduct; Exceptions; Other Crimes

(a)   Character Evidence Generally. Evidence of a person’s character or a trait of character is not admissible for the purpose of proving action in conformity therewith on a particular occasion, except:

(1)    Character of accused. Evidence of a pertinent trait of character offered by an accused, or by the prosecution to rebut the same;

(2)    Character of victim. Evidence of a pertinent trait of character of the victim of the crime offered by an accused, or by the prosecution to rebut the same, or evidence of a character trait of peacefulness of the victim offered by the prosecution in a homicide case to rebut evidence that the victim was the first aggressor;

(3)    Character of witness. Evidence of the character of a witness, as provided in Rules 607, 608 and 609.

(b)   Other Crimes, Wrongs, or Acts. Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, intent, preparation, plan, knowledge, identity, or absence of mistake or accident, provided that upon request by the accused, the prosecution in a criminal case shall provide reasonable notice in advance of trial, or during trial if the court excuses pre-trial notice on good cause shown, of the general nature of any such evidence it intends to introduce at trial.

So, let's say that a husband is on trial for his wife's murder and that "when her body was discovered, her pants were pulled down, her shoes were off, and her feet were bruised." Under any of the above character evidence rules, should the defendant be able to present evidence that an alleged alternate suspect had “four felony convictions for robbery in which women's shoes were the target and that [the alternate suspect had] an admitted foot fetish and shoe fetish?” According to the Supreme Court of Indiana in Camm v. State, 908 N.E.2d 215 (Ind. 2009), the answer is "no."

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October 9, 2013 | Permalink | Comments (0) | TrackBack (0)

Tuesday, October 8, 2013

My New Essay -- No Explanation Required?: A Reply to Jeffrey Bellin’s eHearsay

Today, I posted my new essay, No Explanation Required?: A Reply to Jeffrey Bellin's eHearsay, on SSRN. The essay is a solicited response to eHearsay, by co-blogger Jeff Bellin. Here is the abstract:

You see why I tell you I ain’t want to be no damn juror. Some dude just come by my house and tell me he going pay me money to say not guilty. Now I don’t know what to do, because if I tell the judge they’re going to know it’s me.

I know, right. Now I scared because I don’t want them to do anything to me or [my daughter][. . .] * * *

The above were text messages sent by a juror to her sister after Ikim Blackett allegedly threatened and then tried to bribe her in an attempt to convince her to find one of several defendants “not guilty” of various drug crimes. At Blackett’s ensuing trial for jury bribery, the juror testified that, while she was on her front porch, Blackett approached her and mentioned the word “nitroglycerin.” The juror then “asked Blackett what ‘nitroglycerin’ meant and he responded ‘not guilty.’” When this threat fell on deaf ears, Blackett offered the juror $1,500 in exchange for her vote. After again declining, the juror went to her bedroom and sent the above text messages.

Should the text messages have been admissible because the juror took the witness stand and testified at trial? If the juror were “unavailable” at trial, should the text messages have been admissible? According to Professor Jeffrey Bellin’s article, eHearsay, the answer to both questions is “yes” as he crafts hearsay rules that cover both situations. This paper agrees with Professor Bellin on the first question but disagrees with him on the second.


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