EvidenceProf Blog

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

Friday, November 29, 2013

Reputable Source?: Court of Appeals of Tennessee Precludes Testimony of Rehabilitation Witness Under Rule 608(a)

Similar to its , federal counterpartTennessee Rule of Evidence 608 provides that

The credibility of a witness may be attacked or supported by evidence in the form of opinion or reputation, but subject to these limitations: (1) the evidence may refer only to character for truthfulness or untruthfulness, and (2) the evidence of truthful character is admissible only after the character of the witness for truthfulness has been attacked.

In Pyle v. Mullins, 2013 WL 6181956 (Tenn.Ct.App. 2013), the plaintiff sought to bolster his credibility after it had been attacked by the defense, but the court precluded this rehabilitation. Why?

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

Thursday, November 28, 2013

Slapsgiving: Eleventh Circuit Curtly Concludes Juror Can't be Subpoeanaed Regarding Thanksgiving & Racial Comments

I thought for sure you would be found innocent because I talked with one of the jurors about the case—the elderly black man. We were in the bathroom at the same time and he [the juror] said, 'Those white folks know that lady is innocent, but just want to find a black person guilty. We are kinda bored and tired and don't feel like arguing with them. We are trying to get home to prepare for Thanksgiving.' -Statement by defense witness DeAngelus Gibson to Shynita Townsend after he was convicted of knowingly and corruptly accepting a thing of value, as an agent of a local government and related crimes.

Was Townsend entitled to subpoena the juror to see if he would render similar testimony in support of a motion for a new trial? According to the opinion of the Eleventh Circuit in United States v. Townsend, 502 Fed.Appx. 870 (11th Cir. 2012), the answer is "no."

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

Wednesday, November 27, 2013

With Great Power: Does the Bruton Doctrine Only Cover "Powerfully Incriminating" Statements?

Pursuant to the Bruton doctrine, the Confrontation Clause is violated when the prosecution at a joint jury trial introduces a co-defendant's statement that facially incriminates another defendant unless the defendant testifies at trial. But is something more required to trigger application of the doctrine? That certainly seems to be the case according to the Third Circuit in United States v. Green, 2013 WL 6017425 (3rd Cir. 2013).

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

Tuesday, November 26, 2013

Caller ID: 11th Circuit Finds Short Interaction Sufficient For Voice Identification

Federal Rule of Evidence 901(b)(5) allows for authentication via

An opinion identifying a person’s voice — whether heard firsthand or through mechanical or electronic transmission or recording — based on hearing the voice at any time under circumstances that connect it with the alleged speaker.

And, as the recent opinion of the Eleventh Circuit in United States v. Cox, 2013 WL 6097902 (11th Cir. 2013), makes clear, not much familiarity is needed to satisfy Rule 901(b)(5).

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

Monday, November 25, 2013

Google It: Court of Appeals Finds Juror Google Search for "Intentional Act" Inadmissible to Impeach Verdict

There's a one car accident involving a vehicle insured by Safeco Insurance Company of Illinois. The insurance company claims that the accident was covered by the intentional-acts exclusion in the insurance policy. During deliberations, the jurors ask for the judge to define an "intentional act." The judge provides no definition, so a juror does a Google search for "intentional act" and tells the other jurors about his results. Soon, thereafter, a straw poll is taken, and nine jurors find in favor of the insurance company. If the jury ultimately find for the insurance company, does there need to be a reversal? According to the recent opinion of the Court of Appeals of Arkansas in Safeco Ins. Co. of Illinois v. Southern Farm Bureau Cas. Ins. Co., 2013 WL 6095473 (Ark.App. 2013), the answer is "no."

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

Saturday, November 23, 2013

Mourning the Loss of Myrna Raeder

According to a news release:

Professor Myrna Raeder, an esteemed member of the Southwestern faculty for nearly 35 years, passed away on November 16. A prominent national figure in legal education and the advancement of criminal justice, Professor Raeder was one of the most highly regarded experts in evidence and a leading advocate for gender equity in the legal profession and the criminal justice system.

As longtime readers of this blog might remember, Myrna Raeder was an original contributing editor on this blog. When I got the idea to start the blog, Myrna was one of the first people that I contacted. I had recently read her article, The Double-Edged Sword: The Admissibility of Battered Woman Syndrome Evidence by and Against Batterers in Domestic Violence Cases, and wanted her voice on the blog. All of my personal experiences with her confirmed what I was told about her by others: She was a delightful person. Now, she will be missed.


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

Friday, November 22, 2013

What Are You Made Of?: How Does a Party Prove the Contents of a Product's Label?

Yesterday, I posted an entry about the intersection between Federal Rule of Evidence 902(7), which allows for self-authentication of inscription, sign, tag, or labels, and the rule against hearsay. In the entry, I discussed two cases in which courts found that self-authenticated inscriptions did not implicate the rule against hearsay when they were merely admitted as trace evidence, to prove the origin of an item (a gun manufactured in Spain and a hard drive made in Malaysia). But what if the evidence is offered for some other purpose? Let's take a look at the opinion of the Superior Court of Pennsylvania in Commonwealth v. Harvey, 666 A.2d 1108 (Pa.Super. 1995).

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

Thursday, November 21, 2013

We Come From France: What's the Intersection Between Self-Authentication & The Rule Against Hearsay?

Federal Rule of Evidence 902(7) provides that "[a]n inscription, sign, tag, or label purporting to have been affixed in the course of business and indicating origin, ownership, or control" is self-authenticating and requires no extrinsic evidence of authenticity in order to be admitted. That said, couldn't a sign, tag, or label be hearsay -- a person’s oral assertion, written assertion, or nonverbal conduct offered to prove the matter asserted -- making it inadmissble under Federal Rule of Evidence 802 in the absence of an exception or exclusion? This was the question that I was discussing with my colleague Derek Black yesterday. The answer, or at least the one provided by a handful of courts, can be found in United States v. Alvarez, 960 F.2d 830 (9th Cir. 1992).

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

Wednesday, November 20, 2013

Shore Thing: Virginia Beach Judge Deems Polygraph Results Inadmissible in Murder Trial

According to an article in yesterday's Virginian-Pilot,

A Circuit Court judge on Monday ruled that the attorneys for a man accused of shooting an off-duty Norfolk police officer in 2010 won’t be allowed to submit polygraph test results as evidence.

The ruling is in line with a 1998 U.S. Supreme Court decision that upheld bans on polygraph evidence, Judge Stephen C. Mahan said in court. Virginia’s Rules of Evidence do not allow it.

So, where exactly does Virginia stand on polygraph evidence?

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

Tuesday, November 19, 2013

Anonymity and Abuse

For those who think a lot about blogging or spend time surfing the blogosphere, I recommend the compelling post with the above title by Nancy Leong (Denver Law) on anonymity and online harassment over at Feminist Law Professors Blog:  available here.

- JB


November 19, 2013 | Permalink | Comments (1) | TrackBack (0)

Monday, November 18, 2013

I'm a Soldier: Proposal Would Eliminate Good Soldier Defense From Military Rules of Evidence

According to a press release from earlier today,

U.S. Senators Senator Deb Fischer (R-Neb.), Claire McCaskill (D-Mo.) and Kelly Ayotte (R-N.H.) announced a new set of bipartisan provisions to strengthen and augment the already historic reform package that passed the Armed Services Committee in June to curb military sexual assault....

The amendment includes a host of reforms, attached and available online HERE, and including:

•Eliminating the Good Soldier Defense

◦Modifies the Military Rules of Evidence to prevent defendants from using good military character unless it is directly relevant to an element of the crime for which they are charged.

So, what is this so-called good soldier defense?

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

Friday, November 15, 2013

Hand of One: Western District of Wisconsin Finds Handwriting Expert Testimony/Report Inadmissible

Federal Rule of Evidence 702 provides that

A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if:

(a) the expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue;

(b) the testimony is based on sufficient facts or data;

(c) the testimony is the product of reliable principles and methods; and

(d) the expert has reliably applied the principles and methods to the facts of the case.

In Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579 (1993), the Supreme Court laid out several nonexhuastive factors that a court may consider in assessing the reliability of evidence: (1) whether the technique can be and has been tested; (2) whether it has been subjected to peer review and publication; (3) the known or potential rate of error; (4) the existence and maintenance of standards controlling the technique's operations; and (5) “general acceptance” within the relevant scientific community. In United States v. Johnsted (Download Johnsted Opinion), the United States District Court for the Western District of Wisconsin addressed the admissibility of expert testimony and an expert report by a handwriting expert. So, how did the court rule?

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

Thursday, November 14, 2013

Can You Settle an Argument?: SDNY Finds Rule 408 Doesn't Support Imposition of Gag Order In Patent Case

Federal Rule of Evidence 408 reads as follows:

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

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

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

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

As I have noted before, Rule 408 only governs the admissibility of settlement-related statements at trial, not their inclusion in pleadings or other documents. What this also means is that a party cannot get a gag order pursuant to Rule 408 that would prevent the opposing party from disclosing those statements to the court of public opinion.

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

Wednesday, November 13, 2013

Where America's Day Begins: Guam Case Reveals Territory Has Adopted Rules 413 & 415, But Not 414

Federal Rule of Evidence 413(a) provides that

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

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.

And Federal Rule of Evidence 415(a) provides that

In a civil case involving a claim for relief based on a party’s alleged sexual assault or child molestation, the court may admit evidence that the party committed any other sexual assault or child molestation. The evidence may be considered as provided in Rules 413 and 414.

I've written before about which states have created counterparts to some or all of these Rules. The partial adopters usually only adopt Rules 413(a) and 414(a), meaning that prior sex crimes are admissible at criminal, but not civil trials. As yesterday's opinion in The People of Guam v. Chinel makes clear, however, the island nation has adopted Rules 413(a) and 415(a) but not 414(a). What does this mean, and how does the territory apply them?

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

Tuesday, November 12, 2013

Teacher, Teacher: Professor Marianna Brown Bettman Posts About Confrontation Clause Case From Ohio

Professor Marianna Brown Bettman has another terrific post up on her blog, Legally Speaking Ohio. This one concerns a Confrontation Clause case recently resolved by the Supreme Court of Ohio: State v. Clark. As Professor Bettman notes,

In a 4-3 decision written by Justice O’Donnell, for himself and Justices Pfeifer, Kennedy and O’Neill, the Court held that a child’s statement to his teachers about physical abuse constitutes testimonial evidence barred by the Confrontation Clause when the child has been found incompetent to testify. Chief Justice O’Connor wrote a very heated dissent, for herself and Justices Lanzinger and French.

Professor Bettman points out that the dissent might be the most interesting part of the case and not just because Justice O'Connor practically begs the United States Supreme to grant cert. What's even more interesting is the why. Here's the introduction to Justice O'Connor dissenting opinion:

The majority decision creates confusion in our case law, eviscerates Evid.R. 807, and threatens the safety of our children. Not surprisingly, it is also wrong as a matter of federal constitutional law. I dissent. 

A teacher is not an agent of law enforcement for the purpose of determining whether a statement is testimonial under the Confrontation Clause merely because that teacher has a statutory duty to report child abuse. On the record before us, there is no basis from which to conclude that the injured child’s teachers acted on behalf of law enforcement. Therefore, there is no support in the law or on these facts for the conclusion that the statements made to the teachers by L.P., the injured child, or similar statements made to teachers in any Ohio schoolroom, should be scrutinized under a test that is otherwise applicable only when the interviewer is an agent of law enforcement. See Davis v. Washington, 547 U.S. 813, 822, 126 S.Ct. 2266, 165 L.Ed.2d 224 (2006).

Instead, statements to teachers should be scrutinized under the objective-witness test, which is applicable when the questioner is not an agent of law enforcement. In this appeal, the teachers questioned L.P. about his injuries to protect L.P. and possibly other students from additional injury, and to maintain a secure and orderly classroom in which learning could take place. No objective witness could reasonably believe that the interviews served a prosecutorial purpose rather than a protective one. Thus, under the law of this court and the United States Supreme Court, I would hold that the classroom statements made by this small child, L.P., to his teachers are nontestimonial and thus are not excluded by the Confrontation Clause

This is certainly a foundational issue that the U.S. Supreme Court should address and soon. We'll have to wait and see whether it does so or whether Justice O'Connor's plea falls on deaf ears.


November 12, 2013 | Permalink | Comments (2) | TrackBack (0)

Monday, November 11, 2013

Confrontation: How Much, and When?, A Guest Post by Kevin Lapp

I am curious when Evidence professors teach the Confrontation Clause, and how much coverage they allot to it. David Sklansky’s teacher’s manual suggests covering the Confrontation Clause after introducing hearsay but before going through the exemptions/exceptions. A quick check of a half dozen textbooks on my shelf found that all the others place the Confrontation Clause reading after the exemptions/exceptions. 

Since I’m in the middle of teaching the course for only the second time, I don’t have any developed thoughts about the timing and extent of coverage, and would love to read the comments of those who have taught the class more times about why they have made the choices they’ve made on this subject. 

For what it’s worth, I teach a 4 credit Evidence course, we spent about 2.5 hours covering the Confrontation Clause material I assigned, and I cover it after going through the hearsay exceptions. I’m inclined to cut the class time devoted to Confrontation down to 2 hours max next time through, and am open to covering it before we run through 803 and 804.

November 11, 2013 | Permalink | Comments (6) | TrackBack (0)

Friday, November 8, 2013

Et tu, Bruton?: When is a Statement "Testimonial" for Bruton Doctrine Purposes?

Pursuant to the Bruton doctrine, at a joint jury trial, the Confrontation Clause is violated by the admission of a co-defendant's statement that facially incriminates another defendant unless the co-defendant testifies at trial. That said, in the wake of the Supreme Court's opinion in Crawford v. Washington, almost every court has found that Bruton only covers testimonial hearsay. I disagree with this conclusion, but, even assuming that it is correct, I wonder what such a conclusion actually means. Let's take a look at the recent opinion of the United States District Court for the Eastern District of Kentucky in United States v. Thompson, 2013 WL 5528827 (E.D.Ky. 2013), as an example.

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

Thursday, November 7, 2013

Lie to Me: Arizona Court Finds That Witness Can Be Questioned Concerning Lying About Shooting

Federal Rule of Evidence 608(b) provides that

Except for a criminal conviction under Rule 609, extrinsic evidence is not admissible to prove specific instances of a witness’s conduct in order to attack or support the witness’s character for truthfulness. But the court may, on cross-examination, allow them to be inquired into if they are probative of the character for truthfulness or untruthfulness of:

(1) the witness; or

(2) another witness whose character the witness being cross-examined has testified about.

By testifying on another matter, a witness does not waive any privilege against self-incrimination for testimony that relates only to the witness’s character for truthfulness.

The recent opinion of the United States District Court for the District of Arizona in United States v. Dellinger, 2013 WL 5929946 (D.Ariz. 2013), does a good job of explaining the ins and outs of this Rule.

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

Wednesday, November 6, 2013

28 Days Later: Connecticut Court Finds Photos Taken 28 Days After Assault Irrelevant To Prove Lack of Serious Physical Injury

A defendant in Connecticut is charged with second-degree assault, which requires the prosecution to prove that the victim suffered a "serious physical injury." Connecticut law does not define the phrase "serious physical injury," but its courts have concluded that "[i]t is entirely possible to cause serious physical injury without causing disfigurement or a permanent injury." The defendant has photographs of the victim's face and profile taken 28 days after his assault, both seemingly unmarred by any visible facial injuries. Are these photos relevant? According to the recent opinion of the Appellate Court of Connecticut in State v. Lewis, 2013 WL 5798962 (Conn.App. 2013), the answer is "no." I disagree.

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

Tuesday, November 5, 2013

Guns, Drugs & Money: Illinois Court Deems Drug Crimes Inadmissible, Gun Crime Admissible to Impeach

Federal Rule of Evidence 609(a)(1) provides that

The following rules apply to attacking a witness’s character for truthfulness by evidence of a criminal conviction:  

(1) for a crime that, in the convicting jurisdiction, was punishable by death or by imprisonment for more than one year, the evidence:  

(A) must be admitted, subject to Rule 403, in a civil case or in a criminal case in which the witness is not a defendant; and  

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

As the United States District Court for the District of Illinois noted in its recent opinion in Cefalu v. Village of Glenview, 2013 WL 5878603 (N.D.Ill. 2013), a district court has broad discretion in determining whether evidence of prior convictions is admissible under Rule 609(a)(1). That said, I still find the court's opinion in Cefalu to be baffling.

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November 5, 2013 | Permalink | Comments (1) | TrackBack (0)