EvidenceProf Blog

Seeking Consistency: Court of Criminal Appeals Finds Extrinsic Evidence Not Admissible When Witness Admits Inconsistency

Pursuant to Tennessee Rule of Evidence 613(b),

Extrinsic evidence of a prior inconsistent statement by a witness is not admissible unless and until the witness is afforded an opportunity to explain or deny the same and the opposite party is afforded an opportunity to interrogate the witness thereon, or the interests of justice otherwise require. This provision does not apply to admissions of a party-opponent as defined in Rule 803(1.2).

So, let's say that a witness gives testimony at trial. Then, during cross-examination, opposing counsel asks the witness about examples of inconsistencies between her trial testimony and a statement that she gave to police. If the witness acknowledges making inconsistent statements to police, can opposing counsel introduce extrinsic evidence of the police statement? According to the recent opinion of the Court of Criminal Appeals of Tennessee in State v. Holman, 2014 WL 295610 (Tenn.Crim.App. 2014), the answer is "no."

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Refresher: 2nd Circuit Finds No Need to Disclose Documents Used in Preparation of Testimony

Federal Rule of Evidence 612(a) & (b) state as follows:

(a) Scope. This rule gives an adverse party certain options when a witness uses a writing to refresh memory:  

(1) while testifying; or  

(2) before testifying, if the court decides that justice requires the party to have those options.

(b) Adverse Party’s Options; Deleting Unrelated Matter. Unless 18 U.S.C. § 3500 provides otherwise in a criminal case, an adverse party is entitled to have the writing produced at the hearing, to inspect it, to cross-examine the witness about it, and to introduce in evidence any portion that relates to the witness’s testimony. If the producing party claims that the writing includes unrelated matter, the court must examine the writing in camera, delete any unrelated portion, and order that the rest be delivered to the adverse party. Any portion deleted over objection must be preserved for the record.

As Rule of Evidence 612(a)(2) makes clear, if a witness uses a writing to refresh his memory before testifying, the judge has discretion over whether to allow the adverse party to have the writing produced. So, how did the court exercise that discretion in United States v. LaVilla, 2014 WL 305634 (2nd Cir. 2014).

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I'd Rather Not Say: Refusals to Answer & Prior Inconsistent Statements

Arizona Rule of Evidence 801(d)(1)(A) provides that

A statement is not hearsay if...[t]he declarant testifies at the trial or hearing...and is subject to cross-examination concerning the statement, and the statement is...inconsistent with the declarant's testimony

So, let's say that an alleged victim gives a detailed statement to the police on the night of an alleged crime. Then, at trial, the victim testifies in response to certain questions that she "would rather not say..." Does such testimony render her prior statement "inconsistent," permitting its admission under Rule 801(d)(1)(A)? According to the recent opinion of the Court of Appeals of Arizona, Division 1, in State v. Joe, 2014 WL 212591 (Ariz.App. Div. 1 2014), the answer is "yes."

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Pronoun Problem: Supreme Court of South Carolina Finds Pronoun Redaction Didn't Solve Bruton Problem

The Confrontation Clause of the Sixth Amendment states that

In all criminal prosecutions, the accused shall enjoy the right...to be confronted with the witnesses against him...

Under the Bruton doctrine, the Confrontation Clause is violated, when, at a joint jury trial, the prosecution admits the statement of a non-testifying co-defendant that facially incriminates another defendant. But what if the court redacts the statement and replaces the other defendant's name with a neutral pronoun? As I have noted in prior posts (see, e.g., here), several courts have started to find that such a procedure does not violate the Bruton doctrine. In State v. Henson, 2014 WL 229891 (S.C. 2014), however, the Supreme Court of South Carolina disagreed.

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In Order Categorical: 7th Circuit Rejects Categorical Approach to Defining "Sexual Assault" Under Rule 413

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.

Moreover, Federal Rule of Evidence 413(d) indicates that

In this rule and Rule 415, “sexual assault” means a crime under federal law or under state law (as “state” is defined in 18 U.S.C. § 513) involving:  

(1) any conduct prohibited by 18 U.S.C. chapter 109A;  

(2) contact, without consent, between any part of the defendant’s body — or an object — and another person’s genitals or anus;  

(3) contact, without consent, between the defendant’s genitals or anus and any part of another person’s body;  

(4) deriving sexual pleasure or gratification from inflicting death, bodily injury, or physical pain on another person; or  

(5) an attempt or conspiracy to engage in conduct described in subparagraphs (1)–(4).

Usually, it is clear whether the charges against the defendant satisfy (or don't satisfy) the Rule 413(d) test. In United States v. Foley, 2014 WL 228686 (7th Cir. 2014), however, the defendant used an interesting analogy to claim that such clarity was lacking. But was he successful?

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Home Away From Home: Northern District of Texas Allows for Hotel Manager to Authenticate Photo

Federal Rule of Evidence 901(b)(1) allows for authentication through

Testimony that an item is what it is claimed to be.

In the case of photographs, what this means is that there can be authentication by anyone with personal knowledge of the location/object that was photographed. For an example, consider the following hypothetical:

Hypothetical: Bryan Hooper slips and falls in the lobby of a Marriott Courtyard hotel in Cleveland. Hooper sues the hotel for negligence, and the hotel seeks to introduce a photograph of the lobby from after the accident. Marriott does not call the photographer but instead has Shane Frownfelter, the manager of the Marriott, testify “that the photo reflected how the mats would have been at the time of the incident based upon his presence at the scene.” Was there proper authentication? See Hooper v. Marriott Intern., Inc., 2013 WL 5786294 (N.D.Tex. 2013).

The answer, of course, is "yes."

-CM

No Contest: 3rd Circuit Finds Nolo Contendere Plea Inadmissible In Excessive Force Case

Federal Rule of Evidence 410(a)(2) provides that

In a civil or criminal case, evidence of the following is not admissible against the defendant who made the plea or participated in the plea discussions:....

(2) a nolo contendere plea

That said, some courts have held that Rule 410(a)(2) does not apply when the person entering the nolo contendere plea later becomes a civil plaintiff. This issue was the subject of my article, The Best Offense is a Good Defense: Why Criminal Defendants' Nolo Contendere Pleas Should be Inadmissible Against Them When They Become Civil Plaintiffs. It was also the subject of the recent opinion of the Third Circuit in Sharif v. Picone, 2014 WL 211805 (3rd Cir. 2014).

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Ugly Can be Inadmissible: 1st Circuit Finds Evidence of New Hangtag Inadmissible in Escalator Injury Case

Federal Rule of Evidence 407 provides that

When measures are taken that would have made an earlier injury or harm less likely to occur, evidence of the subsequent measures is not admissible to prove:

• negligence;
• culpable conduct;
• a defect in a product or its design; or
• a need for a warning or instruction.

But the court may admit this evidence for another purpose, such as impeachment or — if disputed — proving ownership, control, or the feasibility of precautionary measures.

In some cases, however, it is so clear that evidence of a subsequent remedial measure is lacking in any probative value that a court does not even need to apply Rule 407. This was the case in Geshke v. Crocs, Inc., 2014 WL 185538 (1st Cir. 2014).

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No Problem: 11th Circuit Notes 3 Routes to Self-Authetication of Foreign Public Documents

Federal Rule of Evidence 902(3) allows for the self-authentication of

A document that purports to be signed or attested by a person who is authorized by a foreign country’s law to do so. The document must be accompanied by a final certification that certifies the genuineness of the signature and official position of the signer or attester — or of any foreign official whose certificate of genuineness relates to the signature or attestation or is in a chain of certificates of genuineness relating to the signature or attestation. The certification may be made by a secretary of a United States embassy or legation; by a consul general, vice consul, or consular agent of the United States; or by a diplomatic or consular official of the foreign country assigned or accredited to the United States. If all parties have been given a reasonable opportunity to investigate the document’s authenticity and accuracy, the court may, for good cause, either:  

(A) order that it be treated as presumptively authentic without final certification; or  

(B) allow it to be evidenced by an attested summary with or without final certification.

That's a lot of language, and the recent opinion of the Eleventh Circuit in United States v. McGowan, 2014 WL 184471 (11th Cir. 2014), does a good job of unpacking it.

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Post-Verdict Evidence of a Racist Juror Yields New Trial in Missouri

A Missouri judge recently granted a new trial to a civil plaintiff who produced post-verdict evidence of juror misconduct.  The case, Amrine v. Ossman (Cole County Circuit Court), concerns a malpractice allegation brought by a former death row inmate who was freed in 2003 after the Supreme Court of Missouri found "clear and convincing evidence of actual innocence that undermines confidence" in Amrine's guilt.  Now Amrine alleges that counsel at his murder case committed malpratice.  In 2012, a jury found for Ossman, the retired public defender being sued by his former client.  Then Amrine's lawyers moved for a new trial, alleging (among other things) that a white juror had said during deliberations that he would not give Amrine anything and that he referred to Amrine (who is black) by a racial slur. Counsel for Ossman offered evidence in rebuttal that the alleged racist remark was never made. Finding the denials by the alleged racist juror not credible, and deeming that the racist remark showed "unrestrained racial bias," the judge ordered a new trial, which is set for February 2014.

Because the trial took place in Missouri state court, the plaintiff's post-verdict evidence of juror racial bias was admissible under the rule of Fleshner v. Pepose Vision Institute, 304 S.W. 3d 81 (Mo. 2010).  Under the federal rules (and similar ones adopted in most states), the admissibility would not be so clear.

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Dead Man or Dead Letter: Arizona Notes Discretionary Nature of State's Dead Man's Statute

Dead Man's Statutes generally preclude interested parties from testifying about any communication, transaction, or promise made to them by a now deceased or incapacitated person when the testimony would go against the decedent's estate.  The theory behind these statutes is that the interested person has reason to fabricate his testimony and the deceased/incapacitated person does not have the ability to dispute the testimony and protect his estate from false claims.  Thus, for instance, a person who sought to testify that a now deceased individual promised to give him his car would not be allowed to do so because of the fear that his testimony would consist of perjury.

Most states have gotten rid of their Dead Man's Statutes, but, as is made clear by In re Estate of Smith, 2014 WL 47378 (Ariz.App. Div. 1 2014), Arizona still has such a statute...but it is discretionary.

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The Other Selfie: What Exactly is Meant by Self-Authentication?

Federal Rule of Evidence 902(9) allows for the self-authentication of

Commercial paper, a signature on it, and related documents, to the extent allowed by general commercial law.

I haven't yet had the chance to address Rule 902(9) on this blog, but the recent opinion of the United States District Court for the Eastern District of Wisconsin in Ocwen Loan Servicing, LLC v. Thompson, 2014 WL 51236 (E.D.Wis. 2014), gives me the opportunity. But I'm not sure that the court got it right.

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Permanent Record: Court of Appeals of Arizona Rejects Authentication Challenge to Uncertified Copies

Similar to their federal counterparts, Arizona Rule of Evidence 902(1) allows for the self-authentication of "Domestic Public Documents That Are Sealed and Signed" while Arizona Rule of Evidence 902(2) allows for the self-authentication of "Domestic Public Documents That Are Not Sealed but Are Signed and Certified." Meanwhile, like its federal counterpart, Arizona Rule of Evidence 901(b)(7) allows for authentication through the following method:

(7) Evidence About Public Records. Evidence that:  

(A) a document was recorded or filed in a public office as authorized by law; or  

(B) a purported public record or statement is from the office where items of this kind are kept.

So, what's the interplay among these Rules? Consider the recent opinion of the Court of Appeals of Arizona, Division One, in State v. McGuire, 2014 WL 50654 (Ariz.App. Div. 1 2014).

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Credibility Gap: Northern District of Illinois Finds Train Video Properly Authenticated Under Rule 901(b)(1)

Federal Rule of Evidence 901(b)(1) allows for authentication through

(1) Testimony of a Witness with Knowledge. Testimony that an item is what it is claimed to be.

What this means is that a witness with personal knowledge may authenticate an exhibit. But what if said witness is wholly lacking in credibility? That was the question addressed by the United States District Court for the Northern District of Illinois in its recent opinion in Jones v. Union Pacific Railroad Company, 2014 WL 37843 (N.D.Ill. 2014).

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You've Got Mail: Court of Appeals of Texas Finds Alleged E-Mail From Victim's Mother Improperly Authenticated

Similar to its federal counterpart, Texas Rule of Evidence 901(a) provides that

The requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims.

So, assume that a party seeks to authenticate an e-mail as an e-mail written by a certain person. Will evidence that the e-mail appeared to come from an e-mail address belonging to the alleged drafter typically be enough to authenticate the e-mail? According to the recent opinion of the Court of Appeals of Texas, San Antonio, in Chin v. State, 2013 WL 6869905 (Tex.App.-San Antonio 2013), the answer is "no."

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Another State: New Law Would Expends Nebraska's Rules on Sexual Propensity Character Evidence

As I wrote in my essay, Bullshit!: Why the Retroactive Application of Federal Rules of Evidence 413-414 and State Counterparts Violates the Ex Post Facto Clause, Nebraska recently enacted state counterparts to Federal Rules of Evidence 413-415. These Rules reverse the traditional presumption that propensity character evidence is inadmissible and allow for the admission of prior acts of sexual assault and child molestation in cases involving alleged sexual misconduct. Since the passage of Federal Rules of Evidence 413-415, at least eleven states has enacted state counterpart. But there are apparently differences among these state counterparts, which is made clear by legislation currently pending in Nebraska.

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What's Your Next Exhibit?: Court of Appeals of Kentucky Notes That Documents Used to Refresh Recollection Aren't Exhibits

Similar to its federal counterpart, Kentucky Rule of Evidence 612 states that

Except as otherwise provided in the Kentucky Rules of Criminal Procedure, if a witness uses a writing during the course of testimony for the purpose of refreshing memory, an adverse party is entitled to have the writing produced at the trial or hearing or at the taking of a deposition, to inspect it, to cross-examine the witness thereon, and to introduce in evidence those portions which relate to the testimony of the witness. If it is claimed that the writing contains matters not related to the subject matter of the testimony, the court shall examine the writing in camera, excise any portions not so related, and order delivery of the remainder to the party entitled thereto. Any portion withheld over objections shall be preserved and made available to the appellate court in the event of an appeal. 

The implication of Rules 612 is that a party using a writing to refresh a witness' recollection is not introducing the writing as an exhibit, with the adverse party thereafter having the option of "introduc[ing] in evidence those portions which relate to the testimony of the witness." So, what does that mean in terms of pre-trial disclosure? Let's take a look at the recent opinion of the Court of Appeals of Kentucky in D.L.B. v. Cabinet for Health and Family Services, 2014 WL 26990 (Ky.App. 2014).

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Is Fainting Relevant to Consciousness of Guilt?

Media reporting today on an evidentiary ruling in a high-profile case that might be of particular interest to those currently teaching relevance.  

The prosecution wanted to introduce evidence that the defendant fainted when FBI agents confronted him on his lawn and informed him he was the target of an insider-trading probe.  

The judge excluded the evidence, stating:  

"When an individual who works in the hedge fund industry is approached by the FBI and is accused of having engaged in insider trading in specific stocks and while employed at a specific company, it is likely to be a shocking and highly disturbing event, whether the person is innocent or guilty.”

Certainly a safe ruling that doesn't do any real damage to the prosecution's case (surely, there is better evidence than this!), but as a pure relevance question, isn't there a decent case to be made that fainting in the face of accusation has some ("any") tendency to increase the probability that the defendant knew of his guilt.  And if so, is there some reason we can't trust the jury to properly weigh this type of evidence (403)?  You don't see much case law on fainting, but this reminds me of flight evidence, which courts routinely allow.  

On the other hand, if the defendant had calmly invited the agents in for coffee after being accused, the prosecution would likely have fought to keep that evidence of consciousness of innocence out . . . .

- JB

 

Your Honor, I'm a Liar: Military Court Finds Defendant Doesn't Have to Claim Confession is False Before He Can Impeach It

Similar to its federal counterpart, Military Rule of Evidence 806 provides that

When a hearsay statement, or a statement defined in Mil. R. Evid. 801(d)(2)(C), (D), or (E), has been admitted in evidence, the credibility of the declarant may be attacked, and if attacked may be supported, by any evidence which would be admissible for those purposes if declarant had testified as a witness. Evidence of a statement or conduct by the declarant at any time, inconsistent with the declarant's hearsay statement, is not subject to any requirement that the declarant may have been afforded an opportunity to deny or explain. If the party against whom a hearsay statement has been admitted calls the declarant as a witness, the party is entitled to examine the declarant on the statement as if under cross-examination.

As the above language makes clear, Rule 806 does not expicitly allow for the impeachment of the declarant of a statement under Rule 801(d)(2)(A), which covers statements of party-opponents. According to the Advisory Committee's Note to Rule 806, however, this is simply because

The committee considered it unnecessary to include statements contained in rule 801(d)(2)(A) and (B)—the statement by the party-opponent himself or the statement of which he has manifested his adoption—because the credibility of the party-opponent is always subject to an attack on his credibility.

But does a criminal defendant have to claim that a Rule 801(d)(2)(A) confession is false before he can impeach it? That was the question addressed by the U.S. Navy-Marine Corps Court of Criminal Appeals in United States v. Dougherty, 2013 WL 6858964 (N.M.Ct.Crim.App. 2013), the answer is "no."

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Avoiding A Pile-On: 7th Circuit Find Rule 609(b) Precluded Admission of 11 Year-Old Conviction

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.

As the recent opinion of the Seventh Circuit in United States v. Rucker, 2013 WL 6857989 (7th Cir. 2013), makes clear, one potential stumbling block to the admissibility of old convictions under Rule  609(b) is the admissibility of other convictions for impeachment purposes.

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