EvidenceProf Blog

Ray Rice & Marital Privilege: Why Neither of New Jersey's Spousal Privileges Will Protect the Running Back

According to ESPN, "Baltimore Ravens running back Ray Rice and Janay Palmer were married Friday...." What makes this both sad and interesting is that"[t]he marriage came one day after Rice was indicted by a grand jury on third-degree aggravated assault for allegedly striking Palmer unconscious." ESPN legal analyst Lester Munson is quoted in the article as saying that

"If the wife claims a spousal privilege, it is likely that she would not be forced to testify against him."..."The prosecution would face the prospect of proving the assault without any testimony from the victim. It is possible, but it would be extremely difficult. Unless a prosecutor has a burning desire to become famous in a case involving Rice, the prosecutor may be likely to invest his time in other, more productive activities."

But is that actually the case?

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The Last Frontier: Alaska Bill Would Lead to Jurors Being Informed of Right of Jury Nullification

A couple of years ago, New Hampshire became, as far as I know, the first state that allows jurors to be informed of the right of jury nullification: the power of jurors to render a verdict inconsistent with the evidence (e.g., finding a defendant "not guilty" of possessing a small amount of marijuana despite the evidence proving his guilt beyond a reasonable doubt). Now, it looks like Alaska might follow suit.

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Nearly Two Billion Reasons to Master Those Evidence Rules

Anna Walsh at FDA Law Blog highlights an interesting evidentiary ruling at the heart of the Arkansas Supreme Court’s reversal last week of a $1.8 billion Medicaid fraud / false advertising judgment won by Arkansas against various defendants including Johnson & Johnson.

Three points.  (The first and third being the most interesting for those just passing through.)

First, this case provides 1.8 billion reasons to ignore those who downplay the significance of evidence rulings!  The evidence rules matter: just ask Johnson & Johnson.

Second, the appellate decision (available at the FDA Law Blog) illustrates the application of a somewhat technical modification of the business records rule in some states, like Arkansas.

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Palmetto State: South Carolina Courts Don't Apply Daubert...Quite

For decades, the D.C. Circuit's opinion in Frye v. United States, 293 F. 1013 (D.C. Cir. 1923), ruled the roost in terms of the admissibility of expert opinion testimony. Pursuant to Frye, a court was only to admit expert opinion testimony if it was based upon a technique, technology, etc. that had "general acceptance" in the relevant expert community.

In 1993, however, in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), the Supreme Court found that this Frye test no longer applied in cases governed by the Federal Rules of Evidence. In Daubert, the Court created the idea of judicial gatekeeper and held that in determining whether expert testimony is based upon reliable principles and methods under Federal Rule of Evidence 702, federal judges can consider factors such as

whether the "technique can be (and has been) tested," "[w]hether it has been subjected to peer review and publication," the "known or potential rate of error," "whether there are standards controlling the technique's operation," and "whether the...technique enjoys general acceptance within a relevant scientific community."

As I have previously noted, as of 2010, 30 states had "adopted or applied the Daubert standard to determine whether to admit a witness to testify as an expert in a given field." Mark R. Nash, Are We There Yet?: Gatekeepers, Daubert, and an Analysis of State v. White, 61 S.C. L. Rev. 897, 897 n.6 (2010). These states were:

(1) Alaska, (2) Arkansas, (3) Colorado, (4) Connecticut, (5) Delaware, (6) Georgia, (7) Hawai'i, (8) Idaho, (9) Indiana, (10) Iowa, (11) Kentucky, (12), Louisiana, (13) Maine, (14) Massachusetts, (15) Michigan, (16) Mississippi, (17) Montana, (18) Nebraska, (19) New Hampshire, (20) New Mexico, (21) Ohio, (22) Oklahoma, (23) Oregon, (24) Rhode Island, (25) South Dakota, (26) Tennessee, (27) Texas, (28) Vermont, (29) West Virginia, and (30) Wyoming.

South Carolina is not one of these states. So, what test does it apply?

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The Inverse Relationship between the Constitutionality and Effectiveness of New York City 'Stop and Frisk'

Not necessarily evidence related, but for those interested, I just posted the above-titled forthcoming article about NYC Stop and Frisk on SSRN.  It argues, that "whatever [crime-fighting] success [NYC] stop-and-frisk achieves . . . relies to a significant degree on the very factors that render it unconstitutional."  This conclusion implicates the efforts of policy makers in New York City who are, as we speak, attempting to "reform" the practice -- as well as police in other cities striving to duplicate the city's crime fighting success.

Here is the abstract:

New York City sits at the epicenter of an extraordinary criminal justice phenomenon. While employing aggressive policing tactics, such as “stop and frisk,” on an unprecedented scale, the City dramatically reduced both violent crime and incarceration – with the connections between these developments (if any) hotly disputed. Further clouding the picture, in August 2013, a federal district court ruled the City’s heavy reliance on “stop and frisk” unconstitutional. Popular and academic commentary generally highlights isolated pieces of this complex story, constructing an incomplete vision of the lessons to be drawn from the New York experience. This Article brings together all of the strands – falling crime, reduced incarceration and aggressive policing – analyzing the hazy historical and empirical connections between them, and evaluating the legal implications of a crime-fighting policy that might “work” to reduce both crime and incarceration precisely because of the factors that render it unconstitutional.

Here is the link.

Lord(s) of War?: Southern District of New York Uses Rule 704 to Find No Error in Failing To Call Expert

Federal Rule of Evidence 704(b) provides that

In a criminal case, an expert witness must not state an opinion about whether the defendant did or did not have a mental state or condition that constitutes an element of the crime charged or of a defense. Those matters are for the trier of fact alone.

The recent opinion of the United States District Court for the Southern District of New York in Moreno-Godoy v. United States, 2014 WL 1088300 (S.D.N.Y. 2014), raises an interesting question with regard to Rule 704(b): Does the simple fact that some portion of an expert's opinion might run afoul of Rule 704(b) justify an attorney in not calling him as a witness?

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Text(ual) Analysis: 4th Circuit Finds That Text Message Sent to Defendant Wasn't Hearsay

According to Federal Rule of Evidence 801(c),

“Hearsay” means a statement that:  

(1) the declarant does not make while testifying at the current trial or hearing; and  

(2) a party offers in evidence to prove the truth of the matter asserted in the statement.

So, assume that two defendants are charged with conspiracy to kidnap and use of a firearm during and in relation to a crime of violence. Assume that, the day before the crime charged, a contact sent one of the defendants a text message that said, "This bitch is at crystal house cuz her father died today so I have no idea when she is gonna be going home Ahk. we got to try something man[.]" Would this statement constitute hearsay? According to the recent opinion of the Fourth Circuit in United States v. Edelen, 2014 WL 961565 (4th Cir. 2014), the answer is "no."

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Drug Dogs and the Call of Nature

The Supreme Court in Florida v. Harris directed courts to employ a “flexible, common-sense standard” in evaluating whether a drug dog’s “alert” constitutes probable cause for a search.  Harris focused on the training of the dog (Aldo), but a recent Georgia case illustrates that the probable cause question is also complicated by the difficulty of evaluating whether, in fact, a drug dog did “alert.”

In McKinney v. State (Ga.App. 2014), the defendant “argued that the officers did not have probable cause to conduct [a car] search because Simba [the drug dog] did not in fact alert during the search, but instead stopped to relieve himself.”

There seems to be something to this strange claim as the court summarizes the government’s evidence:

“Officer Pullen then walked [the dog] to the passenger's side, where Simba again indicated he was working odor and then attempted to indicate an alert by sitting, but was unable to complete the alert because he had to relieve himself.”

A footnote adds that “Simba was experiencing stomach distress and had relieved himself in the back of the patrol car immediately prior to the search.”

Despite the surprising overlap between a trained drug dog’s “alert” and an uncontrollable bodily urge, the trial court credited the officer’s testimony that this activity constituted an “alert” (or, more precisely, a failed alert) and the appeals court upheld the factual finding.  A victory for the prosecution, but certainly not the finest day for the “war on drugs” or Simba the drug dog.

Flipping Socrates

Sponsored by West Academic

Deborah Jones Merritt (Ohio State):

“Flipped” classrooms are gaining popularity in high school and college courses. Students in these topsy-turvy classes watch videotaped lectures as homework, then gather in class to discuss material and solve problems. Hands-on classroom activities allow students to work in groups, as well as to obtain just-in-time help from the teacher.

What’s the big deal? Didn’t law schools flip their classrooms long ago by introducing the case method and Socratic questioning? Our students, after all, absorb content by reading cases and statutes before class; in the classroom we push them to apply their knowledge by answering questions and solving new hypotheticals.

That’s the theory. In reality, the conventional law school class falls short of the engagement and active learning that a well flipped classroom can offer. After the first semester, many law school classes fall into a predictable pattern of lecture cloaked in “Socratic” questioning. Our Socratic questions too often seek specific answers that will advance the underlying lecture, rather than truly engaging students in problem solving. Even when we call on students to apply their knowledge by solving problems, other students simply take notes; they don’t attempt to solve the problem themselves.

I recognized this phenomenon in my own upper-level Evidence class and sought a solution. A colleague, Ric Simmons, had devised an extraordinary number of creative problems for students to solve. I started asking students to solve these problems, either in small groups or through clicker responses. To allow time for problem solving, however, I had to rush through discussion of the cases and rules.

One day an epiphany occurred: We had time in class either to analyze how courts had solved previous problems (the case method) or to use that reasoning to solve new problems. There simply wasn’t time for both.

For upperlevel students, the choice was easy: Both my classroom experience and the cognitive science literature counseled that students would learn far more by engaging with new problems rather than retracing old ones. Ric agreed and we created Learning Evidence, an “uncasebook” that flips the classroom by giving students the basic information they need to allow active learning in class.

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Conspicuous By Absence: Second Circuit Finds Neutral Pronoun Substitution Too Awkward to Satisfy Bruton Doctrine

Pursuant to the Bruton doctrine, the Confrontation Clause is violated by the introduction, at a joint jury trial of a nontestifying defendant's statement which facially incriminates another defendant. As I have note on this blog (see, e.g., here), many courts have found that prosecutors can avoid a Bruton doctrine by replacing the defendant's name with a neutral pronoun (e.g., "Dan and I robbed the bank" becomes "Someone and I robbed the bank."). I have long argued, though, that such substitution shouldn't be allowed when the replacement is clear/awkward (see, e.g., here). And that's exactly what the Second Circuit found in United States v. Taylor, 2014 WL 814861 (2nd Cir. 2014).

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Victims' Rights: Tennessee Bill Would Allow Prosecutors to Introduce Pictures of Unavailable Violent Crime Victims

Here's an interesting story about House Bill 1524, which is making its way through the Tennessee General Assembly. According to the article,

The proposed piece of legislation would amend current state law and allow during a trial pictures of a violent crime victim if the victim is unable to testify or be present.

In connection with the bill, Knox County Assistant District Attorney John Gill, Jr. issued the following statement:

"Tennessee DAS are strongly in support of the legislation allowing photos from life of a homicide victim to be admitted in evidence in a trial. Under the current law, the defendant is present before the jury, while the victim is an abstract figure, totally outside the sight of the jury. This law would allow a jury to more fully appreciate that the victim was once a real and alive."

Conversely, Knoxville Criminal Defense Attorney Greg Isaacs said in a statement,

"Victims have a right to be heard, however there's a danger that a picture will be used for the purpose of creating sympathy as opposed to the purpose of the rules of evidence and rues of criminal procedure."

The complete text of the bill is below the jump.

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Reversal of Fortune: Should Suspects be Able to Introduce Reverse 413/414 Evidence?

Federal Rule of Evidence 412 states in relevant part:

(a) Prohibited Uses. The following evidence is not admissible in a civil or criminal proceeding involving alleged sexual misconduct:  

(1) evidence offered to prove that a victim engaged in other sexual behavior; or  

(2) evidence offered to prove a victim’s sexual predisposition.  

(b) Exceptions.  

(1) Criminal Cases. The court may admit the following evidence in a criminal case:  

(A) evidence of specific instances of a victim’s sexual behavior, if offered to prove that someone other than the defendant was the source of semen, injury, or other physical evidence....

(c) Procedure to Determine Admissibility.  

(1) Motion. If a party intends to offer evidence under Rule 412(b), the party must:  

(A) file a motion that specifically describes the evidence and states the purpose for which it is to be offered;  

(B) do so at least 14 days before trial unless the court, for good cause, sets a different time;  

(C) serve the motion on all parties; and  

(D) notify the victim or, when appropriate, the victim’s guardian or representative.

Meanwhile, Federal Rule of Evidence 413(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.

In United States v. Thunder, 2014 WL 944752 (8th Cir. 2014), the defendant was charged with sexual abuse of a minor and sexual abuse of a person incapable of consenting. At trial, the defendant sought to introduce the prior sexual abuse conviction of an alleged alternate suspect, but the district court deemed the evidence inadmissible under Rule 412(c)(1). This prompts two questions: (1) Why did the Eighth Circuit mention Rule 412; and (2) Is there such a thing as reverse Rule 413/414 evidence?

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Bigger & Better?: Supreme Court of North Dakota Opinion Deals With Both Personal/Family History Hearsay Exceptions

Similar to its federal counterpart, North Dakota Rule of Evidence 804(b)(4) provides an exception to the rule against hearsay for

(4) Statement of Personal or Family History. A statement about:

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

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

Moreover, like its federal counterpart, North Dakota Rule of Evidence 803(19) provides an exeption to the rule against hearsay for

(19) Reputation Concerning Personal or Family History. A reputation among a person's family by blood, adoption, or marriage, or among a person's associates or in the community, concerning the person's birth, adoption, legitimacy, ancestry, marriage, divorce, death, relationship by blood, adoption, or marriage, or similar facts of personal or family history.

As the language of these exceptions makes clear, they cover very similar territory. As the recent opinion of the Supreme Court of North Dakota in State v. Vandermeer, 2014 WL 929481 (N.D. 2014), mkaes clear, however, there is at least one key difference between the two.

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Court's Witness: Court of Appeals of Ohio Finds No Error With Court Calling Witness for Prosecution to Impeach

Ohio Rule of Evidence 607(A) provides that

The credibility of a witness may be attacked by any party except that the credibility of a witness may be attacked by the party calling the witness by means of a prior inconsistent statement only upon a showing of surprise and affirmative damage. This exception does not apply to statements admitted pursuant to Evid.R. 801(D)(1)(A), 801(D)(2), or 803.

That said, a party cannot call a witness as mere subterfuge for getting inadmissible evidence before the jury. So, for instance, the prosecution could not call an eyewitness, knowing that the eyewitness would give exculpatory testimony, for the sole purpose of getting the eyewitness's prior inconsistent (incriminatory) statements before the jury.

Meanwhile, Ohio Rule of Evidence 614(A) provides that

The court may, on its own motion or at the suggestion of a party, call witnesses, and all parties are entitled to cross-examine witnesses thus called.

So, could the prosecution in the above example ask the court to call the eyewitness, which would mean that the prosecution could impeach the eyewitness without having to contend with Rule 607(A) limitation? According to the recent opinion of the Court of Appeals of Ohio, Second District, in State v. Slaughter, 2014 WL 895425 (Ohio App. 2 Dist. 2014), the answer is "yes."

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The Sequester: Court of Appeals of Kentucky Applies Rule 615 to a Non-Witness

Similar to its federal counterpart, Kentucky Rule of Evidence 615 provides that

At the request of a party the court shall order witnesses excluded so that they cannot hear the testimony of other witnesses and it may make the order on its own motion. This rule does not authorize exclusion of:

(1) A party who is a natural person;

(2) An officer or employee of a party which is not a natural person designated as its representative by its attorney; or

(3) A person whose presence is shown by a party to be essential to the presentation of the party's cause.

As its language makes clear, Rule 615 only allows for the sequestration of witnesses. So, what happens if a judge orders witnesses sequestered, a non-witness affiliated with a party remains in the courtroom, and that non-witness then informs prospective witnesses about prior testimony? That was the dilemma addressed by the Court of Appeals of Kentucky in its recent opinion in Sturgill v. Sturgill, 2014 WL 891277 (Ky.App. 2014).

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Refresher: How Rule 612 Treats Prosecutors Differently Than Any Other Party

In most cases, the Federal Rules of Evidence cover the exact same ground in criminal trials and civil trials. The Rules also usually treat civil plaintiffs no differently than civil defendants and prosecutors no differently than criminal defendants. There are, however, some notable differences, one of which I realized when teaching Federal Rule of Evidence 612 to my students yesterday.

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Sarah Tran RIP

My SMU Law school colleague, friend and neighbor Sarah Tran died on Friday.  Her valiant fight to continue to excel as a teacher and scholar in the face of an unrelenting disease inspired her colleagues, students and, really, everyone she touched.  One example that happened to make the news is here.  She will be greatly missed.  For those interested in helping, here is a link to a fund set up by her colleagues and friends to assist her family -- the thing Sarah treasured most of all.  She is survived by her husband and two young children.

UPDATE:  SMU Law has put up a tribute to Sarah at this link.

- JB

Hearsay in the Keystone State: Pennsylvania Case Reveals the State Lacks Many Hearsay Exceptions

Federal Rule of Evidence 803(8) provides an exception to the rule against hearsay for

A record or statement of a public office if:  

(A) it sets out:  

(i) the office’s activities;  

(ii) a matter observed while under a legal duty to report, but not including, in a criminal case, a matter observed by law-enforcement personnel; or  

(iii) in a civil case or against the government in a criminal case, factual findings from a legally authorized investigation; and  

(B) neither the source of information nor other circumstances indicate a lack of trustworthiness.

As the recent opinion of the Superior Court of Pennsylvania in Phillips v. Lock, 2014 WL 806225 (Pa.Super. 2014), makes clear, Pennsylvania never adopted a state counterpart to Rule 803(8). So, where does that leave the Keystone State?

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The Lying Juror: Supreme Court Grants Cert in Case Involving Juror Lies During Voir Dire

[Note: Looks like Jeff and I were on the same wavelength today as we both noticed the cert grant in Warger v. Schauers]

Federal Rule of Evidence 606(b) reads as follows:

(b) During an Inquiry into the Validity of a Verdict or Indictment.  

(1) Prohibited Testimony or Other Evidence. During an inquiry into the validity of a verdict or indictment, a juror may not testify about any statement made or incident that occurred during the jury’s deliberations; the effect of anything on that juror’s or another juror’s vote; or any juror’s mental processes concerning the verdict or indictment. The court may not receive a juror’s affidavit or evidence of a juror’s statement on these matters.  

(2) Exceptions. A juror may testify about whether:  

(A) extraneous prejudicial information was improperly brought to the jury’s attention;  

(B) an outside influence was improperly brought to bear on any juror; or  

(C) a mistake was made in entering the verdict on the verdict form.

As I have written before, there is a split among courts about whether a party can have a juror testify regarding jury deliberations to prove that a juror lied during voir dire, with the possible effect of such testimony  being a reversal. It now appears that the Supreme Court will finally resolve the issue.

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Evidence Cert. Grant and a New Aphorism: “Easy Cases Make Bland Law”

The Supreme Court granted cert. today in an Evidence case, WARGER v. SHAUERS.

With limited exceptions, Federal Rule of Evidence 606 forbids a party from attempting to set aside a verdict by introducing evidence from jurors “about any statement made or incident that occurred during the jury's deliberations.”

Here is the issue presented in the petition for cert.:

“whether federal rule of evidence 606(b) permits a party moving for a new trial based on juror dishonesty during voir dire to introduce juror testimony about statements made during deliberations that tend to show the alleged dishonesty”

There is a split in the federal circuits on this question, so the cert. grant here is sensible.  The actual case the Justices chose to take, however, raises the specter of the Court eliding the harder questions that can arise in these circumstances.

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