EvidenceProf Blog

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

Wednesday, April 30, 2014

Authorized Transfer: Supreme Court of Pennsylvania Finds Forfeiture by Wrongdoing Applied at Murder Trial

Similar to its federal counterpartPennsylvania Rule of Evidence 804(b)(6) provides an exception to the rule against hearsay (and the Confrontation Clause) for

A statement offered against a party that wrongfully caused—or acquiesced in wrongfully causing—the declarant’s unavailability as a witness, and did so intending that result.

In my essay, The Purpose Driven Rule: Drew Peterson, Giles v. California, and the Transferred Intent Doctrine of Forfeiture by Wrongdoing, I argued that courts have applied a transferred intent doctrine of forfeiture by wrongdoing. In other words, if Defendant kills Prospective Witness to prevent him testifying at Trial A (e.g., a burglary trial), Defendant's intent to render Prospective Witness unavailable can transfer to Trial B (Defendant's trial for murdering Prospective Witness), rendering Rule 804(b)(6) applicable. The latest example of this can be found in Commonwealth v. Morales, 2014 WL 1669802 (Pa. 2014).

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April 30, 2014 | Permalink | Comments (0) | TrackBack (0)

Tuesday, April 29, 2014

Restricting Condoms as Evidence of Prostitution?

Earlier this month, various news sources reported on an effort in New York to prohibit the reliance on / seizure of condoms as evidence of prostitution.  The idea is that prostitutes, fearful that condom possession will be used against them in court, decide not to carry condoms.  Or, additionally, that police seizures of condoms (often distributed free by the City) as evidence is counterproductive for obvious reasons.  One story notes that if NY were to pass  this restriction, it would be the first state to do so.  Compelling arguments against the proposal do not spring to mind, although there are suggestions of opposition in the stories.

You do not see many offense-specific, policy-based rules of evidence exclusion like this, so this proposal, which makes intuitive sense, is intriguing.  I wonder if there aren't other circumstances where policy reasons counsel against the seizure / use of certain kinds of evidence in certain types of prosecutions (e.g., heroin overdose antidote possession as evidence of heroin use).  And if so, whether there might be a proliferation of offense-specific evidence rules in the future...

April 29, 2014 | Permalink | Comments (0) | TrackBack (0)

Monday, April 28, 2014

Nothing Sucks Like an Electrolux: SDNY Finds Art Expert's Report Inadmissible in Action Against Electrolux

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.

It's not unusual to see a case in which an expert's opinion testimony is excluded after the court find that the testimony was the product of unreliable principles and methods. It's much rarer to find a case in which the court finds that an expert applied reliable principles and methods but that the expert did not reliably apply those principles and methods to the facts of the case. This takes me to Oleg Cassini, Inc. v. Electrolux Home Products, Inc., 2014 WL 1468118 (S.D.N.Y. 2014).

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April 28, 2014 | Permalink | Comments (0) | TrackBack (0)

Friday, April 25, 2014

Rescue 911: Court of Appeals of South Carolina Grapples With Double Hearsay Issue

Similar to its federal counterpartSouth Carolina Rule of Evidence 805 provides that

Hearsay included within hearsay is not excluded under the hearsay rule if each part of the combined statements conforms with an exception to the hearsay rule provided in these rules.

So, assume that a daughter reports to her mother that she was sexually assaulted and that the mother then calls 911 and relays what her daughter told her. Should the 911 call be admitted? According to the Court of Appeals of South Carolina in State v. Hendricks, 2014 WL 1614844 (S.C.App. 2014), the answer is "no."

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April 25, 2014 | Permalink | Comments (0) | TrackBack (0)

Thursday, April 24, 2014

Hearsay at the Supreme Court: Justices Thomas & Scalia Clash Over Applicability of Hearsay Exceptions in Prado Navarette

A couple of days ago, the Supreme Court decided Prado Navarette v. California, and the most interesting thing about the case from an evidentiary perspective was the dispute between the majority and the dissent over the applicability of two hearsay exceptions. So, what was the nature of that dispute?

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April 24, 2014 | Permalink | Comments (0) | TrackBack (0)

Wednesday, April 23, 2014

Ask the Chaplain: Detailing the Ins and Outs of the Military Clergyperson Privilege

An article yesterday from Air Force Global Strike Command notes that

Chaplains don't fill an exclusively religious role - they're present to help with personal problems as well, and they're especially serious about respecting the privacy of those who talk to them.  

"We are the only agency on base that has 100 percent absolute confidentiality protected under the Military Rule of Evidence 503," said  [Deputy wing chaplain] Williams. "This keeps the communication purely between the chaplain and the person that came to speak with him or her. 

The article gives me a reason to look into Military Rule of Evidence 503 and when it does and does not apply.

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April 23, 2014 | Permalink | Comments (1) | TrackBack (0)

Tuesday, April 22, 2014

Plea Plea Me: Central District of California Cites Me But Reaches Opposite Conclusion in Nolo/Civil Plaintiff Case

A few years ago, I published the article, The Best Offense is a Good Defense: Why Criminal Defendants' Nolo Contendere Pleas Should be Inadmissible Against Them When They Become Civil Plaintiffs. The article discussed a split among federal circuits over whether a criminal defendant's nolo contendere plea is admissible against him if he subsequently becomes a civil plaintiff in a case involving the same factual context. So, where does the Ninth Circuit fall on the issue? Let's take a look at the recent opinion of the United States District Court for the Central District of California in Galvan v. City of La Habra, 2014 WL 1370747 (C.D.Cal. 2014).

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April 22, 2014 | Permalink | Comments (0) | TrackBack (0)

Friday, April 18, 2014

NYT on Police Investigation of Rape Allegation Against Florida State Quarterback

This NYT story (published this week) is fascinating not only in terms of the window it opens onto a number of criminal justice and societal controversies, but also as a lesson in the types of evidence now available to police investigating crimes (particuarly those involving young people).  Here, the police could have (but, according to the story, largely did not) accessed video footage from the bar where the incident began, the text messages and social media posts of the students who witnessed the incident, and a videotape made by one of the friends of the accused.

April 18, 2014 | Permalink | Comments (0) | TrackBack (0)

Thursday, April 17, 2014

Notable Forthcoming Evidence Scholarship: "Inefficient Evidence"

Alex Stein (Cardozo) recently posted “Inefficient Evidence” (forthcoming Alabama Law Review) to SSRN.  The article offers a unifying theory of evidence that, in Stein’s view, justifies (at least to some degree) the American evidence rules.  The key concept in this theory is the “signal to noise ratio” or SNR.  Evidence whose significance to the case is difficult to evaluate has a low SNR (the signal is difficult to filter from the noise) and is, Stein argues, rightly excluded.  Evidence that is more easily evaluated has a high SNR (its signal is easier to filter out from the noise) and should be admitted.  The SNR ratio resonates with familiar Rule 403 conceptions, but Stein relies on it to explain evidence law more broadly, including the hearsay rules, the prohibition on character evidence, and more.

What I especially like about Stein’s piece is that although it sketches a very high-level theory of evidence, it nevertheless grapples with concrete examples, taking on discrete hearsay exceptions for example and explaining why they are (or are not) justified in light of SNR.  Of course, this also makes his argument sufficiently tangible that it can be understood . . . and critiqued. 

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April 17, 2014 | Permalink | Comments (0) | TrackBack (0)

Next Best Thing: Court of Appeals of North Carolina Finds Testimony About Deleted Voicemails Admissible

North Carolina Rule of Evidence 1002, North Carolina's version of the Best Evidence Rule, provides that

To prove the content of a writing, recording, or photograph, the original writing, recording, or photograph is required, except as otherwise provided in these rules or by statute.

That said, North Carolina Rule of Evidence 1004 provides that

The original is not required, and other evidence of the contents of a writing, recording, or photograph is admissible if:

(1) Originals Lost or Destroyed. - All originals are lost or have been destroyed, unless the proponent lost or destroyed them in bad faith; or

(2) Original Not Obtainable. - No original can be obtained by any available judicial process or procedure; or

(3) Original in Possession of Opponent. - At a time when an original was under the control of a party against whom offered, he was put on notice, by the pleadings or otherwise, that the contents would be a subject of proof at the hearing, and he does not produce the original at the hearing; or

(4) Collateral Matters. - The writing, recording, or photograph is not closely related to a controlling issue. 

As the recent opinion of the Court of Appeals of North Carolina in State v. Barnette, 2014 WL 1464155 (N.C.App. 2014), makes clear, Rule 1004(1) explains why most evidence is not excluded under the Best Evidence Rule.

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April 17, 2014 | Permalink | Comments (0) | TrackBack (0)

Tuesday, April 15, 2014

Died in South Dakota, Take 2: Tests of Remains Indicate Teens in David Lykken Case Died in Car Accident

Back in 2008, I posted an entry about a case out of South Dakota in which David Lykken was indicted in connection with the disappearance of two teens in 1971. The charges against Lykken were eventually dropped after the jailhouse informant who allegedly recorded Lykken confessing to killing the teens admitted to faking the coversation. Today, that case finally got a postscript. According to an article on the case,

Two Vermillion, S.D., teens missing for nearly 43 years died in a car crash, not from foul play, authorities said Tuesday.

Pamella Jackson, and Cheryl Miller, both 17, were last seen driving to a party at a Union County gravel pit in a 1960 Studebaker Lark on May 29, 1971

Their car was found partially submerged upside down in a creek several miles southwest of Alcester, S.D., on Sept. 13, 2013. Two sets of skeletal remains inside the car were sent to Texas for testing.


April 15, 2014 | Permalink | Comments (1) | TrackBack (0)

United We Stand: New Jersey Proposes Unified Mental Health Services Provider Evidentiary Privilege

According to an article in the New Jersey Law Journal,

A new rule being proposed in New Jersey would create a “unified mental health service provider evidentiary privilege”—an effort to reorganize the present patchwork of privileges that offer varying degrees of protection to different professionals.

The  Supreme Court Committee on the Rules of Evidence released the draft proposal on Wednesday and asked for comments by June 2.

The draft, modeled on Rule 503 of the Uniform Rules of Evidence Act, lists specific professionals who would be covered by the unified privilege.   

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April 15, 2014 | Permalink | Comments (0) | TrackBack (0)

Monday, April 14, 2014

Intriguing Empirical Study of Prior Conviction Impeachment

Kathryn Stanchi (Temple) and Deirdre Bowen (Seattle) recently posted a paper on SSRN summarizing the findings of an experiment they ran on the impact of prior convictions in a mock civil trial. 

This is Your Sword: How Damaging are Prior Convictions to Plaintiffs in Civil Trials? (forthcoming Washington Law Review)

The experiment is cleverly constructed and I recommend the paper to those interested in this topic.  I will add a couple thoughts because while the abstract and some of the language in their paper can be read to suggest that their findings undermine conventional wisdom, I think the study (at least arguably) supports the typical views of many who have studied prior convictions impeachment in the criminal trial context – including myself (see Circumventing Congress: How the Federal Courts Opened the Door to Impeaching Criminal Defendants with Prior Convictions, 42 U.C. Davis L. Rev. 289 (2008))

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April 14, 2014 | Permalink | Comments (0) | TrackBack (0)

Character Evidence in the Oscar Pistorius Trial?

Those following the high profile South African murder prosecution of Oscar Pistorius, likely noticed that the trial includes proof of a number of instances of gun violence unrelated to the charged murder.  Apparently this evidence is admissible to prove other charges that have been joined with the more prominent charge that Pistorius intentionally shot his girlfriend (rather than accidentally mistaking her for an intruder as he claims). 

 As explained in the New York Times,

 “Apart from the murder charge, Mr. Pistorius also faces charges related to firearms possession, and on Thursday the prosecution sought to portray him as a trigger-happy gun enthusiast whose loaded weapon was never far away, even when he was swimming. In one case, he is accused of shooting a gun out of the open sunroof of a car. In another, he is accused of firing a handgun in a busy restaurant when children were nearby.”

I am no expert on South African law, but assuming South Africa, like the US (see Fed. R. Evid. 404), bars character inferences (e.g., evidence intended to show that Pistorius was “trigger happy” or violent offered to prove he is the kind of person who would, in a fit of rage, kill his girlfriend), the joinder of these “firearms possession” charges is an important piece of the trial – as it invites the (non-jury) factfinders to draw character inferences that would be unavailable had the murder charge been tried alone.

April 14, 2014 | Permalink | Comments (1) | TrackBack (0)

Thursday, April 10, 2014

Co-Conspirator vs. Hired Help: Should the Distribution of Proceeds Mark the End of a Conspiracy?

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

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

(2) An Opposing Party’s Statement. The statement is offered against an opposing party and:....

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

So, when exactly does a conspiracy end for Rule 801(d)(2)(E) purposes? According to most (all?) courts, including the Tenth Circuit in United States v. Morgan, 2014 WL 1379207 (10th Cir 2014), the answer is "not until after the proceeds of the crime are divided." But does that make sense?

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April 10, 2014 | Permalink | Comments (0) | TrackBack (0)

Wednesday, April 9, 2014

Essential Reading: Court of Appeals of Arizona Finds Co-Workers Couldn't Testify About Defendant's Peaceful Acts

Arizona Rule of Evidence 405 reads as follows:

Rule 405. Methods of Proving Character  

(a) Reputation or opinion. In all cases in which evidence of character or a trait of character of a person is admissible, proof may be made by testimony as to reputation or by testimony in the form of an opinion. On cross-examination, inquiry is allowable into relevant specific instances of conduct.

(b) Specific instances of conduct. In cases in which character or a trait of character of a person is an essential element of a charge, claim, or defense, or pursuant to Rule 404(c), proof may also be made of specific instances of that person's conduct.

So, assume that a defendant is charged with aggravated assault. Can the defendant call two co-workers to testify regarding specific incidents in which he peacefully talked to others with whom he was having a dispute to prevent escalating the issue? According to the recent opinion of the Court of Appeals of Arizona, Division 1, in State v. Oman, 2014 WL 1329156 (Ariz.App. Div. 1 2014), the answer is "no."

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April 9, 2014 | Permalink | Comments (2) | TrackBack (0)

Tuesday, April 8, 2014

Piercing the Shield: Court of Appeals of Minnesota Finds Rape Shield Violation in Clergy Abuse Case

Federal Rule of Evidence 412, the federal Rape Shield Rule,  deems evidence of a victim's sexual predisposition and other sexual behavior inadmissible, subject to the following exceptions in a criminal case:

(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;  

(B) evidence of specific instances of a victim’s sexual behavior with respect to the person accused of the sexual misconduct, if offered by the defendant to prove consent or if offered by the prosecutor; and  

(C) evidence whose exclusion would violate the defendant’s constitutional rights.

As the recent opinion of the Court of Appeals of Minnesota in State v. Wenthe, 2014 WL 1344193 (Minn.App. 2014), makes clear, the exceptions to Minnesota's Rape Shield Rule are a bit different. But how different?

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April 8, 2014 | Permalink | Comments (1) | TrackBack (0)

Monday, April 7, 2014

Anybody Want a Peanut: Peanut Butter Salmonella Trial Raises Questions Regarding Admissibility of ADHD Testimony

Federal Rule of Evidence 702 states 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.

Do you remember the salmonella outbreak in 2008-2009 that was the result of tainted peanut butter and caused nine to die and 700 others to become ill? Well, a trial involving that outbreak is gearing up, and a question has arisen regarding the admissibility of expert testimony under Rule 702. But that expert testimony doesn't concern the actual outbreak itself; it relates to the alleged ADHD of one of the defendants.

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April 7, 2014 | Permalink | Comments (0) | TrackBack (0)

Thursday, April 3, 2014

Two Weeks Notice: Court of Appeals of Mississippi Finds Defendant Failed to Comply With Rape Shield Rule

Mississippi Rule of Evidence 412 generally precludes the admission of an alleged victim's past sexual behavior in a sexual assault case, subject to a few exceptions, including evidence of prior sexual acts between the victim and the accused. If, however, the defendant wants to present such evidence, he must comply with Mississippi Rule of Evidence 412(c), which reads as follows:


(1) If the person accused of committing a sexual offense intends to offer under subdivision (b) evidence of specific instances of the alleged victim's past sexual behavior or evidence of past false allegations made by the alleged victim, the accused shall make a written motion to offer such evidence not later than fifteen days before the date on which the trial in which such evidence is to be offered is scheduled to begin, except that the court may allow the motion to be made at a later date, including during trial, if the court determines either that the evidence is newly discovered and could not have been obtained earlier through the exercise of due diligence or that the issue to which such evidence relates has newly arisen in the case. Any motion made under this paragraph shall be served on all other parties and on the alleged victim.  

(2) The motion described in paragraph (1) shall be accompanied by a written offer of proof. If the court determines that the offer of proof contains evidence described in subdivision (b), the court shall order a hearing in chambers to determine if such evidence is admissible. At such hearing the parties may call witnesses including the alleged victim, and offer relevant evidence. Notwithstanding subdivision (b) of Rule 104, if the relevancy of the evidence which the accused seeks to offer in the trial depends upon the fulfillment of a condition of fact, the court, at the hearing in chambers or at a subsequent hearing in chambers scheduled for such purpose, shall accept evidence on the issue of whether such condition of fact is fulfilled and shall determine such issue.  

(3) If the court determines on the basis of the hearing described in paragraph (2) that the evidence which the accused seeks to offer is relevant and that the probative value of such evidence outweighs the danger of unfair prejudice, such evidence shall be admissible in the trial to the extent an order made by the court specifies evidence which may be offered and areas with respect to which the alleged victim may be examined or cross-examined. 

These requirements were the problem for the defendant in McNair v. State, 2014 WL 1189931 (Miss.App. 2014).

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April 3, 2014 | Permalink | Comments (0) | TrackBack (0)

Wednesday, April 2, 2014

Out Like a Lion: Supreme Court of Pennsylvania Refuses to Hear Jerry Sandusky's Appeal

Today, in a per curiam order, the Supreme Court of Pennsylvania denied Jerry Sandusky's Petition for Allowance of Appeal. In other words, the Pennsylvania Supremes will not hear Sandusky's appeal from his convictions for child molestation. Looking at some of the arguments made by Sandusky, it is easy to see why the Court reached this conclusion. One of Sandusky's main arguments was that the trial court erred by issuing the following jury instruction:

Now, the defense has offered evidence tending to prove that the defendant is of good character. I'm speaking of the defense witnesses who testified that the defendant has a good reputation in the community for being law abiding, peaceable, nonviolent individual.  

The law recognizes that a person of good character is not likely to commit a crime which is contrary to that person's nature. Evidence of good character may by itself raise a reasonable doubt of guilt and require a verdict of not guilty.  

So you must weigh and consider the evidence of good character along with the other evidence in this case and if on the evidence you have a reasonable doubt of the defendant's guilt, you may find him not guilty....But in making that determination, you may consider evidence of good character which you believe to be true.

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April 2, 2014 | Permalink | Comments (0) | TrackBack (0)