EvidenceProf Blog

Reckless, Episode 1: Juror Note Taking in South Carolina

In last night's episode of "Reckless," defense attorney Jamie Sawyer sweet talks a court officer into allowing her to enter the courtroom of her murder trial before anyone else. While there, Sawyer replaces the jurors' pencils with pens that are presumably on their last leg. Later, when assistant district attorney Roy Rayder is interrogating a witness, the pens stop working. It's the kind of thing that you only see on TV, but what you do see in South Carolina courtrooms, at least in some cases, is juror note taking.

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EvidenceProf on the Boob Tube: CBS' "Reckless" Premieres Sunday at 9:00

This Sunday at 9:00 P.M. is the premiere of the new CBS show, "Reckless." According to CBS,

RECKLESS is a sultry legal drama set in Charleston, S.C., where a gorgeous Yankee litigator and a charming southern attorney must hide their intense mutual attraction as a police sex scandal threatens to tear the city apart. Jamie Sawyer is enviously cool, confident and armed with south side of Chicago street-smarts as she takes on the good ol’ boys in the South.  Her handsome courtroom rival is Roy Rayder, a divorced father of two, embodies the Old South and is the newly minted City Attorney, thanks to his influential former father-in-law, Dec Fortnum.  When disgraced cop Lee Anne Marcus hires Jamie to represent her in a lawsuit against the police department, Jamie and Roy discover that Lee Anne is at the epicenter of a sinister case with dire implications for the members of the Charleston PD.  Heading that department is Deputy Chief Holland Knox, a family man who radiates integrity.  Working under him are Terry McCandless, a cocky and corrupt detective, and Preston Cruz, Jamie’s well-respected boyfriend who might not be all that he appears. Helping Jamie is her confidante and paralegal, Vi Briggs, an expert at digging up case-winning information. As Jamie and Roy spar in and out of the courtroom, dark secrets simmer behind every door and threaten to tarnish the genteel facade of seductive Charleston.

I served as a legal consultant to the show, answering questions regarding the rules of evidence, criminal law, and South Carolina law. So, how much of that counsel is likely to make it to the screen? According to New Bern City Attorney Scott Davis,

"It is not intended to be a serious drama....To a lawyer's ear, you would certainly realize they are not following the rules of evidence and the rules of procedure. They are just making a story that is interesting to watch."

Davis is a good person to ask about verisimilitude: His life served as an inspiration for the show. Will the show itself be inspired or at least provide some frothy summer entertainment. I guess we'll all see on Sunday night.

-CM

Bang, Zoom, Straight to the Moon: Supreme Court Finds Warrants Generally Needed Before Searching Cell Phones

In yesterday's opinion in Riley v. California, the Supreme Court found in a unanimous opinion that police officers cannot routinely search digital information on arrestees' cell phones without first procuring a search warrant. I wrote about the justification for and proper scope of a search incident to a lawful arrest (SILA) in my article, Stranger Than Dictum: Why Arizona v. Gant Compels the Conclusion that Suspicionless Buie Searches Incident to Lawful Arrests are Unconstitutional. In Riley, the Court found that neither of the justifications for a SILA -- (1) preventing the destruction of evidence; and (2) preventing the arrestee from accessing a weapon -- applied to the search of a cell phone. The Court also found that the special justifications (found in Gant) that allow for broader searches of vehicles do not apply to cell phones. And while the State had tried to analogize searches of cell phones to searches of cigarette packs, wallets, and other items found in arrestees' pockets, the Court concluded: "That is like saying a ride on horseback is materially indistinguishable from a flight to the moon."

-CM

Keeping the Faith: 5th Circuit Deems Evidence of Co-Defendant's Prior Solo Robbery Inadmissible as Habit Evidence

A first man agrees to give a second man a ride. After the ride, the second man robs a bank. The prosecution claims that the first man knew that the second man planned to rob the bank. The first man contends that he was unaware of the second man's criminal intentions. As evidence of this ignorance, the first man seeks to present evidence of a solo bank robbery committed by the second man two weeks before the crime charged. How should the court rule? Let's take a look at the recent opinion of the Fifth Circuit in United States v. Anderson, 2014 WL 2808128 (5th Cir. 2014).

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FBI's Glossary of Internet Terms

In response to a Freedom of Information Act request, the FBI recently released a glossary of Twitter (Internet) slang that it provides to its agents.  Links to reporting on the glossary are here.

The list is voluminous and hard to read so I only skimmed it, coming across:

Acronyms with multiple meanings that are bound to leave agents guessing, such as:

DOS = Dozing off soon; Dad over shoulder; Disk Operating System

others that seem difficult to imagine arising often in an online world 

DPYN = Don't Pick Your Nose

and helpful explanations of obscure meanings

HAN = alone (Han Solo)

Whatever its shortcomings, one can envision judges and litigants consulting this list to decipher the text messages, internet chats, etc., they increasingly confront in modern litigation.

Silent Night: Supreme Court Adopts Test For Authenticating Surveillance Recordings

A defendant allegedly steals a vacuum cleaner from a store. At trial, the prosecution seeks to authenticate and admit a surveillance recording of the robbery. How does the prosecution go about authenticating the recording? As noted by the Supreme Court of New Hampshire in State v. Stangle, 2014 WL 2782016 (N.H. 2014),

"Virtually all jurisdictions allow the introduction of recordings pursuant to ‘silent witness' authentication, but jurisdictions differ on what evidentiary showing is required to satisfy the ‘silent witness' standard."...The approaches fall into two general categories....Some jurisdictions adopt a flexible, less formulaic approach focusing on the facts of each case....

Other jurisdictions adopt a multi-factor test for determining the admissibility of photographs or videos....Some of the factors those jurisdictions consider are: "(1) how the recording system operates, (2) the system's working condition and pattern of maintenance, (3) who operates the system, has access to it, and maintains its archive[s]... (4) the quality of the recording, and (5) the means by which the recording was copied to the format viewed at trial."...However, even those jurisdictions that have adopted "a multi-factor analysis tend to acknowledge that the facts of each case may differ."...They "neither require every factor be met nor rule out taking other circumstances into account in particular cases."

So, which approach did the court adopt?

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Don't Forget This Fact, You Can't Get It Back: 3rd Circuit Precludes Jury Impeachment in Crack/Powder Cocaine Case

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.

Rule 606(b) is thought to (1) protect jurors from harassment; (2) allow the freedom of deliberation; and (3) secure the finality of verdicts. But are those values served in a case like United States v. Morris, 2014 WL 2783460 (3rd Cir. 2014)?

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Tattoo You: Prosecutors in Brooklyn Murder Trial Use Defendant's Tattoos, Rap Lyrics as Evidence

I've written before on this blog about the slew of recent cases in which prosecutors seek to admit a defendant's rap lyrics as evidence against him in his criminal trial. The prosecutors in a current case in Brooklyn, however, have taken this tactic to a new level.

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Prospective vs. Retrospective: Supreme Court of Colorado Finds Statements About Past Cocaine Use Admissible Under Rule 803(4)

Similar to its federal counterpart, Colorado Rule of Evidence 803(4) provides an exception to the rule against hearsay for

Statements made for purposes of medical diagnosis or treatment and describing medical history, or past or present symptoms, pain, or sensations, or the inception or general character of the cause or external source thereof insofar as reasonably pertinent to diagnosis or treatment.

So, let's say that a patient falls into a vegetative state. And then, after the patient is in that vegetative state, the patient's roommate/ex-girlfriend asks the treating physician whether the patient's past cocaine use could have contributed to the patient's resistance to normal resuscitation efforts. Should this question and related statement be deemed admissible under Rule 803(4)? Let's take a look at the recent opinion of the Supreme Court of Colorado in Kelly v. Haralampopoulos, 2014 WL 2709431 (Colo. 2014).

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It's Just Been Revoked: Is Hearsay Sufficient to Revoke Probation?

North Carolina Rule of Evidence 1101(b)(3) indicates that the North Carolina Rules of Evidence do not apply at probation revocation proceedings. In State v. Murchison, the Court of Appeals of North Carolina had reversed a trial court order revoking the defendant's probation because the trial court relied solely upon hearsay; the Supreme Court of North Carolina then reversed the appellate court's order. Was this proper?

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It's Gotta Be the Shoes: Court of Appeals of Texas Finds Dallas Cowboys Reeboks Properly Authenticated

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.

In turn, Texas Rule of Evidence 901(b)(1) provides that

By way of illustration only, and not by way of limitation, the following are examples of authentication or identification conforming with the requirements of this rule:  

(1) Testimony of witness with knowledge. Testimony that a matter is what it is claimed to be.

And, as the recent opinion of the Court of Appeals of Texas, Houston, in Dominguez v. State, 2014 WL 2582975 (Tex.App.-Houston [1 Dist.] 2014), makes clear, a witness can authenticate an exhibit by testifying that she saw the exhibit at earlier time and recognized it.

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Mixed Metaphor?: Ohio Court Finds No Confrontation Clause Problem Using Hybrid Roberts/Crawford Analysis

According to Ohio v. Roberts,

even if a declarant's hearsay statements are admissible against a defendant under an exception to the rule against hearsay, they run afoul of the Confrontation Clause if the declarant is not present for cross-examination at trial unless the State establishes two elements. First, the State must establish that the declarant is "unavailable." Second, it must prove that the statement "bears adequate indicia of reliability." The Court concluded that "[r]eliability can be inferred without more in a case where the evidence falls within a firmly rooted hearsay exception." If a statement does not fall within such an exception, "the evidence must be excluded, at least absent a showing of particularized guarantees of trustworthiness."

In Thompson v. Warden, Warren Correctional Inst., 2014 WL 2515317 (S.D.Ohio 2014), Roberts has been overruled by Crawford v. Washington. In Crawford, the Supreme Court found that that the Confrontation Clause of the U.S. Constitution is violated when hearsay is "testimonial," admitted against a criminal defendant, and the hearsay declarant does not testify at the defendant's trial, unless (1) the declarant was unavailable for trial, and (2) the defendant was previously able to cross-examine the declarant. In other words, the Confrontation Clause is violated when testimony or testimonial hearsay is admitted against a defendant and he is not given the chance to cross-examine the declarant.

So, how does one explain the opinion in Thompson?

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Vehicular Black Box: Superior Court of Pennsylvania Finds Event Data Recorder Evidence Admissible to Prove Speed

Until reading this article from the Pittsburgh Post-Gazette, I wasn't aware that a vehicle has an "event data recorder" akin to an airplane's "black box." And now, according to the Superior Court of Pennsylvania in Commonwealth v. Safka, such evidence is admissible to determine a car's speed at the time of an accident.

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Engineered to Amaze?: Court In Lawsuit Against Quicken Loans Finds Rule 406 Doesn't Cover Testimony About Industry Practice

Federal Rule of Evidence 406 provides that

Evidence of a person’s habit or an organization’s routine practice may be admitted to prove that on a particular occasion the person or organization acted in accordance with the habit or routine practice. The court may admit this evidence regardless of whether it is corroborated or whether there was an eyewitness.

As the recent opinion of the United States District Court for the Southern District of West Virginia in Kingery v. Quicken Loans, Inc., 2014 WL 2521699 (S.D.W.Va. 2014), makes clear, Rule 406 "refers to the routine practice of a specific organization, not the customs and practices of an industry."

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Renewal Notice: 8th Circuit Finds No Offer of Proof Needed Based on Prior Definitive Ruling

As amended in 2000, Federal Rule of Evidence 103(b) reads as follows:

(b) Not Needing to Renew an Objection or Offer of Proof. Once the court rules definitively on the record — either before or at trial — a party need not renew an objection or offer of proof to preserve a claim of error for appeal.

So, assume that a party files a motion in limine seeking to exclude evidence before trial. If the judge makes a definitive ruling deeming the subject evidence inadmissible, does the proponent need to make an offer of proof at trial? In Smith v. Hy–Vee, 622 F.3d 904 (8th Cir.2010), the Eighth Circuit answered this question in the affirmaive. In Lawrey v. Good Samaritan Hosp., 2014 WL 2489076 (8th Cir. 2014), however, the same court answered the question in the negative.

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Nothing Constant But Inconsistency: Montana Case Reveals State's Prior Inconsistent Statement Rule

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

A statement that meets the following conditions is not hearsay:  

(1) A Declarant-Witness’s Prior Statement. The declarant testifies and is subject to cross-examination about a prior statement, and the statement:  

(A) is inconsistent with the declarant’s testimony and was given under penalty of perjury at a trial, hearing, or other proceeding or in a deposition....

Meanwhile, Montana Rule of Evidence 801(d)(1)(A) provides that

A statement is not hearsay if:      

(1) Prior statement by witness. The declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement, and the statement is (A) inconsistent with the declarant's testimony....

So, what is the difference between these two Rules? Let's take a look at State v. Pound,  2014 WL 2515598 (Mont. 2014).

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That's Childish: Article About Indiana Cold Case Reveals Shift in Hoosier State's Treatment of Child Witnesses

According to an article in IndyStar,

The 37-year-old murder case against Michael Ackerman came down to the medical evidence from a 1977 autopsy and the testimony of a then-3-year-old witness....

At the time, the testimony of a 3-year-old would not have been allowed in court. Retired Indianapolis police officer James Stobe testified Monday that, under existing rules of evidence at that time, children under the age of 7 were not considered competent witnesses.  That rule changed in 1994, Strobe said. The new rule starts with a presumption that all children are competent to testify, unless that is challenged by the defense.

So, what was the prior rule?

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In Need of Backup: Charged Dropped Against TN Man Based on Corroboration Rule

Accoring to an article from the Johnson City Press,

A Kingsport man accused of being part of a scheme to steal a woman’s $500,000 inheritance was acquitted of his charge Monday after a judge ruled there was not sufficient evidence for a jury to deliberate on the case.

Roscoe Phillips, 25, went to trial Monday on a charge of theft over $60,000, but because the state had little more than two accomplices’ testimony, Criminal Court Judge Stacy Street granted a motion for acquittal.  

Defense attorney Matt King made that motion after the state rested its case. King argued that the women, Pamela Perkey and Wendi Buckingham, were accomplices in the theft. According to the rules of evidence, testimony from an accomplice cannot be the basis for a conviction.    

So, what is the relevant rule of evidence, and what does it mean about the other evidence of guilt presented by the prosecution?

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The Power of Priors: 11th Circuit Finds No Ineffective Assistance in Counsel Against Testifying

Federal Rule of Evidence 609(a) provides that

(a) In General. 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; and  

(2) for any crime regardless of the punishment, the evidence must be admitted if the court can readily determine that establishing the elements of the crime required proving — or the witness’s admitting — a dishonest act or false statement.

According to one famous study by Harry Kalven, Jr. and Hans Zeisel, "nationwide, juries learn of defendants' criminal records in seventy-two percent of the cases in which defendants testify in their own behalf." As a result, many such as John Blume have noted that even factually innocent defendants fail to testify on their own behalf. See John H. Blume, The Dilemma of the Criminal Defendant with a Prior Record--Lessons from the Wrongfully Convicted, 5 J. Empirical Legal Stud. 477, 486, 490-91 (2008). 

But does this decision make sense? It is rare to see a court address the power of Rule 609(a), but that's exactly what the Eleventh Circuit did in Pericles v. United States, 2014 WL 2198514 (11th Cir. 2014).

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JODI ARIAS MURDER CONVICTION PENALTY PHASE RETRIAL – NEW JURY TO BE SELECTED BEGINNING SEPTEMBER 8 – JUDGE REJECTS LIVE MEDIA COVERAGE AND MOTIONS TO TAKE DEATH PENALTY OFF THE TABLE

On May 8, 2013 in a high-profile first-degree murder case, Jodi Arias was convicted by a jury of killing her ex-boyfriend in 2008 in a particularly violent manner. The trial lasted five months, and many individuals were glued to their televisions watching the live proceedings. The jury determined that she was eligible for the death penalty, but after many hours of deliberation in the sentencing phase of the trial, they were unable to reach a unanimous verdict to impose death.

The State of Arizona decided to go forward with another proceeding on sentencing – with a new jury. The new jury is scheduled to be selected beginning on September 8, 2014. Judge Sherry Stevens has heard many closed-door hearings on the case and she recently decided to deny a request by media outlets to again provide live coverage. She ruled the proceedings could be recorded, but no release of the recording will be allowed until after the jury rules on the sentence. In the event the jury is unable to reach a unanimous verdict on the sentence, the Judge is to decide the sentence - but the death penalty will not be an option for the Judge.

Judge Stevens also ruled this week that Ms. Arias suffered no prejudice when a member of her defense team (a mitigation specialist) was barred for a time from visiting Ms. Arias in the Maricopa County jail. The defense team member was accused by the Maricopa authorities of smuggling out of the jail drawings prepared by Ms. Arias.

Ms. Arias had attempted multiple times to agree to life imprisonment but the State of Arizona has not accepted her requests.

Jon Stewart poked fun at the media for its coverage of the Arias trial - see: http://thedailyshow.cc.com/videos/jprb6v/nancy-grace---the-jodi-arias-trial.

Written by Ann M. Murphy, Professor, Gonzaga Law School