EvidenceProf Blog

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

Thursday, July 31, 2014

Louisiana Purchase: The Louisiana Counterpart to Federal Rule of Evidence 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.

After the enactment of Rule 413 in 1994, the Supreme Court of Louisiana issued two decisions --  State v. McArthur, 719 So.2d 1037 (La. 1998), and State v. Kennedy, 803 So.2d 916 (La. 2001), in which it deemed sexual propensity character evidence inadmissible while noting that the same evidence would have been admissible if Louisiana had its own version of Rule 413. So, how did the Louisiana legislature respond?

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July 31, 2014 | Permalink | Comments (0) | TrackBack (0)

Wednesday, July 30, 2014

Proof: Court of Appeals of Ohio Finds Magistrate Erred Under Rule 608(B) by Allowing Documentary Impeachment

Similar to its federal counterpartOhio Rule of Evidence 608(B) provides that

Specific instances of the conduct of a witness, for the purpose of attacking or supporting the witness's character for truthfulness, other than conviction of crime as provided in Evid. R. 609, may not be proved by extrinsic evidence. They may, however, in the discretion of the court, if clearly probative of truthfulness or untruthfulness, be inquired into on cross-examination of the witness (1) concerning the witness's character for truthfulness or untruthfulness, or (2) concerning the character for truthfulness or untruthfulness of another witness as to which character the witness being cross-examined has testified.

A good example of the dichotomy found in Ohio Rule of Evidence 608(B) can be found in the recent opinion of the Court of Appeals of Ohio in Ryerson v. White, 2014 WL 3700500 (Ohio App. 8th 2014).

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

Tuesday, July 29, 2014

The Human Polygraph: 10th Circuit Deems FBI Agent's Testimony on Defendant's Dishonesty Inadmissible

It is well established that, except in New Mexico, polygraph evidence is inadmissible to prove the guilt (or innocence) of a criminal defendant. But what if the prosecution wants to call a human polygraph -- an expert, like Dr. Cal Lightman on the TV show "Lie to Me" -- who professes to be able to distinguish truth from falsehood? That was the question addressed by the Tenth Circuit in its recent opinion in United States v. Hill, 749 F.3d 1250 (10th Cir. 2014).

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

Monday, July 28, 2014

Colin Miller Named Associate Dean for Faculty Development at University of South Carolina School of Law

I'm happy to announce that I have been named the Associate Dean for Faculty Development at the University of South Carolina School of Law. Here is the announcement from the law school.


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

Friday, July 25, 2014

Where's The Proof?: Court of Appeals of New York Denies Best Evidence Objection by Defendant Who Defrauded Michael Bloomberg

The Court of Appeals of New York addressed but did not resolve an interesting Best Evidence Rule issue in its recent opinion in People v. Haggerty, 2014 WL 2921401 (N.Y. 2014), a case in which a man allegedly defrauded former New York City Mayor Mike Bloomberg. So, what was the issue?

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

Thursday, July 24, 2014

Informing on Informants: Supreme Court of Florida Imposes Informant Discovery Obligations for Informants

Here's an interesting development out of Florida. According to an article in yesterday's Miami Herald,

The Florida Supreme Court, citing the Innocence Project’s findings, finally has changed the rules of evidence. Beginning this month, prosecutors now are required to disclose both a summary of the jailhouse informant’s criminal history and just what kind of deal a snitch will be getting in return for testimony. And now, jurors will hear about prior cases that relied on testimony from that particular informant.  

The justices ordered new restrictions on the much abused informant testimony, because snitches, the court noted, "constitute the basis for many wrongful convictions." It was an unanimous decision. It was about time.  

So, what are the specifics of change?

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

Wednesday, July 23, 2014

Any Reason These Two Should Not Be Married?: Supreme Court of New Jersey Proposes Crime-Fraud Exception to Marital Privilege

Last July, I posted an entry about the opinion of the Superior Court of New Jersey, Appellate Division in State v. Terry, 68 A.3d 177 (N.J.Super.A.D. 2013). In Terry, the court reversed the trial court's decision to engraft a crime-fraud exception onto New Jersey Rule of Evidence 509, which provides that

No person shall disclose any communication made in confidence between such person and his or her spouse unless both shall consent to the disclosure or unless the communication is relevant to an issue in an action between them or in a criminal action or proceeding in which either spouse consents to the disclosure, or in a criminal action or proceeding coming within Rule 23(2). When a spouse is incompetent or deceased, consent to the disclosure may be given for such spouse by the guardian, executor or administrator. The requirement for consent shall not terminate with divorce or separation. A communication between spouses while living separate and apart under a divorce from bed and board shall not be privileged communication.

The exception would have allowed prosecutors to present into evidence wiretapped phone calls between husband and wife Teron Savoy and Yolanda Terry in which they discussed a drug trafficking network run by Savoy. The trial judge reasoned that because these statements were made in furtherance of a crime, they should be admissible, notwithstanding the confidential marital communications privilege contained in Rule 509. The Superior Court of New Jersey, Appellate Division, later reversed, concluding that the trial judge lacked the authority to create a crime-fraud exception out if whole cloth. So, how did the Supreme Court of New Jersey rule in State v. Terry, 2014 WL 3579653 (N.J. 2014)?

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July 23, 2014 | Permalink | Comments (3) | TrackBack (0)

Tuesday, July 22, 2014

American Gun: Aurora Shooter James Holmes Tries to Use NAS Report to Preclude Expert Firearm Testimony

James Holmes, who allegedly fatally shot twelve people and injured dozens more at the midnight premiere of "The Dark Knight Rises," at an Aurora movie theater, has moved to preclude expert opinion testimony that would link the bullets used in the shootings to his firearms. If granted, the motion of course would cause significant problems for the prosecution in proving the charges against Holmes. So, what is the basis of Holmes's motion, and is it likely to be successful?

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

Monday, July 21, 2014

Practiced at the Art of Deception?: Supreme Court of South Carolina Uphold Plea Bargain Waiver Tied to Polygraph Test

Under South Carolina Rule of Evidence 410, a defendant's statements during plea discussions are inadmissible against him at a subsequent criminal or civil trial. Pursuant to the Supreme Court's opinion in United States v. Mezzanatto, a defendant can waive the protections of Rule 410, with the prosecution often using such waivers as the ante for defendants to get to the plea bargaining table. But I've never seen a waiver quite like the one in State v. Wills, 2014 WL 3461808 (S.C. 2014). Pursuant to the waiver in Wills,

petitioner agreed that if a subsequent polygraph examination demonstrated deception, inconsistencies, or that petitioner shot the victim, then "the terms of this proffer are null and void and any statements made by [petitioner] may be used against him by the State for any legal purpose, including...disposition of charges through plea or trial...and impeachment."...Further, section 7 provide[d] in relevant part not only that petitioner's violation of the Agreement would render the Proffer's terms null and void, but also that "the State shall have the right to use any information obtained through this Proffer in any fashion, whether direct [or] collateral...."

So, was the waiver constitutional and enforceable? That was the question addressed by the Supreme Court of South Carolina in Wills.

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July 21, 2014 | Permalink | Comments (0) | TrackBack (0)

Thursday, July 17, 2014

Article of Note: "Evidence of Lies and Rules of Evidence" and fMRI

Morton's Fork?: Supreme Court of Montana Finds Defendant Has to Testify to Support Self-Defense Claim, Despite Stand Your Ground

I've written a few posts about the doctrine of "communicated character," which allows a defendant to present evidence of the alleged victim's prior violent acts, not to prove the victim's violent tendencies, but instead to prove the defendant's reasonable apprehension. Of course, what this means is that a defendant must have knowledge of the victim's violent past to present such character evidence. So, can a defendant prove that knowledge without himself testifying at trial? And how might a Stand Your Ground law change matters? Let's take a look at the recent opinion of the Supreme Court of Montana in State v. Montana Ninth Judicial District Court, 2014 WL 3430350 (Mont. 2014).

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

Wednesday, July 16, 2014

Letter of the Law, Take 2: Supreme Court of Wisconsin Finds Defendant's Testimony Inadmissible Under Plea Deal

Last September, I posted an entry about the opinion of the Court of Appeals of Wisconsin in  State v. Myrick, 2013 WL 4734062 (Wis.App. 2013). Here was the statement of facts I gave in that post:

assume that a prosecutor sends defense counsel a letter "making the following offer of resolution based on [the defendant] being willing to cooperate in the prosecution of numerous cases involving [another defendant]." Also, assume that the letter indicates that the prosecutor will make a sentencing recommendation if the defendant, inter alia, testifies at the preliminary examination for another defendant. Finally, assume that the defendant complies with this requirement but then stops cooperating with the prosecution after he believes that the State leaked incriminatory information to the press for [a] newspaper article. At the defendant's ensuing trial, can the prosecution introduce the defendant's preliminary examination testimony, or is such testimony inadmissible under Wisconsin Rule of Evidence 904.10?

Wisconsin Rule of Evidence 904.10 provides that

Evidence of a plea of guilty, later withdrawn, or a plea of no contest, or of an offer to the court or prosecuting attorney to plead guilty or no contest to the crime charged or any other crime, or in civil forfeiture actions, is not admissible in any civil or criminal proceeding against the person who made the plea or offer or one liable for the person's conduct. Evidence of statements made in court or to the prosecuting attorney in connection with any of the foregoing pleas or offers is not admissible.

Applying this text, the Court of Appeals of Wisconsin deemed the testimony inadmissible and reversed the conviction of Raphfael Myrick, the defendant. So, what did the Supreme Court of Wisconsin just conclude in State v. Myrick, 2014 WL 3360376 (Wis. 2014)?

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July 16, 2014 | Permalink | Comments (0) | TrackBack (0)

Tuesday, July 15, 2014

Reckless, Episode 3: Stand Your Ground in South Carolina & the Protection of Persons and Property Act

In Sunday's episode of "Reckless," entitled Stand Your Ground, a husband hears an intruder in the middle of the night and shoots him dead in the foyer of his home. The husband claims that he thought that the intruder had a gun, but the police discover no such firearm, and the victim was shot in his back. This sets the stage for an immunity hearing under the Protection of Persons and Property Act, South Carolina's Stand Your Ground law. The folks at "Reckless" contacted me to ask for a type of case in which plot twists might alter the application of the Protection of Persons and Property Act, and here is what I told them.


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

Monday, July 14, 2014

The Agony & the Obama Ecstasy: Court of Appeals of Utah Finds Fingerprints Properly Authenticated In Drug Appeal

Police officers find a large plastic bag full of pills in the shoebox in the defendant's closet. The bag contains 478 pills of Obama ecstasy, with the pills shaped like the head of President Barack Obama. Fingerprints are lifted from the bag,  and a certified latent fingerprint examiner compares these latent fingerprints to a ten-print card that contains the defendant's known fingerprints. The examiner thereafter finds 17 matching points between the latent fingerprints and one of the defendant's fingerprints from the ten-print card. According to the examiner, ten matching points is considered all but conclusive and at twelve matching points the odds "exceed the population of the earth that it could be anyone else." It's an open and shut case, right? But what about authentication. Let's take a look at the recent opinion of the Court of Appeals of Utah in State v. Woodard, 2014 WL 3361718 (Utah. App. 2014).


Obama ecstasy doesn't actually contain ecstasy, but contains BZP, TFMPP, and caffeine

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

Friday, July 11, 2014

Tweeter and the Monkey Man: Heroin Death of Google Exec Might Prompt Doctrine of Chances Ruling

Prostitute Alix Tichelman has been charged with manslaughter in connection with the death of Google executive Forrest Hayes,  often called the "Monkey Man" because he raised monkeys and other non-native wild animals on his property. Hayes died of an overdose, with the question being whether Hayes self-administered the smack or whether it was injected by Tichelman in attempt to make it look like Hayes killed himself. Tichelman, whose own Twitter account has pictures of her "pet monkeys," also has a Facebook page, which has posts ranging from poems about heroin to a love of the TV show "Dexter." 

Interestingly, Tichelman was previously involved with Dean Ripelle, who died of a heroin overdose back in September 2013. Police have now re-opened the investigation of Ripelle's case to see whether it was the result of foul play.

This thus sets the stage for the possibility of the doctrine of chances (which I call the John McClane rule of evidence) being invoked at either trial. As I have noted before,

Rex v. Smith...introduced into evidence law roughly the same sentiment expressed by John McClane in "Die Hard 2":  "How can the same thing happen to the same guy twice?"  In Rex v. Smith, the defendant's wife died when she drowned in the bathtub, and the court allowed the prosecution to introduce evidence that two of his prior wives died when they drowned in the bathtub to rebut the defendant's claim that the drowning was accidental.  The court reasoned that the past acts were admissible not to porve propensity/conformity, but instead because the court could infer from the unusualness of the occurrence and the number of times it was repeated that the drowning was not accidental.

So, what's stranger: Three wives innocently drowning in bathtubs, or two boyfriends(?) self-overdosing on heroin? If there is no physical evidence indicating that Tichelman injected heroin into either of the deceaseds, should the judge find the two instances of ODing are sufficiently strange such that a juror could infer that they were not accidental?  We might soon find out.


July 11, 2014 | Permalink | Comments (0) | TrackBack (0)

Thursday, July 10, 2014

Not So Fast: Supreme Court of Florida Rejects Proposed Forfeiture by Wrongdoing Exception

The recent opinion of the District Court of Appeal of Florida, Fourth District, in Mortimer v. State, 2014 WL 3174356 (Fla.App. 4 Dist. 2014), reveals something that I had missed last year: The Supreme Court of Florida rejected Florida's proposed forfeiture by wrongdoing exception.

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July 10, 2014 | Permalink | Comments (1) | TrackBack (0)

Wednesday, July 9, 2014

Duty Bound: Huntsville Times Article About Minister Sexual Abuse Deals With Priest-Penitent Privilege

An article from Monday's Huntsville Times is entitled "Who under Alabama law must report child abuse or face possible jail time?" The article deals with allegations of covered-up sexual abuse committed by the church's youth minister Mack Allen Davis. And the article also deals with Alabama Rule of Evidence 505.

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July 9, 2014 | Permalink | Comments (0) | TrackBack (0)

Monday, July 7, 2014

No Lie: Western District of Kentucky Finds Tampering With Evidence Not a Crime of Dishonesty/False Statement

Federal Rule of Evidence 609(a)(2) reads as follows:

(a) In General. The following rules apply to attacking a witness’s character for truthfulness by evidence of a criminal conviction:....  

(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.

So, does a conviction for tampering with evidence qualify as a crime of dishonesty/false statement under Rule 609(a)(2)? Let's take a look at the recent opinion of the United States District Court for the Western District of Kentucky in United States v. Parker, 2014 WL 2993828 (W.D.Kent. 2014).

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July 7, 2014 | Permalink | Comments (1) | TrackBack (0)

Saturday, July 5, 2014

EvidenceProf in the New York Times: Baruch College Hazing Death & the Admissibility of Computer Animations

On December 9th, freshman, Chun Hsien Deng died during at fraternity hazing ritual at Pennsylvania's Baruch College. According to a New York Times article by Ariel Kaminer,

Charges had been expected to be filed by May, but Chief Lewis said prosecutors were still awaiting a medical report and a digital animation that would depict the events surrounding the death....

I spole with Ms. Kaminer about Commonwealth v. Sarge, the Supreme Court of Pennsylvania case that will goven the admissibility of digital animation in the case, and I'm quoted in her article. Back in 2007, I posted an entry about a Christmas Eve shooting in Pennsylvania an the dispute over whether computer animations should have been deemed admissible at the ensuing trial.



July 5, 2014 | Permalink | Comments (0) | TrackBack (0)

Thursday, July 3, 2014

You Complete Me: Illinois Court Botches Rule of Completeness Ruling

Similar to its federal counterpartIllinois Rule of Evidence 106 states that

When a writing or recorded statement or part thereof is introduced by a party, an adverse party may require the introduction at that time of any other part or any other writing or recorded statement which ought in fairness to be considered contemporaneously with it.

After re-reading this language, you can see why the court's interpretation of this "rule of completeness" in People v. Kraybill, 2014 WL 120232 (Ill.App.1st 2014), was dead wrong.

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July 3, 2014 | Permalink | Comments (1) | TrackBack (0)