EvidenceProf Blog

Per Se Pro Se: 5th Circuit Finds No Problem With Admission of Former Testimony Against Defendant Denied Right to Proceed Pro Se

Federal Rule of Evidence 804(b)(1) provides an exception to the rule against hearsay for

Testimony [by a now "unavailable" declarant] that:

(A) was given as a witness at a trial, hearing, or lawful deposition, whether given during the current proceeding or a different one; and

(B) is now offered against a party who had — or, in a civil case, whose predecessor in interest had — an opportunity and similar motive to develop it by direct, cross-, or redirect examination.

Assume that (1) a witness for the prosecution testifies against a defendant at a first trial, resulting in his conviction; (2) the defendant later has his conviction reversed based upon a finding that he was denied his right to proceed pro se; and (3) the witness for the prosecution dies before the defendant's second trial. Should the prosecution be able to present the deceased witness's testimony from the first trial at the defendant's second trial pursuant to Federal Rule of Evidence 804(b)(1)?

This was the question addressed by the Fifth Circuit in its recent opinion in United States v. Richardson, 2015 WL 1283694 (5th Cir. 2015). I disagree with its conclusion.

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No Harm, No Foul?: 8th Circuit Finds No Problem With Judge Giving Prosecution a Helping Hand

When I was a law student, every student teamed up and went against another team in mock trial simulations. In my wife's trial, her partner and she were defense counsel. After the "prosecutors" in their case rested, my wife and her partner moved for a directed verdict based on failure to present evidence from which a reasonable juror could find guilt beyond a reasonable doubt on each element of the crime charged. The judge in the case said he would have granted the motion in an actual case and asked the "prosecutors" why they hadn't presented more evidence. Their response: "We were waiting to introduce that evidence during the defense case." The judge allowed the "prosecutors" to reopen their case as a learning experience but told them that he wouldn't have given them the same dispensation in an actual case. 

In the recent case, United States v. Never Misses a Shot, 2015 WL 1427370 (8th Cir. 2015), however, the judge gave just such a dispensation to the prosecution. Was this proper?

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Play It Again: Court of Appeals of Minnesota Finds No Problem with Replaying Victim's Statement During Deliberations

Similar to its federal counterpart, Minnesota Rule of Evidence 803(5) provides an exception to the rule against hearsay for

A memorandum or record concerning a matter about which a witness once had knowledge but now has insufficient recollection to testify fully and accurately, shown to have been made or adopted by the witness when the matter was fresh in the witness' memory and to reflect that knowledge correctly. If admitted, the memorandum or record may be read into evidence but may not itself be received as an exhibit unless offered by an adverse party.

While a "recorded recollection" cannot be introduced as an exhibit by the proponent, can it be replayed for the jury during deliberations? According to today's opinion by the Court of Appeals of Minnesota in State v. Johnson, 2015 WL 1514071 (Minn.App. 2015), the answer is "yes." I disagree.

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Texas Two Step: Texas Changes Rule Regarding Impeachment Through Prior Inconsistent Statements

Texas recently changed its rule regarding impeachment of witnesses through prior inconsistent statements. Texas Rule of Evidence 613(a) reads as follows:

(a) Witness’s Prior Inconsistent Statement.

(1) Foundation Requirement. When examining a witness about the witness’s prior inconsistent statement—whether oral or written—a party must first tell the witness:

(A)  the contents of the statement;

(B)  the time and place of the statement; and

(C)  the person to whom the witness made the statement.

(2)  Need Not Show Written Statement. If the witness’s prior inconsistent statement is written, a party need not show it to the witness before inquiring about it, but must, upon request, show it to opposing counsel.

(3)  Opportunity to Explain or Deny. A witness must be given the opportunity to explain or deny the prior inconsistent statement.

(4)  Extrinsic Evidence. Extrinsic evidence of a witness’s prior inconsistent statement is not admissible unless the witness is first examined about the statement and fails to unequivocally admit making the statement.

(5)  Opposing Party’s Statement. This subdivision (a) does not apply to an opposing party’s statement under Rule 801(e)(2). 

Conversely, Texas Rule of Evidence 613(a) used to read as follows:

In examining a witness concerning a prior inconsistent statement made by the witness, whether oral or written, and before further cross-examination concerning, or extrinsic evidence of, such statement may be allowed, the witness must be told the contents of such statement and the time and place and person to whom the statement was made, and must be afforded an opportunity to explain or deny such statement. If written, the writing need not be disclosed to the witness at that time, but on request the same shall be shown to opposing counsel. If the witness unequivocally admits having made such statement, extrinsic evidence of same shall not be admitted. This provision does not apply to admissions of a party-opponent as defined in Rule 801(e)(2).

So, how is this a change from prior Texas practice?

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The Autopsy Posts: The Fluids Found In & Around Hae Min Lee's Nose/Mouth Were Not Blood

A few weeks ago, I did a post about pulmonary edema and sputum. As I noted,

Pulmonary edema is a condition caused by excess fluid in the lungs. This fluid collects in the numerous air sacs in the lungs, making it difficult to breathe....

If a person has a severe pulmonary edema, she might have a pink frothy sputum, i.e., mucous material from the lungs. In rare cases, this sputum will come out of the person's mouth and/or nose, with the sputum appearing pink based on the combination of blood, mucus, and other watery fluids.

I wrote this post based on the prosecution of Adnan Syed for murdering his ex-girlfriend, Hae Min Lee. The prosecution's theory of the case was that Adnan strangled Hae in her Sentra, resulting in a pulmonary edema and sputum coming out of of Hae's nose and mouth while she was still in the passenger compartment of her Sentra. According to the prosecution, Adnan then wiped the sputum that had come out of Hae's nose and mouth, which explained a stained t-shirt that was crumpled up next to the driver's seat in the Sentra. This t-shirt was one of only two pieces of physical evidence tending to establish that Hae was strangled in her Sentra, with the other being a "broken" windshield wiper or turn signal lever.

Given how important this edema/sputum/t-shirt theory was for establishing that Hae was killed in her car, you would expect that fluids found in around Hae's mouth and nose would have been tested by the State. And they (apparently) were. From the list of "Photo Exhibits of State":

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Can a Plaintiff Ever Win a Libel/Slander/Defamation Claim Based on Statements Made on April 1st?

I've always wondered whether a plaintiff could bring a successful libel/slander/defamation claim based upon statements made on April 1st, i.e., April Fools' Day. In looking at some case law, it seems that such a claim can be successful but is difficult to prove. For instance, consider the opinion of the Superior Court of Connecticut in Victoria Square, LLC v. Glastonbury Citizen, 891 A.2d 142 (Conn.Super. 2006).

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Searching for "Takera," the Other Last Person to See Hae Min Lee Alive

If you've been following the Serial Podcast and its aftermath, you know the central role that Debbie played in the early stages of the investigation into the death of Hae Min Lee. Debbie was a mutual friend of both Hae and Adnan Syed, Hae's ex-boyfriend who was eventually convicted of murdering her. Debbie gave an initial statement to police on January 28, 1999, in which she stated that she remembered talking to Hae at about 3:00 P.M. on January 13, 1999, with Hae saying that she was going to see her new boyfriend Don at the mall. Later, on March 26, 1999, Debbie gave a second police statement, in which she claimed that, on January 13, 1999, (1) she saw Adnan at the guidance counselor's office at "about 2:45;" and (2) she saw Hae between 2:45 and 3:15 in the lobby at Woodlawn High School.

In the early days of the investigation into Hae's death, Debbie was implicitly presented to the public as the last person who saw Hae alive. Here's the article about Hae going missing, here's the article about Hae's body being found, and here's the article about Adnan being charged. All of them list Hae as being last seen at about 3:00 P.M. at Woodlawn, with Debbie clearly being the unnamed "last person" to see her alive. It turns out, however, that, according to Debbie herself, there was a second "last person" to see Hae alive, and she might just be the key to cracking this case, from both a legal and factual perspective.

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