EvidenceProf Blog

Nevada Case Makes Clear That Rules of Evidence Aren't Rules of DIscovery

The recent opinion of the United States District Court for the District of Nevada in Caballero v. Bodega Latino Corporation d/b/a El Super, 2017 WL 3174931 (D. Nevada 2017), is the latest illustration that the rules of evidence are not rules of discovery.*

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Supreme Court of Oregon Uses Constitutional Contract Analysis to Create Default Rule for Plea Deals

Recently, I posted the draft my new article, Plea Agreements as Constitutional Contracts, on SSRN. About a week later, the Supreme Court issued its opinion in State v. King, 2017 WL 2982135 (Or. 2017). In that opinion, Oregon's highest court might have given the clearest articulation yet of the theory of plea agreements as constitutional contracts.

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Should a Defendant Be Allowed to Submit a Vocal Exemplar Without Subjecting Himself to Cross-Examination?

Today, the Missouri Court of Appeals, Western District, issued an interesting opinion in State v. Watt, 2017 WL 3026766 (Mo.App.W.D. 2017). In Watt,  Pharis Watt was convicted of driving while intoxicated. At trial, the prosecution introduced videotape evidence of Watt's conduct after being pulled over on the night in question. In response,

Watt's counsel sought to present demonstrative evidence in the form of a voice exemplar by having Watt read aloud to the jury one of his own statements from the videotape evidence, introduced during the State's case-in-chief, for the purpose of allowing the jury to assess whether Watt's speech pattern presented on the videotape should be considered as evidence of intoxication as opposed to simply his normal speaking style. Watt specifically sought a ruling that he be allowed to do so without cross-examination, claiming that the evidence would be demonstrative, rather than testimonial.

The court, however, precluded the admission of this evidence, and Watt was eventually convicted.

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Are Juvenile Nonhomicide Sentences That Exceed Life Expectancy Cruel and Unusual?

In Graham v. Florida, the United States Supreme Court concluded that the Eighth Amendment does not permit a juvenile offender to be sentenced to life in prison without parole for a nonhomicide crime. Prior to Tuesday, seventeen state supreme courts have addressed a related issue: Does the Eighth Amendment permit a juvenile offender in a nonhomicide case to be sentenced to multiple fixed-term periods that, in the aggregate, total more than his life expectancy. In Tuesday, the Supreme Court of Missouri became the eighteenth state supreme court to address the issue. How did it rule?

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When is a Declarant "Unavailable" for Hearsay Purposes Due to Mental Illness?

Like its federal counterpart, Idaho Rule of Evidence 804(b)(1) provides an exception to the rule against hearsay for former testimony by an "unavailable" declarant. And, like its federal counterpart, Idaho Rule of Evidence 804(a)(4) states that a declarant is "unavailable" if he "is unable to be present or to testify at the hearing because of death or then existing physical or mental illness or infirmity." Obviously, if a declarant is deceased, he is unavailable. And, obviously, if the declarant has a severe ailment such as the flu that is expected to exceed the duration of the trial, he is "unavailable." But when is a declarant "unavailable" due to mental illness? That was the question of first impression addressed by the Supreme Court of Idaho in its recent opinion in State v. Anderson, 2017 WL 2952458 (Idaho 2017).

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5th Circuit Finds No Ground for Relief Against Bite Mark Experts Who Testified at Trials of Men Who Were Later Exonerated

Bite mark comparison/analysis is a largely discredited forensic science field. In its report, Forensic Science in Criminal Courts: Ensuring Scientific Validity of Feature-Comparison Methods, the President’s Council of Advisors on Science and Technology noted that "studies reported in 2009 and 2010 on bitemark evidence...found that current procedures for comparing bitemarks are unable to reliably exclude or include a suspect as a potential biter." Does that mean that exonerates should be able to bring civil lawsuits against bite mark experts who testified against them at trial? According to the recent opinion of the Fifth Circuit in Brewer v. Hayne, 2017 WL 2784155 (5th Cir. 2017), the answer is (usually) "no."

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How the "One Juror" Standard Could Lead to Adnan Syed Getting a New Trial

Here was one of the more interesting (and amusing) exchanges that occurred during the recent oral arguments in the Adnan Syed case:

27 - 24

The answer to this question could very well answer the question of whether Adnan Syed will get a new trial. 

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My New Article: "Plea Agreements as Constitutional Contracts"

Today, I posted the working draft of my new article, Plea Agreements as Constitutional Contracts, on SSRN. Here is the abstract:

In his dissenting opinion in Ricketts v. Adamson, Justice Brennan proposed the idea of plea agreements as constitutional contracts and lamented the fact that the Supreme Court had yet to set up rules of construction for resolving plea deal disputes. Since Adamson, courts have given lip service to Justice Brennan’s dissent and applied his reasoning in piecemeal fashion. No court or scholar, however, has attempted to define the extent to which a plea agreement is a constitutional contract or develop rules of construction to apply in plea deal disputes. This gap is concerning given that ninety-five percent of criminal cases are resolved by plea agreements.

This Article is the first attempt to defend the concept of plea agreements as constitutional contracts and establish a core rule of construction to guide judges in interpreting plea bargains. It advances two theses. First, plea agreements are constitutional contracts whose constitutional protections extend to all matters relating to plea agreements. Second, due process requires that courts treat pleading defendants at least as well as parties to other contracts, meaning all of the protections associated with contract law should be incorporated into plea bargaining law through the Due Process Clause. This Article then argues that incorporation of one of these protections—the implied covenant of good faith and fair dealing—would lead to legal reform in three plea bargaining scenarios where pleading defendants are treated worse than parties to other contracts: (1) substantial assistance motions; (2) Brady disclosures; and (3) prosecutorial presentation of sentencing recommendations.

Any feedback/comments would be appreciated.

-CM