EvidenceProf Blog

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

Wednesday, September 27, 2017

Court of Appeals of Minnesota Finds That Subsequent Convictions Are Admissible to Impeach Defendants

Minnesota Rules of Evidence 609(a) and (b) state the following:

(a) General rule. For the purpose of attacking the credibility of a witness, evidence that the witness has been convicted of a crime shall be admitted only if the crime (1) was punishable by death or imprisonment in excess of one year under the law under which the witness was convicted, and the court determines that the probative value of admitting this evidence outweighs its prejudicial effect, or (2) involved dishonesty or false statement, regardless of the punishment.

(b) Time limit. Evidence of a conviction under this rule is not admissible if a period of more than ten years has elapsed since the date of the conviction or of the release of the witness from the confinement imposed for that conviction, whichever is the later date, unless the court determines, in the interests of justice, that the probative value of the conviction supported by specific facts and circumstances substantially outweighs its prejudicial effect. However, evidence of a conviction more than ten years old as calculated herein, is not admissible unless the proponent gives to the adverse party sufficient advance written notice of intent to use such evidence to provide the adverse party with a fair opportunity to contest the use of such evidence.

So, imagine three scenarios: 

(1) A defendant is charged with vandalism. 10+ years before this crime, the defendant was convicted of conspiracy to commit second-degree robbery. Clearly, the conviction is governed by subsection (b);

(2) A defendant is charged with vandalism. 10 years or less before the crime, the defendant was convicted of conspiracy to commit second-degree robbery. Clearly, the conviction is governed by subsection (a);

(3) A defendant is charged with vandalism. After this crime but before her trial, the defendant was convicted of conspiracy to commit second-degree robbery. Does Rule 609 apply at all? 

This last question was the question of first impression addressed by the Court of Appeals of Minnesota in State v. Souder, 2017 WL 4228698 (Minn.App. 2017).


Continue reading

September 27, 2017 | Permalink | Comments (1)

Saturday, September 16, 2017

Was The Nisha Call Nisha Calling Adnan Back After an Unanswered or Dropped Call?

As we all know, Nisha was a key witness in the Adnan Syed case. She testified that on some unknown date she received a call from Adnan, who told her that his friend Jay had invited him to his job at an adult video store. Adnan told Nisha that he was arriving at the video store during the call and handed the phone to Jay talk to Nisha upon his arrival (the only time she spoke to Jay). The prosecution claims that this call took place at 3:32 P.M. on January 13, 1999. Others, including me, have countered that this call couldn't have taken place until the end of January, when Jay started his job at the adult video store. In turn, this had led to consideration of which outgoing call from Adnan's cell phone to Nisha could have been the adult video store call.

But what if there's no record of this call because it was either unanswered and dropped and then perhaps followed by a call from Nisha to Adnan? 

Continue reading

September 16, 2017 | Permalink | Comments (25)

Thursday, September 14, 2017

When is a Witness Unavailable to Testify at Trial Due to Mental Illness?

Similar to its federal counterpartIdaho Rule of Evidence 804(b) contains hearsay exceptions that apply if the declarant is "unavailable." In turn, Idaho Rule of Evidence 804(a)(4) states that a declarant is unavailable when she "is unable to be present or to testify at the hearing because of death or then existing physical or mental illness or infirmity." Usually, courts apply Rule 804(a)(4) in situations where declarants are unavailable due to death or serious physical illness. But when is a declarant "unavailable" due to mental illness? This was the question of first impression addressed by the Supreme Court of Idaho in its recent opinion in State v. Anderson, 2017 WL 4016692 (Idaho 2017).

Continue reading

September 14, 2017 | Permalink | Comments (4)

Tuesday, September 12, 2017

My New Essay: "Reciprocal Immunity"

Today, I posted the draft of my new essay, "Reciprocal Immunity," on SSRN. Here is the abstract:

A defendant is charged with using extortionate means to collect a loan. Two brothers give statements to the FBI. One brother’s statement tends to incriminate the defendant. The other brother’s statement tends to exonerate the defendant. Both brothers indicate that they will invoke the privilege against self-incrimination if called to testify at trial. The prosecutor gives immunity to the brother whose statement incriminates but doesn’t give immunity to the brother whose statement exonerates. The jury only hears from the first brother and returns a guilty verdict.

These are the truncated facts of United States v. Davis, a recent Seventh Circuit opinion that has led to a cert petition to the Supreme Court. The same result, however, could have occurred in nearly any court, with cases across the country standing for the proposition that a grant of immunity to a witness for the prosecution doesn’t require reciprocal immunity for a directly contradictory defense witness.  

This essay advances a reciprocal rights theory. It argues that the Constitution precludes statutes and rules from providing nonreciprocal benefits to the State when the lack of reciprocity interferes with the defendant’s ability to secure a fair trial, unless reciprocity would implicate a significant state interest. Therefore, unless a significant State interest is involved, a grant of immunity to a prosecution witness should trigger reciprocal immunity to a directly contradictory defense witness.

Any feedback would be appreciated.


September 12, 2017 | Permalink | Comments (1)

Friday, September 8, 2017

Supreme Court of Utah Finds Preliminary Hearing Testimony Inadmissible Under Former Testimony Hearsay Exception

Like its federal counterpart, Utah Rule of Evidence 804(b)(1) provides a hearsay exception for former testimony 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.

In State v. Goins, 2017 WL 3909332 (Utah 2017), the Supreme Court of Utah addressed a question of first impression in the Beehive State that has led to disparate results across the country: Is testimony from a preliminary hearing admissible under the former testimony exception? 

Continue reading

September 8, 2017 | Permalink | Comments (0)