EvidenceProf Blog

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

Monday, February 12, 2018

Nebraska & The Inadmissibility of Prior Statements of (Non)Identification

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

A statement that meets the following conditions is not hearsay:...

The declarant testifies and is subject to cross-examination about a prior statement, and the statement:...

identifies a person as someone the declarant perceived earlier.

So, assume that Eve

-is an eyewitness to a crime;

-is shown a photographic lineup that includes Doug, the defendant; and either

-picks Doug out of the lineup; or

-is unable to pick Doug out of the lineup.

If Eve later testifies at Doug's trial, her prior identification or non-identification of Doug would be admissible. As far as I know, 49 states have a similar doctrine in their state rules of evidence or precedent. As is made clear by the recent opinion of the Supreme Court of Nebraska in State v. McCurry, 891 N.W.2d 663 (Neb. 2017), the Cornhusker state seems to be the only exception.

Continue reading

February 12, 2018 | Permalink | Comments (1)

Wednesday, February 7, 2018

Court of Appeals of New York Finds Statements Before a Defendant Enters a Conspiracy & After His Active Participation Are Admissible Against Him

Federal Rule of Evidence 801(d)(2)(E) provides that

A statement that meets the following conditions is not hearsay:...

The statement is offered against an opposing party and:...

was made by the party’s coconspirator during and in furtherance of the conspiracy.

So, let's say that Al and Bob agree to rob a bank and make statements in furtherance of the conspiracy (e.g., "Let's rob the bank on the corner of State and Main."). Later, they enlist Dan to drive them to the bank so that they can rob it, with the plan to be picked up by a getaway driver, Greg, after the robbery. Then, after the robbery, while being driven by Greg, Al and Bob make more statements in furtherance in the conspiracy (e.g., "Let's hide the money in that cabin in the woods."). 

If Dan is being prosecuted for his role in the conspiracy/robbery, (1) are the statements made before he entered the conspiracy admissible against him under Rule 801(d)(2)(E); and (2) are the statements made after his active participation admissible against him under Rule 801(d)(2)(E)? In a case of first impression, the Court of Appeals of New York answered both questions in the affirmative in People v. Flanagan, 49 N.Y.S.3d 50 (N.Y. 2017).

Continue reading

February 7, 2018 | Permalink | Comments (0)

Monday, February 5, 2018

11th Circuit Finds Conviction Resulting From Nolo Contendere Plea Insufficient to Satisfy Character Evidence Test

Federal Rule of Evidence 404(b) provides that evidence of a crime, wrong, or other act

may be admissible for another purpose, such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident. On request by a defendant in a criminal case, the prosecutor must:

(A) provide reasonable notice of the general nature of any such evidence that the prosecutor intends to offer at trial; and

(B) do so before trial — or during trial if the court, for good cause, excuses lack of pretrial notice.

Meanwhile, Federal Rule of Evidence 410(a)(2) provides that

In a civil or criminal case, evidence of the following is not admissible against the defendant who made the plea or participated in the plea discussions:...

(2) a nolo contendere plea

So, let's say that a defendant is on trial for a crime (crime #1, e.g., safecracking) and has a prior conviction based upon a nolo contendere plea for a prior crime (crime #2, e.g., safecracking). If the prosecution wants to introduce evidence of the prior crime for a permissible purpose (e.g., knowledge of how to crack a safe), can it prove that prior crime solely through evidence of the defendant's prior conviction resulting from his nolo contendere plea? According to the Eleventh Circuit in United States v. Green, 873 F.3d 846 (11th Cir. 2017), the answer is "no."

Continue reading

February 5, 2018 | Permalink | Comments (1)