EvidenceProf Blog

Court of Appeals of Arizona Finds Juvenile Sex Adjudications Are Admissible Under the State's Unique Rule 404(c)

Federal Rule of Evidence 404 and most state counterparts contain two subsections: (a) and (b). Arizona's version of Rule 404 has a subsection (c). In pertinent part, Arizona Rule of Evidence 404(c) states that

In a criminal case in which a defendant is charged with having committed a sexual offense, or a civil case in which a claim is predicated on a party's alleged commission of a sexual offense, evidence of other crimes, wrongs, or acts may be admitted by the court if relevant to show that the defendant had a character trait giving rise to an aberrant sexual propensity to commit the offense charged. In such a case, evidence to rebut the proof of other crimes, wrongs, or acts, or an inference therefrom, may also be admitted.*

In its recent opinion in State v. Rose, 441 P.3d 999 (Ariz.App. 2019) the Court of Appeals of Arizona, Division 2 answered an interesting question under this rule.

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Proposed Comment to Virginia Rules of Professional Conduct Would Require Prosecutors to Specifically Identify Exculpatory Evidence

Imagine that Defendant Dan is charged with murder. During his preparation for trial, Prosecutor Peters learns that Alternate Suspect Samuels was investigated by police. This investigation of Samuels is seen in four pages of documents from the police department, and Peters has 1,500 pages of discovery, including the Samuels documents, he will have to turn over to Public Defender Parker. In most jurisdictions, a prosecutor like Peters could "bury the lede" by including the Samuels documents in the middle of he 1,500 pages of discovery and hope that an overburdened public defender like Parker doesn't spot the needle in the haystack. But, if a proposed comment to Virginia Rules of Professional Conduct passes, that could all change.

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The Federal Rules of Evidence & Discovery in Tax Cases

Federal Rule of Evidence 702 states that

A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if:

(a) the expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue;

(b) the testimony is based on sufficient facts or data;

(c) the testimony is the product of reliable principles and methods; and

(d) the expert has reliably applied the principles and methods to the facts of the case.

In turn, various other Federal Rules supply the discovery requirements connected with expert testimony. For example, Federal Rules of Criminal Procedure 16(a)(1)(F) and 16(a)(1)(G) provide the discovery requirements in federal criminal cases. Meanwhile, as the recent opinion of the United States Tax Court in Skolnick v. Commissioner of Internal Revenue makes clear, Tax Rule 143 governs discovery in federal tax cases.

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Looking at the Circuit Split Over Whether One or Two Prosecution Case Agents Can be Immunized From Witness Sequestration Under Rule 615(b)

Federal Rule of Evidence 615 states that

At a party’s request, the court must order witnesses excluded so that they cannot hear other witnesses’ testimony. Or the court may do so on its own. But this rule does not authorize excluding:

(a) a party who is a natural person;

(b) an officer or employee of a party that is not a natural person, after being designated as the party’s representative by its attorney;

(c) a person whose presence a party shows to be essential to presenting the party’s claim or defense; or

(d) a person authorized by statute to be present.

The purpose of this witness sequestration rule is to prevent later witnesses from hearing the testimony of earlier witnesses and perhaps consciously or unconsciously tailoring their testimony to the testimony of earlier witnesses. For example, assume that there are two eyewitnesses to a murder: Ed and Fred. Assume that Fred recalls the murderer wearing a green shirt and is in the courtroom when Ed testifies that the murderer was wearing a blue shirt. When Fred later testifies, he could consciously choose to testify that the murderer wore a blue shirt so that his testimony matches Ed's testimony. Alternatively, Ed's testimony could corrupt Fred's memory and cause him to testify about a blue shirt because that is now what he "remembers."

This is why Rule 615 allows a party to move to sequester most witnesses. As you can see, though, there are four exceptions. But there is a clear circuit split under the second exception.

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We're Already Seeing the Impact of the Adnan Syed Opinion in Maryland

On March 8th, the Court of Appeals of Maryland issued an opinion denying Adnan Syed a new trial, finding that (1) he had waived his claim that trial counsel was ineffective based upon failure to use the AT&T disclaimer to cross-examine the State's cell tower expert; and (2) he had failed to prove the prejudice prong of his claim that trial counsel was ineffective based on failure to contact alibi witness Asia McClain. So now, almost three months later, how much of an impact is the court's opinion having in Maryland?

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Judge Threatens to Hold Attorney in Contempt for Trying to Make an Offer of Proof of Her Client's Actual Innocence

The offer of proof is a core part of the American justice system. So, what is an offer of proof? It's proof of what a witness would say or what a piece of evidence would show despite (1) that witness/evidence being unavailable; or (2) the judge deeming the evidence or the witness's testimony inadmissible. Indeed, in this latter scenario, a party typically needs to make an offer of proof to preserve the issue for appellate review. According to Federal Rule of Evidence 103(a)(2),

A party may claim error in a ruling to admit or exclude evidence only if the error affects a substantial right of the party and:...

if the ruling excludes evidence, a party informs the court of its substance by an offer of proof, unless the substance was apparent from the context.

So, why in the world would a judge threaten to hold an attorney in contempt for seeking to make an offer of proof regarding a witness who could prove the actual innocence of her client? That was the question addressed by the Supreme Court of Indiana in its recent opinion in Bedolla v. State, 2019 WL 2264236 (Ind. 2019).

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