EvidenceProf Blog

Hawaii Case Addresses Intersection Between the Right to a Public Trial & Witness Sequestration Rule

Similar to its its federal counterpart, Hawai'i Rule of Evidence 615 provides that

At the request of a party the court shall order witnesses excluded so that they cannot hear the testimony of other witnesses, and it may make the order of its own motion. This rule does not authorize exclusion of (1) a party who is a natural person, or (2) an officer or employee of a party which is not a natural person designated as its representative by its attorney, or (3) a person whose presence is shown by a party to be essential to the presentation of the party's cause.

Meanwhile, the Sixth Amendment provides an accused with "the right to a speedy and public trial." So, is there a conflict between Rule 615 -- a rule of witness sequestration -- and the right to a public trial?

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Court of Appeals of Indiana Fleshes Out Familial Hearsay Exception

Similar to its federal counterpart, Indiana Rule of Evidence 803(19) provides an exception to the rule against hearsay for

A reputation among a person's family by blood, adoption, or marriage—or among a person's associates or in the community—concerning the person's birth, adoption, legitimacy, ancestry, marriage, divorce, death, relationship by blood, adoption, or marriage, or similar facts of personal or family history.

There is scant caselaw on this hearsay exception, but the recent opinion of the Court of Appeals of Indiana in Wilson v. State, 2019 WL 3022785 (Ind.App. 2019), does a good job of explaining how parties generally (fail to) satisfy it.

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Second Circuit Opinion Fleshes Out Common Law Rule of Completeness

Federal Rule of Evidence 106, the rule of completeness, provides that

If a party introduces all or part of a writing or recorded statement, an adverse party may require the introduction, at that time, of any other part — or any other writing or recorded statement — that in fairness ought to be considered at the same time.

So, imagine that Defendant is on trial for murdering Victim. During its case-in-chief, the prosecution wants to introduce part of of a letter Defendant sent Victim, which stated, "I'm going to kill you." Assume, however, that (1) another part of the letter says, "Just kidding about that whole killing thing;" (2) Defendant sent Victim a second letter the next day that said, "Just kidding about that whole killing thing;" or (3) Defendant left a voicemail on Victim's cell phone the next day, saying, "Just kidding about that whole killing thing." Under any of these three scenarios, the rule of completeness would say that fairness requires that the defense could introduce the exculpatory statement at the same time as the inculpatory statement rather than having to wait to introduce it (during cross-examination or the defense case).

But now, assume a fourth scenario, in which Defendant tells Victim the next day in front of Friend, "Just kidding about the whole killing thing." What does the rule of completeness tell us about this scenario.

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Carolina Academic Press Releases Expert Evidence by Andrew Jurs

Carolina Academic Press has released Expert Evidence by Andrew Jurs.

Expert evidence serves as the highly contextual core of litigation, and this textbook has been designed to bring a practice-oriented lens to the issue. The book begins with materials breaking down the central rules of evidence and civil procedure constraining presentation of experts, then moves into application of those rules to various common disciplines in criminal and civil litigation.

Throughout the book, students will engage with real-world writing exercises to apply the rules in context, to sharpen analytical skills, and to prepare for their transition to practice. As the student progresses into the subject-specific materials, each section raises significant questions about the underlying reliability of each discipline but also demonstrate an analytical framework to serve as a template for future encounters with unfamiliar disciplines.

There is a set of 127 PowerPoint slides available upon adoption of this book. Click here to view a sample presentation. If you are a professor using this book for a course, please contact Beth Hall at [email protected] to request your slides.

LOUISIANA STATE UNIVERSITY, PAUL M. HEBERT LAW CENTER seeks to hire evidence professors

LOUISIANA STATE UNIVERSITY, PAUL M. HEBERT LAW CENTER seeks to hire tenure-track or tenured faculty in the following areas: federal courts, constitutional law, civil procedure, and evidence. Applicants should have a J.D. from an ABA-accredited law school, superior academic credentials and publications or promise of productivity in legal scholarship, as well as a commitment to outstanding teaching. We may consider applications from persons who specialize in other areas as additional needs arise.

We additionally seek to hire a full-time faculty member with security of position to direct the Immigration Law Clinic as part of LSU Law’s Clinical Legal Education Program. The Immigration Law Clinic is a fully in-house, one-semester, 5 credit clinic in which students represent non-citizens in their defensive proceedings before the Executive Office of Immigration Review (EOIR) and affirmative applications with U.S. Citizenship and Immigration Services (USCIS) Applicants should have a J.D. from an ABA-accredited law school, superior academic credentials, substantial experience in Immigration practice and be admitted and in good standing in a U.S. jurisdiction. Prior clinical teaching experience and fluency in Spanish is preferred.

We also seek to hire a full-time Assistant Professor of Professional Practice to teach legal analysis and writing.  A successful candidate will teach the fundamentals of legal reasoning and writing by way of predictive and objective memoranda in the fall semester and advance those skills by teaching persuasive writing of an appellate brief and appellate oral advocacy in the spring semester.  The legal writing faculty collaboratively develop the course materials that are used across the 1L curriculum.  Applicants must have a J.D. from an ABA-accredited law school, superior academic credentials, and should have at least two to three years of post-J.D. experience in a position or positions requiring substantial legal writing.

The Paul M. Hebert Law Center of LSU is an Equal Opportunity/Equal Access Employer and is committed to building a culturally diverse faculty. We particularly welcome and encourage applications from female and minority candidates.       

Applications should include a letter of application, resume, references, and teaching evaluations (if available) to:

Melissa T. Lonegrass and Christina M. Sautter

Co-Chairs, Faculty Appointments Committee

c/o Pam Hancock (or by email to [email protected])

Paul M. Hebert Law Center

Louisiana State University

1 East Campus Drive

Baton Rouge, Louisiana 70803-0106

Court of Appeals of New York Finds Brady Violation After Prosecutor Places Crime Scene Video in "Irrelevant" Box & Doesn't Disclose It

A defendant is charged with second degree murder based on a shooting outside an apartment building. In closing argument, defense counsel says:

“Where is that video surveillance? Wouldn't you think, ladies and gentlemen, that if there was video camera surveillance at 48 St. Paul's Place, that would be very important, that possibly could show what it was that took place; don't you think it would have shown who actually shot [the victim]? We don't have that video.”

The prosecutor then responds:

“[Y]ou heard from [defense counsel] that there are video cameras inside 48 St. Paul's Place; inside the lobby, okay. Common sense, ladies and gentlemen, you saw that the police recovered video footage from [defendant's apartment building], ... which is around the corner in the direction of flight that the defendant went. Isn't it common sense that they went to the building where the actual event took place in front of? And isn't it common sense that you would have seen that video if there had been a video?”

"In fact, there was a video from a surveillance camera in the lobby and the prosecutor had reviewed it before the trial." Brady violation? According to the recent opinion of the Court of Appeals of New York in People v. Ulett, 2019 WL 2583106 (N.Y. 2019).

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