EvidenceProf Blog

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

Monday, December 30, 2019

Court Rejects Admission of Alleged Excited Utterance by Unidentified Declarant

Federal Rule of Evidence 803(2) provides an exception to the rule against hearsay for

A statement relating to a startling event or condition, made while the declarant was under the stress of excitement that it caused.

As Rule 803 makes clear, excited utterances and other statements satisfying a Rule 803 hearsay exception are admissible regardless of whether the declarant is available. So, for instance imagine that Ed is on his cell phone with his friend Fred and shouts, "Oh my God! Dan just shot Vince." Even if Ed is unavailable (e.g., he has passed away before trial), Fred can testify about his excited utterance. But what happens when the declarant is unidentified?

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December 30, 2019 | Permalink | Comments (1)

Sunday, December 29, 2019

United States District Court for the District of New Mexico Finds Character is Not "In Issue" in a Fraud Case

Federal Rule of Evidence 405(b) states that

When a person’s character or character trait is an essential element of a charge, claim, or defense, the character or trait may also be proved by relevant specific instances of the person’s conduct.

So, when is a person's character an essential element of a charge, claim, or defense? According to some courts, character is an essential element of a charge, claim, or defense

when it is “a material fact that under the substantive law determines rights and liabilities of the parties.”...In such a case the evidence is not being offered to prove that the defendant acted in conformity with the character trait; instead, the existence or nonexistence of the character trait itself “determines the rights and liabilities of the parties.”... In a defamation action, for example, the plaintiff's reputation for honesty is directly at issue when the defendant has called the plaintiff dishonest. Perrin v. Anderson, 784 F.2d 1040, 1045 (10th Cir. 1986).

I prefer a formulation that says that character is an essential element of a charge, claim, or defense when evidence of character is necessary to prove/disprove a charge, claim, or defense. For instance, in a negligent hiring/supervision case, how do you prove that a city was negligent in hiring/supervising a bus driver with a history of drunk driving? Answer: by presenting evidence of the bus driver's history of being a drunk driver. How does a newspaper facing a defamation lawsuit prove the truth of its allegation that a politician is an adulterer? Answer: By presenting evidence of his acts of adultery. How does the State disprove the "lack of predisposition" portion of a defendant's entrapment defense? Answer: By presenting evidence of his prior related crimes. How does a defendant prove an insanity based upon delusional thinking? Answer: By presenting evidence of his delusion.

As far as I can tell. the above five cases are the main five cases covered by Federal Rule of Evidence 405(b). But what about a fraud case?

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December 29, 2019 | Permalink | Comments (0)

Sunday, December 8, 2019

11th Circuit Holds Coast Guard Personnel Can Offer Lay Opinion Testimony That Jettisoned Objects Were Cocaine

Federal Rule of Evidence 701 states that

If a witness is not testifying as an expert, testimony in the form of an opinion is limited to one that is:

(a) rationally based on the witness’s perception;

(b) helpful to clearly understanding the witness’s testimony or to determining a fact in issue; and

(c) not based on scientific, technical, or other specialized knowledge within the scope of Rule 702.

With regard to subsection (c), the Advisory Committee's Note to the 2000 amendment states that

The amendment is not intended to affect the “prototypical example[s] of the type of evidence contemplated by the adoption of Rule 701 relat[ing] to the appearance of persons or things, identity, the manner of conduct, competency of a person, degrees of light or darkness, sound, size, weight, distance, and an endless number of items that cannot be described factually in words apart from inferences.”...

For example, most courts have permitted the owner or officer of a business to testify to the value or projected profits of the business, without the necessity of qualifying the witness as an accountant, appraiser, or similar expert....Such opinion testimony is admitted not because of experience, training or specialized knowledge within the realm of an expert, but because of the particularized knowledge that the witness has by virtue of his or her position in the business. The amendment does not purport to change this analysis. Similarly, courts have permitted lay witnesses to testify that a substance appeared to be a narcotic, so long as a foundation of familiarity with the substance is established....Such testimony is not based on specialized knowledge within the scope of Rule 702, but rather is based upon a layperson's personal knowledge. If, however, that witness were to describe how a narcotic was manufactured, or to describe the intricate workings of a narcotic distribution network, then the witness would have to qualify as an expert under Rule 702.

So, should a court allow United States Coast Guard personnel to offer lay opinion testimony "that objects jettisoned from [a] go-fast vessel were cocaine bales"? That was the questioned addressed by the United States Court of Appeals for the Eleventh Circuit in its recent opinion in United States v. Lugo, 2019 WL 4940590 (11th Cir. 2019).

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December 8, 2019 | Permalink | Comments (2)

Friday, December 6, 2019

Supreme Court of South Carolina Finds Prosecutor's Comment About the Job of Defense Counsel Required Reversal

Imagine that a prosecutor makes the following statements to the jury during closing arguments:

"My job is to present the truth," and said, "if you look in the . . . Code of Laws . . . [, I] have to say what the truth is." "On the other hand," the prosecutor told the jury, "the defense attorneys' jobs are to manipulate the truth. Their job is to shroud the truth. Their job is [to] confuse jurors. Their job is to do whatever they have to -- without regard for the truth." The prosecutor explained that if he—the prosecutor— believes "somebody else did the crime," then he must "dismiss it." "And [if] I know the person has done something that I think the facts show they're guilty of, then I can't [dismiss] it. I have to go forward with it."

Would such statements be grounds for a new trial?

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December 6, 2019 | Permalink | Comments (0)

Sunday, December 1, 2019

Supreme Court of Nebraska Opinion Reveals Broad "Crime of Violence" Exception to its Spousal Privilege

Every state has some type of marital privilege, and many states have two. Depending on the jurisdiction, the spousal testimony privilege either provides that

-a defendant spouse can prevent his/her spouse from testifying against him/her; or

-a spouse who is called to testify can refuse to testify against his/her spouse.

And, depending on the jurisdiction, the confidential marital communications privilege provides that:

-a defendant spouse can prevent his/her spouse (or ex-spouse) from testifying about confidential marital communications between the two; or

-a spouse  (or ex-spouse) who is called to testify can refuse to testify about confidential marital communications between the two.

Across jurisdictions, however, there is generally a clear exception to either privilege. But Nebraska's exception appears to be much broader.

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December 1, 2019 | Permalink | Comments (0)