EvidenceProf Blog

Supreme Court of New Mexico Makes Important Reforms to the Admissibility of Eyewitness Identification Evidence

In federal court and most state courts, Manson v. Brathwaite, 432 U.S. 98 (1977), sets the standard for the admissibility of eyewitness identification evidence.

Under Manson, courts apply a two-part test to determine the admissibility of eyewitness identification evidence, addressing first whether police identification procedures were “unnecessarily suggestive” and, if so, weighing specified factors in deciding the “linchpin” issue of whether the eyewitness identification was nonetheless sufficiently reliable to satisfy federal due process requirements....Although the Manson reliability test has been widely adopted among state courts,...it has come to face ever-increasing criticism from legal scholars as a result of major advances in scientific knowledge of eyewitness memory, perception, and recall, knowledge that contradicts many of the analytical assumptions underlying the rule.

Based on these concerns, the Supreme Court of New Mexico adopted new standards for the admission of eyewitness identification evidence.

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Middle District of Pennsylvania Finds Subsequent Remedial Measures Rule Applies to New Prison Policies

Federal Rule of Evidence 407 states that

When measures are taken that would have made an earlier injury or harm less likely to occur, evidence of the subsequent measures is not admissible to prove:

• negligence;
• culpable conduct;
• a defect in a product or its design; or
• a need for a warning or instruction.

But the court may admit this evidence for another purpose, such as impeachment or — if disputed — proving ownership, control, or the feasibility of precautionary measures.

Rule 407 precludes the admission of all sorts of subsequent remedial measures, including changes made to prison policies made after lawsuits filed by inmates.

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District of New Jersey Questions Whether Kelley Blue Book Evidence is Admissible

Federal Rule of Evidence 803(17) provides an exception to the rule against hearsay for 

Market quotations, lists, directories, or other compilations that are generally relied on by the public or by persons in particular occupations.

Generally, it is well established that evidence from the Kelley Blue Book is admissible under Rule 803(17) to establish the value of vehicles. But it's unclear if that will be the case in Herrera v. Murphy, 2020 WL 6787259 (D.N.J. 2020).

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Supreme Court of Washington Grapples With the "Hue and Cry" Hearsay Exception

Washington continues to apply a "hue and cry" or "fact of the complaint" exception to the rule against hearsay for "evidence in a sex offense case that the victim made a timely complaint after the assault." State v. Trujillo, 2002 WL 339412 (Wash.App. 2002). The Supreme Court of Washington called this exception into question at least as early as 1949 in State v. Murley, 212 P.2d 801 (Wash. 1949), when it held that

An exception to these exclusionary rules is that in criminal trial for sex offenses the credibility of the complaining witness, irrespective of whether it is assailed or unassailed, may be supported by evidence of her timely prior out-of-court complaint. This exception stems from the feudal doctrine of hue and cry. This doctrine rests on the ground that a female naturally complains promptly of offensive sex liberties upon her person and that, on trial, an offended female complainant's omission of any showing as to when she first complained raises the inference that, since there is no showing that she complained timely, it is more likely that she did not complain at all the therefore that it is more likely that the liberties upon her person, if any, were not offensive and that consequently her present charge is fabricated. Thus, formerly, to overcome the inference, it became essential to the state's case-in-chief to prove affirmatively that she made timely hue and cry.

And yet, the exception has never been abrogated.

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4th Circuit Deals With Intersection Between Co-Conspirator Liability & Forfeiture by Wrongdoing in Thanksgiving-Related Case

Federal Rule of Evidence 804(b)(6) contains an exception to the rule against hearsay for

A statement offered against a party that wrongfully caused — or acquiesced in wrongfully causing — the declarant’s unavailability as a witness, and did so intending that result.

This "forfeiture by wrongdoing" hearsay exception is effectively a witness tampering rule. Imagine, for instance, that Erica tells police that she saw Dan murder Vince and later turns up dead herself. If the prosecution can prove that Dan killed Erica, or arranged to have her killed, so she couldn't testify agains him, Erica's statement to the police would be admissible against Dan at his trial for murdering Vince. But what if Dan is part of a continuing conspiracy, with a co-conspirator killing Erica after Dan is already in jail? This was the question addressed by the Fourth Circuit in United States v. Dinkins, 691 F.3d 358 (4th Cir. 2012).

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Indiana's Rule of Evidence 413 and Medical Expenses

Indiana has a unique rule of evidence: Indiana Rule of Evidence 413. Indiana Rule of Evidence 413 provides that

Statements of charges for medical, hospital or other health care expenses for diagnosis or treatment occasioned by an injury are admissible into evidence. Such statements are prima facie evidence that the charges are reasonable.

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Court of Appeals of Mississippi Finds Social Media Concerns Don't Apply to Data Extracted From a Cell Phone

Like many state supreme courts, the Supreme Court of Mississippi has expressed concerns regarding the authentication of social media evidence. In Smith v. State, 136 So.3d 424 (Miss. 2014), the Supreme Court of Mississippi held that

The authentication of social media poses unique issues regarding what is required to make a prima facie showing that the matter is what the proponent claims. Creating a Facebook account is easy. Millier, Samantha L., Note, The FaceBook Frontier: Responding to the Changing Face of Privacy on the Internet, 97 Ky. L.J. 541, 544 (2008-09). “[A]nyone at least thirteen years old with a valid e-mail address could create a profile.” Petrashek, Nathan, The Fourth Amendment and the Brave New World of Online Social Networking, 93 Marq. L.Rev. 1495, 1506 (Summer 2010). To create a profile, a person must go to www.facebook.com, enter his or her full name, birth date, and e-mail address, and register a password. Facebook then sends a confirmation link to the registered e-mail, which the person must click on to complete registration. Miller, 97 Ky. L.J. at 544. Not only can anyone create a profile and masquerade as another person, but such a risk is amplified when a person creates a real profile without the realization that third parties can “mine” their personal data. Id. at 542. Friends and strangers alike may have “access to family photos, intimate details about one's likes and dislikes, hobbies, employer details, and other personal information,” and, consequently, “the desire to share information with one's friends may also expose users to unknown third parties who may misuse their information.” Id. at 542-43 (describing a study done by an internet security company using “Freddi Staur,” a toy frog with a Facebook account, who “friended” several people on Facebook and was able to access their personal information). Thus, concern over authentication arises “because anyone can create a fictitious account and masquerade under another person's name or can gain access to another's account by obtaining the user's username and password,” and, consequently, “[t]he potential for fabricating or tampering with electronically stored information on a social networking sight” is high, and poses challenges to authenticating printouts from the website. Griffin v. State, 419 Md. 343, 19 A.3d 415, 421-22 (2011); see also Eleck, 130 Conn.App. 632, 23 A.3d at 822 (“an electronic communication, such as a Facebook message, ... could be generated by someone other than the named sender”); Campbell v. State, 382 S.W.3d 545, 550 (Tex.App.2012) (“Facebook presents an authentication concern that is twofold. First, because anyone can establish a fictitious profile under any name, the person viewing the profile has no way of knowing whether the profile is legitimate. Second, because a person may gain access to another person's account by obtaining the user's name and password, the person viewing communications on or from an account profile cannot be certain that the author is in fact the profile owner.”

That said, those unique issues did not apply in Willis v. State, 2020 WL 6736816 (Miss.App. 2020).

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Supreme Judicial Court of Maine Grapples With Integrated Records Doctrine Under the Business Records Exception

Similar to its federal counterpart, Maine Rule of Evidence 803(6) provides an exception to the rule against hearsay for 

Records of a regularly conducted activity. A record of an act, event, condition, opinion, or diagnosis if:

(A) The record was made at or near the time by—or from information transmitted by—someone with knowledge;

(B) The record was kept in the course of a regularly conducted activity of a business, organization, occupation, or calling, whether or not for profit;

(C) Making the record was a regular practice of that activity;

(D) All these conditions are shown by the testimony of the custodian or another qualified witness, or by a certification that complies with Rule 902(11), Rule 902(12) or with a statute permitting certification; and

(E) The opponent does not show that the source of information or the method or circumstances of preparation indicate a lack of trustworthiness.

Typically, this "business records" hearsay exception applies to documents produced by a business itself (e.g., Burger King is sued and seeks to introduce its business records, or the adverse party seeks to introduce business records that Burger King produced during discovery). But what happens in a case in which a business creates business records and sends them to a second business, with that second business integrating those records into its own business records? That was the question addressed by the Supreme Judicial Court of Maine in Bank of New York Mellon v. Shone, 2020 WL 6165853 (Me. 2020)

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Supreme Court of Montana Addresses State of Mind Hearsay Exception

Similar to its federal counterpart, Montana Rule of Evidence 803(3) provides an exception to the rule against hearsay for

A statement of the declarant's then-existing state of mind, emotion, sensation, or physical condition (such as intent, plan, motive, design, mental feeling, pain and bodily health), but not including a statement of memory or belief to prove the fact remembered or believed.

It's important to note, though, that many statements about a declarant's state of mind will be irrelevant or have a probative value that is substantially outweighed by the danger of unfair prejudice. A good example can be found in the recent opinion of the Supreme Court of Montana in State v. Gomez, 460 P.3d 926 (Mont. 2020).

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United States District Court for the District of Arizona Finds Attorney Can't be Sequestered Despite Being a Potential Witness

Federal Rule of Evidence 615 provides 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.

So, imagine that a defense attorney might be a witness at trial. Could the plaintiff's counsel have defense counsel excluded from the courtroom during the testimony of other witnesses?

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Iowa's Civil "Mercy Rule"

Generally propensity character evidence ("once an arsonist, always an arsonist") is inadmissible pursuant to Federal Rule of Evidence 404(a). That said, Federal Rule of Evidence 404(a)(2) contains a "mercy rule," which provides that

The following exceptions apply in a criminal case:

(A) a defendant may offer evidence of the defendant’s pertinent trait, and if the evidence is admitted, the prosecutor may offer evidence to rebut it;

(B) subject to the limitations in Rule 412, a defendant may offer evidence of an alleged victim’s pertinent trait, and if the evidence is admitted, the prosecutor may:

(i) offer evidence to rebut it; and

(ii) offer evidence of the defendant’s same trait; and

(C) in a homicide case, the prosecutor may offer evidence of the alleged victim’s trait of peacefulness to rebut evidence that the victim was the first aggressor.

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Tennessee's Odd Rules on the Learned Treatise Exception

Federal Rule of Evidence 803(18) provides an exception to the rule against hearsay for

(18) Statements in Learned Treatises, Periodicals, or Pamphlets. A statement contained in a treatise, periodical, or pamphlet if:

(A) the statement is called to the attention of an expert witness on cross-examination or relied on by the expert on direct examination; and

(B) the publication is established as a reliable authority by the expert’s admission or testimony, by another expert’s testimony, or by judicial notice.

If admitted, the statement may be read into evidence but not received as an exhibit.

Conversely, Tennessee has no direct counterpart to Federal Rule of Evidence 803(18). Why?

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Maine Rule of Evidence 105 Codifies the Bruton Doctrine

Federal Rule of Evidence 105 provides that

If the court admits evidence that is admissible against a party or for a purpose — but not against another party or for another purpose — the court, on timely request, must restrict the evidence to its proper scope and instruct the jury accordingly.

Maine Rule of Evidence 105 adds a sentence to this "limiting instruction" rule. It states that

If the court admits evidence that is admissible against a party or for a purpose—but not against another party or for another purpose—the court, on timely request, must restrict the evidence to its proper scope and instruct the jury accordingly.

In a criminal case tried to a jury, evidence inadmissible as to one defendant must not be admitted as to other defendants unless all references to the defendant as to whom it is inadmissible have been effectively deleted.

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South Dakota's Execution Privilege

A number of states with the death penalty have enacted death penalty secrecy statutes. According to the Death Penalty Information Center,

As far as I can tell, however, South Dakota is the only state with an evidentiary privilege connected to executions.

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Utah's Unique Rule of Evidence Regarding Traffic Code Violations

Utah has a unique rule of evidence. Utah Rule of Evidence 416 (Violation of Traffic Code Not Admissible) states that

Evidence that a person was convicted of an infraction or a class C misdemeanor under Utah Code Title 41, Chapter 6a, is not admissible:

(a) to prove the person acted negligently or otherwise wrongly, or

(b) to impeach the person’s testimony on those issues.

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The Political Vote Privilege

Assume you are a witness at trial and asked whether you voted for Biden or Trump (or Kanye). Would you have to answer the question, assuming it was somehow relevant to the trial being held? In most states, the answer is "no." As Peter Nicolas writes in Electoral Evidence, 69 Ala. L. Rev. 109 (2017),

Today, twenty U.S. states and two U.S. territories, by statute or codified rule of evidence, recognize such a political vote privilege. Another twenty-one states have judicial decisions on the books recognizing such a privilege, all (or nearly all) of which have survived the codification of rules of evidence in those states. Of the remaining nine states, courts in two, Arizona and Utah, have explicitly left the issue open, while the other seven--Florida, Maryland, New Hampshire, South Carolina, Vermont, Virginia, and Washington-- have no cases or statutes addressing the issue. However, seven of these nine states have constitutional provisions guaranteeing a right to a secret ballot, and the remaining two states have statutes guaranteeing the same from which courts could derive a political vote privilege, in accordance with the many other states that have done so. In addition, five of the nine states have a rule acknowledging the power of courts to recognize common law privileges that could similarly result in the recognition of such a privilege. It thus seems likely that if the issue were addressed by courts in the remaining states, the result would be unanimous (or nearly so) recognition of the privilege nationwide.

An analogous privilege likely exists at the federal level and governs when federal causes of action are involved. When the Federal Rules of Evidence were originally proposed, they included a series of specific evidentiary privileges, including a political vote privilege with an exception for illegally cast votes. In response to overwhelmingly negative criticism of the specific privileges proposed to be included in and excluded from the Federal Rules of Evidence--albeit none directed at the political vote privilege itself--Congress substituted in their place a general rule directing courts to determine the existence and scope of federal privileges by way of “[t]he common law--as interpreted by United States courts in the light of *reason and experience.” Applying this standard, the only federal court to consider the matter to date has recognized a federal common law political vote privilege.

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11th Circuit Case Has Textbook Rule 704(b) Violation

Federal Rule of Evidence 704(b) states that 

In a criminal case, an expert witness must not state an opinion about whether the defendant did or did not have a mental state or condition that constitutes an element of the crime charged or of a defense. Those matters are for the trier of fact alone.

The recent opinion of the United States Court of Appeals for the Eleventh Circuit in United States v. Boykins, 2020 WL 6441103 (11th Cir. 2020), provides a good example of testimony that violates Rule 704(b).

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Hiring Announcement: Belmont University College of Law Tenure-Track Faculty Position

Hiring Announcement: Belmont University College of Law Tenure-Track Faculty Position

Belmont University College of Law, in Nashville, Tennessee, invites applications from entry level and experienced candidates to fill a tenure-track faculty position.  We are seeking candidates across a broad range of teaching and research areas, starting with the 2021-2022 academic year, with the successful candidate's teaching load including Evidence.  

A successful applicant must have a J.D., strong academic background, and record that indicates the promise of both teaching excellence and high scholarly achievement.  Belmont is an EOE/AA employer and welcomes applications from candidates who may add to the diversity at Belmont College of Law.  Belmont College of Law reserves the right to exercise a preference for those candidates who support the goals and missions of the University. 

If interested, please submit a letter of interest and curriculum vitae to the Chair of the Faculty Recruitment Committee Professor Loren Mulraine at [email protected] or [email protected]

Belmont University is a private, Christian university focusing on academic excellence and is located in the heart of Nashville, one of the fastest growing and most culturally rich cities in the country.  Belmont’s student body of over 8,400 includes students from every state, more than 35 countries, and all faiths.  The Belmont faculty is dedicated to teaching, service, and active engagement in scholarship.  The median LSAT/GPA for the 142 students who entered the law school in August 2019 were 156 and 3.63 (75th percentile: 158 and 3.84; 25th percentile: 153 and 3.28), placing the school well within the top 100 U.S. law schools for quality of applicants.  Belmont’s first-time bar passage rate for the July 2018 and 2019 Tennessee bar exams was 95.8%, one of the highest pass rates in the country, and its employment rate for the 2018 & 2019 classes was 95%.

Supreme Court of New Mexico (Temporarily?) Restores the Spousal Communications Privilege

In pertinent part, New Mexico's spousal communications privilege states that

A person has a privilege to refuse to disclose , or to prevent another from disclosing, a confidential communication by the person to that person's spouse while they were married.

In the appeal of David Gutierrez II of his murder conviction, the Supreme Court of New Mexico initially abolished this spousal communications privilege. But then, it had second thoughts.

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Undisclosed Mega-Update Thread 6

On November 11, 2020, Judge Steve R. Dozier vacated Joseph Webster's murder conviction. Later that day, Webster was released from prison after almost 15 years of wrongful imprisonment

Given this terrific turn of events, I wanted to do another update on the status of all of the cases we've covered on Undisclosed.

Total cases covered: 23 cases.

Relief granted: 14 cases: 10 exonerations: (1) Shaurn Thomas; (2) Terrance Lewis; (3) Willie Veasy; (4) Chester Hollman III; (5) Charles Ray Finch; (6) Theophalis Wilson; (7) Jonathan Irons; (8) Dennis Perry; (9) Ronnie Long; and (10) Joseph Webster. 2 stays of execution: (1) Marcellus Williams; and (2) William Montgomery. 1 commutation: Cyntoia Brown. 1 grant of parole: Cyrus Wilson.

Currently pending: 4 cases. (1) Joey Watkins's successor habeas petition recently authorized to move forward by the Supreme Court of Georgia; (2) Pedro Reynoso's CIU petition; (3) Fred Freeman/Temujin Kensu's CIU petition; and (4) John Brookins's DNA petition and Board of Pardons hearing.

New appeals expected soon: 4 cases: (1) Adnan Syed; (2) Jamar Huggins; (3) Pam Lanier; and (4) Greg Lance.

Options being explored: 1 case: Rocky Myers

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