EvidenceProf Blog

Court of Appeals of Maryland Finds it is Witness Tampering & Obstruction of Justice to Marry a Prospective Witness for Privilege Purposes

Maryland has a spousal testimonial privilege, which states in pertinent part that 

(a) The spouse of a person on trial for a crime may not be compelled to testify as an adverse witness unless the charge involves:

(1) The abuse of a child under 18; or

(2) Assault in any degree in which the spouse is a victim if:

(i) The person on trial was previously charged with assault in any degree or assault and battery of the spouse;

(ii) The spouse was sworn to testify at the previous trial; and

(iii) The spouse refused to testify at the previous trial on the basis of the provisions of this section.

So, let's say that a defendant is accused of a crime and marries a prospective witness against him so that she can invoke this spousal testimonial privilege. Can that defendant be charged with witness tampering and obstruction of justice? This was the question of first impression addressed by the Court of Appeals of Maryland in its recent opinion in State v. Wilson, 2020 WL 6266905 (Md. 2020).

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United States District Court for the District of Utah Notes Split Over Whether Settlement Statements About Mitigation of Damages Are Admissible

Federal Rule of Evidence 408 reads as follows:

(a) Prohibited Uses. Evidence of the following is not admissible — on behalf of any party — either to prove or disprove the validity or amount of a disputed claim or to impeach by a prior inconsistent statement or a contradiction:

(1) furnishing, promising, or offering — or accepting, promising to accept, or offering to accept — a valuable consideration in compromising or attempting to compromise the claim; and

(2) conduct or a statement made during compromise negotiations about the claim — except when offered in a criminal case and when the negotiations related to a claim by a public office in the exercise of its regulatory, investigative, or enforcement authority.

(b) Exceptions. The court may admit this evidence for another purpose, such as proving a witness’s bias or prejudice, negating a contention of undue delay, or proving an effort to obstruct a criminal investigation or prosecution.

So, does Rule 408(b) allow for the admission of evidence of statements during settlement negotiations to prove that a party failed to mitigate its damages? This was the question of first impression addressed by the United States District Court for the District of Utah in Nutraceutical Corporation v. Nutrachamps, Inc., 2020 WL 6382042 (D. Utah. 2020).

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Supreme Court of New Mexico Lays Out Four Factor Test for Forfeiture by Wrongdoing

Similar to Federal Rule of Evidence 804(b)(6), New Mexico Rule of Evidence 11-804(B)(5) provides 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.

So, what is required for this "forfeiture by wrongdoing" exception to apply? That was the question addressed by the Supreme Court of New Mexico in its recent opinion in State v. Farrington, 2020 WL 6144648 (N.M. 2020).

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New Jersey Court Finds Release From Probation is Not Release From Confinement For Impeachment Purposes

New Jersey Rule of Evidence 609(b)(1) states that 

If, on the date the trial begins, more than ten years have passed since the witness' conviction for a crime or release from confinement for it, whichever is later, then evidence of the conviction is admissible only if the court determines that its probative value outweighs its prejudicial effect, with the proponent of that evidence having the burden of proof.

So, assume that a witness testifying at a trial in 2017 was convicted of a crime in 2005 and sentenced to 4 years probation. Because that probation ended in 2009, would that conviction fall beyond the scope of Rule 609(b)(1) because the "release from confinement" confinement for it was less than 10 years ago?

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Michigan Law School 2021 Junior Scholars Conference Call for Papers

The University of Michigan Law School invites junior scholars to attend the 7th Annual Junior Scholars Conference, which will take place virtually on April 16-17, 2021. The conference provides junior scholars with a platform to present and discuss their work with peers, and to receive detailed feedback from senior members of the Michigan Law faculty. The Michigan Law journals have also agreed to give serious consideration to publish selected papers. The Junior Scholars Conference is intended for academics in both law and related disciplines. Applications from graduate students, SJD/PhD candidates, postdoctoral researchers, lecturers, teaching fellows, and assistant professors (pre-tenure) who have not held an academic position for more than four years, are welcomed.

Applications are due by January 4, 2021.

Further information and the full call for papers can be found at the Conference website.