EvidenceProf Blog

Court Find Former Testimony Was Admissible in Civil Rights Action Against Police Officers

Federal Rule of Evidence 804(b)(1) provides an exception to the rule against hearsay for

Testimony that:

(A) was given as a witness at a trial, hearing, or lawful deposition, whether given during the current proceeding or a different one; and

(B) is now offered against a party who had — or, in a civil case, whose predecessor in interest had — an opportunity and similar motive to develop it by direct, cross-, or redirect examination.

In terms of the "predecessor in interest" language in subsection (B), every case I'd previously seen had involved a civil action followed by another civil action. But in Bradley v. Cicero, Dunn & Moynahan, 2021 WL 294286 (D.Mass. 2021), the court found that this former testimony exception applied at a civil action preceded by a criminal action.

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Supreme Court of North Carolina Reverses Convictions Based on Trial Judge Flatly Prohibiting Questions About Implicit Bias to Prospective Jurors

An implicit bias is “‘an association or preference that is not consciously generated and is experienced without awareness.’" Michele Benedetto Neitz, Pulling Back the Curtain: Implicit Bias in the Law School Dean Search Process, 49 SETON HALL L. REV. 629, 656 (2019) (quoting J. Bernice B. Donald & Sarah E. Redfield, Framing the Discussion, in ENHANCING JUSTICE: REDUCING BIAS 5, 14 (Sarah E. Redfield ed., 2017)). So, does a court violate the Constitutional rights of an African American defendant by precluding his attorney about implicit bias during jury selection? That was the question addressed by the Supreme Court of North Carolina in State v. Crump, 851 S.E.2d 904 (N.C. 2020).

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Court of Appeals of Georgia Upholds Convictions Despite Prosecutor's Misstatement of the Presumption of Innocence

It is well established that "[t]he presumption of the innocence of an accused attends him throughout the trial, and has relation to every fact that must be established in order to prove his guilt beyond reasonable doubt." Kirby v. United States, 174 U.S. 47, 55 (1899). So, what happens when the prosecutor incorrectly defines the presumption of innocence, but the judge correctly defines it? That was the question addressed by the Court of Appeals of Georgia in its recent opinion in Williams v. State, 2021 WL 220647 (Ga.App. 2021).

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Judge Makes Key Evidentiary Rulings in George Floyd Trial

Everyone likely learned about the George Floyd case last year, with Derek Chauvin eventually charged with second-degree unintentional murder and second-degree manslaughter in connection with his death and his fellow police officers J. Alexander Kueng and Thomas Lane being charged with aiding and abetting second-degree murder. Their trial is scheduled to begin on March 8, 2021, and some evidentiary rulings could have a big impact on the case.

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Ninth Circuit Upholds Convictions Despite Flawed Facebook Eyewitness Identification

Eyewitness identifications are done best when they are done via a lineup or photo array in which the suspect does not stand out from the fillers. In United States v. Bruce, 2021 WL 98242 (9th Cir. 2021), this was definitely not done, but was it enough to grant the defendant a new trial?

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First Circuit Finds Judge Committed Reversible Error by Saying Defense Witness's Testimony Was Irrelevant

It is well established that a judge "weighing in on witness credibility amounts to 'per se misconduct.'" United States v. Raymundí-Hernández, 2020 WL 7706932 (1st Cir. 2020). But what about a judge weighing in on witness relevance? That was the question addressed by the First Circuit in Raymundí-Hernández.

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Court of Appeals of Michigan Upholds Admission of Prior Consistent Statements After Defense Counsel Likens Prosecution's Case to "Let's Make a Deal"

Michigan Rule of Evidence 801(d)(1)(B) provides the an exclusion to the rule against hearsay when

The declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement, and the statement is...

(B) consistent with the declarant's testimony and is offered to rebut an express or implied charge against the declarant of recent fabrication or improper influence or motive.

So, is this "prior consistent statement" exclusion triggered for a cooperating witness for the prosecution when defense counsel "liken[s] the prosecution's case to "Let's Make a Deal"? That was the question addressed by the Court of Appeals of Michigan in its recent opinion in People v. Lewis, 2021 WL 220763 (Mich. App. 2021).

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Texas Court of Appeals Finds Sequestration of Defense Expert Was Proper During Deputy's Testimony

Texas Rule of Evidence 614 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 and, in civil cases, that person’s spouse;

(b) after being designated as the party’s representative by its attorney:

(1) in a civil case, an officer or employee of a party that is not a natural person; or

(2) in a criminal case, a defendant that is not a natural person;

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

(d) the victim in a criminal case, unless the court determines that the victim’s testimony would be materially affected by hearing other testimony at the trial.

So, would a defense psychiatric expert fall under subsection (c) if that expert planned to testify about the defendant's Miranda waive and confession? That was the question addressed by the Texas Court of Appeals, Houston, in its recent opinion in Durham v. State, 2021 WL 208875 (Tex. App. 2021).

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Court Precludes Evidence of Subsequent Remedial Measures in Slip & Fall Action Against Hobby Lobby

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.

In its recent opinion in Miciotto v. Hobby Lobby Stores, Inc., 2021 WL 220116 (W.D.La. 2021), the United States District Court for the Western District of Louisiana dealt with a fairly straightforward application of Rule 407.

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Supreme Court of New Jersey Finds Lay Opinion Testimony Does Not Need to Offer Something the Jury Lacks

New Jersey Rule of Evidence 701 states that

If a witness is not testifying as an expert, the witness' testimony in the form of opinions or inferences may be admitted if it:

(a) is rationally based on the witness’ perception and

(b) will assist in understanding the witness' testimony or determining a fact in issue.

Subsection (a) is easy enough to understand. Let's say that Laura sees Dan hunched over, sweating, and panting at the corner of State and Main. If she wanted to offer opinion testimony that Dan had recently been running, her testimony would be rationally based on her perception. Conversely, if Dan was upright, free of sweat, and breathing normally, opinion testimony by Laura that Dan had recently been running would not be rationally based on her perception. Similarly, if Dana's friend Felix told her he'd seen Dan hunched over, sweating, and panting at the corner of State and Main, Laura could not offer opinion testimony because it would not be based on her perceptions.

But what about Subsection (b)?

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Supreme Court of New Jersey Reverses Bank Robbery Conviction Based on Prosecutor's Use of "Here's Johnny" PowerPoint From "The Shining" During Closing

It is a well known fact that Stephen King did not like Stanley Kubrick's film version of his novel, The Shining. In an opinion on Tuesday, the Supreme Court of New Jersey also expressed a dislike, not for the movie, but for the prosecutor's use of it during closing arguments.

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The Pervis Payne Case Comes Full Circle

In its 1987 opinion in Booth v. Maryland, 482 U.S. 496 (1987), the Supreme Court "conclude[d] that the introduction of a [victim impact statement] at the sentencing phase of a capital murder trial violates the Eighth Amendment." Four year later, the Court changed course. In Payne v. Tennessee, 501 U.S. 808 (1991), Pervis Payne was convicted of (1) the first-degree murders of 28-year-old Charisse Christopher and her 2-year-old daughter Lacie; and (2) assault with intent to commit murder in the first-degree against Charisse's 3-year-old son Nicholas.

At the sentencing phase of trial,

The State presented the testimony of Charisse's mother, Mary Zvolanek. When asked how Nicholas had been affected by the murders of his mother and sister, she responded:

“He cries for his mom. He doesn't seem to understand why she doesn't come home. And he cries for his sister Lacie. He comes to me many times during the week and asks me, Grandmama, do you miss my Lacie. And I tell him yes. He says, I'm worried about my Lacie.”

In upholding the admission of this testimony, affirming Payne's death sentence, and overruling Booth, the Supreme Court held

that if the State chooses to permit the admission of victim impact evidence and prosecutorial argument on that subject, the Eighth Amendment erects no per se bar. A State may legitimately conclude that evidence about the victim and about the impact of the murder on the victim's family is relevant to the jury's decision as to whether or not the death penalty should be imposed. There is no reason to treat such evidence differently than other relevant evidence is treated.

But questions have lingered for decades over whether Pervis Payne actually committed the crimes for which he was convicted. And now DNA testing seems to establish his innocence.

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Supreme Court of Georgia Grapples With Communicated Character Theory

OCGA § 24-4-405(a) states that

In all proceedings in which evidence of character or a trait of character of a person is admissible, proof shall be made by testimony as to reputation or by testimony in the form of an opinion.

This Georgia rule of evidence is similar to Federal Rule of Evidence 405(a). Federal courts, however, have carved out an exception to Rule 405(a) known as communicated character. Under the communicated character theory, a defendant can present evidence of prior bad acts by the victim, not to prove the victim's bad character, but to prove the defendant's reasonable apprehension of the victim. 

In its recent opinion in Beck v. State, 2020 WL 7133063 (Ga. 2020), the Supreme Court of Georgia dealt with the question of whether the Peach State should adopt this communicated character exception.

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Middle District of Florida Finds Doctor's Proposed Testimony Inadmissible Under Rule 704(a)

Federal Rule of Evidence 704(a) states that

An opinion is not objectionable just because it embraces an ultimate issue.

However, while Rule 704(a) allows experts to offer factual conclusions, it does not allow them to offer legal conclusions. So, on which side of this divide did an expert's proposed testimony fall in Clarke v. HealthSouth Corporation, 2021 WL 129821 (M.D.Fla. 2021)?

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First Circuit Applies Excited Utterance Exception to 911 Call About Stolen Gun

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.

So, should this excited utterance exception apply to a 911 call about a stolen gun. That was the question addressed by the First Circuit in its recen opinion in United States v. Estes, 2021 WL 128707 (1st Cir. 2021).

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Court of Appeals of Tennessee Finds Declarants Subject to Subpoena Exemptions Are "Unavailable"

Similar to its federal counterpart, Tennessee Rule of Evidence 804(a)(5) provides that a declarant is unavailable if the declarant

is absent from the hearing and the proponent of a statement has been unable to procure the declarant's attendance by process.

In turn, if a declarant is unavailable, her hearsay statements can be admitted pursuant to the hearsay exceptions contained in Rule 804(b) and other pertinent rules of civil procedure. So, is a declarant unavailable if she is covered by a trial subpoena exemption? That was the question addressed by the Court of Appeals of Texas in its recent opinion in Spearman v. Shelby County Board of Education, 2021 WL 142170 (Tenn. App. 2021).

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Texas Court Finds Jailhouse Calls Between Wife & Incarcerated Husband Not Covered by Confidential Marital Communications Privilege

Texas Rule of Evidence 504(a)(2) states that

A person has a privilege to refuse to disclose and to prevent any other person from disclosing a confidential communication made to the person’s 20 spouse while they were married. This privilege survives termination of the marriage.

So, does this confidential marital communications apply to jailhouse calls because an incarcerated spouse has "no choice but to communicate via monitored communications, and so the privilege should apply"? This was the question addressed by the Texas Court of Appeals, Eastland, in its opinion in Newman v. State, 2021 WL 126697 (Tex. App. 2021).

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Florida Court Finds Trial Court Erred in Excluding Evidence That Someone Other Than the Defendant Had a Motive to Kill the Victim

Similar to its federal counterpart, section 90.404(2)(a) of the Florida Statutes states that

Similar fact evidence of other crimes, wrongs, or acts is admissible when relevant to prove a material fact in issue, including, but not limited to, proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident, but it is inadmissible when the evidence is relevant solely to prove bad character or propensity.

Typically, these rules are used by prosecutors to prove a criminal defendant's motive, opportunity, etc. But, at the federal level, defendants can use "reverse 404(b)" evidence to show, for instance, that someone else had a motive to commit the crime charged. And, as the recent opinion of the District Court of Appeal of Florida, Third District, in Posey v. State, 2021 WL 115437 (Fla.App.3rd 2021), makes clear, Florida similarly allows for "reverse Williams" evidence.

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8th Circuit Finds Statements to EMT Admissible Under Federal Rule of Evidence 803(4)

Federal Rule of Evidence 803(4) provides an exception to the rule against hearsay for

A statement that:

(A) is made for — and is reasonably pertinent to — medical diagnosis or treatment; and

(B) describes medical history; past or present symptoms or sensations; their inception; or their general cause.

This exception of of course applies to statements made to doctors and nurses. Moreover, as the recent opinion of the Eighth Circuit in United States v. Earth, 2021 WL 79180 (8th Cir. 2021), makes clear, it also applies to statements to EMTs.

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Court of Appeals of Texas Finds Mandatory Life Without Parole Sentences For Intellectually Disabled Defendants Convicted of Capital Murder is Cruel & Unusual Punishment

In Roper v. Simmons, the Supreme Court held that executing minors is "cruel and unusual punishment" prohibited by the Eighth Amendment. Subsequently in Miller v. Alabama, the Supreme Court held that the Eighth Amendment's prohibition against cruel and unusual punishment forbids the mandatory sentencing of life in prison without the possibility of parole for juvenile homicide offenders.

In Atkins v. Virginia, the Supreme Court held that executions of individuals with intellectual disability are "cruel and unusual punishments" prohibited by the Eighth Amendment.

Given this, you might expect the argument that is currently being presented in courts.

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