EvidenceProf Blog

Texas Court of Appeals Finds Defense Counsel Didn't Preserve Expert Evidence Issue for Appellate Review

Federal Rule of Evidence 705 states that

Unless the court orders otherwise, an expert may state an opinion — and give the reasons for it — without first testifying to the underlying facts or data. But the expert may be required to disclose those facts or data on cross-examination.

Conversely, Texas Rule of Evidence 705 is more complex. It has four subsections, including subsection (b), which states that

Before an expert states an opinion or discloses the underlying facts or data, an adverse party in a civil case may—or in a criminal case must—be permitted to examine the expert about the underlying facts or data. This examination must take place outside the jury’s hearing.

So, did defense counsel's objection in Taylor v. State, 2021 WL 747569 (Tex.App. 2021), preserve a Rule 705(b) issue for appellate review?

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Court of Appeals of Arizona Finds Character Isn't "In Issue" in a Third Party Culpability Case

Similar to its federal counterpart, Arizona Rule of Evidence 405(b) provides that

When a person's character or character trait is an essential element of a charge, claim, or defense, or pursuant to Rule 404(c), the character or trait may also be proved by relevant specific instances of the person's conduct.

There are a limited number of cases in which a person's character is an essential element of a charge, claim, or defense: (1) entrapment; (2) negligent hiring/supervision; (3) defamation; and (4) insanity. But what about a case in which the defendant claims third party culpability? That was the question addressed by the Court of Appeals of Arizona in its recent opinion in State v. Schmidtfranz, 2021 WL 755090 (Ariz.App. 2021).

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Military Court Applies Forfeiture by Wrongdoing Exception in Murder Case

Similar to its federal counterpart, Military Rule of Evidence 804(b)(6) 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.

The recent opinion of the United States Navy-Marine Corps Court of Criminal Appeals in United States v. Becker, 2021 WL 733198 (N.M.Ct.Crim.App. 2021), does a nice job of explaining how parties go about satisfying this "forfeiture by wrongdoing" exception.

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Court of Appeals of Indiana Finds Child Molestation Victim's Forensic Interview Was Admissible as a Recorded Recollection

Similar to its federal counterpart, Indiana Rule of Evidence 803(5) provides an exception to the rule against hearsay for

A record that:

(A)      is on a matter the witness once knew about but now cannot recall well enough to testify fully and accurately;

(B)      was made or adopted by the witness when the matter was fresh in the witness’s memory; and

(C)      accurately reflects the witness’s knowledge.

If admitted, the record may be read into evidence but may be received as an exhibit only if offered by an adverse party.

The recent opinion of the Court of Appeals of Indiana in Witherspoon v. State, 2021 WL 718234 (Ind.App. 2021), does a good job of fleshing out the three elements contained in subsections (A)-(C).

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My New Essay: "The End of Comparative Qualified Immunity"

I have posted my new essay, "The End of Comparative Qualified Immunity," on SSRN. Here is the abstract:

Critics have called qualified immunity an “unqualified disgrace,” an “abomination,” and “a scourge that closes courthouse doors to people whose constitutional rights have been violated.” One particularly troubling aspect of qualified immunity is what I’ll call comparative qualified immunity: the ability of a government official to avoid liability by claiming that his behavior wasn’t that much worse than conduct by a prior official that was deemed constitutional. In November 2020, the Supreme Court seemingly created a narrow exception to comparative qualified immunity in cases involving “particularly egregious facts.” In February 2021, however, the Supreme Court signaled that this was no mere narrow exception; instead, it was likely the end of comparative qualified immunity.

Any feedback is welcome and appreciated.

-CM

The Supreme Court Issues a (Possibly) Landmark Ruling on Qualified Immunity

Yesterday, the United States Supreme Court issued a summary disposition in McCoy v. Alamu that could end up being a landmark ruling on qualified immunity. So, what is qualified immunity? As the Supreme Court explained in Mullenix v. Luna, 577 U.S. 7, 11-12 (2015),

The doctrine of qualified immunity shields officials from civil liability so long as their conduct “‘does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.’”...A clearly established right is one that is “sufficiently clear that every reasonable official would have understood that what he is doing violates that right.”...“We do not require a case directly on point, but existing precedent must have placed the statutory or constitutional question beyond debate.”...Put simply, qualified immunity protects “all but the plainly incompetent or those who knowingly violate the law.”

So, what does that actually mean?

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Eighth Circuit Finds Computer-Generated Maps Made With Human Input Were Hearsay

Federal Rule of Evidence 801(c) states that

“Hearsay” means a statement that:

(1) the declarant does not make while testifying at the current trial or hearing; and

(2) a party offers in evidence to prove the truth of the matter asserted in the statement.

It is well established that computer-generated evidence is not hearsay. But what about computer-generated evidence based on human input? That was the question addressed by the Eighth Circuit in its recent opinion in United States v. Oliver, 2021 WL 503298 (8th Cir. 2021).

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Supreme Court of Arkansas Finds Evidentiary About Face on Eve of Trial Did Not Require Reversal

In Bedell v. Williams, 386 S.W.3d 493 (Ark. 2012), the Supreme Court of Arkansas implied that a judge changing a prior evidentiary ruling on the eve of trial can be grounds for a new trial, even if the new ruling was correct. That case was a malpractice action in which the defendants wanted to claim that the plaintiff's "general medical condition, and not her care or lack thereof, was the proximate cause of her pressure sores and declining health." The evidence to support this defense was contained in medical records that were deemed admissible until the eve of trial, when the judge deemed them inadmissible. In granting a new trial, the Supreme Court of Arkansas found that this about face, "at the last minute," caused the defendants to "be stripped of an entire defense that had been clearly developed throughout the litigation."

So, does this ruling generally preclude evidentiary about faces, or is it limited to certain cases? That was the question addressed by the Supreme Court of Arkansas in its recent opinion in Adams v. State, 2021 WL 633650 (Ark. 2021).

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Supreme Court of Appeals of West Virginia Applies Rule 803(20) in Boundary Dispute

Similar to its federal counterpart, West Virginia Rule of Evidence 803(20) provides an exception to the rule against hearsay for

A reputation in a community — arising before the controversy — concerning boundaries of land in the community or customs that affect the land, or concerning general historical events important to that community, state, or nation.

Courts rarely are asked to apply Rule 803(20), but the recent opinion of the Supreme Court of Appeals of West Virginia in Murphy v. Groves, 2021 WL 653200 (W.Va. 2021), is the exception.

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Texas Court Finds Defendant Could Not Have Family-Violence Expert Excluded From Courtroom During His Testimony

Texas Rule of Evidence 614 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 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, can a defendant in a family violence case have a family-violence expert excluded from the courtroom when he testifies? That was the question addressed by the Texas Court of Appeals, Waco, in its recent opinion in Parrish v. State, 2021 WL 627934 (Tex.App. 2021).

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Fifth Circuit Finds Evidence of Independent Contractor's Expired Insurance Admissible to Prove Casino's Negligent Hiring

Federal Rule of Evidence 411 states that

Evidence that a person was or was not insured against liability is not admissible to prove whether the person acted negligently or otherwise wrongfully. But the court may admit this evidence for another purpose, such as proving a witness’s bias or prejudice or proving agency, ownership, or control.

So, can a plaintiff use evidence that a defendant hired independent contractors without liability insurance under Rule 411? That was the question addressed by the Fifth Circuit in its recent opinion in Echeverry v. Jazz Casino Company, L.L.C., 2021 WL 609015 (5th Cir. 2021).

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Eighth Circuit Deems Evidence of Prior Child Molestation Convictions Admissible at Child Pornography Trial

Federal Rule of Evidence 414(a) provides that

In a criminal case in which a defendant is accused of child molestation, the court may admit evidence that the defendant committed any other child molestation. The evidence may be considered on any matter to which it is relevant.

So, would evidence of prior convictions for child molestation be admissible under Rule 414 at a trial for receiving child pornography? That was the question addressed by the Eighth Circuit in its recent opinion in United States v. Knight, 2021 WL 567670 (8th Cir. 2021).

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Illinois Court Finds Dead Man's Act Did Not Apply to Police Officer Conversations w/Drivers Who Subsequently Died

Like a handful of other states, Illinois still has a Dead Man's Act. Illinois's act can be found in 735 ILCS 5/8-201, which states in pertinent part that

In the trial of any action in which any party sues or defends as the representative of a deceased person or person under a legal disability, no adverse party or person directly interested in the action shall be allowed to testify on his or her own behalf to any conversation with the deceased or person under legal disability or to any event which took place in the presence of the deceased or person under legal disability, except in the following instances:

(a) If any person testifies on behalf of the representative to any conversation with the deceased or person under legal disability or to any event which took place in the presence of the deceased or person under legal disability, any adverse party or interested person, if otherwise competent, may testify concerning the same conversation or event.

(b) If the deposition of the deceased or person under legal disability is admitted in evidence on behalf of the representative, any adverse party or interested person, if otherwise competent, may testify concerning the same matters admitted in evidence.

So, would this Dead Man's Act prevent police officers from testifying to their conversations with two drivers (who subsequently died) after they was in a car accident? That was the question addressed by the Appellate Court of Illinois, Fifth District, in its recent opinion in Hood v. Leighty, 2020 WL 7395890 (Ill.App.5th 2020),

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My New Article: "The Constitutional Right to an Implicit Bias Jury Instruction"

I have posted the draft of my new article, "The Constitutional Right to an Implicit Bias Jury Instruction," on SSRN. Here is the abstract:

The Supreme Court has gone to great lengths to prevent jurors from holding defendants’ silence against them. In a trilogy of opinions, the Court concluded that when a defendant refrains from testifying, (1) the prosecutor and judge cannot make adverse comments about that decision; (2) the judge can give a “no adverse inference” instruction even over a defense objection; and (3) the judge must give a “no adverse inference” instruction upon a defense request. Conversely, the Court has never ruled that jurors can impeach their verdict based upon jurors holding a defendant’s silence against him, and lower courts have ruled against recognizing such a right to jury impeachment.

Meanwhile, the Supreme Court has addressed the issue of juror racial bias in reverse. In 2017, the Court ruled in Pena-Rodriguez v. Colorado that jurors must be allowed to impeach their verdict based on jurors holding a defendant’s race against him. But the Court has never held that there is a right to an implicit bias jury instruction, and no lower court has ever recognized such a right.

In Pena-Rodriguez, however, the Supreme Court clearly recognized that the right to an impartial jury not only addresses “unique historical, constitutional, and institutional concerns,” but also requires “[a] constitutional rule.” Specifically, the Pena-Rodriguez Court concluded that “[a] constitutional rule that racial bias in the justice system must be addressed—including, in some instances, after the verdict has been entered—is necessary to prevent a systemic loss of confidence in jury verdicts, a confidence that is a central premise of the Sixth Amendment trial right.”

This article contends that this rule must go further and address juror racial bias on both the back end and the front end. For the same reasons that the Supreme Court created the right to a jury instruction that jurors must not hold a defendant’s silence against him, it should recognize the right to a jury instruction that jurors must not hold a defendant’s race against him.

Any and all feedback is welcome and appreciated!

-CM

Superior Court of Pennsylvania Finds Trial Court Improperly Precluded Defendant From Impeaching Declarant

Similar to its federal counterpart, Pennsylvania Rule of Evidence 806 states that

When a hearsay statement has been admitted in evidence, the declarant’s credibility may be attacked, and then supported, by any evidence that would be admissible for those purposes if the declarant had testified as a witness. The court may admit evidence of the declarant’s inconsistent statement or conduct, regardless of when it occurred or whether the declarant had an opportunity to explain or deny it. If the party against whom the statement was admitted calls the declarant as a witness, the party may examine the declarant on the statement as if on cross-examination.

In other words, when a declarant's hearsay statement is admitted pursuant to a hearsay exception or exclusion, the declarant's credibility can be impeached as if the declarant were a witness at trial.

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Texas Court Holds Judge's Comments About Defendant's Ministry Work Did Not Violate Rule 605

Similar to its federal counterpart, Texas Rule of Evidence 605 states that

The presiding judge may not testify as a witness at the trial. A party need not object to preserve the issue.

Rule 605 covers not only literal testimony by presiding judges but also its functional equivalent. So, did the judge violate Rule 605 in Hill v. State, 2020 WL 6929843 (Tex.App. 2020)?

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Supreme Court of South Dakota Observes That Routine Practice Evidence Doesn't Require Corroboration or Eyewitnesses

Similar to its federal counterpart, South Dakota Rule of Evidence 19-19-406 states that

Evidence of a person's habit or an organization's routine practice may be admitted to prove that on a particular occasion the person or organization acted in accordance with the habit or routine practice. The court may admit this evidence regardless of whether it is corroborated or whether there was an eyewitness.

The second sentence of this rule was at the heart of the recent opinion of the Supreme Court of South Dakota in Ferguson v. Thaemert, 952 N.W.2d 277 (S.D. 2020).

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Superior Court of Pennsylvania Concludes That GPS Data is Not Hearsay

Similar to its federal counterpart, Pennsylvania Rule of Evidencee 801(a)-(c) state the following:

(a) Statement. ‘‘Statement’’ means a person’s oral assertion, written assertion, or nonverbal conduct, if the person intended it as an assertion.

(b) Declarant. ‘‘Declarant’’ means the person who made the statement.

(c) Hearsay. ‘‘Hearsay’’ means a statement that

(1)  the declarant does not make while testifying at the current trial or hearing; and

(2)  a party offers in evidence to prove the truth of the matter asserted in the statement.

As is clear from these sections, hearsay is a statement by a declarant, and a declarant is a person. Therefore, courts, including the Superior Court of Pennsylvania in its recent opinion in Commonwealth v. Wallace, 2021 WL 69379 (Pa. Super. 2021), have held that GPS data is not hearsay.

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California's Contemporaneous Statements Exception v. the Present Sense Impression Exception

Federal Rule of Evidence 803(1) provides an exception to the rule against hearsay for 

A statement describing or explaining an event or condition, made while or immediately after the declarant perceived it.

Meanwhile, California's counterpart is much narrower. California's contemporaneous statements exception -- California Evidence Code Section 1241 -- states that

Evidence of a statement is not made inadmissible by the hearsay rule if the statement:

(a) Is offered to explain, qualify, or make understandable conduct of the declarant; and

(b) Was made while the declarant was engaged in such conduct.

So, how does California's exception work? Let's take a look at today's opinion by the Court of Appeal, Third District, California in People v. Carey, 2021 WL 486392 (2021).

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Sixth Circuit Finds E-Mail by Juror That the Other Jurors Pressured Her to Find the Defendant Guilty is Inadmissible

Federal Rule of Evidence 606(b) states the following:

(1) Prohibited Testimony or Other Evidence. During an inquiry into the validity of a verdict or indictment, a juror may not testify about any statement made or incident that occurred during the jury’s deliberations; the effect of anything on that juror’s or another juror’s vote; or any juror’s mental processes concerning the verdict or indictment. The court may not receive a juror’s affidavit or evidence of a juror’s statement on these matters.

(2) Exceptions. A juror may testify about whether:

(A) extraneous prejudicial information was improperly brought to the jury’s attention;

(B) an outside influence was improperly brought to bear on any juror; or

(C) a mistake was made in entering the verdict on the verdict form.

So, would Rule 606(b) permit or preclude an African American defendant for presenting evidence that the other jurors pressured the lone African American juror to find him guilty? That was the question addressed by the Sixth Circuit in its opinion today in United States v, Brooks, 2021 WL 451010 (6th Cir. 2021).

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