EvidenceProf Blog

Third Annual Evidence Summer Workshop on Friday, August 6.

The Third Annual Evidence Summer Workshop (ESW2021) will be held online as a Zoom conference on Friday, August 6 (Download CFP 2021 Final).

-CM

Court of Special Appeals of Maryland Finds That the Smell of Marijuana Alone Doesn't Provide Reasonable Suspicion For an Investigatory Stop

In 2014, the Maryland General Assembly decriminalized possession of less than 10 grams of marijuana. So, in Maryland, should the smell of marijuana alone provide reasonable suspicion to conduct an investigatory stop? That was the question of first impression addressed by the Court of Special Appeals of Maryland in its opinion today in In re D.D., 2021 WL 1651304 (Md. App. 2021).

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Evan Miller, the Petitioner in Miller v. Alabama, Resentenced to Life Without Parole

In Miller v. Alabama, the Supreme Court held "that mandatory life without parole for those under the age of 18 at the time of their crimes violates the Eighth Amendment’s prohibition on 'cruel and unusual punishments.'" The case that led to that ruling was the case of Evan Miller, who, at age 14 at the time of his offense, was "the youngest child ever sentenced to life without parole in the state of Alabama." The Miller opinion has led to resentencing hearings for juveniles sentenced to life without parole, including a resentencing hearing for Miller that was held today.

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My New Supreme Court Amici Curia Brief in a Stop & Frisk Case

Should a police officer be able to frisk a suspect without an actual, good faith belief that the suspect is armed and presently dangerous? Some courts have answered this question in the affirmative. Other courts have held that such a belief is relevant but not dispositive. Finally, other courts have held that such a belief is irrelevant and that all that matters is whether an objectively reasonable officer in the officer's shoes could have believed that the suspect was armed and presently dangerous. 

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Sixth Circuit Finds Jury Impeachment is Proper When a Juror Looked Up the Defendant's Criminal Record

Similar to its federal counterpart, Ohio Rule of Evidence 606(B) provides that

Upon an inquiry into the validity of a verdict or indictment, a juror may not testify as to any matter or statement occurring during the course of the jury's deliberations or to the effect of anything upon that or any other juror's mind or emotions as influencing the juror to assent to or dissent from the verdict or indictment or concerning the juror’s mental processes in connection therewith. A juror may testify on the question whether extraneous prejudicial information was improperly brought to the jury's attention or whether any outside influence was improperly brought to bear on any juror, only after some outside evidence of that act or event has been presented. However a juror may testify without the presentation of any outside evidence concerning any threat, any bribe, any attempted threat or bribe, or any improprieties of any officer of the court. A juror’s affidavit or evidence of any statement by the juror concerning a matter about which the juror would be precluded from testifying will not be received for these purposes.

So, can jurors impeach their verdict based upon a juror looking up the defendant's criminal record? That was the question addressed by the Sith Circuit in its recent opinion in Nian v. Warden, North Central Correctional Institution, 2021 WL 1526509 (6th Cir. 2021).

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Supreme Court Concludes a Finding of Permanent Incorrigibility is Not Required for a Juvenile Life Without Parole Sentence

In Miller v. Alabama, the Supreme Court held "that mandatory life without parole for those under the age of 18 at the time of their crimes violates the Eighth Amendment’s prohibition on 'cruel and unusual punishments.'" This week, in Jones v. Mississippi, the Supreme Court was faced with this related question: "Whether the Eighth Amendment requires the sentencing authority to make a finding that a juvenile is permanently incorrigible?" The Court answered that question in the negative.

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Supreme Court Grants Cert in Confrontation Clause Case

This week, the United States Supreme Court granted certiorari in Hemphill v. New York. Here is the issue presented:

Whether, or under what circumstances, a criminal defendant, whose argumentation or introduction of evidence at trial “opens the door” to the admission of responsive evidence that would otherwise be barred by the rules of evidence, also forfeits his right to exclude evidence otherwise barred by the confrontation clause.

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Tennessee Senate Unanimously Passes Bill Banning No-Knock Warrants

The Tennessee Senate has unanimously passed a police use of force bill: SB 1380. Given my work on the Breonna Taylor case, I'm most heartened to see that it contains a complete ban on no-knock warrants:

A magistrate shall not issue a "no knock" search warrant, which expressly authorizes a peace officer to dispense with the requirement to knock and announce the peace officer's presence prior to execution of the warrant.

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Supreme Court of Georgia Opinion Notes Broader Character Evidence Rule in Georgia

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.

Cases in which character is an essential element include negligent hiring/supervision, entrapment, defamation, and insanity cases. And, as Rule 405(b) makes clear, in this limited constellation of cases, the relevant person's character can be proven through specific instances of conduct (e.g., a city bus driver's history of DUIs in a negligent hiring action against the city.

As the recent opinion of the Supreme Court of Georgia in Truett v. State, 2021 WL 1521552 (Ga. 2021), makes clear, however, Georgia's counterpart to Rule 405(b) is broader.

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Judge Gives an Implicit Bias Jury Instruction in the Derek Chauvin Trial

Today, the judge in the Derek Chauvin trial gave an implicit bias jury instruction. Here was the instruction:

I think these instructions are a good addition to the standard jury instructions. Indeed, in my new article, "The Constitutional Right to an Implicit Bias Jury Instruction," I argue that there should be a Constitutional right to such an instruction.

-CM

Breaking Down the Three Charges Against Derek Chauvin

On Monday, there will be closing arguments in the Derek Chauvin trial. In this post, I will break down the three charges that Chauvin faces in connection with the death of George Floyd.

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District of Massachusetts Notes a General 20 Minute Cutoff For Present Sense Impressions

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.

So, how much time can pass after an event or condition before a statement is longer a present sense impression under this hearsay exception? That was the question addressed by the United States District Court for the District of Massachusetts in its recent opinion in Allscripts Healthcare, LLC v. DR/Decision Resources, LLC., 2021 WL 681976 (D.Mass. 2021).

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Professor Richard Leo Posts Report on the Sedley Alley Case

As the Innocence Project has reported,

In 2006, Sedley Alley was executed by the state of Tennessee after the courts refused to conduct DNA testing that could have helped uncover the truth.

On May 1, 2019, his daughter April Alley, the executor of his estate, petitioned the Criminal Court for Shelby County, Tennessee for post-conviction DNA testing of the evidence in the case.

That petition was denied (and the denial is being appealed).

Now, Professor Richard Leo, a wrongful conviction expert we've had on Undisclosed a few times, had done a report on the case and posted it to SSRN. Here is the abstract:

This report by Dr. Richard Leo furnishes an overview of the relevant social science research on the psychology of police interrogation practices and techniques, police-induced false confessions, risk factors for false confession, psychological coercion, police interrogation contamination, and indicia of unreliability. Dr. Leo discusses these issues as they relate to the investigation, interrogations and confession statement of Sedley Alley.  Alley was convicted for the rape and murder of Marine Lance Corporal Suzanne Marie Collins in 1985, and he was executed in Tennessee in 2006.

-CM

Pennsylvania Opinion Notes That the Keystone State Doesn't Have a Learned Treatise Hearsay Exception

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

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.

As the recent opinion of the Superior Court of Pennsylvania in Majdic v. Cincinnati Mach. Co., 537 A.2d 334 (Pa.Super. 2021), makes clear, however, “Pennsylvania does not recognize an exception to the hearsay rule for learned treatises.”

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Western District of Virginia Finds Technical Drawings of a Rose's Department Store Admissible Under Rule 901(b)(4)

Federal Rule of Evidence 901(b)(4) allows for the authentication of evidence based upon 

The appearance, contents, substance, internal patterns, or other distinctive characteristics of the item, taken together with all the circumstances.

Nowadays, you often see courts allowing parties to use Rule 901(b)(4) to authenticate social media evidence, like Facebook posts. But the recent opinion of the United States District Court for the Western District of Virginia in Variety Stores, Inc. v. Martinsville Plaza, LLC., 2021 WL 1376959 (W.D.Va. 2021), involves a more old school use of the Rule.

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Supreme Court of Mississippi Applies Pinkerton Conspiracy Theory to Forfeiture by Wrongdoing Exception

Similar to its federal counterpart, Mississippi Rule of Evidence 804(b)(6) provides an exception to the rule against hearsay

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.

Meanwhile, in Pinkerton v. United States, 328 U.S. 640 (1946), held that co-conspirators are responsible for the substantive offenses that were committed in furtherance of the conspiracy. So, if a co-conspirator of an incarcerated defendant kills a witness for the purpose of rendering him unavailable to testify, does that trigger this "forfeiture by wrongdoing" exception? That was the question addressed by the Supreme Court of Mississippi in its recent opinion in Buchanan v. State, 2021 WL 1310276 (Miss. 2021).

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Article of Interest: "The Modest Impact of the Modern Confrontation Clause," by Jeffrey Bellin & Diana Bibb

Jeffrey Bellin (William & Mary) and Diana Bibb (William & Mary) have posted "The Modest Impact of the Modern Confrontation Clause" (Tennessee Law Review, forthcoming) on SSRN. Here is the abstract:

The Sixth Amendment’s Confrontation Clause grants criminal defendants the right “to be confronted with the witnesses against” them. A strict reading of this text would transform the criminal justice landscape by prohibiting the prosecution’s use of hearsay at trial. But until recently, the Supreme Court’s interpretation of the Clause was closer to the opposite. By tying the confrontation right to traditional hearsay exceptions, the Court’s longstanding precedents granted prosecutors broad freedom to use out-of-court statements to convict criminal defendants.

The Supreme Court’s 2004 decision in Crawford v. Washington was supposed to change all that. By severing the link between the Sixth Amendment and the hearsay rules, Crawford “ushered in a revolution in the world of evidence and criminal prosecutions.” But the excitement did not last. Shifting majorities filled in the details of Crawford’s lofty rhetoric, muddying the distinction between the new jurisprudence and what had gone before.

This Article takes stock of the “Crawford Revolution.” First, it explores changes in confrontation doctrine since 2004 and examines, as a theoretical matter, how those changes map onto the state and federal hearsay exceptions that Crawford purportedly rendered irrelevant to constitutional analysis. This interplay between the hearsay rules and the Confrontation Clause is critical. The constitutional right would seem to have little significance if all it does is bar evidence that is already forbidden by nonconstitutional hearsay rules. Second, the Article reports the results of a novel empirical survey designed to test the theory by carefully cataloguing the hearsay pathways that generated Confrontation Clause challenges in hundreds of federal and state cases. The findings reveal an underappreciated role of the modern confrontation right, and changes to that role after 2004.

-CM

Supreme Court of Pennsylvania Recognized Fiduciary Exception to Attorney-Client Privilege & Work Product Doctrine

[Edit: As Dan notes in the comments, there was only a majority opinion regarding Parts I and II(a) of the opinion, so the portion of the opinion dealing with the fiduciary exception -- II(c) -- is not a majority opinion and is not precedential.].

Pursuant to 42 Pa.C.S. § 5928, Pennsylvania's attorney-client privilege,

In a civil matter counsel shall not be competent or permitted to testify to confidential communications made to him by his client, nor shall the client be compelled to disclose the same, unless in either case this privilege is waived upon the trial by the client.

Meanwhile, Pennsylvania Rule of Civil Procedure 4003.3, Pennsylvania's work product doctrine, states that

Subject to the provisions of Rules 4003.4 and 4003.5, a party may obtain discovery of any matter discoverable under Rule 4003.1 even though prepared in anticipation of litigation or trial by or for another party or by or for that other party’s representative, including his or her attorney, consultant, surety, indemnitor, insurer or agent. The discovery shall not include disclosure of the mental impressions of a party’s attorney or his or her conclusions, opinions, memoranda, notes or summaries, legal research or legal theories. With respect to the representative of a party other than the party’s attorney, discovery shall not include disclosure of his or her mental impressions, conclusions or opinions respecting the value or merit of a claim or defense or respecting strategy or tactics.

So, "[d]o the attorney-client privilege and work product doctrine[] protect communications between a trustee and counsel from discovery by beneficiaries when the communications arose in the context of adversarial proceedings between the trustee[] and beneficiaries?" That was the question of first impression addressed by the Supreme Court of Pennsylvania in its recent opinion in In Re: Estate of McAleer, 2021 WL 1289675 (Pa. 2021).

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Court of Appeals of Utah Finds Evidence of Victim's Bisexuality Inadmissible Under Rape Shield Rule

Similar to its federal counterpart, Utah Rule of Evidence 412(a) provides that

The following evidence is not admissible in a criminal proceeding involving alleged sexual misconduct: 

(a)(1) evidence offered to prove that a victim engaged in other sexual behavior; or

(a)(2) evidence offered to prove a victim’s sexual predisposition.

Under this "rape shield" rule, it is well established that evidence of an alleged victim's sexual orientation is typically inadmissible. An example of this can be seen in the opinion of the Court of Appeals of Utah in State v. Steele, 2021 WL 1307481 (Utah App. 20201).

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Southern District of Mississippi Finds a Successful Physician Who Would Need to Temporarily Shut Down His Practice to Testify is Not "Unavailable"

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.

But, before "former testimony" is admissible under Rule 804(b)(1), the declarant must be deemed "unavailable" under Rule 804(a). So is a successful and busy doctor "unavailable" if he would have to shut down his practice for an extended period to testify? That was the question addressed by the United States District Court for the Southern District of Mississippi in its recent opinion in Stonestreet v. United States et al., 2021 WL 1268375 (S.D.Miss. 2021).

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