EvidenceProf Blog

Sixth Circuit Finds Jurors in Civil Cases Must be Able to Impeach Their Verdicts Based on Racial Bias During Deliberations

In Pena-Rodriguez v. Colorado, the Supreme Court held

that where a juror makes a clear statement that indicates he or she relied on racial stereotypes or animus to convict a criminal defendant, the Sixth Amendment requires that the no-impeachment rule give way in order to permit the trial court to consider the evidence of the juror’s statement and any resulting denial of the jury trial guarantee.

The Sixth Amendment only applies to criminal prosecutions, but the Sixth Circuit has now held that Pena-Rodriguez applies in criminal cases as well.

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Article of Interest: "Endogenous and Dangerous," by Brian Larson

Professor Brian Larson (Texas A&M University School of Law) has posted "Endogenous and Dangerous" on SSRN. Here is the abstract:

As far as we know, Aristotle was the first Westerner to formalize logic, about 2,500 years ago. But he recognized immediately that the valid deductive forms of reasoning he described do not take us far in reasoning about human affairs. Nevertheless, contemporary law scholars talk about rule-based and deductive reasoning as if it exists in the law. But all legal arguments, even apparently deductive ones, are subject to defeat by counterargument—they are ‘defeasible.’ This article’s first significant contribution is to provide the first exhaustive treatment in the American legal literature of the rational bases upon which defeasible legal deductions and legal analogies may be built and the critical questions or defeaters that can weaken or bring them down. It shows that legal analogies are in a sense more defeasible, and thus more complex, than legal deductions, and it suggests that legal policy arguments are more defeasible still. It is no surprise then that a previous study showed that judges prefer rule-based arguments or legal deductions in their opinions over legal analogies, and legal analogies over policy-based arguments.

But what happens when judges build these arguments around cases that the parties have not cited—‘endogenous cases’? Studies suggest that judges do so about half the time. The theory of defeasible arguments suggests judges should be reluctant to do so, and they should be most reluctant to do so with legal analogies and policy arguments. But until now, no study has examined how judges use endogenous cases. This article’s second significant contribution is an empirical study of cases judges cited in a random sample of federal district court opinions, identifying where they found them and how they used them. It also identifies a hierarchy of badness among endogenous case uses, warning judges away from the most dangerous. It concludes that judges should avoid endogenous cases or, at a minimum, permit the parties to argue the cases before their application. Though the opinions studied here were from federal trial courts, the principles extend to any tribunal that uses opinions from previous cases to guide its decision-making.

-CM

Southern District of Indiana Finds Statement About Employee's Tenacity During Mediation Inadmissible Under Rule 408

Federal Rule of Evidence 408(a) states that

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.

So, what if a statement is made during negotiation/mediation but not by a part to that negotiation/mediation? That was the question addressed by the United States District Court for the Southern District of Indiana in its recent opinion in Geng v. Spencer, 2021 WL 1225923 (S.D.Ind. 2021).

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Sixth Circuit Finds a Class Can be Certified Based Solely on Inadmissible Evidence

Plaintiffs seeking to bring a class action must receive class certification. For example, Lyngaas v. Ag, 2021 WL 1115870 (6th Cir. 2021),

involve[d] two unsolicited fax advertisements received by Brian Lyngaas, D.D.S., in March 2016. Lyngaas asserts, on behalf of himself and all similarly situated class members, that Curaden AG and its U.S. subsidiary, Curaden USA, violated the Telephone Consumer Protection Act (TCPA).

So, can a court grant class certification based solely on inadmissible evidence?

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SDNY Finds 1997 Conviction Inadmissible to Impeach Criminal Defendant

Federal Rule of Evidence 609(b) states the following:

(b) Limit on Using the Evidence After 10 Years. This subdivision (b) applies if more than 10 years have passed since the witness’s conviction or release from confinement for it, whichever is later. Evidence of the conviction is admissible only if:

(1) its probative value, supported by specific facts and circumstances, substantially outweighs its prejudicial effect; and

(2) the proponent gives an adverse party reasonable written notice of the intent to use it so that the party has a fair opportunity to contest its use.

As the Advisory Committee's Note to the Rule makes clear

It is intended that convictions over 10 years old will be admitted very rarely and only in exceptional circumstances. The rules provide that the decision be supported by specific facts and circumstances thus requiring the court to make specific findings on the record as to the particular facts and circumstances it has considered in determining that the probative value of the conviction substantially outweighs its prejudicial impact. It is expected that, in fairness, the court will give the party against whom the conviction is introduced a full and adequate opportunity to contest its admission.

The recent opinion of the United States District Court for the Southern District of New York in United States v. Tagliaferro, 2021 WL 1198951  (S.D.N.Y. 2021), is no exception.

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