EvidenceProf Blog

Colorado Court of Appeals Finds Trial Court Can't Rely on Additional Race-Neutral Reasons Given on Remand in Resolving Batson Claim

In Batson v. Kentucky, the Supreme Court "ruled that a State may not discriminate on the basis of race when exercising peremptory challenges against prospective jurors in a criminal trial."* Under Batson,

once the opponent of a peremptory challenge has made out a prima facie case of racial discrimination (step one), the burden of production shifts to the proponent of the strike to come forward with a race-neutral explanation (step two). If a race-neutral explanation is tendered, the trial court must then decide (step three) whether the opponent of the strike has proved purposeful racial discrimination. Purkett v. Elem, 514 U.S. 765 (1995).

So, let's say that a prosecutor gives race-neutral reasons for striking a prospective juror during jury selection and later gives additional reasons on remand. Should the court be able to rely upon the additional reasons? That was the question addressed by the Colorado Court of Appeals, Division II in its recent opinion in People v. Madrid, 2021 WL 2149340 (Colo. App. 2021).

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Missouri Court of Appeals Precludes Jury Impeachment Based Upon Jurors Holding Defendant's Silence Against Him

Federal Rule of Evidence 606(b) reads as follows:

(b) During an Inquiry into the Validity of a Verdict or Indictment.

(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.

Missouri doesn't (really) have rules of evidence, but it applies a similar anti-jury impeachment rule. And, as the recent opinion of the Missouri Court of Appeals, Western District in State v. Gilbert, 2021 WL 2093608 (Mo. App. 2021), makes clear, there are very few exceptions to the rule.

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Supreme Court of Colorado Finds Impeachment Exception to Exclusionary Rule Doesn't Cover Truthful But Misleading Testimony

The Fourth Amendment to the United States Constitution and article II, section 7 of the Colorado Constitution protect against “unreasonable searches and seizures.” However, because the Fourth Amendment is silent regarding how this right is to be enforced, the Supreme Court adopted the “exclusionary rule,” which serves as a “deterrent sanction that bars the prosecution from introducing evidence obtained by way of a Fourth Amendment violation.”...The exclusionary rule's purpose is to deter future Fourth Amendment violations “by removing the incentive to disregard” the Amendment's constitutional guarantee....

Because the exclusionary rule bars the prosecution from introducing evidence obtained through a Fourth Amendment violation, there is tension between the Fourth Amendment rights the exclusionary rule protects and the future search and seizure violations it seeks to deter, on the one hand, and the courts' truth-seeking function, on the other. People v. Johnson, 2021 WL 2069732 (Colo. 2021).

Based on this tensions, courts have found that the exclusionary rule does not apply to the prosecution's use of evidence obtained in violation of the Fourth Amendment to impeach a defendant, i.e., show that her testimony is lacking in credibility. But does this impeachment exception apply to truthful testimony that could mislead the jury? That was the question of first impression addressed by the Supreme Court of Colorado in its recent opinion in Johnson.

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First Circuit Finds “Substantial Similarity” Test Applies to Demonstrative Recreation Evidence in Criminal Cases

At trial, parties are allowed to introduce demonstrative recreation evidence, i.e., a demonstration for the jury that recreates the conditions of an alleged crime or civil wrong, e.g., a crime scene reconstruction of a shooting or a car crash. So, what test should apply for the admission of such evidence in a criminal case? That was the question of first impression addressed by the First Circuit in its recent opinion in United States v. Stewart-Carrasquillo, 2021 WL 1961017 (1st Cir. 2021).

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Court of Appeals of Indiana Punts on Issue of Whether Facebook Messages Meet the State of Mind Hearsay Exception

Similar to its federal counterpart, Indiana Rule of Evidence 803(3) provides an exception to the rule against hearsay for

A statement of the declarant’s then-existing state of mind (such as motive, design, intent, or plan) or emotional, sensory, or physical condition (such as mental feeling, pain, or bodily health), but not including a statement of memory or belief to prove the fact remembered or believed unless it relates to the execution, revocation, identification, or terms of the declarant’s will.

So, would Rule 803(3) cover the following Facebook messages received on a defendant's phone on the day of his drug arrest?

Hey bud whatcha doing my man lmfao wants some bad, he said he just wants a few bong rips lmfao

Did I show you what I made

Hey bub

You ok bub

I got you cash bub

I'm at home I need and got your money.

Hey guy, whatcha doing? Got cash for a zip

I mean how much for four whole ones grn

I need a qp bro

Ok so I got that but what about a b

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District of New Jersey Finds "Friend With Benefits" Had Standing to Challenge Search of His Friend's Place

The Fourth Amendment states that

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

In order to challenge a search, though, an individual must have standing. So, for instance, if I go to my friend's house for an afternoon to watch the French Open, I would not have standing to challenge a warrantless search of her house. Conversely, if I were an overnight guest, I would have standing. So, what if someone is at his friend's house, and the two are "friends with benefits"? That was the question addressed by the United States District Court for the District of New Jersey in its recent opinion in United States v. Brantley, 2021 WL 1921584 (D.N.J. 2021).

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Supreme Court Will Consider Johnson v. Indiana Tomorrow

The case of Johnson v. Indiana has been distributed for tomorrow's Supreme Court conference. Here is Mr. Johnson's petition for writ of certiorari. Here is the amici curiae brief I wrote on behalf of 98 law professors asking the Court to grant cert. And here is the amicus curiae brief by the CATO Institute asking the Supreme Court to grant cert. Here is the question presented by the cert petition:

To uphold a Terry frisk as constitutional, the First and Ninth Circuits require the frisking officer to have actually suspected that the detainee may be armed and dangerous. Here, the Indiana Supreme Court joined the Seventh and Tenth Circuits by applying a purely objective standard that regards an officer’s actual suspicion as irrelevant to a Terry frisk analysis. And other courts, including the Eighth Circuit and the Supreme Court of Utah, have adopted a hybrid approach wherein an officer’s actual suspicion is a relevant—but not dispositive—factor to weigh in an ultimately objective analysis.

The question presented is: May a court uphold a Terry frisk where the frisking officer did not actually suspect that the detainee was armed and dangerous?

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Supreme Court Rules That the Community Caretaking Exception Does Not Apply to Warrantless Home Entries

Today, the Supreme Court issued its opinion in Caniglia v. Strom. It was a unanimous opinion, with the Court concluding that the community caretaking exception to the Fourth Amendment warrant requirement does not apply to warrantless home entries. Here was the key portion of the Court's opinion:

True, Cady also involved a warrantless search for a firearm. But the location of that search was an impounded vehicle—not a home—“‘a constitutional difference’” that the opinion repeatedly stressed. 413 U. S., at 439; see also id., at 440–442. In fact, Cady expressly contrasted its treatment of a vehicle already under police control with a search of a car “parked adjacent to the dwelling place of the owner.” Id., at 446–448 (citing Coolidge v. New Hampshire, 403 U. S. 443 (1971)).

Cady’s unmistakable distinction between vehicles and homes also places into proper context its reference to “community caretaking.” This quote comes from a portion of the opinion explaining that the “frequency with which . . . vehicle[s] can become disabled or involved in . . . accident[s] on public highways” often requires police to perform noncriminal “community caretaking functions,” such as providing aid to motorists. 413 U. S., at 441. But, this recognition that police officers perform many civic tasks in modern society was just that—a recognition that these tasks exist, and not an open-ended license to perform them anywhere.

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Supreme Court of Georgia Finds Brady Violation in Malice Murder Trial

Pursuant to Brady v. Maryland, the State has an affirmative obligation, under the Due Process Clause, to timely disclose material exculpatory evidence to the defense. Brady covers not only substantive evidence but also impeachment evidence, with the recent opinion of the Supreme Court of Georgia in State v. Taylor, 2021 WL 1724970 (Ga. 2021), being a good example of the latter.

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The City of Columbus Agrees to Pay Andre' Hill's Family $10 Million for Police Shooting

Today, it was announced that "[t]he city of Columbus, Ohio, has agreed to pay a record $10 million settlement to the family Andre Hill, a Black man who was shot and killed by a police officer." If approved on Monday, the settlement would represent the highest amount the city has ever agreed to pay.

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Judge Grants Keith Davis a New (Sixth) Trial

Today, Judge Sylvester Cox granted the motion of Keith Davis Jr. for a new trial (Download Motion for new trial). Amelia McDonell-Parry covered Keith's case on the Undisclosed podcast. Keith's case is far too complicated to cover in a single blog post, but

Davis has been tried for the June 2015 murder of Pimlico security guard Kevin Jones four times. The trials ended with a hung jury twice, an overturned conviction once and then he was convicted again during the fourth trial and sentenced to 50 years in prison.

I believe in Keith's innocence and drafted the portion of his motion for a new trial arguing that the prosecutor committed reversible error by mischaracterizing the presumption of innocence:

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Judge Finds 4 Aggravating Factors in Derek Chauvin's Murder of George Floyd

Today, Judge Peter Cahill found four aggravating factors beyond a reasonable doubt in connection with Derek Chauvin's conviction for second degree murder based on the death of George Floyd. Those factors are:

(1) Chauvin abused a position of trust and authority (as a police officer);

(2) Chauvin treated George Floyd with particular cruelty (by preventing Floyd's ability to breath after Floyd said he was having trouble breathing;

(3) children were present during the offense (a 9 year-old and three 17 year-olds); and

(4) Chauvin committed the crime as part of a group with at least three others (the other police officers).

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Supreme Court of California Finds Prosecutor's Use of Bloody, Vomit-Stained Mannequin Proper in Sentencing Phase of Murder Trial

Assume that a defendant is convicted of the first degree murder based upon fatally shooting a deputy sheriff. Would it be prosecutorial misconduct for the prosecutor during the sentencing phase of trial to use of life-sized mannequin of the deputy sheriff to demonstrate his injuries? That was the question addressed by the Supreme Court of California in its recent opinion in People v. Steskal, 2021 WL 1684072 (Cal. 2021).

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Supreme Court of Florida Finds Break During Medical Examiner's Testimony Not Grounds for Mistrial in Murder Trial

An emotional outburst by a witness can be grounds for a judge granting a mistrial. So, where there such grounds in Smith v. State, 2021 WL 1572359 (Fla. 2021)?

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Eleventh Circuit Finds Captain Who Led No-Knock Raid at Wrong House With Flash Grenades Entitled to Qualified Immunity

The qualified immunity doctrine insulates governmental agents from liability for unconstitutional acts as long “as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.”  The primary purpose of the doctrine “is to protect them ‘from undue interference with their duties and from potentially disabling threats of liability.’” So, should there be qualified immunity in a case with these facts?

Officers executed the warrant at 303 English Road in McDonough, Georgia, the home of Onree Norris, but they should have executed it at 305 English Road, the house next door—which was reportedly the home of Gemar Watkins, a known violent drug dealer. Because of the high-risk nature of executing the search warrant on Watkins's home, two teams including over 24 law enforcement officers participated in the execution of the warrant. Officers initially approached 305 English Road but thought it was not the target of the warrant because it was an abandoned, dilapidated, uninhabitable “storage out-building” and officers understood the target to be an occupied, “normal” home. Unfortunately for Norris, the team of officers then mistakenly thought his home, approximately 40 yards away, was the actual target and raided it.

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Can Habit be Proven Through Post-Accident Conduct?

Similar to its federal counterpart, Iowa Rule of Evidence 5.406 provides that

Evidence of the habit of a person or of the routine practice of an organization, whether corroborated or not and regardless of the presence of eyewitnesses, is relevant to prove that the conduct of the person or organization on a particular occasion was in conformity with the habit or routine practice.

So, can a party prove habit through conduct that comes after a crime or civil wrong? This question was raised in the recent opinion of the Supreme Court of Iowa in its opinion today in Holmes v. Pomeroy, 2021 WL 1822806 (Iowa 2021).

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Eastern District of Wisconsin Deems Expert Testimony on "Weapons Effect" Admissible

Federal Rule of Evidence 702 provides that

A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if:

(a) the expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue;

(b) the testimony is based on sufficient facts or data;

(c) the testimony is the product of reliable principles and methods; and

(d) the expert has reliably applied the principles and methods to the facts of the case.

So, should an expert be able to testify about the "weapons effect"? That was the question addressed by the United States District Court for the Eastern District of Wisconsin in its recent opinion in N.J. by Jacob v. Sonnabend, 2021 WL 1733394 (E.D.Wis. 2021).

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Court of Appeals of Mississippi Find Statement Against Interest Inadmissible Under Rule 804(b)(3)(B)

Similar to its federal counterpart, Mississippi Rule of Evidence 804(b)(3) provides an exception to the rule against hearsay for

A statement that:

(A) a reasonable person in the declarant’s position would have made only if the person believed it to be true because, when made, it was so contrary to the declarant’s proprietary or pecuniary interest or had so great a tendency to invalidate the declarant’s claim against someone else or to expose the declarant to civil or criminal liability; and

(B) is supported by corroborating circumstances that clearly indicate its trustworthiness, if it is offered in a criminal case as one that tends to expose the declarant to criminal liability.

So, when are there insufficient corroborating circumstances under subsection (b)? That was the question addressed by the Court of Appeals of Mississippi in its opinion today in Williams v. State, 2021 WL 1745956 (Miss. App. 2021).

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Court in Hawala Operation Case Allows Interrogation About Witness's Involvement in Murder-For-Hire Plot

Federal Rule of Evidence 608(b) states that

Except for a criminal conviction under Rule 609, extrinsic evidence is not admissible to prove specific instances of a witness’s conduct in order to attack or support the witness’s character for truthfulness. But the court may, on cross-examination, allow them to be inquired into if they are probative of the character for truthfulness or untruthfulness of:

(1) the witness; or

(2) another witness whose character the witness being cross-examined has testified about.

By testifying on another matter, a witness does not waive any privilege against self-incrimination for testimony that relates only to the witness’s character for truthfulness.

Some courts limit Rule 608(b) to crimen falsi acts, i.e., acts that involve dishonesty like fraud, embezzlement, and larceny by trick. Other courts also allow Rule 608(b) questioning concerning property crimes like larceny and burglary. But what about being involved in a murder-for-hire plot?

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Ninth Circuit Grants Qualified Immunity to LAPD Detectives Who Used Psychological Torture to Get a False Confession From a 13 Year-Old

The qualified immunity doctrine insulates governmental agents from liability for unconstitutional acts as long “as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.”  The primary purpose of the doctrine “is to protect them ‘from undue interference with their duties and from potentially disabling threats of liability.’” So, should there be qualified immunity in a case with these facts?

Thirteen year old Art Tobias confessed to the murder of Alex Castaneda—a murder he did not commit—after an interrogation in which Los Angeles Police Department (LAPD) Detectives Michael Arteaga, Julian Pere, and Jeff Cortina ignored his request for an attorney, told him that he would look like a “cold-blooded killer” if he did not confess, and suggested that if he were to exercise his right to remain silent he would receive harsher treatment by the court. Tobias was convicted in juvenile court and sentenced to 25 years’ imprisonment. The California Court of Appeal reversed the conviction, concluding that Tobias's confession should have been suppressed by the juvenile court because the detectives failed to respect his unambiguous request for an attorney. All parties now agree that Tobias did not murder Alex Castaneda.

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