EvidenceProf Blog

Eastern District of California Denies Request to Appoint Court Expert in Eighth Amendment Case

Federal Rule of Evidence 706(a) provides that

On a party’s motion or on its own, the court may order the parties to show cause why expert witnesses should not be appointed and may ask the parties to submit nominations. The court may appoint any expert that the parties agree on and any of its own choosing. But the court may only appoint someone who consents to act.

Rule 706(a) thus allows a court to appoint an expert witness. But Rule 706(a) rarely requires a court to appoint an expert witness. An example can be found in the recent opinion of the United States District Court for the Eastern District of California in Wilkins v. Barber, 2021 WL 4992664 (E.D. Cal. 2021).

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Court of Appeals of North Carolina Finds Rule 701 Violation But Upholds Convictions

Similar to its federal counterpart, North Carolina Rule of Evidence 701 provides that

If the witness is not testifying as an expert, his testimony in the form of opinions or inferences is limited to those opinions or inferences which are (a) rationally based on the perception of the witness and (b) helpful to a clear understanding of his testimony or the determination of a fact in issue.

So, under Rule 701, can a detective testify that he found the defendant's alleged accomplice to be credible when she implicated herself and the defendant in a crime? That was the question addressed by the Court of Appeals of North Carolina in its recent opinion in State v. Best, 2021 WL 4859815 (N.C.App. 2021).

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Southern District of Ohio Finds Work Product Privilege Waived for Documents Used to Refresh Witness's Recollection

Federal Rule of Evidence 612 provides that

(a) Scope. This rule gives an adverse party certain options when a witness uses a writing to refresh memory:

(1) while testifying; or

(2) before testifying, if the court decides that justice requires the party to have those options.

(b) Adverse Party’s Options; Deleting Unrelated Matter. Unless 18 U.S.C. § 3500 provides otherwise in a criminal case, an adverse party is entitled to have the writing produced at the hearing, to inspect it, to cross-examine the witness about it, and to introduce in evidence any portion that relates to the witness’s testimony. If the producing party claims that the writing includes unrelated matter, the court must examine the writing in camera, delete any unrelated portion, and order that the rest be delivered to the adverse party. Any portion deleted over objection must be preserved for the record.

(c) Failure to Produce or Deliver the Writing. If a writing is not produced or is not delivered as ordered, the court may issue any appropriate order. But if the prosecution does not comply in a criminal case, the court must strike the witness’s testimony or — if justice so requires — declare a mistrial.

So, if a witness uses documents for a testimonial purpose, can the party who refreshed her recollection through those documents assert the work product privilege? That was the question addressed by the United States District Court for the Southern District of Ohio in its recent opinion in J&R Passmore, LLC, et al. v. Rice Drilling D, LLC, et al., 2021 WL 4810150 (S.D. Ohio 2021).

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Western District of Wisconsin Finds Insurance Evidence Admissible Despite Rule 411

Federal Rule of Evidence 411 provides 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.

As the Rule makes clear, evidence of liability insurance case be admissible for purposes "such as proving a witness’s bias or prejudice or proving agency, ownership, or control." In other words, while purposes such as "proving agency, ownership, or control" are illustrative, not exhaustive. For an example of another permissible purpose, consider the recent opinion of the United States District Court for the Western District of Wisconsin in Burress and Burress v. Mr. G & G Trucking, LLC, et al., 2021 WL 4472799 (W.D. Wis. 2021).

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