EvidenceProf Blog

Sixth Circuit Finds Evidence About Alleged Sex Trafficking Victims' History of Prostitution Inadmissible Under Rape Shield Rule

Federal Rule of Evidence 412(a) provides that

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

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

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

That said, Federal Rule of Evidence 412(b)(1)(C) provides that

The court may admit the following evidence in a criminal case:....

(C) evidence whose exclusion would violate the defendant’s constitutional rights.

So, should a defendant charged with sex trafficking be able to present evidence that the alleged victims of that trafficking had engaged in prostitution? That was the question addressed by the Sixth Circuit in its recent opinion in United States v. Bixler, 2022 WL 247740 (6th Cir. 2022).

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District of Minnesota Broadly Construes the Term "Claim" For Purposes of Applying Rule 408

Federal Rule of Evidence 408(a) provides 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 (emphasis added)

So, when is there a "claim" sufficient to trigger Rule 408? Let's take a look at the recent opinion of the United States District Court for the District of Minnesota in Steffen v. Northway Resource Development, LLC, 2022 WL 228243 (D.Minn. 2022).

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District of Maine Opinion in Whole Foods Litigation Reveals That Rule 408 is Not a Discovery Rule

Federal Rule of Evidence 408(a) provides 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.

Like other rules of evidence, Rule 408 is a rule of (in)admissibility, not a rule of discovery, as is made clear by the recent opinion of the United States District Court for the District of Maine in Opio v. Whole Foods Market Group, Inc., 2022 WL 227114 (D. Maine 2022).

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Federal Rule of Evidence 702 Proposed Amendments: Bringing Expert Analysis Under Consistent Judicial Scrutiny

Tomorrow at 1:00pm, I will be presenting as part of the CLE Panel: Federal Rule of Evidence 702 Proposed Amendments: Bringing Expert Analysis Under Consistent Judicial Scrutiny. Here at the details.

-CM

Eastern District of California Allows For the Admission of Background Evidence Regarding Reinsurance

There are five types of relevant evidence under Federal Rule of Evidence 401: (1) direct evidence; (2) circumstantial evidence; (3) character evidence; (4) impeachment evidence; and (5) background evidence. So, what is background evidence, and why is it relevant?

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Eastern District of Missouri Finds Limitation of Cross-Examination Under Rule 608(b) Did Not Warrant a New Trial

Federal Rule of Evidence 608(b) provides 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 (emphasis added).

As the use of the word "may" in the Rule makes clear, judges retain a good deal of discretion in deciding whether to allow questioning about specific instances of dishonesty.

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Court of Appeals of Washington Finds 1981 Newspaper Article Admissible Against Mobil as an Ancient Document

Similar to its federal counterpart, Washington Rule of Evidence 901(b)(8) provides that

By way of illustration only, and not by way of limitation, the following are examples of authentication or identification conforming with the requirements of this rule:

(8) Ancient Documents or Data Compilation. Evidence that a document or data compilation, in any form, (i) is in such condition as to create no suspicion concerning its authenticity, (ii) was in a place where it, if authentic, would likely be, and (iii) has been in existence 20 years or more at the time it is offered.

Rule 901(b)(8), however, only covers authentication. So what about hearsay?

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Colorado Court of Appeals Reverses Drug Conviction Based on Insufficient Chain of Custody

Similar to its federal counterpart, Colorado Rule of Evidence 901(a) provides that

The requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims.

Typically, with drug evidence, the State satisfies the authentication requirement through chain of custody logs, i.e., documentation detailing every State agent who handled drugs taken from the defendant. Small problems with the chain of custody will usually not prevent the admission of drug evidence, but bigger problems create a barrier to admissibility. The recent opinion of the Colorado Court of Appeals, Division V in People v. Rodriguez, 2022 WL 120784 (Colo.App. 2022), falls into that latter category.

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Supreme Court of South Dakota Adopts the Silent Witness Theory of Authentication

Similar to its federal counterpart, South Dakota Rule of Evidence 19-19-901(b)(9) provides that

The following are examples only--not a complete list--of evidence that satisfies the [authentication] requirement:

(9)    Evidence about a process or system. Evidence describing a process or system and showing that it produces an accurate result.

Many courts use Rule 901(b)(9) to allow for the silent witness theory of authentication. One of those courts is now the Supreme Court of South Dakota.

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Eastern District of California Finds Mere Minimal Familiarity Required For Vocal Authentication

Federal Rule of Evidence 901(b)(5) provides that

The following are examples only — not a complete list — of evidence that satisfies the requirement:

(5) Opinion About a Voice. An opinion identifying a person’s voice — whether heard firsthand or through mechanical or electronic transmission or recording — based on hearing the voice at any time under circumstances that connect it with the alleged speaker.

So, how much familiarity with a person's voice is required before a witness can make a vocal identification? That was a question addressed by the United States District Court for the Eastern District of California in its recent opinion in United States v. Hood, 2021 WL 6136215 (E.D. Cal. 2021).

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Supreme Court of Delaware Finds Fingerprinter Authentication is Not Required

Similar to its federal counterpart, Delaware Rule of Evidence 901(a) provides that

To satisfy the requirement of authenticating or identifying an item of evidence, the proponent must produce evidence sufficient to support a finding that the item is what the proponent claims it is.

So, does the State need to call the person who actually fingerprinted the defendant to authenticate his fingerprints? That was the question addressed by the Supreme Court of Delaware in its recent opinion in Pierce v. State, 2022 WL 31643 (Del. 2022).

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D.C. Court of Appeals Applies Torres to Find a Seizure Even When the Suspect Got Away

Last year, I wrote cert stage and merits stage amici curiae briefs in Torres v. Madrid, which dealt with the question of what constitutes a "seizure" under the Fourth Amendment. The Supreme Court ultimately held that there is a Fourth Amendment when a police officer touches an individual with intent to restrain him, regardless of whether the individual gets away. This new definition of a seizure ended up being dispositive in yesterday's opinion by the D.C. Court of Appeals in Mayo v. United States, 2022 WL 54516 (D.C. 2022).

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Southern District of New York Makes Seemingly Erroneous Best Evidence Ruling in Lawsuit Against Fat Joe Over "All the Way Up"

Federal Rule of Evidence 1002, the Best Evidence Rule, provides that 

An original writing, recording, or photograph is required in order to prove its content unless these rules or a federal statute provides otherwise.

That said, Federal Rule of Evidence 1003 provides that

A duplicate is admissible to the same extent as the original unless a genuine question is raised about the original’s authenticity or the circumstances make it unfair to admit the duplicate.

Moreover, Federal Rule of Evidence 1004(a) states that

An original is not required and other evidence of the content of a writing, recording, or photograph is admissible if:

(a) all the originals are lost or destroyed, and not by the proponent acting in bad faith.

In Elliott v. Cartagena, 2022 WL 44749 (S.D.N.Y. 2022), the Southern District of New York found that both of these exceptions applied, but I think only the latter applied.

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Seventh Circuit Finds Forgetful Witness' Grand Jury Testimony Properly Admitted Against Defendant

Federal Rule of Evidence 801(d)(1)(A) provides an exclusion to the rule against hearsay when

The declarant testifies and is subject to cross-examination about a prior statement, and the statement:

(A) is inconsistent with the declarant’s testimony and was given under penalty of perjury at a trial, hearing, or other proceeding or in a deposition.

It is also well established from United States v. Owens, 484 U.S. 554 (1988), that a declarant with partial memory loss about an event is still "subject to cross-examination about a prior statement." But what about a declarant with complete memory loss about an event? That was the question addressed by the Seventh Circuit in its opinion today in United States v.. Shaffers, 2022 WL 39389 (7th Cir. 2022).

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New Jersey Court Reverses Murder Conviction Based Upon Hearsay Improperly Admitted Under the State of Mind Exception

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

A statement made in good faith of the declarant's then-existing state of mind, emotion, sensation or physical condition (such as intent, plan, motive, design, 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 declarant's will.

Courts have noted that this "state of mind" hearsay exception must be scrupulously applied in cases involving statements made by murder victims. This is because such statements are often irrelevant. For example, assume that a victim is shot in the back, the defendant is on trial for the victim's murder, and the prosecution wants to present evidence that, in the days before the shooting, the victim told his friends that he feared the defendant. Would the defendant's acts/words that made the victim afraid of him relevant? Yes.. Would the victim's state of mind -- fear of the defendant -- be relevant? Probably not. 

So, how did this all play out in State v. Montone, 2022 WL 16335 (N.J.App. 2022)?

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