Friday, March 17, 2023
Court of Appeals of Arkansas Finds No Error With Leading Questions to Child Witness
Similar to its federal counterpart, Arkansas Rule of Evidence 611(c) provides that
Leading questions should not be used on the direct examination of a witness except as may be necessary to develop his testimony. Ordinarily leading questions should be permitted on cross-examination. Whenever a party calls a hostile witness, an adverse party, or a witness identified with an adverse party, interrogation may be by leading questions.
Typically, courts apply the "necessary to develop his testimony" exception in cases involving testimony by children, especially vulnerable ones. A good example can be found in the recent opinion of the Court of Appeals of Arkansas in Standridge v. State, 2023 WL 2395918 (Ark.App. 2023).
March 17, 2023 | Permalink | Comments (1)
Saturday, March 4, 2023
11th Circuit Finds Asking Expert Whether the Defendant Was Unable to Appreciate the Nature of His Actions Violated Rule 704(b)
Federal Rule of Evidence 704(b) provides that
In a criminal case, an expert witness must not state an opinion about whether the defendant did or did not have a mental state or condition that constitutes an element of the crime charged or of a defense. Those matters are for the trier of fact alone.
So, assume that a defendant asserts an insanity defense. Can the prosecution call an expert and ask her whether the defendant was "unable to appreciate the nature of his actions" at the time of the crime? That was the question addressed by the Eleventh Circuit in its recent opinion in United States v. Turner, 2023 WL 2291362 (11th Cir. 2023).
March 4, 2023 | Permalink | Comments (0)
Wednesday, March 1, 2023
Supreme Court Finds Jury Instruction Analogizing Reasonable Doubt to Surgery Involving a "Precious One" Was Improper
Imagine that a judge's instruction on guilty beyond a reasonable doubt includes the following paragraphs:
Now, ladies and gentlemen, I find it helpful to think about reasonable doubt in this way. Because I had the great fortune to speak with every one of you individually, I know that each of you has someone in your life that you love, a precious one, a spouse, a significant other, a sibling, a niece, a nephew, a grandchild. Each of you loves somebody.
If you were told by your precious one that they had a life-threatening condition and the doctor was calling for surgery, you would probably say, stop. Wait a minute. Tell me about this condition. What is this? You probably want to know what's the best protocol for treating this condition? Who is the best doctor in the region? No. You are my precious one. Who is the best doctor in the country? You will probably research the illness. You will research the people who handle this, the hospitals.
If you are like me, you will call everyone who you know who has anything to do with medicine in their life. Tell me what you know. Who is the best? Where do I go? But at some moment the question will be called. Do you go forward with the surgery or not? If you go forward, it is not because you have moved beyond all doubt. There are no guarantees. If you go forward, it is because you have moved beyond all reasonable doubt.
Would such an instruction be improper? According to the recent opinion of the Supreme Court of Pennsylvania in Commonwealth v. Drummond, 285 A.3d 625 (Pa. 2022), the answer is "yes."
March 1, 2023 | Permalink | Comments (1)
