EvidenceProf Blog

Washington Court Finds Defendant's Rap Lyrics Are Inadmissible Unless There's a Strong Nexus Between the Lyrics and the Crimes Charged

A big issue that has emerged in recent years is the question of whether the prosecution can introduce rap lyrics authored by the defendant in a criminal case. The latest court to weigh in on the issue is the Court of Appeals of Washington, Division 3, in its recent opinion in Matter of Quintero, 2024 WL 190442 (Wash. App. 2024).

Continue reading

Louisiana Court Finds Rule 407 Renders a Root Cause Analysis Inadmissible

Similar to its federal counterpart, La.Code Evid. art. 407 provides that

In a civil case, when, after an event, measures are taken which, if taken previously, would have made the event less likely to occur, evidence of the subsequent measures is not admissible to prove negligence or culpable conduct in connection with the event. This Article does not require the exclusion of evidence of subsequent measures when offered for another purpose, such as proving ownership, authority, knowledge, control, or feasibility of precautionary measures, or for attacking credibility.

So, Rule 407 covers subsequent remedial measures. But should something like a root cause analysis that determines the cause of an error and/or injury also be deemed inadmissible under the rule? That was the question addressed by the Court of Appeal of Louisiana, Third Circuit, in its recent opinion in Certain Underwriters at Lloyd's, London v. Alliance Drilling Consultants, L.L.C., 2023 WL 8792107 (La.App. 3 Cir. 2023).

Continue reading

Supreme Court of Appeals of West Virginia Finds Trial Court Erred in Refusing Defendant's Stipulation to His Prior Conviction

Similar to its federal counterpart, West Virginia Rule of Evidence 403 provides that

The court may exclude relevant evidence if its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence.

Rule 403 is a liberal rule of admissibility, pursuant to which a court may exclude evidence only if its probative value is substantially outweighed by one or more of the enumerated danger. As such, most relevant evidence is admissible unless it triggers some specific rule of exclusion. That said, in Old Chief v. United States, 519 U.S. 172 (1997), the Supreme Court recognized that, in certain circumstances, a party must accept a stipulation to evidence that would otherwise satisfy the Rule 403 balancing test. A good example of Old Chief in action can be seen in the recent opinion of the Supreme Court of Appeals of West Virginia in State v. Jackson, 889 S.E.2d 77 (W.Va. 2024).

Continue reading

Supreme Court of Colorado Finds No Constitutional Issue With Requiring Defendant to Give Pre-Trial Notice of Alternate Suspect Defense

In Williams v. Florida, 399 U.S. 78 (1970), the United States Supreme Court found that a criminal defendant's constitutional rights are not violated by forcing him to give pre-trial notice of an alibi defense. Now, the Supreme Court of Colorado has similarly found that a criminal defendant's constitutional rights are not violated by forcing him to give pre-trial notice of an alternate suspect defense.

Continue reading

Eleventh Circuit Finds Rule 701(a) Violation in Identification Testimony by Detective

Federal Rule of Evidence 701 provides that

If a witness is not testifying as an expert, testimony in the form of an opinion is limited to one that is:

(a) rationally based on the witness’s perception;

(b) helpful to clearly understanding the witness’s testimony or to determining a fact in issue; and

(c) not based on scientific, technical, or other specialized knowledge within the scope of Rule 702.

A good example of a violation of Rule 701(a) can be found in the recent opinion of the Eleventh Circuit in United States v. Daniels, 2024 WL 259756 (1th Cir. 2024).

Continue reading

Tenth Circuit Finds Seals by Tribal Governments Don't Satisfy the Requirements of Rule 902(1)

Federal Rule of Evidence 902(1) provides that:

The following items of evidence are self-authenticating; they require no extrinsic evidence of authenticity in order to be admitted:

(1) Domestic Public Documents That Are Sealed and Signed. A document that bears:

(A) a seal purporting to be that of the United States; any state, district, commonwealth, territory, or insular possession of the United States; the former Panama Canal Zone; the Trust Territory of the Pacific Islands; a political subdivision of any of these entities; or a department, agency, or officer of any entity named above; and

(B) a signature purporting to be an execution or attestation.

As the recent opinion of the Tenth Circuit in United States v. Walker, 85 F.4th 973 (10th Cir. 2023), makes clear, seals by tribal governments don't satisfy the requirements of Rule 902(1).

Continue reading

SDNY Resolves Authenticity Dispute in Lawsuit Regarding Tiffany Paintings

Pursuant to Federal Rule of Evidence 901(b)(8), one way in which a party can authenticate an item of evidence is through:

(8) Evidence About Ancient Documents or Data Compilations. For a document or data compilation, evidence that it:

(A) is in a condition that creates no suspicion about its authenticity;

(B) was in a place where, if authentic, it would likely be; and

(C) is at least 20 years old when offered.

A good example of how a part can fail to satisfy the requirements of Rule 901(b)(8) can be found in Platt as co-trustees of Platt Family Artwork Trust v. Michaan, 2023 WL 6292770 (S.D.N.Y. 2023).

Continue reading

First Circuit Finds That Excited Utterances Can Follow Subsequent Startling Events

Federal Rule of Evidence 803(2) provides an exception to the rule against hearsay for

A statement relating to a startling event or condition, made while the declarant was under the stress of excitement that it caused.

Back in 2005, in my article, "A Shock to the System," I argued that this "excited utterance exception should apply to subsequent starting events that re-ignite the flame of stress caused by an initial incident. In its recent opinion in United States v. Irizarry-Sisco, 87 F.4th 38 (1st Cir. 2023), the First Circuit reached this same conclusion.

Continue reading

Court of Criminal Appeals of Alabama Finds Prosecution Properly Authenticated Photos of Text Messages

Similar to their federal counterparts, Alabama Rules of Evidence 901(b)(1) & (4) provide 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:

(1) TESTIMONY OF WITNESS WITH KNOWLEDGE. Testimony that a matter is what it is claimed to be.

(4) DISTINCTIVE CHARACTERISTICS AND THE LIKE. Appearance, contents, substance, internal patterns, or other distinctive characteristics, taken in conjunction with circumstances.

So, how would these rules come into play when a party seeks to introduce alleged photos of text messages? That was the question addressed by the Court of Criminal Appeals of Alabama in its recent decision in Berry v. State, 2023 WL 8658297 (Ala.Crim.App. 2023).

Continue reading

Court of Appeal of Louisiana Finds Translators Don't Need to be Certified if They Have Personal Knowledge

Similar to Federal Rule of Evidence 604, La. C.E. art. 604 provides that

An interpreter is subject to the provisions of this Code relating to qualification as an expert and the administration of an oath or affirmation that he will make a true translation.

Given this, I'm not sure of the propriety of the recent opinion of the Court of Appeal of Louisiana, Fifth Circuit in State v. Mejia, 2023 WL 8249642 (La.App. 5th Cir. 2023).

Continue reading

Supreme Court of Idaho Surveys How Other Courts Have Interpreted Rule 605's Limitation on Judicial Testimony

Similar to its federal counterpart, Idaho Rule of Evidence 605 provides that

The presiding judge may not testify as a witness in the trial. A party need not object to preserve the issue.

The recent opinion of the Supreme Court of Idaho in State v. Augerlavoie, 2023 WL 8444524 (Idaho 2023), doesn't break any new ground, but it provides a useful summary of how other courts have interpreted the term "testify" in Rule 605.

Continue reading

2024 Evidence Summer Workshop at Vanderbilt Law School

The 2024 Evidence Summer Workshop at Vanderbilt Law Schoolw ill be held from May 15-May 17. Details below:

-CM

Sixth Circuit Concludes That Excited Utterances Can Be Admitted Despite Conflicting Testimony

Federal Rule of Evidence 803(2) provides an exception to the rule against hearsay for

A statement relating to a startling event or condition, made while the declarant was under the stress of excitement that it caused.

As the recent opinion of the Sixth Circuit in United States v. Lundy, 83 F.4th 615 (6th Cir. 2023), makes clear this "excited utterance" exception can apply even in the face of conflicting testimony.

Continue reading

Supreme Court of New Hampshire Finds Rule 609(b) Does Not Apply if a Supervised Release Violation Happened in the Past 10 Years

Similar to their federal counterparts, New Hampshire Rules of Evidence 609(a)-(b) read as follows:

(a)General rule. The following rules apply to attacking a witness's character for truthfulness by evidence of a criminal conviction:

(1) for a crime that, in the convicting jurisdiction, was punishable by death or by imprisonment for more than one year, the evidence:

(A) must be admitted, subject to Rule 403, in a civil case or in a criminal case in which the witness is not a defendant; and

(B) must be admitted in a criminal case in which the witness is a defendant, if the probative value of the evidence outweighs its prejudicial effect to that defendant; and

(2) for any crime regardless of the punishment, the evidence must be admitted if the court can readily determine that establishing the elements of the crime required proving - or the witness's admitting - a dishonest act or false statement.

(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.

So, assume a Wanda is convicted of felony larceny and sentenced to five years in prison in 2008, is given early/supervised release in 2012, violates the conditions of her supervised release in 2014, and serves the remaining one year of her original sentence from 2014-2015. If Wanda later testifies at a trial in 2024, does her prior conviction trigger Rule 609(b) based on her early release in 2012? Or, is 2015 the controlling date, meaning her conviction is not more than ten years old? 

That was the question addressed by the Supreme Court of New Hampshire in its recent opinion in State v. Paul, 2023 WL 7513600 (N.H. 2023).

Continue reading

Court of Appeals of Alaska Finds State Rule of Completeness Trumps the Rule Against Hearsay

Federal Rule of Evidence 106 used to state that

If a party introduces all or part of a statement, an adverse party may require the introduction, at that time, of any other part — or any other statement — that in fairness ought to be considered at the same time. The adverse party may do so over a hearsay objection.

As I noted in a prior post, the rule was amended, effective December 1, 2023, so that it now states that

As this last part of the new rule makes clear, the 2023 amendment allows for the admission of statements under this "rule of completeness" even if they constitute hearsay, resolving a prior circuit split. So, assume that Dana texts Felicia, "I killed Victoria last week. She was coming at me with a knife, and I shot her." If the prosecution called Felicia to testify about Dana's first line of the text message, the defense could introduce the second line even though it would ordinarily be inadmissible hearsay.

The question now becomes whether states will amend their existing rules to conform with the amended federal rule and/or whether state courts will interpret existing state versions of Rule 106 to conform with the amended federal rule. The first example we have is out of Alaska.

Continue reading