EvidenceProf Blog

Northern District of Indiana Finds 911 Call Made About 5 Minutes After An Assault Qualified as a Present Sense Impression

Federal Rule of Evidence 803(1) provides an exception to the rule against hearsay for

A statement describing or explaining an event or condition, made while or immediately after the declarant perceived it.

So, does a 911 call made about five minutes after an incident qualify as a "present sense impression" made "immediately after the declarant perceived it"? That was the question addressed by the United States District Court for the Northern District of Indiana in its recent opinion in United States v. Wade, 2024 WL 397546 (N.D. Ind. 2024).

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Fourth Circuit Finds District Court's Non-Anonymity Order Was an Abuse of Discretion

Should a plaintiff be able to use a pseudonym when suing a defendant, or should she have to use her real name? The recent opinion of the Fourth Circuit in Doe v. Sidar, 2024 WL 696535 (4th Cir. 2024), does a good job of laying out how that court has dealt with this issue.

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Central District of California Finds Habit Evidence Admissible in Clam Chowder Slip & Fall Action Against Costco

Federal Rule of Evidence 406 provides that

Evidence of a person’s habit or an organization’s routine practice may be admitted to prove that on a particular occasion the person or organization acted in accordance with the habit or routine practice. The court may admit this evidence regardless of whether it is corroborated or whether there was an eyewitness.

A good example of Rule 406 in action can be found in the recent opinion of the United States District Court for the Central District of California in Lugo v. Costco Wholesale Corporation, 2023 WL 6190868 (C.D. Cal. 2023).

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Arkansas Rule of Evidence 616 and the Victim's Right to be Present at Trials and Hearings

As revealed by Smith v. State, 2001 WL 1338413 (Ark. App. 2001), Rule 616 of the Arkansas Rule of Evidence provides that

Notwithstanding any provision to the contrary, in any criminal prosecution, the victim of a crime, and in the event that the victim of a crime is a minor child under eighteen (18) years of age, that minor victim's parents, guardian, custodian or other person with custody of the alleged minor victim shall have the right to be present during any hearing, deposition, or trial of the offense.

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Supreme Court of Kentucky Finds Defendant's Testimony That He's "Kindhearted" Opened the Door For Evidence of His Violence

Kentucky Rule of Evidence 404(a)(1) provides as follows:

(a) Character evidence generally. Evidence of a person's character or a trait of character is not admissible for the purpose of proving action in conformity therewith on a particular occasion, except:

(1) Character of accused. Evidence of a pertinent trait of character or of general moral character offered by an accused, or by the prosecution to rebut the same, or if evidence of a trait of character of the alleged victim of the crime is offered by an accused and admitted under Rule 404(a)(2), evidence of the same trait of character of the accused offered by the prosecution.

So, if a defendant testifies that he's a "kindhearted person," does that open the door for the prosecution presenting testimony that he's a violent person? That was the question addressed by the Supreme Court of Kentucky in its recent opinion in Johnson v. Commonwealth, 2023 WL 8639369 (Ky. 2023).

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Sixth Circuit Finds Detective's Testimony Didn't Violate Rule 704(b) in Possession With Intent to Distribute Trial

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.

One frequent area of controversy under Rule 704(b) is whether and to what extent a law enforcement officer can testify regarding whether the circumstances surrounding a defendant's possession of drugs is more consistent with distribution or possession. A good recent example can be found in United States v. Jaffal, 79 F.4th 582 (6th Cir. 2023).

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Eastern District of Louisiana Finds Statements Not Concerning Cause of Decedent's Impending Death Failed to Qualify as Dying Declarations

Federal Rule of Evidence 804(b)(2) provides an exception to the rule against hearsay 

In a prosecution for homicide or in a civil case, [for] a statement that the declarant, while believing the declarant’s death to be imminent, made about its cause or circumstances.

As the rule makes clear, for this "dying declaration" exception to apply, the declarant must not only believe that their death is imminent but must also make statement concerning the cause of circumstances of what they believe to be their impending death. A good example of the proponent failing to satisfy this latter requirement can be found in Metropolitan Life Insurance Company v. Muecke, 2023 WL 7131041 (E.D.La. 2023).

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Appellate Court of Illinois Finds Rule 405(b)(2) Covers the Victim's Violent Acts Committed Prior to Trial

Federal Rule of Evidence 405(b) states the following:

(b) By Specific Instances of Conduct. When a person’s character or character trait is an essential element of a charge, claim, or defense, the character or trait may also be proved by relevant specific instances of the person’s conduct.

Meanwhile, Illinois Rule of Evidence 405(b) is broader. It states the following:

(b) Specific Instances of Conduct.

(1) In cases in which character or a trait of character of a person is an essential element of a charge, claim, or defense, proof may also be made of specific instances of that person’s conduct; and

(2) In criminal homicide or battery cases when the accused raises the theory of selfdefense and there is conflicting evidence as to whether the alleged victim was the aggressor, proof may also be made of specific instances of the alleged victim’s prior violent conduct.

As the juxtaposition of these rules makes clear, the victim's character for violence is not an essential element of a self-defense claim (because an otherwise violent victim could be peaceful at the time of the crime charged and an otherwise peaceful victim could be violent at the time of the crime charged). This is why the Illinois version of the rule, which I helped draft contains subsection (2). That subsection can be seen in action in the recent opinion of the Appellate Court of Illinois, First District, in People v. Degrave, 2023 WL 4280716 (Ill.App. 2023).

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Tenth Circuit Asked Whether "Communicated Character" Evidence Triggers the Mercy Rule

Federal Rule of Evidence 404(a) states the following:

(a) Character Evidence.

(1) Prohibited Uses. Evidence of a person’s character or character trait is not admissible to prove that on a particular occasion the person acted in accordance with the character or trait.

(2) Exceptions for a Defendant or Victim in a Criminal Case. The following exceptions apply in a criminal case:

(A) a defendant may offer evidence of the defendant’s pertinent trait, and if the evidence is admitted, the prosecutor may offer evidence to rebut it;

(B) subject to the limitations in Rule 412, a defendant may offer evidence of an alleged victim’s pertinent trait, and if the evidence is admitted, the prosecutor may:

(i) offer evidence to rebut it; and

(ii) offer evidence of the defendant’s same trait; and

(C) in a homicide case, the prosecutor may offer evidence of the alleged victim’s trait of peacefulness to rebut evidence that the victim was the first aggressor.

(3) Exceptions for a Witness. Evidence of a witness’s character may be admitted under Rules 607, 608, and 609.

So, under Rule 404(a)(2)(B)(ii), imagine that Dana is on trial for criminal battery after striking Victoria. At trial, Dana could claim self-defense and call witnesses to testify that, in their opinion, Victoria is a violent person. This would then open the door to, inter alia, the prosecution calling witnesses witnesses to testify that, in their opinion, Dana is a violent person.

Beyond Rule 404(a), however, a criminal defendant can also introduce evidence of the victim's bad character for violence under a theory called "communicated character." Under this theory, a defendant can claim that they were aware of the victim's bad character for violence at the time of the incident, placing the defendant is reasonable apprehension of the victim. By doing so, the defendant would be establishing her reasonable apprehension, not the victim's bad character. 

So, if the defendant relies upon "communicated character," does she open the door for bad character evidence being presented against her? That was the question asked to the Tenth Circuit in United States v. Redbird, 73 F.4th 789 (10th Cir. 2023).

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Court of Appeals of Ohio Finds Jurors Not Disqualified Based on Being Insured by Defendant's Insurance Company

Similar to its federal counterpart, Ohio Rule of Evidence 411 provides that

Evidence that a person was or was not insured against liability is not admissible upon the issue whether the person acted negligently or otherwise wrongfully. This rule does not require the exclusion of evidence of insurance against liability when offered for another purpose, such as proof of agency, ownership or control, if controverted, or bias or prejudice of a witness.

Obviously, evidence that a party has/does not have liability insurance is thus inadmissible to prove whether the party acted negligently or otherwise wrongfully. And evidence of liability insurance can be used to show bias, such as bias by an expert witness who works for the defendant's insurance company. But does that mean that prospective jurors who are insured by the defendant's insurance company should be ineligible to serve on the jury on grounds of bias? That was the question addressed by the Court of Appeals of Ohio, Second District, in its recent opinion in Curley v. Wilcox, 2023 WL 6343070 (Ohio. App. 2024).

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Eleventh Circuit Finds No Error in judge Directing Jurors to Resolve a "Metaphysically Impossible" Verdict

Sometimes a jury renders an inconsistent verdict. For example, in the recent case, United States v. Gatlin, 90 F.4th 1050 (11th Cir. 2024), "the jury initially returned a verdict finding Gatlin guilty of sex trafficking a minor but, on the special interrogatory, failed to find either of the conditions that could support such a verdict." In response, "[r]ather than resolve this inconsistency on its own one way or the other, the district court clarified the instructions for the jury and directed them to continue deliberating."

So, was this proper?

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Court of Appeals of Mississippi Applies "Common Nucleus of Operative Fact" Test to Spousal Competency/Privilege

Mississippi Rule of Evidence 504 states the following:

(a) Definition. A communication is “confidential” if a person makes it privately to the person’s spouse and does not intend its disclosure to any other person.

(b) General Rule of Privilege. A person has a privilege to prevent the person’s current or former spouse from testifying in a civil or criminal case about any confidential communication between them.

(c) Who may Claim the Privilege. Either spouse may claim the privilege. A spouse has authority to claim the privilege on the other spouse’s behalf.

(d) Exceptions. The privilege does not apply:

(1) in a civil case between the spouses; or

(2) in a criminal case when one spouse is charged with a crime against:

(A) the person of a minor child; or

(B) the person or property of:

(i) the other spouse;

(ii) a resident of either spouse’s household; or

(iii) a third person when committed during a crime against any person described in paragraphs (d)(1) and (2).

In turn, Mississippi Rule of Evidence 601(b) provides that

If one spouse is a party, the other spouse may not testify as a witness in the case unless both consent, except:

(1) when called as a witness by the spouse who is a party;

(2) in a controversy between them; or (3) in a criminal case for:

(A) a criminal act against a child;

(B) contributing to the neglect or delinquency of a child;

(C) desertion or nonsupport of a child under 16; and

(D) abandonment of a child.

So, assume that a husband is charged with multiple crimes involving different victims, with his wife being the victim of one or more of the crimes. Can the husband prevent his wife from testifying based upon these rules? That was the question addressed by the Court of Appeals of Mississippi in its recent opinion in Moates v. State, 2024 WL 443397 (Miss.App. 2024).

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Tenth Circuit Finds Doctor's Testimony About Whether Hip Stems Were Competing Products Was Admissible Lay Opinion Testimony

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.

So, when does testimony by a witness not certified as an expert witness violate Rule 701(c) because it is based on scientific, technical, or other specialized knowledge within the scope of Rule 702? It's a tough question and one that was recently addressed by the Tenth Circuit in its opinion in ORP Surgical, LLC v. Howmedica Osteonics Corp., 2024 WL 439463 (10th Cir. 2024).

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First Circuit Finds Introduction of Inmate's Phone Calls to Impeach Her Violated Rule 608(b)

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.

The recent opinion of the First Circuit in Lech v. von Goeler, 2024 WL 396346 (1st Cir. 2024), provides a good example of extrinsic evidence improperly being introduced under Rule 608(b).

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Supreme Court of Minnesota Finds Rule 410 Waiver Triggered in Murder Trial

Similar to its federal counterpart, Minnesota Rule of Evidence 410 provides that

Evidence of a plea of guilty, later withdrawn, or a plea of nolo contendere, or of an offer to plead guilty or nolo contendere to the crime charged or any other crime or of statements made in connection with any of the foregoing pleas or offers, is not admissible in any civil, criminal, or administrative action, case, or proceeding whether offered for or against the person who made the plea or offer.

That said, the protections of Rule 410 can be, and often are, waived by defendants to get to the plea bargaining table. The question then becomes whether that waiver is triggered. A good recent example can be found in the recent opinion by the Supreme Court of Minnesota in State v. Segura, 2024 WL 358029 (Minn. 2024).

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Court of Appeals of Indiana Finds "Eggshell Plaintiff" Doctrine Doesn't Apply to Murder & Voluntary Manslaughter Cases

The "eggshell plaintiff" or "eggshell skull" doctrine generally "holds that holds that a defendant’s liability in a tort claim is not mitigated by a plaintiff’s unforeseeable, pre-existing susceptibility to injury." But does the doctrine apply to a murder or voluntary manslaughter case? That was the question addressed by the Court of Appeals of Indiana in its recent opinion in Konkle v. State, 2024 WL 253306 (Ind. App. 2024).

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Supreme Court of Montana Grapples With Jury Impeachment Issues in "Undue Influence" Case Where Juror Looked Up the Definition of "Undue" on His Phone

Similar to its federal counterpart, Montana Rule of Evidence 606(b) provides that

Upon an inquiry into the validity of a verdict or indictment, a juror may not testify as to any matter or statement occurring during the course of the jury's deliberations or to the effect of anything upon that or any other juror's mind or emotions as influencing the juror to assent or dissent from the verdict or indictment or concerning the juror's mental processes in connection therewith. Nor may a juror's affidavit or evidence of any statement by the juror concerning a matter about which the juror would be precluded from testifying be received for these purposes.

So, in a case involving a challenge to a will on the ground that it was the product of "undue influence," would testimony about a juror looking up the definition of "undue" on their phone be admissible under Rule 606(b) and grounds for a new trial or hearing? That was the question addressed by the Supreme Court of Montana in its recent opinion in Matter of Estate of Burns, 540 P.3d 1029 (2023).

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