EvidenceProf Blog

Editor: Colin Miller
Univ. of South Carolina School of Law

Sunday, August 1, 2021

Court Finds Rule 610 Didn't Preclude Religious Evidence in Vaccination Case

Similar to its federal counterpart, New Jersey Rule of Evidence 610 provides that

Evidence of a witness’ religious beliefs or opinions is not admissible to attack or support the witness' credibility.

As the language of this Rule and the opinion of the Superior Court of New Jersey, Appellate Division in M.A. v. A.A., 2021 WL 2711112 (N.J.App. 2021), make clear, evidence of a witness' religious beliefs is admissible for purposes beyond those prohibited in the Rule. 

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August 1, 2021 | Permalink | Comments (0)

Saturday, July 31, 2021

Court of Criminal Appeals of Tennessee Finds Leading Questions to 9 Year-Old Victim Were Proper

Similar to its federal counterpart, Tennessee Rule of Evidence 611(c)(1) states that 

Leading questions should not be used on the direct examination of a witness except as may be necessary to develop the witness's testimony. Leading questions should be permitted on cross-examination.

One circumstance where leading questions are necessary to develop a witness's testimony involves the direct examination of a child witness. One example can be found in the recent opinion of the Court of Criminal Appeals of Tennessee in State v. Lee, 2021 WL 3197198 (Tenn.Crim.App. 2021).

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July 31, 2021 | Permalink | Comments (0)

Thursday, July 29, 2021

Eighth Circuit Finds Prosecution Properly Authenticated Facebook Messages

Federal Rule of Evidence 901(b)(4) provides that

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

(4) Distinctive Characteristics and the Like. The appearance, contents, substance, internal patterns, or other distinctive characteristics of the item, taken together with all the circumstances.

So, what does it take to authenticate Facebook messages under Rule 901(b)(4)? That was the question addressed by the Eighth Circuit in its opinion today in United States v. Lamm, 2021 WL 3196472 (8th Cir. 2021).

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July 29, 2021 | Permalink | Comments (0)

Wednesday, July 28, 2021

Court of Appeals of Virginia Finds Closed-Circuit Testimony by Child Victim Was Proper

Section 18.2-67.9 of the Virginia Code covers testimony by child victims and witnesses using two-way closed-circuit television. Specifically, subsection (D) states that

The child's testimony shall be transmitted by closed-circuit television into the courtroom for the defendant, jury, judge, and public to view. The defendant shall be provided with a means of private, contemporaneous communication with his attorney during the testimony.

So, what is contemporaneous communication? That was the question addressed by the Court of Appeals of Virginia in its recent opinion in Ruff v. Commonwealth, 2021 WL 3159780 (Va.App. 2021).

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July 28, 2021 | Permalink | Comments (0)

Saturday, July 24, 2021

Supreme Court of Wyoming Finds Statements Were Improperly Admitted Under Prior Consistent Hearsay Exclusion

Federal Rule of Evidence 801(d)(1)(B) provides an exclusion to the rule against hearsay for a statement that

(B) is consistent with the declarant’s testimony and is offered:

(i) to rebut an express or implied charge that the declarant recently fabricated it or acted from a recent improper influence or motive in so testifying; or

(ii) to rehabilitate the declarant's credibility as a witness when attacked on another ground

The language in subsection (ii) was added by amendment in 2014. Many states still have the pre-amendment version of the rule, including Wyoming. Wyoming Rule of Evidence 801(d)(1)(B) provides an exclusion to the rule against hearsay for a statement by a declarant that is "consistent with his testimony and is offered to rebut an express or implied charge against him of recent fabrication or improper influence or motive." So, how does this unamended version of this "prior consistent statement" exclusion apply?

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July 24, 2021 | Permalink | Comments (0)

Tuesday, July 20, 2021

Tenth Circuit Finds Trial Court Properly Denied Tiger King's Motion to Sequester Carole Baskin at his Trial

Federal Rule of Evidence 615 provides that

At a party’s request, the court must order witnesses excluded so that they cannot hear other witnesses’ testimony. Or the court may do so on its own. But this rule does not authorize excluding:

(a) a party who is a natural person;

(b) an officer or employee of a party that is not a natural person, after being designated as the party’s representative by its attorney;

(c) a person whose presence a party shows to be essential to presenting the party’s claim or defense; or

(d) a person authorized by statute to be present.

The most frequent statute that triggers Rule 615(d) is the Crime Victims’ Rights Act (CVRA), 18 U.S.C. § 3771. Subsection (a)(3) of that statute states that

A crime victim has the following rights:....

The right not to be excluded from any such public court proceeding, unless the court, after receiving clear and convincing evidence, determines that testimony by the victim would be materially altered if the victim heard other testimony at that proceeding.

So, can someone who suffered no physical harm be a "crime victim"? This was the question addressed by the Tenth Circuit in its recent opinion in United States v. Maldonado-Passage, 2021 WL 2944713 (10th Cir. 2021).

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July 20, 2021 | Permalink | Comments (1)

Sunday, July 18, 2021

Second Circuit Holds District Court improperly Precluded Psychiatrist From Answering PTSD Hypothetical

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 with PTSD is charged with various child pornography charges and raises an insanity defense. Would it violate Rule 704(b) if a forensic psychiatrist answered the following question: "And a person suffering from Posttraumatic Stress Disorder, can that, in your opinion to a reasonable degree of psychiatric certainty, can that affect an individual's ability to appreciate that his conduct is wrong?"

This was the question addressed by the Second Circuit in its recent opinion in United States v. Jakes-Johnson, 2021 WL 2944574 (2nd Cir. 2021).

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July 18, 2021 | Permalink | Comments (0)

Saturday, July 17, 2021

Undisclosed Mega-Update Thread 8

On Friday, July 16, 2020, DA Keith Higgins moved to drop charges against Dennis Perry because the evidence doesn't support a case against Perry for the murders of Harold and Thelma Swain. Assuming the judge signs off on the motion on Monday, Perry will be formally exonerated.

Given this terrific turn of events, I wanted to do an update on the status of all of the cases we've covered on Undisclosed.

Total cases covered: 25 cases.

Relief granted: 15 cases: 11 exonerations: (1) Shaurn Thomas; (2) Terrance Lewis; (3) Willie Veasy; (4) Chester Hollman III; (5) Charles Ray Finch; (6) Theophalis Wilson; (7) Jonathan Irons; (8) Dennis Perry; (9) Ronnie Long; (10) Joseph Webster; and (11) Darrell Ewing. 2 stays of execution: (1) Marcellus Williams; and (2) William Montgomery. 1 commutation: Cyntoia Brown. 1 grant of parole: Cyrus Wilson.

Currently pending: 5 cases. (1) Joey Watkins's successor habeas petition recently authorized to move forward by the Supreme Court of Georgia; (2) Pedro Reynoso's CIU petition; (3) Fred Freeman/Temujin Kensu's CIU petition; (4) John Brookins's DNA petition; and (5) Jeff Titus's CIU petition.

New appeals expected soon: 4 cases: (1) Adnan Syed; (2) Jamar Huggins; (3) Pam Lanier; and (4) Greg Lance.

Options being explored: 1 case: Rocky Myers

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July 17, 2021 | Permalink | Comments (0)

Friday, July 16, 2021

Western District of Virginia Finds Jurors Accusing Latinx Juror of Applying Mexican Law Doesn't Trigger Pena-Rodriguez

Federal Rule of Evidence 606(b) states the following:

(b) During an Inquiry into the Validity of a Verdict or Indictment.

(1) Prohibited Testimony or Other Evidence. During an inquiry into the validity of a verdict or indictment, a juror may not testify about any statement made or incident that occurred during the jury’s deliberations; the effect of anything on that juror’s or another juror’s vote; or any juror’s mental processes concerning the verdict or indictment. The court may not receive a juror’s affidavit or evidence of a juror’s statement on these matters.

(2) Exceptions. A juror may testify about whether:

(A) extraneous prejudicial information was improperly brought to the jury’s attention;

(B) an outside influence was improperly brought to bear on any juror; or

(C) a mistake was made in entering the verdict on the verdict form.

Moreover, in Peña-Rodriguez v. Colorado, 137 S. Ct. 855, 861 (2017), the Supreme Court recognized a Constitutional exception to this rule prohibiting jury impeachment. Specifically,  "where a juror makes a clear statement that indicates he or she relied on racial stereotypes or animus to convict a criminal defendant, the Sixth Amendment requires that the no-impeachment rule give way in order to permit the trial court to consider the evidence of the juror's statement and any resulting denial of the jury trial guarantee."

So, was this Constitutional exception triggered in United States v. Brown, 2021 WL 2981207 (W.D. Virginia 2021)?

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July 16, 2021 | Permalink | Comments (0)

Thursday, July 15, 2021

Sixth Circuit Finds Detective's Statements Didn't Violate Rule 704(a)

Federal Rule of Evidence 704(a) provides that

An opinion is not objectionable just because it embraces an ultimate issue.

So, would it violate this Rule, in a prosecution of a defendant for possessing a firearm after being convicted of a misdemeanor offense of domestic violence, if

The court permitted the government to introduce a video at trial, in which the detective asked [the defendant]: “You are not allowed to possess a gun, first of all. You can't have one in your house. You can't have one in your hand, right, first of all?”...[The defendant] responded “Right,” and the detective continued, “All right. So you know this, that you can't have a firearm, right?”

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July 15, 2021 | Permalink | Comments (0)

Tuesday, July 13, 2021

Superior Court of Pennsylvania Holds That Own Witness Impeachment Doesn't Require Surprise or a Hostile Witness

Like Federal Rule of Evidence 607, Pennsylvania Rule of Evidence 607(a) provides that

Any party, including the party that called the witness, may attack the witness’s credibility.

Federal courts have held with regard to own witness impeachment by a prosecutor that

Federal evidence law does not ask the judge, either at trial or upon appellate review, to crawl inside the prosecutor's head to divine his or her true motivation....Rather, in determining whether a Government witness' testimony offered as impeachment is admissible, or on the contrary is a “mere subterfuge” to get before the jury substantive evidence which is otherwise inadmissible as hearsay, a trial court must apply Federal Rule of Evidence 403 and weigh the testimony's impeachment value against its tendency to prejudice the defendant unfairly or to confuse the jury.

So, what about Pennsylvania law?

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July 13, 2021 | Permalink | Comments (0)

Sunday, July 11, 2021

Colorado Court of Appeals Finds Fifth Amendment Guarantees the Contemporaneous Advice of Counsel on a Question-by-Question Basis

The Fifth Amendment privilege against self-incrimination provides that

No person...shall be compelled in any criminal case to be a witness against himself.

So, does the Fifth Amendment also guarantee a testifying witness the contemporaneous advice of counsel — on a question-by-question basis — in determining whether to invoke the privilege against self-incrimination? That was the question of first impression addressed by the Colorado Court of Appeals, Division III in its recent opinion in People in the Interest of K.S-E., 2021 WL 2842044 (Colo.App. 2021).

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July 11, 2021 | Permalink | Comments (1)

Friday, July 9, 2021

Eastern District of Pennsylvania Deems Nolo Contendere Plea Inadmissible Against Possible Plaintiff

Federal Rule of Evidence 410(a)(2) provides that

In a civil or criminal case, evidence of the following is not admissible against the defendant who made the plea or participated in the plea discussions:....

nolo contendere plea.

As I noted in my article, The Best Offense is a Good Defense: Why Defendants' Nolo Contendere Pleas Should Be Inadmissible Against Them When They Become Civil Plaintiffs, however, there is a split among courts over whether a nolo contendere plea by a criminal defendant is admissible against him if he later becomes a civil plaintiff. The classic example I give in the article is a defendant who pleads nolo contendere to arson and then brings a civil action against his insurance company after it fails to pay on his police for fire damage.

In Safeco Insurance Company of Illinois, et al. v. Nikolai Gasiorowski, et al., 2021 WL 2853255 (E.D.Pa. 2021), the United States District Court for the Eastern District of Pennsylvania dealt with an insurance company trying to front end such a situation.

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July 9, 2021 | Permalink | Comments (0)

Thursday, July 8, 2021

Case Illustrates Difference Between Federal & Indiana Rule of Evidence 704(b)

Federal Rule of Evidence 704(b) states 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.

Indiana Rule of Evidence 704(b) is broader. It states that

Witnesses may not testify to opinions concerning intent, guilt, or innocence in a criminal case; the truth or falsity of allegations; whether a witness has testified truthfully; or legal conclusions.

To see this latter rule in action, let's take a look at today's opinion of the Court of Appeals of Indiana in Anthony v. State, 2021 WL 2836482 (Ind. App. 2021).

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July 8, 2021 | Permalink | Comments (2)

Wednesday, July 7, 2021

District of Delaware Deems Doctor's Testimony Under 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, under Rule 704(b), should a defendant doctor be able to call an expert doctor to testify that the defendant doctor “believed he was practicing medicine correctly” and was “acting in good faith”? That was the question addressed by the United States District Court for the District of Delaware in its recent opinion in United States v. Titus, 2021 WL 2779002 (D. Del. 2021).

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July 7, 2021 | Permalink | Comments (0)

Sunday, July 4, 2021

Central District of Illinois Finds Rule 615(b) Only Covers One Officer/Employee

Federal Rule of Evidence 615 states that

At a party’s request, the court must order witnesses excluded so that they cannot hear other witnesses’ testimony. Or the court may do so on its own. But this rule does not authorize excluding:

(a) a party who is a natural person;

(b) an officer or employee of a party that is not a natural person, after being designated as the party’s representative by its attorney;

(c) a person whose presence a party shows to be essential to presenting the party’s claim or defense; or

(d) a person authorized by statute to be present.

So, can a party that is not a natural person designate more than one officer or employee to be exempt from sequestration under Rule 615(b)? That was the question addressed by the United States District Court for the Southern District of Illinois in its recent opinion in United States v. Sheffler, 2021 WL 2742742 (C.D.lll. 2021).

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July 4, 2021 | Permalink | Comments (0)

Friday, July 2, 2021

Southern District of Florida Distinguishes Demonstrative Aids From Demonstrative Exhibits

What's the difference between a "demonstrative aid" and a "demonstrative exhibit"? That was the question addressed by the United States District Court for the Southern District of Florida in its recent opinion in Apple, Inc. v. Corellium, LLC, 2021 WL 2712131 (S.D. Fla. 2021).

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July 2, 2021 | Permalink | Comments (0)

Monday, June 28, 2021

Louisiana State University, Paul M. Hebert Law Center Seeks An Evidence Professor

LOUISIANA STATE UNIVERSITY, PAUL M. HEBERT LAW CENTER seeks to hire pre-tenure or tenured lateral faculty members in constitutional law, criminal law and procedure, federal courts and procedure, evidence, and professional responsibility. Applicants should have a J.D. from an ABA-accredited law school, superior academic credentials and legal scholarship, as well as a commitment to outstanding teaching.

Equal Opportunity Employer Statement: LSU is committed to providing equal opportunity for all qualified persons in admission to, participation in, or employment in the programs and activities which the University operates without regard to race, creed, color, marital status, sexual orientation, gender identity, gender expression, religion, sex, national origin, age, mental or physical disability, or veteran’s status. LSU is committed to diversity and is an equal opportunity / equal access employer. LSU believes diversity, equity, and inclusion enrich the educational experience of our students, faculty, and staff, and are necessary to prepare all people to thrive personally and professionally in a global society. To learn more about how LSU is committed to diversity and inclusivity, please see LSU’s Diversity Statement and Roadmap.

Applications should include a letter of application, resume, references, and teaching evaluations to:

Christina M. Sautter

Chair, Faculty Appointments Committee c/o Pam Hancock (or by email to phancock@lsu.edu)

Paul M. Hebert Law Center

Louisiana State University

1 East Campus Drive

Baton Rouge, Louisiana 70803-0106

Download LSU Hiring Announcement 2021

June 28, 2021 | Permalink | Comments (0)

Sunday, June 27, 2021

Fifth Circuit Grants Qualified Immunity To Officers Who Tased Man Soaked in Gasoline, Knowing it Would Light Him on Fire

The qualified immunity doctrine insulates governmental agents from liability for unconstitutional acts as long “as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.”  The primary purpose of the doctrine “is to protect them ‘from undue interference with their duties and from potentially disabling threats of liability.’” So, should there be qualified immunity in a case with these facts?

[T]wo police officers tased the suicidal [Gabriel] Olivas, despite:

1. knowing that he was soaked in gasoline,

2. knowing from recent training that tasers ignite gasoline, and

3. knowing from a fellow officer’s explicit warning in that instant, “If we tase him, he’s going to light on fire!”

They fired their tasers anyway, knowing full well that using a taser was tantamount to using a flamethrower. Olivas burst into flames and later died.

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June 27, 2021 | Permalink | Comments (2)

Thursday, June 24, 2021

Texas Court of Appeals Finds Sergeant Improperly Opined on Defendant's Guilt

Can a witness testify that he believes the defendant is guilty? For example, consider the following testimony by a sergeant at the trial of Charles Reedy for the murder of Glen Burford:

Q. Have you had training and experience in classes to follow—to run an investigation, to collect evidence, and to be guided where that evidence takes you?
A. Yes, sir. I've gone through many trainings on things as simple as interview interrogation to crime scene investigations. I do advanced homicide investigations.
Q. Did you follow those protocols in this case?
A. Yes, sir.
Q. And when you looked at all the evidence that you reviewed—have you reviewed it multiple times, the evidence?
A. Yes, sir.
Q. Do you have any doubts in—
[Defense counsel]: Your Honor, I'm going to object that it's the jury's job to determine what the facts reveal and not the detective[']s.
The Court: It is the purview of the jury to decide what the evidence shows and to make a finding in this case[;] however, that does not prevent a witness from giving an opinion in the case. So you may give your opinion, ma'am.
Q. So in your opinion, based on your training and experience, do you believe you know who committed the murder of Mr. Burford?
A. Yes, sir.
Q. Who is that?
A. Mr. Charles Reedy.

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June 24, 2021 | Permalink | Comments (0)