Wednesday, October 9, 2024
D.D.C. Finds that Defendant's 10+ Year Old Conviction Will be Admissible Impeach Him Under Rule 609(b)
Federal Rule of Evidence 609(b) provides as follows:
(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.
The Advisory Committee's Note to Rule 609(b) states that "[i]t is intended that convictions over 10 years old will be admitted very rarely and only in exceptional circumstances." This makes the recent opinion of the United States District Court for the District of Columbia in United States v. Okafor, 2024 WL 4263928 (D.D.C. 2024), the exception rather than the rule.
October 9, 2024 | Permalink | Comments (0)
Tuesday, October 8, 2024
Supreme Court of Georgia Holds Rule 609(a)(1) Doesn't Require the Court to Cite to Specific Facts and Circumstances
Federal Rule of Evidence 609(b) states the following:
(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. (emphasis added).
On the other hand, Federal Rule of Evidence 609(a) states the following:
(a) In General. 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.
So, does that mean that a judge does not need to cite to "specific facts and circumstances" in balancing probative value and unfair prejudice before admitting/excluding evidence of convictions under Rule 609(a)? That was the question addressed by the Supreme Court of Georgia regarding its state counterpart to Rule 609(a) in its recent opinion in Redding v. State, 2024 WL 4350898 (Ga. 2024).
October 8, 2024 | Permalink | Comments (0)
Wednesday, September 25, 2024
How Far Can Attorneys Go In Cross-Examining Witnesses Under Rule 608(b)?
Federal Rule of Evidence 608(b) states the following:
(b) Specific Instances of Conduct. 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.
Under Rule 608(b), an attorney could clearly cross-examine a witness about whether they had committed an act of forgery. But could that attorney then asked that witness (a) whether they were sued for such forgery; and (b) whether the court ruled against them in that civil action? These were the questions addressed by the Eighth Circuit in its recent opinion in Davis v. Simon Contractors, Inc., 2024 WL 4195566 (8th Cir. 2024).
September 25, 2024 | Permalink | Comments (0)
Thursday, September 19, 2024
Does the Right to Autonomy Apply at the Sentencing Stage of Trial?
In McCoy v. Louisiana, the Supreme Court concluded that a criminal defendant has the right to autonomy, i.e., the right “to decide on the objective of his defense.” Pursuant to this right, a defendant decides whether “to admit guilt in the hope of gaining mercy at the sentencing stage, or to maintain his innocence, leaving it to the State to prove his guilt beyond a reasonable doubt.” In its recent opinion in Sexton v. State, 2024 WL 4156989 (Fla. 2024), the Supreme Court of Florida answered an interesting follow-up question: Does the right to autonomy apply at the sentencing stage of trial?
September 19, 2024 | Permalink | Comments (0)
Monday, September 16, 2024
Ninth Circuit Finds District Court Erred in Excluding Statement That Should Have Been Admissible Under Rule 803(3)
Federal Rule of Evidence 803(3) provides an exception to the rule against hearsay for
A statement of the declarant’s then-existing state of mind (such as motive, intent, or plan) or emotional, sensory, or physical condition (such as 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 validity or terms of the declarant’s will.
A good example of Rule 803(3) in action can be found in the recent opinion of the Ninth Circuit in United States v. Shen Zhen New World I, LLC, 2024 WL 4140629 (9th Cir. 2024).
September 16, 2024 | Permalink | Comments (0)
Friday, September 13, 2024
Federal Circuit Reverses District Court's Rule 703 Ruling
Federal Rule of Evidence 703 provides that
An expert may base an opinion on facts or data in the case that the expert has been made aware of or personally observed. If experts in the particular field would reasonably rely on those kinds of facts or data in forming an opinion on the subject, they need not be admissible for the opinion to be admitted. But if the facts or data would otherwise be inadmissible, the proponent of the opinion may disclose them to the jury only if their probative value in helping the jury evaluate the opinion substantially outweighs their prejudicial effect.
It's rare to see a ruling reversed based on a judge misapplying Rule 703, but an example can be found with the recent opinion of the Federal Circuit in ParkerVision, Inc. v. Qualcomm Incorporated, 2024 WL 4094640 (Fed. Cir. 2024).
September 13, 2024 | Permalink | Comments (0)
Wednesday, September 11, 2024
Eighth Circuit Addresses the Scope of the 2014 Amendment to the Prior Consistent Statement Hearsay Exclusion
Federal Rule of Evidence 801(d)(1)(B) provides an exclusion to the rule against hearsay if
The declarant testifies and is subject to cross-examination about a prior statement, and the statement:...
(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.
Subsection (ii) was added via a 2014 amendment, and courts are still trying to figure out the scope of this addition. The recent opinion of the Eighth Circuit in United States v. Begay, 2024 WL 4129017 (8th Cir. 2024), is the latest attempt to address this question.
September 11, 2024 | Permalink | Comments (1)
Monday, September 9, 2024
Fourth Circuit Finds Defendant Rap Lyrics Were Admissible After He Presented Good Character Evidence
Federal Rule of Evidence 404(a)(2)(A) provides that
(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
One of the most controversial types of evidence that courts typically allow is rebuttal evidence of a defendant's rap lyrics after a defendant presents evidence of his good character. It's a phenomenon I've been writing about for years, including in my essay, Freedom of Character: Creating a Constitutional Character Evidence Test. A recent example can be found in the Fourth Circuit's opinion in United States v. Watkins, 111 F.4th 300 (4th Cir. 2020).
September 9, 2024 | Permalink | Comments (0)
Thursday, September 5, 2024
Federal Rule of Evidence 605 and Judicial Functions
Federal Rule of Evidence 605 states that
The presiding judge may not testify as a witness at the trial. A party need not object to preserve the issue.
Courts have held that Rule 605 prohibits presiding judges both from testifying and giving the functional equivalent of testimony. So, what constitutes the functional equivalent of testimony in this context? The recent opinion of the Tenth Circuit in United States v. Flechs, 98 F.4th 1235 (10th Cir. 2024), provides good examples of when a judge might violate or not violate Rule 605.
September 5, 2024 | Permalink | Comments (0)
Wednesday, September 4, 2024
The Limitations of Federal Rule of Evidence 704(b) & How Prosecutors Frequently Circumvent It
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.
Under this Rule, expert witnesses are not allowed to testify that the defendant had a particular mens rea (e.g., "The defendant possessed the drugs with intent to distribute."). But, as opinions such as the recent one by the Sixth Circuit in United States v. Xu, 2024 WL 4002876 (6th Cir. 2024), make clear, experts come come awfully close to saying this very thing.
September 4, 2024 | Permalink | Comments (1)
Monday, September 2, 2024
Court of Appeals of South Carolina Finds Rule 801(d)(2)(B) Applied to Defendant's Head Nod
Similar to its federal counterpart, South Carolina Rule of Evidence 801(d)(2)(B) provides an exclusion to the rule against hearsay for
The statement is offered against a party and is...a statement of which the party has manifested an adoption or belief in its truth.
The recent opinion by the Court of Appeals of South Carolina in State v. Gleaton, 2024 WL 3958596 (S.C. App. 2024), provides a good illustration of the rule in action.
September 2, 2024 | Permalink | Comments (0)
Saturday, August 31, 2024
More on the Baffling Opinion of the Supreme Court of Maryland in the Adnan Syed Case
In yesterday's post on the Adnan Syed case, I noted that
the court ruled that (1) the notice given to Hae's family was not reasonable; (2) Hae's family had the right to attend in person; and (3) Hae's family has the right to be heard on the merits of the Motion. Out of the three rulings, the third one seems the most egregious and unprecedented, doing real damage to the innocence movement and cases in which the State and defense agree there was a wrongful conviction.
I think the dissenting opinion of Justice Booth (joined by Justices Hotten and Battaglia) does a great job of explaining the issues with this third ruling.
August 31, 2024 | Permalink | Comments (0)
Friday, August 30, 2024
Supreme Court of Maryland Remands Adnan Syed's Case for a New Hearing in a 4-3 Ruling
In a ruling that is 187 pages and has 2 dissents, the Supreme Court of Maryland remanded the Adnan Syed Case to Circuit court for a re-do of the Motion to Vacate his convictions. This is the second 4-3 ruling by Maryland's highest court to go against Adnan Syed in this case, coming on the heels of a 4-3 ruling denying him relief based on his trial attorney's failure to contact alibi witness Asia McClain. So, where do we stand with the case? This post will break things down.
August 30, 2024 | Permalink | Comments (2)
Wednesday, August 28, 2024
North Carolina Case Reveals That Inquiry Into Acts of Dishonesty Can Only Occur During Cross-Examination
Similar to its federal counterpart, North Carolina Rule of Evidence 608(b) provides that
Specific instances of the conduct of a witness, for the purpose of attacking or supporting his credibility, other than conviction of crime as provided in Rule 609, may not be proved by extrinsic evidence. They may, however, in the discretion of the court, if probative of truthfulness or untruthfulness, be inquired into on cross‑examination of the witness (1) concerning his character for truthfulness or untruthfulness, or (2) concerning the character for truthfulness or untruthfulness of another witness as to which character the witness being cross‑examined has testified.
As the Rule makes clear, such inquiry can only occur during cross-examination, which was the problem for the defendant in Matter of D.R.J., 2024 WL 3864002 (N.C. App. 2024).
August 28, 2024 | Permalink | Comments (0)
Monday, August 26, 2024
Eleventh Circuit Finds District Court Properly Excluded Lay Opinion Testimony That Was Based on Hearsay in Taxinet Case
Federal Rule of Evidence 701 states 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.
On the other hand, Federal Rule of Evidence 703 states that
An expert may base an opinion on facts or data in the case that the expert has been made aware of or personally observed. If experts in the particular field would reasonably rely on those kinds of facts or data in forming an opinion on the subject, they need not be admissible for the opinion to be admitted. But if the facts or data would otherwise be inadmissible, the proponent of the opinion may disclose them to the jury only if their probative value in helping the jury evaluate the opinion substantially outweighs their prejudicial effect.
In other words, lay witnesses can only base their opinions on things rationally based on their perceptions, i.e., things they have experienced themselves. On the other hand, expert witnesses can be made aware of facts or data. Indeed, even if those underlying facts or data are inadmissible, experts can offer opinions based on them as long as experts in their field reasonably rely on such facts or data. For example, a doctor could base his opinion on a victim's cause of death in part based upon hearsay statements by family members.
A good example of the limitation on lay opinion testimony can be found in the recent opinion of the Eleventh Circuit in Taxinet Corp. v. Leon, 2024 WL 3863497 (11th Cir. 2024).
August 26, 2024 | Permalink | Comments (0)
Thursday, August 22, 2024
New England Law Boston Seeks an Evidence Professor
New England Law | Boston invites applications from candidates for assistant professor positions to begin in the fall 2025 semester.We seek to hire individuals who are interested in teaching foundational courses, particularly Civil Procedure, Criminal Law, Property, and Torts, and upper-level courses in the areas of Criminal Procedure, Evidence, Family Law, and Tax Law. Applicants must possess a J.D. from an accredited U.S. law school or equivalent degree, must demonstrate a commitment to excellent teaching, and have strong scholarly potential and legal practice experience. Review of applications will continue until the positions are filled. We will review candidate materials posted in the AALS Faculty Appointments Register (FAR), and also invite applications from candidates not participating in the FAR. Individuals interested in applying for a position should submit a letter of application, a résumé or curriculum vitae, a detailed statement of interest including teaching and research interests, and the names and contact information of three references. These materials should be submitted to the Faculty Appointments Committee, via email to [email protected], with the subject line "Faculty Appointments Committee."
August 22, 2024 | Permalink | Comments (0)
Wednesday, August 21, 2024
Lincoln Memorial University Duncan School of Law Seeks an Evidence Professor
Lincoln Memorial University Duncan School of Law in Knoxville, TN, seeks entry-level and lateral candidates for full-time, tenure-track faculty positions starting July 2025. LMU Law aims to provide legal education to students from underserved regions, focusing on practice-oriented training for diverse backgrounds. The goal is to produce graduates who will pass the bar and serve their communities, particularly addressing the legal needs of Appalachia and other underserved areas.
We welcome applications from all subject areas, with particular need for expertise in business associations, civil procedure, evidence, property, constitutional law, and criminal law and procedure. As we expand our predominantly online hybrid program, we seek candidates across all doctrinal areas and are particularly interested in those who would enjoy the challenges of online teaching.
Educating the next generation of lawyers is our top priority. Faculty members are committed to supporting students in their academic, professional, and personal development. Our campus design ensures faculty accessibility and active engagement in law school life. We work collaboratively to provide innovative legal education, incorporating skill-based and experiential learning and best practices from academic and bar success. We seek candidates who share this ethos and are excited to contribute.
Candidates must have a J.D. or equivalent, strong academics, and a commitment to legal education. We value diverse experiences, including teaching, scholarship, legal practice, clerkships, and post-law-school work. Candidates without teaching experience but showing promise in teaching and scholarship are welcome. This can be evidenced by involvement in student-focused activities, mentoring, educational presentations, writing for legal publications, or leadership in professional or community organizations.
This position offers a twelve-month contract with teaching responsibilities in alternate summers. Our tenure and promotion policies consider this when determining scholarship requirements.
We are committed to diversity and actively seek applications from underrepresented groups, including people of color, women, individuals with disabilities, LGBTQ+ individuals, and veterans. We value candidates who can enrich our community, program, and mission through their diverse life experiences, perspectives, and philosophies.
Our law school is located in downtown Knoxville, offering vibrant city life, a rich cultural scene, and stunning natural beauty with the Great Smoky Mountains as a backdrop. Knoxville has been recognized as one of the top 25 places to live in the United States.
Inquiries may be directed to Sydney Beckman, Chair of the Faculty Appointments Committee, at [email protected]. Applications can be submitted here and must include a cover letter detailing your interest in LMU Law, a CV, and a list of three professional references. Candidates are welcome, but not required, to provide a statement of teaching philosophy, research agenda, or diversity statement. Candidates invited for campus visits will be requested to provide teaching evaluations from the past three years, if available. The committee anticipates beginning application review immediately.
August 21, 2024 | Permalink | Comments (0)
Tuesday, August 20, 2024
Supreme Court of Colorado Finds Juror Saying a Judge Told a Prior Jury That Their Verdict Needed to be Unanimous Not Grounds for Jury Impeachment
Similar to its federal counterpart, Colorado Rule of Evidence 606(b) states the following:
(b) Inquiry into validity of verdict or indictment. 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 his or any other juror's mind or emotions as influencing him to assent to or dissent from the verdict or indictment or concerning his mental processes in connection therewith. But a juror may testify about (1) whether extraneous prejudicial information was improperly brought to the jurors' attention, (2) whether any outside influence was improperly brought to bear upon any juror, or (3) whether there was a mistake in entering the verdict onto the verdict form. A juror's affidavit or evidence of any statement by the juror may not be received on a matter about which the juror would be precluded from testifying.
So, imagine that a jury is initially deadlocked during deliberations before a juror
mentioned a previous jury they [sic] she served on, in which the jury was told by the judge “I don't want a hung jury, and I want you guys to stay as long as you need to become unanimous.” That juror stated that she was told in the previous trial by the judge that the jury must deliberate until a unanimous verdict was reached....The original juror who referenced her previous jury service, presented that information as the factual information about the law that the jury was required to reach a unanimous verdict.
Would this constitute extraneous prejudicial information, allowing for jury impeachment? According to the recent opinion of the Supreme Court of Colorado in Clark v. People, 2024 WL 3284574 (Colo. 2024), the answer is "no."
August 20, 2024 | Permalink | Comments (0)
Monday, August 19, 2024
The Key Difference Between Federal Rule of Evidence 614(a) and its Tennessee Counterpart
Federal Rule of Evidence 614(a) provides that
The court may call a witness on its own or at a party’s request. Each party is entitled to cross-examine the witness.
The ability of the judge/court to call witnesses in more circumscribed under Tennessee law. Pursuant to Tennessee Rule of Evidence 614(a),
The court may not call witnesses except in extraordinary circumstances or except as provided for court-appointed experts in Rule 706, and all parties are entitled to cross-examine witnesses thus called.
So, what does this difference mean in practice?
August 19, 2024 | Permalink | Comments (0)
Friday, August 16, 2024
The Key Difference Between Federal Rule of Evidence 608(b) and its Pennsylvania Counterpart
In yesterday's post, I noted a key difference between Federal Rule of Evidence 608(b) and its Oregon counterpart. In this post, I'll note a key difference between Federal Rule of Evidence 608(b) and its Pennsylvania counterpart. Federal Rule of Evidence 608(b) provides in pertinent part 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.
On the other hand, Pennsylvania Rule of Evidence 608(b) states the following:
(b) Specific Instances of Conduct. Except as provided in Rule 609 (relating to evidence of conviction of crime),
(1) the character of a witness for truthfulness may not be attacked or supported by cross-examination or extrinsic evidence concerning specific instances of the witness' conduct; however,
(2) in the discretion of the court, the credibility of a witness who testifies as to the reputation of another witness for truthfulness or untruthfulness may be attacked by cross-examination concerning specific instances of conduct (not including arrests) of the other witness, if they are probative of truthfulness or untruthfulness; but extrinsic evidence thereof is not admissible.
So, what does this mean in practice?
August 16, 2024 | Permalink | Comments (0)