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The Researching Paralegal

~ Articles and Research for Legal Professionals

The Researching Paralegal

Category Archives: Court Rules

eDiscovery Day Has Arrived.

01 Friday Dec 2017

Posted by Celia C. Elwell, RP in Admissibility, Discovery, Document Coding, E-Discovery, Evidence, Federal Rules of Evidence, Rule 803 Exception, Rule 902

≈ Comments Off on eDiscovery Day Has Arrived.

Tags

Bow Tie Law, Document Review, E-Discovery, Everlaw, Federal Rules of Evidence, Josh Gilliland

Everlaw Guest Post: When Has a Producing Party Completed Document Review? by Josh Gilliland, Bow Tie Law

http://bit.ly/2i7KNMX

On November 24, 2017, I posted a reminder of this federal evidence rule change that became effective today, December 1st, or as Josh calls it, “eDiscovery Day.”  Josh Gilliland’s post and webpage covers the changes in more depth, and are worth a bookmark for future reference. Don’t overlook the tweets on the right-hand side of the page.  -CCE

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December 1, 2017 Amendments to the Federal Rules of Evidence on Hearsay and E-Discovery Authentication.

24 Friday Nov 2017

Posted by Celia C. Elwell, RP in Admissibility, Authentication, E-Discovery, Evidence, Federal Rules of Evidence, Rule 803 Exception, Rule 902

≈ Comments Off on December 1, 2017 Amendments to the Federal Rules of Evidence on Hearsay and E-Discovery Authentication.

Tags

E-Discovery, Federal Rules of Evidence, Hearsay, Self-Authenticating Evidence

Federal Rules of Evidence Amendments for 2018, Federal Rule of Evidence (2017 Edition)

https://www.rulesofevidence.org/federal-rules-of-evidence-amendments-for-2018/

The links no longer work in my January 22, 2017 post on the amendments to the Federal Rules of Evidence. The amendments are effective December 1, 2017. This link is reliable and worth a bookmark. This website includes the rules, highlights the amendments, and the Committee Notes. -CCE

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New Federal Rules in Evidence in 2017 Will Affect The Hearsay Exception and E-Discovery.

22 Sunday Jan 2017

Posted by Celia C. Elwell, RP in Authentication, Discovery, E-Discovery, Evidence, Rule 803 Exception, Rule 902

≈ Comments Off on New Federal Rules in Evidence in 2017 Will Affect The Hearsay Exception and E-Discovery.

Tags

BakerHostetler, Carey Busen, Discovery Advocate Blog, E-Discovery, Federal Rules of Evidence, Gilbert S. Keteltas, Gregg Kettles, Hearsay, Santa Clara Law Review

‘Ancient’ Data (and Documents): Prepare for Federal Changes to a Long-standing Hearsay Exception, by Carey Busen and Gilbert S. Keteltas, BakerHostetler, Discovery Advocate Blog

http://bit.ly/2jeUNW2

If you hadn’t heard, there are changes to the Federal Rules of Evidence that will become effective in 2017. Among the changes are rules on hearsay exception for “ancient documents” and rules specifically addressing electronic evidence. Because technology is never static, e-discovery has looked forward rather than backward. These new rules will address e-discovery older than 20 years. -CCE

If wish to do more research into this area, I recommend:  Gregg Kettles, Ancient Documents and the Rule Against Multiple Hearsay, 39 Santa Clara L. Rev. 719 (1999). http://bit.ly/2jOIujM

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Can Plaintiff Defeat Defendant’s Motion In Limine To Exclude Facebook Evidence?

25 Sunday Jan 2015

Posted by Celia C. Elwell, RP in Admissibility, Evidence, Rule 403, Social Media

≈ Comments Off on Can Plaintiff Defeat Defendant’s Motion In Limine To Exclude Facebook Evidence?

Tags

Admissibility, Bow Tie Law’s Blog, Evidence, Facebook, Joshua Gilliland, Motion in Limine, Social media

Swabbing the Decks of Admissibility, by Joshua Gilliland, Esq., Bow Tie Law’s Blog

http://tinyurl.com/koeyrb5

Working as a deckhand can be extremely dangerous. There are plenty of reality TV shows with fishermen, tugboats, and salvage crews to highlight the risks professional mariners face daily.

What is also risky in litigation is posting on social media information that could hurt your case.

In Newill v. Campbell Transp. Co., a former deckhand brought motions in limine to limit social media evidence and other testimony in what apparently was a trial over a shipboard injury.

Red Skies in the Morning

The Plaintiff attempted to preclude the Defendant from introducing Facebook posts that showed the Plaintiff could engage in physical activities, despite his claimed injury. Newill v. Campbell Transp. Co., 2015 U.S. Dist. LEXIS 4350, 1-2 (W.D. Pa. Jan. 14, 2015).

The Defendant sought to introduce Facebook posts that the Plaintiff engaged in ‘painting, landscaping, flooring, going to the gym, undercoating a truck, and going physical.’ Newill, at *2. The Plaintiff further offered his skills as a handyman on social media. Id.

The Court held that the Facebook posts that reflected physical capabilities that were inconsistent with his claimed injury would be allowed at trial. Id. However, if during the trial the Plaintiff felt a social media exhibit was overly embarrassing, the Plaintiff could challenge that specific post under Federal Rule of Evidence 403 at that time. Newill, at *3.

Red Skies at Night

The Defendant had a witness [presumably an expert] who was to testify that the Plaintiff’s Facebook posts ‘probably [were] not giving the employers a good impression,’ was simply speculation and thus not admissible. Newill, at *4. This might have been different if there was some evidence that the connected the Plaintiff’s employment status to his social media posting, but none was offered. Id.

Bow Tie Thoughts

I am an Evidence geek. Love it as much as the Rules of Civil Procedure. The difference is Evidence goes to the heart of a trial: What is admissible? . . . .

Continue reading →

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Witness Credibility When Witness Has A Criminal History.

08 Saturday Nov 2014

Posted by Celia C. Elwell, RP in 2nd Circuit Court of Appeals, Appellate Law, Colorado Supreme Court, Evidence, Federal Rules of Evidence, Jury Persuasion, Rule 609, Trial Tips and Techniques, Witnesses

≈ Comments Off on Witness Credibility When Witness Has A Criminal History.

Tags

Evidence, EvidenceProf Blog, Felony, Judge Sotomayor, Violence, Witness, Witness Credibility

Credibility Proxies: Violence, by JSK, Evidence ProfBlogger, EvidenceProf Blog

http://tinyurl.com/pr3nqtl

Yesterday [November 7, 2014], we saw the Colorado Supreme Court grappling with whether an act of shoplifting is admissible as evidence bearing on a witness’s credibility. In that same opinion, People v. Segovia, the C.S.C. noted that acts of violence have typically been excluded when offered to impeach credibility.

This frequently cited notion, that acts of violence are not particularly relevant to credibility, is worth interrogating further. To do so, I turn to another opinion from the past decade. This one is a frequently cited opinion by then Judge Sotomayor of the Second Circuit, U.S. v. Estrada, 430 F.3d 606. The case was an appeal of the convictions of two men who were found to have conspired to sell cocaine and heroin. At trial, the government called cooperating witnesses. Defense counsel sought to impeach the two witnesses with evidence that between them they had burglary, larceny, felony drug and murder convictions. Acknowledging that F.R.E. 609(a)(1) suggest that felony convictions are presumptively relevant to credibility, the trial court held in camera hearings to probe into the nature of the larceny, felony drug and murder convictions.  It found that they weren’t especially probative of truthfulness. The court therefore ruled that defense counsel could not name the particular felonies committed or ask about the nature of the convictions, but instead could simply elicit the fact of the convictions and the dates.

The Second Circuit disagreed with the blanket prohibition on naming the felonies. It held that unless a conviction fails 403 balancing and is excluded entirely, ‘it is the jury’s function to assess the probative value of a witness’ specific conviction or convictions as part of its overall evaluation of the witness’s credibility.’ Judge Sotomayor wrote that the trial court must examine ‘which of a witness’s crimes have elements relevant to veracity and honesty and which do not’ because while all felonies are not equally probative of credibility ‘many are significantly probative of a witness’ propensity for truthfulness.’

Judge Sotomayor then offered a taste of how the trial court should go about making these determinations. And this is where it gets really interesting. With heavy reliance on earlier authority, she distinguished acts of violence from crimes that “reflect adversely on a person’s integrity.’ Crimes of violence ‘generally have little or no direct bearing on honesty and veracity’ because they result from provocation, carelessness, impatience or combativeness. By contrast, she explained, theft and escape crimes, which don’t fall under 609(a)(2), are nonetheless highly probative of credibility because they involve ‘deliberate and injurious violation of basic standards rather than impulse or anger, and usually . . . some element of deceiving the victim.’ In addition, the gravity and/or depravity involved in the offense should be considered both for their ability to prejudice the jury and because ‘particularly heinous crimes may be high in probative value insofar as they reflect a rejection of social mores.’

Once again, then, rejection of social mores and ‘violation of basic standards” are held up as clear indicators of lack of credibility. Strangely, though, crimes of violence seem to fit those definitions quite well. The very criminalization of such acts suggest that society demands that one maintain self-control and refrain from violence in most circumstances. A violent lack of inhibition or a deliberate indifference to the injuries caused by ones’ actions arguably run contrary to basic standards that glue society together just as fundamentally as the decision to steal from another person.

Even if, instead, lying is linked to the ability to scheme or plan, then this is not much more helpful as a way to distinguish crimes of violence. Certainly, many theft crimes may happen without much thought (shoplifting, for example) and they may be more excusable as the result of thoughtlessness than violence that causes bodily harm to another person. Why is it likely that someone who steals $100 on a whim is more prone to lying than someone who lashes out at another with a beer bottle during a brawl? Why isn’t it equally likely that people who are prone to fly into a violent rage at a perceived slight or recklessly injure others would be careless of the courtroom oath or think nothing of fabricating facts in order to protect themselves? Judge Sotomayor doesn’t answer these questions.

Ironically, even as she offered this fairly detailed explanation of how to weigh felonies under Rule 609(a)(1), Judge Sotomayor illustrated the subjectivity of such line drawing. Coming to the opposite conclusion of the Colorado Supreme Court, she found that it was not error for the district court to conclude that the circumstances of one of the witness’ shoplifting conviction did not ‘involve falsity or deceit such as to fall within the ambit of Rule 609(a)(2).’ Her explanation: stealth and dishonesty are not the same thing.

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Victim’s Clicking Noises Qualify As Dying Declaration Under Hearsay Exception.

18 Saturday Oct 2014

Posted by Celia C. Elwell, RP in Dying Declaration, Evidence, Hearsay, Rule 804

≈ Comments Off on Victim’s Clicking Noises Qualify As Dying Declaration Under Hearsay Exception.

Tags

Colin Miller, Dying Declaration, Evidence, EvidProf Blog, Hearsay Exemption, Ledger-Enquirer

Die Another Day: Ohio Court Finds Victim’s Clicking Noises Qualify as Dying Declarations, by Colin Miller, Editor, EvidenceProf Blog

http://tinyurl.com/ncucale

According to an article in the Ledger-Enquirer,

Three years ago Calvin Grimes lay in intensive care, paralyzed from the neck down, with a gunshot wound to his windpipe.

He could not speak. All he could do was click with his mouth.

In the hospital with machines breathing for him, he could not tell Columbus police who fired the shots Aug. 19, 2010, that left him slumped in a car at 543 Third Ave., with two .40-caliber bullets lodged in his trachea and his spinal canal, and with exit wounds from .22-caliber bullets in his left wrist, upper left thigh and right buttock.

Because Grimes could not vocalize the names of his assailants, Detective Wayne Fairburn improvised as he questioned Grimes in the hospital Oct. 11, 201[0].

Fairburn reported Grimes first mouthed the name ‘Jarvis” when asked who shot him. The detective then wrote the alphabet out on his note pad, and asked Grimes to make the clicking noise as Fairburn pointed to each letter, signaling the sequence to spell names.

Using this method, Fairburn got Grimes to spell ‘Jarvis Alexander’ and ‘Josh Leonard.’ Two days later the officer returned with photographs of those suspects, which Grimes identified as the men who shot him.

Later Grimes was fitted with a device that enabled him to speak, and relatives reported he told them the same names.

Should Grimes’s ‘statements’ be deemed admissible as dying declarations?

That’s a tough question, but one that the trial judge answered in the affirmative, ruling that Fairburn and Grimes’s family could testify because Grimes died on June 26, 2011. Was this the correct ruling?

Ohio Rule of Evidence 804(B)(2) provides an exception to the rule against hearsay

In a prosecution for homicide or in a civil action or proceeding, [for] a statement made by a declarant, while believing that his or her death was imminent, concerning the cause or circumstances of what the declarant believed to be his or her impending death.

The primary question was whether Grimes’s statements were made while he believed his death to be imminent. The evidence showed that ‘Grimes eventually was able to leave the hospital to live with his mother, but an infection in his torso sent him back. That’s when Grimes told his mother, Mama, I’m right with God. You’ve got to forgive Joshua and Jarvis because I have.’

The article doesn’t make the time line in the case 100% clear, but it does raise this possibility: Grimes first identified his assailants when he did not believe his death was imminent, and Grimes then re-identified his assailants when he did believe his death was imminent. And if that were the case, I’m not sure the dying declaration exception should apply.

The typical case of the dying declaration exception applying consists of a victim being shot, stabbed, etc. and telling the EMT, doctor etc., ‘Defendant did this’ as he believes his death to be imminent. But what if a victim is shot, and the EMT tells the victim he has a good chance of surviving. Then, the victim says, ‘Defendant shot me.’ Then, days later, the victim’s condition worsens, and he says, ‘Tell defendant I forgive him’ while believing his death to be imminent.

No, this might or might not be the case for Grimes. But, assuming it is, should a subsequent statement of identification be admissible under the dying declarations exception?

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Hearsay Rule Affects Texas State-of-Mind Exception – Or Does It?

20 Saturday Sep 2014

Posted by Celia C. Elwell, RP in Appellate Law, Evidence, Rule 803 Exception, Texas Supreme Court

≈ Comments Off on Hearsay Rule Affects Texas State-of-Mind Exception – Or Does It?

Tags

Cogdill v. State, Colin Miller, Evidence, Hearsay Rule, Murder Trial, Rule 803, State-of-Mind Exception

Back to the Future: Court of Appeals of Texas Finds State of Mind Exception Inapplicable in Duress Case, by Editor Colin Miller, Evidence ProfBlogger, EvidenceProf Blog

http://tinyurl.com/l2qfnap

Similar to its federal counterpart, Texas Rule of Evidence 803(3) provides an exception to the rule of hearsay for:

A statement of the declarant’s then existing state of mind, emotion, sensation, or physical condition (such as intent, plan, motive, design, 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 execution, revocation, identification, or terms of declarant’s will.

As I always tell my students, Rule 803(3) covers statements concerning present feelings of future intentions but not past events. So where did that leave the defendant in Cogdill v. State, 2014 WL 4627579 (Tex.App.-San Antonio 2014)?

In Cogdill, Nico Allen–Antoni Cogdill was charged with capital murder. At trial, Cogdill raised a duress defense, claiming that he and Isaac Milne killed the victim because Jeremy “Bounce” Bukowski threatened them with a shotgun. To prove this claim, Cogdill sought to have Bukowski’s cellmate testify that:

Mr. Bukowski told me that the night that—that all three of them, they went out to the—to the guy’s house. He said that—that at first he had told Mr. Cogdill and Mr. Isaac Milne that it was just to go out there to rob the guy of some laptops, some computer software, and some musical instruments and stuff. He said whenever they got there he said—he said the guy that they went to rob used to be an old roommate of his and said that he told them that the guy was a convicted pedophilier (sic), and whenever they got out there he pulled a shotgun from his trunk, he held it on Mr. Cogdill and Mr. Milne and forced them to proceed with the—with the murder.

Cogdill claimed that this statement was admissible under Rule 803(3), but the trial court disagreed. On appeal, Cogdill repeated his argument, but the Court of Appeals rejected his claim, concluding:

First, we disagree with Cogdill’s interpretation of Bukowski’s statement. The statements allegedly made by Bukowski are merely a rendition of the events that took place on the night of the murder, i.e., out-of-court statements of events that occurred, and as such are hearsay and not admissible under Rule 803(3). . . . Second, numerous courts have held that for the exception set forth in Rule 803(3) to apply, the statement must relate to future, not past, conduct.

I agree with the court’s conclusion but wonder whether Cogdill also raised Texas Rule of Evidence 803(24), which provides an exception to the rule against hearsay for :

A statement which was at the time of its making so far contrary to the declarant’s pecuniary or proprietary interest, or so far tended to subject the declarant to civil or criminal liability, or to render invalid a claim by the declarant against another, or to make the declarant an object of hatred, ridicule, or disgrace, that a reasonable person in declarant’s position would not have made the statement unless believing it to be true. In criminal cases, a statement tending to expose the declarant to criminal liability is not admissible unless corroborating circumstances clearly indicate the trustworthiness of the statement.

The opinion doesn’t reference this Rule, but threatening someone with a shotgun to kill someone would certainly qualify as a statement against interest under the Rule, assuming that there were corroborating circumstances. And, unlike its federal counterpart, Texas’ statement against interest rule does not require that the declatant be unavailable.

-CM

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What Happens When No Written Notice Is Given To Offer An Exhibit?

30 Saturday Aug 2014

Posted by Celia C. Elwell, RP in 2nd Circuit Court of Appeals, Admissibility, Appellate Law, Authentication, Court Rules, Court Rules, Courts, Evidence, Federal District Court Rules, Rule 803 Exception, Rule 902

≈ Comments Off on What Happens When No Written Notice Is Given To Offer An Exhibit?

Tags

Colin Miller, Court Record, EvidenceProf Blog, Federal Rules of Evidence, Rule 901(11), Second Circuit

Did You Notice That?: 2nd Circuit Excuses Lack of Written Notice Under Rule 902(11), by Evidence ProfBlogger, Editor: Colin Miller, EvidenceProf Blog

http://tinyurl.com/o98a788

The original or a copy of a domestic record that meets the requirements of Rule 803(6)(A)-(C), as shown by a certification of the custodian or another qualified person that complies with a federal statute or a rule prescribed by the Supreme Court. Before the trial or hearing, the proponent must give an adverse party reasonable written notice of the intent to offer the record — and must make the record and certification available for inspection — so that the party has a fair opportunity to challenge them.

So, what happens if a party does not give reasonable written notice of its intent to offer a business record into evidence but there is evidence that the opposing party had actual notice of this intent? That was the question addressed by the Second Circuit in its recent opinion in United States v. Komasa, 2014 WL 4233396 (2nd Cir. 2014). . . .

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Third Circuit Holds Evidence Rule 609 Excludes Admissibility of Prior Criminal Convictions.

24 Sunday Aug 2014

Posted by Celia C. Elwell, RP in 3rd Circuit Court of Appeals, Admissibility, Appellate Law, Criminal Law, Evidence, Impeachment, Rule 609

≈ Comments Off on Third Circuit Holds Evidence Rule 609 Excludes Admissibility of Prior Criminal Convictions.

Tags

Criminal Convictions, Evidence, EvidenceProf Blog, Impeachment, Jeff Bellin, Rule 609, Witness Credibility

A Rare Federal Opinion that Gets, Really Gets, Rule 609, by Jeff Bellin, EvidenceProf Blog

http://tinyurl.com/lkrrmlw

Federal Rule of Evidence 609 governs the admissibility of criminal convictions to impeach witness credibility.  In a 2008 article, I criticized how the federal courts apply this rule, arguing that because of a widely adopted, often misapplied, and partially incoherent multi-factor framework, courts were letting too many defendants’ convictions be used as impeachment.  As I argued, if courts simply jettisoned the framework and did what the rule commanded – weigh probative value against prejudicial effect – exclusion would become the norm as intended.  Apart from getting the law right, this would have an additional benefit of generating more defendant testimony.  (Defendants generally decline to testify once a judge rules that their record comes in if they do.)  I don’t know how anyone can get behind a system where the person the jury most wants to hear from and who wants to tell his story sits silently at counsel table to keep the jury from hearing about his criminal record.

My arguments made little headway over the years and defendants’ convictions continue to be routinely admitted, but recently the Third Circuit cited my piece (along with criticism of others) in what may be one of the first signs of judicial dissatisfaction with the multi-factored balancing test.  The court also used/endorsed language rarely seen in published opinions that, in my view, gets the tone of Rule 609 right.

Commentators have observed that structuring the balancing in this manner creates a ‘predisposition toward exclusion.’ Wright & Gold, Federal Practice and Procedure § 6132, at 216.  ‘An exception is made only where the prosecution shows that the evidence makes a tangible contribution to the evaluation of credibility and that the usual high risk of unfair prejudice is not present.’ Id.  § 6132, at 217.

U.S. v. Caldwell, — F.3d — (3d Cir. 2014)

Expect to see this language in lots of defense filings going forward and join with me in hoping that the courts are finally awakening to the unmitigated disaster that is the multi-factored Rule 609 balancing test.

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Is A Blink A Dying Declaration?

06 Sunday Jul 2014

Posted by Celia C. Elwell, RP in Admissibility, Dying Declaration, Evidence, Rule 804

≈ Comments Off on Is A Blink A Dying Declaration?

Tags

Blinking, Colin Miller, Court of Special Appeals of Maryland, Dying Declaration, Evidence, Evidence Rule 804, EvidenceProf Blog, Identification by Photograph

Blink: Court of Special Appeals of Maryland Finds Eye Blinking by Shooting Victim Admissible as Dying Declaration, by Colin Miller, EvidenceProf Blog

http://tinyurl.com/o3ag2ah

On November 26, 2010, Prince George’s County Detective Latasha Green visited the Shock Trauma Unit to see if Pate could identify a picture of his shooter from a photographic array. Just prior to the session, Nurse Keener had asked Pate a series of questions to determine whether he was ’alert and oriented.’ She determined that he was. Nurse Keener later testified that blinking hard is a primary method of communication for patients who are unable to speak. She elaborated on how the technique works.

Detective Green showed Pate a series of six photographs and asked him to blink hard if he saw a picture of the person who shot him. Pate blinked hard when he was shown the third picture in the photographic array but did not blink hard when shown any of the other five pictures. The third photograph was that of the appellee,  Jermaine Hailes. The photographic array procedure was recorded on videotape and was entered into evidence at the suppression hearing. State v. Hailes, 2014 WL 2191405 (Md.App. 2014).

Was Pate’s eye blinking admissible as a dying declaration? . . . .

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8th Circuit Motions of Limine and Offers of Proof.

07 Saturday Jun 2014

Posted by Celia C. Elwell, RP in 8th Circuit Court of Appeals, Appellate Law, Evidence, Legal Analysis, Legal Writing, Motions, Motions in Limine, Rule 103

≈ Comments Off on 8th Circuit Motions of Limine and Offers of Proof.

Tags

Eighth Circuit, Evidence, EvidenceProf Blog, Federal Rules of Evidence, Legal Writing, Motion in Limine, Offer of Proof, Rule 103

Renewal Notice: 8th Circuit Finds No Offer of Proof Needed Based on Prior Definitive Ruling, by Colin Miller, Evidence ProfBlogger, EvidenceProf Blog

http://tinyurl.com/pk2vzlt

As amended in 2000, Federal Rule of Evidence 103(b) reads as follows:

(b) Not Needing to Renew an Objection or Offer of Proof. Once the court rules definitively on the record — either before or at trial — a party need not renew an objection or offer of proof to preserve a claim of error for appeal.

So, assume that a party files a motion in limine seeking to exclude evidence before trial. If the judge makes a definitive ruling deeming the subject evidence inadmissible, does the proponent need to make an offer of proof at trial? In Smith v. Hy–Vee, 622 F.3d 904 (8th Cir.2010), the Eighth Circuit answered this question in the affirmaive. In Lawrey v. Good Samaritan Hosp., 2014 WL 2489076 (8th Cir. 2014), however, the same court answered the question in the negative. . . .

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U.S. Supreme Court Amends Four Hearsay Evidence Rules.

05 Monday May 2014

Posted by Celia C. Elwell, RP in Court Rules, Evidence, Rule 801, Rule 803 Exception

≈ 1 Comment

Tags

Colin Miller, Evidence, EvidenceProf Blog, Hearsay Evidence, U.S. Supreme Court

Four Amendments: Supreme Court Amends Four Federal Rules of Evidence, by Evidence ProfBlogger, Editor: Colin Miller, EvidenceProf Blog

http://bit.ly/1ifPnD6

The Supreme Court has approved four amendments to the Federal Rules of Evidence that will take effect on December 1, 2014 unless Congress takes another action. The Rules altered? Federal Rule of Evidence 801(d)(1)(B) and Federal Rules of Evidence 803(6), (7), and (8).

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Is Double Hearsay in 911 Call Admissible Evidence?

26 Saturday Apr 2014

Posted by Celia C. Elwell, RP in Court Rules, Evidence, Hearsay, Trial Tips and Techniques

≈ Comments Off on Is Double Hearsay in 911 Call Admissible Evidence?

Tags

911, Colin Miller, Double Hearsay, Evidence, Evidence Rule 805, EvidenceProf Blog, Hearsay, Sexual Assault

Rescue 911: Court of Appeals of South Carolina Grapples With Double Hearsay Issue, by Colin Miller, EvidenceProf Blog

http://tinyurl.com/le3j6kf

Similar to its federal counterpart, South Carolina Rule of Evidence 805 provides that

Hearsay included within hearsay is not excluded under the hearsay rule if each part of the combined statements conforms with an exception to the hearsay rule provided in these rules.

So, assume that a daughter reports to her mother that she was sexually assaulted and that the mother then calls 911 and relays what her daughter told her. Should the 911 call be admitted? According to the Court of Appeals of South Carolina in State v. Hendricks, 2014 WL 1614844 (S.C.App. 2014), the answer is ‘no.’ . . . .

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Take 4 on A New Theory of Hearsay.

23 Sunday Mar 2014

Posted by Celia C. Elwell, RP in Evidence, Hearsay, Rule 803 Exception, Rule 807

≈ 2 Comments

Tags

Colin Miller, Evidence, Evidence ProfBlogger, Federal Rules of Evidence, Hearsay, Jeffrey Bellin, Rule 403, Rule 803, Rule 807, United States v. Boyce

A New Theory of Hearsay, Take 4: Further Thoughts on United States v. Boyce, by Colin Miller, Editor, EvidenceProf Blogger

http://tinyurl.com/mfgkmzr

It’s interesting that Jeff [Jeffrey Bellin] posted an entry about Judge Posner’s concurrence in United States v. Boyce yesterday [February 14, 2014]. My latest set of hearsay posts has come in connection with a CLE I’m conducting in which I argue, in essence, that Rule 807 should swallow much of Rules 801 through 806. So, it’s refreshing to see that such an esteemed jurist apparently holds a similar viewpoint. Here are some more thoughts on Boyce:

United States v. Boyce is a garden variety case in which a 911 call was admitted under the present sense impression to the rule against hearsay (Federal Rule of Evidence 803(1)) and/or the excited utterance exception (Federal Rule of Evidence 803(2)). They also again raise the question of why courts are not engaging in a Rule 403 balancing of such statements. . . .

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Judge Posner’s Theories On Hearsay Exceptions.

23 Sunday Mar 2014

Posted by Celia C. Elwell, RP in 7th Circuit Court of Appeals, Evidence, Excited Utterances, Hearsay, Present Sense Impression, Rule 803 Exception

≈ Comments Off on Judge Posner’s Theories On Hearsay Exceptions.

Tags

Colin Miller, Evidence ProfBlogger, Exited Utterances, Federal Rules of Evidence, Hearsay, Judge Posner, Present Sense Impression, Rule 803, United States v. Boyce

Judge Posner Advocates Reforming the Hearsay Rules, by Evidence ProfBlogger, Colin Miller, Editor, EvidenceProf Blogger

http://tinyurl.com/o62jkwl

As Colin explores alternate hearsay theories in his posts, it is worth highlighting a concurrence in U.S. v. Boyce, decided today in the Seventh Circuit, where Judge Richard Posner attacks the merits of both the present sense impression and excited utterance hearsay exceptions (FRE 803(1) and (2)).  As Judge Posner notes, the arguments against these exceptions are not new, but his no-holds-barred critique, stating the exceptions are “not even good folk psychology,” is sure to generate interest in revisiting the hearsay thicket.

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New Theory of Hearsay, Take 3!

22 Saturday Mar 2014

Posted by Celia C. Elwell, RP in 11th Circuit Court of Appeals, Criminal Law, Evidence, Federal Rules of Evidence, Hearsay, Legal Writing, Motion to Suppress, Motions, Rule 602, Rule 803 Exception

≈ Comments Off on New Theory of Hearsay, Take 3!

Tags

Anonymous Hearsay Declarant, Colin Miller, EvidenceProf Blog, Federal Rules of Evidence, Hearsay, Motion to Suppress, Rule 602, Rule 803, United States v. Daniels

A New Theory of Hearsay, Take 3: Rule 602 & Anonymous Hearsay Declarants, by Editor Colin Miller, Evidence ProfBlogger, EvidenceProf Blog

http://tinyurl.com/ka5aw6p

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.

As a Rule 803 exception, this present sense impression exception applies “regardless of whether the declarant is available as a witness….” Indeed, the exception can apply even if the declarant has not been identified. But, like with a witness’s testimony at trial, a statement offered under a hearsay exception is only admissible if the declarant had personal knowledge under Federal Rule of Evidence 602. So, where does that leave us?

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8th Circuit Decision Raises Evidence Questions.

16 Sunday Mar 2014

Posted by Celia C. Elwell, RP in 8th Circuit Court of Appeals, Appellate Law, Child Molestation, Criminal Law, Evidence, Federal Rules of Evidence, Rule 403, Rule 412, Rule 413, Rule 414, Sexual Assault, Speker evidence

≈ Comments Off on 8th Circuit Decision Raises Evidence Questions.

Tags

Child Molestation, Criminal Law, Evidence, Federal Rules of Evidence, Rule, Rule 403, Rule 412, Rule 413, Rule 414, Sexual Abuse, Sexual Assault, Speker evidence

Reversal of Fortune: Should Suspects be Able to Introduce Reverse 413/414 Evidence?, by Colin Miller, Editor, Evidence Prof Blogger

 http://perma.cc/V3UM-C98B

[I]n United States v. Thunder, 2014 WL 944752 (8th Cir. 2014), the defendant was charged with sexual abuse of a minor and sexual abuse of a person incapable of consenting. At trial, the defendant sought to introduce the prior sexual abuse conviction of an alleged alternate suspect, but the district court deemed the evidence inadmissible under Rule 412(c)(1). This prompts two questions: (1) Why did the Eighth Circuit mention Rule 412; and (2) Is there such a thing as reverse Rule 413/414 evidence? . . . .

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Google Mistrials – A Continuing Problem.

02 Sunday Mar 2014

Posted by Celia C. Elwell, RP in Internet, Juror Impeachment, Jury Instructions, Mistrials, Research, Rule 606, Trial Tips and Techniques, Verdict

≈ Comments Off on Google Mistrials – A Continuing Problem.

Tags

Bob Kalinowski, citizensvoice.com, Colin Miller, Eastern District of North Carolina, EvidenceProg Blog, Federal Rules of Evidence, Google Mistrial, Juror Impeachment, Jury instructions, Jury Trials, Litigation, Mistrials, Rule 606(b)

Stealing the Verdict: Eastern District of North Carolina Allows Jury Impeachment Regarding Internet Research, by Colin Miller, EvidenceProg Blog

http://tinyurl.com/mkk48a8

“Google mistrials” have been a problem for some time. Here are two examples – one in 2014 and another in 2011 — in which a juror used Internet legal research during the trial and discussed it with fellow jurors, causing a mistrial. -CCE

An emerging problem in the American justice system is jurors conducting internet research about a case, leading to the Google mistrial. And, when such research is not discovered until after trial, as in United States v. LaRoque, 2014 WL 683729 (E.D.N.C. 2012), it leads to jury impeachment.

 Mistrial by Internet A Growing Concern, By Bob Kalinowski (Staff Writer), citizensvoice.com

 http://tinyurl.com/mge3nqk

Legal experts have coined them ‘Google mistrials.’

Curious jurors seeking to conduct their own research surf the Internet about facts presented in court, bringing a halt to important court cases and tainting the outcome.

Sometimes it’s done unwittingly. Other times it’s done against a judge’s specific directions.

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Can A Prisoner Get An Expert Witness Under Federal Rule 706 For His Medical Condition?

02 Sunday Mar 2014

Posted by Celia C. Elwell, RP in 11th Circuit Court of Appeals, Appellate Law, Criminal Law, Evidence, Federal Rules of Evidence, Rule 706, Summary judgment

≈ Comments Off on Can A Prisoner Get An Expert Witness Under Federal Rule 706 For His Medical Condition?

Tags

11th Circuit Court of Appeals, Alabama, Colin Miller, EvidenceProf Blog, Expert Witness, Federal Rules of Evidence, Gillentine v. Correctional Medical Services, Hepatitis C, Prisoner, Rule 706, Summary judgment

Is There a Doctor in the House?: 11th Circuit Remands After Lower Court’s Erroneous Rule 706 Ruling, posted by Colin Miller, EvidenceProf Blog

http://tinyurl.com/n57dzzo

This post discusses an Alabama District Court’s and 11th Circuit Court of Appeal’s interpretation of Rule 706(a) of the Federal Rule of Evidence in a prisoner’s lawsuit in which he claims that he has Hepatitis C, his illness is not being treated and, without treatment, he will become sicker and die. -CCE

Federal Rule of Evidence 706(a) provides that:

On a party’s motion or on its own, the court may order the parties to show cause why expert witnesses should not be appointed and may ask the parties to submit nominations. The court may appoint any expert that the parties agree on and any of its own choosing. But the court may only appoint someone who consents to act.

As you can see from the language of Rule 706(a), there is nothing in the Rule’s text limiting expert appointment to either criminal or civil cases. So where did that leave the plaintiff in Gillentine v. Correctional Medical Services, 2014 WL 701575 (11th Cir. 2014)?

 

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Latest Ninth Circuit Decision on Rule 26 Discovery From Testifying Experts.

16 Sunday Feb 2014

Posted by Celia C. Elwell, RP in 9th Circuit Court of Appeals, Appellate Law, Attorney Work Product, Court Rules, Court Rules, Discovery, Evidence, Expert Witness, Experts, Federal District Court Rules, Federal Rules of Evidence, Requests for Production, Rule 26, Trial Tips and Techniques

≈ Comments Off on Latest Ninth Circuit Decision on Rule 26 Discovery From Testifying Experts.

Tags

9th Circuit Court of Appeals, Chevron, Cogent Legal Blog, Court Rules, Expert Witnesses, Federal Rule 26, Michael Kelleher, Paul Hastings, Republic of Ecuador v. Mackay, Work Product Objection

Ninth Circuit Rules on Scope of Discovery from Testifying Experts, by Michael Kelleher, Cogent Legal Blog

http://tinyurl.com/knvhgv2

[A] new Ninth Circuit decision about the scope of expert discovery in federal court caught our attention. The decision in Republic of Ecuador v. Mackay, No. 12-15572 (9th Cir. Jan. 31, 2014) poses the question: where the expert has served both as a confidential advisor to counsel and as a testifying expert, may counsel withhold documents shared with the expert by asserting an opinion work product objection? The short answer is no—documents from testifying experts must be produced unless protected by Federal Rule of Civil Procedure 26(b)(4).

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Court Precludes Testimony of Rehabilitation Witness

30 Saturday Nov 2013

Posted by Celia C. Elwell, RP in Admissibility, Appellate Law, Court Rules, Cross-Examination, Direct Examination, Evidence, Research, Tennessee Supreme Court, Trial Tips and Techniques

≈ Comments Off on Court Precludes Testimony of Rehabilitation Witness

Tags

Pyle v. Mullins, Rehabilitation, Rule 608, Tennessee Supreme Court, Witness

Reputable Source?: Court of Appeals of Tennessee Precludes Testimony of Rehabilitation Witness Under Rule 608(a), by Evidence ProfBlogger, EvidenceProf Blog

http://tinyurl.com/lnf96hp

In Pyle v. Mullins, 2013 WL 6181956 (Tenn. Ct. App. 2013), the plaintiff sought to bolster his credibility after it had been attacked by the defense, but the court precluded this rehabilitation. Why?

Pyle then sought to elicit

character testimony from Jeff Boggan, one of Pyle’s customers. Boggan, a resident of Village Green Subdivision, testified Pyle mowed his lawn and he had known Pyle for 5 years. He testified Pyle was under contract by the homeowner’s association to mow all of the lawns in the subdivision. Pyle asked Boggan whether he was “familiar with [Pyle’s] reputation in that area for honesty?” In response, defense counsel objected as to relevance. The trial court sustained the objection.

Then . . . .

 

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The Cardinal Rules of Trial Advocacy

05 Tuesday Nov 2013

Posted by Celia C. Elwell, RP in Admissibility, Closing Argument, Court Rules, Cross-Examination, Direct Examination, Evidence, Making Objections, Opening Argument, Trial Tips and Techniques

≈ Comments Off on The Cardinal Rules of Trial Advocacy

Tags

Closing Argument, Evidence, Objections, Opening Argument, Trial Tips & Techniques

Everything You Ever Wanted To Know About Trial Procedure and Tactics, by James A. Tanford, Indiana University School Of Law

http://www.perma.cc/0WZumCVR9Ao

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Spring 2013 Case Law Update on E-Discovery Self-Collection – When It’s Okay, When It’s Not, and the Potential Risks

27 Sunday Oct 2013

Posted by Celia C. Elwell, RP in Court Rules, Court Rules, Databases, Discovery, E-Discovery, Evidence, Federal District Court Rules, Legal Technology, Sanctions

≈ Comments Off on Spring 2013 Case Law Update on E-Discovery Self-Collection – When It’s Okay, When It’s Not, and the Potential Risks

Tags

Case Law, E-Discovery, Emails, Evidence, Sanctions, Spoliation

Self-Collection: The Good, The Bad and The Ugly, by Tony Merlino, DTI
http://dtiglobal.com/resources/articles/spring-2013-case-law-update/

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