Category Archives: Evidence

Why Defendant Former Employers Do Not Get Mirror-Image of Plaintiff’s Personal Computer.

30 Monday Jun 2014

Posted by in Computer Forensics, Discovery, E-Discovery, Emails, Employment Law, Evidence, Forensic Evidence, Law Office Management, Legal Technology, Requests for Production, Technology

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Proportionality Prevents Mirror Imaging of Family Computers, by Joshua Gilliland, Bow Tie Law’s Blog

http://tinyurl.com/osvw3ws

The Defendants in employment litigation sought the mirror imaging of the Plaintiff’s personal computers three years after she had been terminated. The crux of the eDiscovery centered on the former employee forwarding emails from her supervisors email to her personal account, which the Defendants claimed were lost by the Plaintiff. The Court denied the motion to compel. Downs v. Va. Health Sys., 2014 U.S. Dist. LEXIS 74415, 6-11 (W.D. Va. June 2, 2014).

Judge James G. Welsh did a very nice job of summarizing ESI relevant to a case,proportionality, and the rules for conducting forensic analysis on an opposing party’s hard drive. The Court held the following:

(1) Nothing in the record suggests any willful failure, fault or bad faith by the plaintiff on her discovery obligations that would justify the requested computer forensics examination;

(2) The “mirror-imaging” of the plaintiff’s family computers three years after her termination raises significant issues of confidentiality and privacy;

(3) There was no duty on the part of the plaintiff to preserve her family computers as evidence;

(4) Principles of proportionality direct that the requested discovery is not sufficiently important to warrant the potential burden or expense in this case; and

(5) On the current record that the defendants have failed to justify a broad, and frankly drastic, forensic computer examination of the plaintiff’s two family computers.

Downs, at *9-10, referencing McCurdy Group v. Am. Biomedical Group, Inc., 9 Fed. Appx. 822, 831 (10th Cir. 2001); see also Basile Baumann Prost Cole & Assocs., Inc. v. BBP & Assocs. LLC, 2013 U.S. Dist. LEXIS 51264, *8 (D. Md. Apr. 9, 2013). . . .

 

Vehicular Black Box Is Admissible Evidence To Prove Speed.

11 Wednesday Jun 2014

Posted by in Admissibility, Authentication, Evidence, Forensic Evidence, Litigation, Motor Vehicle, Trial Tips and Techniques

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Vehicular Black Box: Superior Court of Pennsylvania Finds Event Data Recorder Evidence Admissible to Prove Speed, by Evidence ProfBlogger, edited by Colin Miller, EvidenceProf Blog

http://tinyurl.com/n6p96kp

Until reading this article from the Pittsburgh Post-Gazette, I wasn’t aware that a vehicle has an ‘event data recorder’ akin to an airplane’s ‘black box.’  And now, according to the Superior Court of Pennsylvania in Commonwealth v. Safka, such evidence is admissible to determine a car’s speed at the time of an accident. . . .

8th Circuit Motions of Limine and Offers of Proof.

07 Saturday Jun 2014

Posted by in Appellate Law, Evidence, Legal Analysis, Legal Writing, Motions, Motions in Limine, Rule 103

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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. . . .

Judges Share Tips With Attorneys About What They Like and What They Don’t.

24 Saturday May 2014

Posted by in Animations, Closing Argument, Jury Selection, Legal Technology, Motion in Limine, Opening Argument, Presentations, Trial Tips and Techniques

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5 Key Tips for Trial: Judges Tell Attorneys What They Do and Don’t Like In Court, by Morgan Smith, Cogent Legal Blog

http://cogentlegal.com/blog/2011/05/5-key-tips-for-trial/

When Discovery Becomes Less About The Merits of the Case And More About Obstruction.

24 Saturday May 2014

Posted by in Admissibility, Authentication, Depositions, Discovery, Evidence, Federal Rules of Discovery, Federal Rules of Evidence, Interrogatories, Relevance, Requests for Admissions, Requests for Production, Sanctions, Subpoena Duces Tecum, Trial Tips and Techniques

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Boilerplate Objections And “Good Faith” Requirements Are Ruining Civil Discovery, by Max Kennerly, Esq., Litigation and Trial Blog

http://tinyurl.com/m7wk9mz

Please make sure to catch the reference and link to: Matthew Jarvey, “Boilerplate Discovery Objections,” 61 Drake L. Rev. 913 (2013).  -CCE

‘If there is a hell to which disputatious, uncivil, vituperative lawyers go, let it be one in which the damned are eternally locked in discovery disputes with other lawyers of equally repugnant attributes.’ Dahl v. City of Huntington Beach, 84 F.3d 363, 364 (9th Cir. 1996) (quoting Krueger v. Pelican Prod. Corp., No. CIV-87-2385-A (W.D. Okla. Feb. 24, 1989). . . .

Craig Ball’s Lawyers’ Guide to Forms of Production.

19 Monday May 2014

Posted by in Adobe Acrobat, Authentication, Bates Numbers, Computer Forensics, Databases, Discovery, Document Review, E-Discovery, Emails, Evidence, Federal Judges, Federal Rules of Discovery, Federal Rules of Evidence, Forensic Evidence, Judges, Legal Forms, Legal Technology, Native Format

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A Guide to Forms of Production, by Craig Ball, Ball In Your Court Blog

http://ballinyourcourt.wordpress.com/2014/05/19/a-guide-to-forms-of-production/

Craig Ball’s Lawyers’ Guide to Forms of Production! Although Mr. Ball says there is much he wants to re-organize and rewrite, I can’t wait to dive in.  You will find the hyperlink to the Guide when you go to the web site. Thank you, Craig Ball! -CCE

Semiannually, I compile a primer on some key aspect of electronic discovery.  In the past, I’ve written on computer forensics, backup systems, metadata and databases. For 2014, I’ve completed the first draft of the Lawyers’ Guide to Forms of Production, intended to serve as a primer on making sensible and cost-effective specifications for production of electronically stored information.  It’s the culmination and re-purposing of much that I’ve written on forms heretofore, along with new material extolling the advantages of native and near-native forms.

Reviewing the latest draft, there is much I want to add and re-organize; accordingly, it will be a work-in-progress for months to come.  Consider it a “public comment” version.  The linked document includes exemplar verbiage for requests and model protocols for your adaption and adoption.  I plan to add more forms and examples. . . .

Deposition Objections – How To Make And Defend Them.

18 Sunday May 2014

Posted by in Attorney-Client Privilege, Depositions, Discovery, Evidence, Objections

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Proper Deposition Objections, by Susan Minsberg, Lawyerist Blog (with hat tip to Evan Schaeffer!)

http://lawyerist.com/16801/proper-deposition-objections/

Whether you are defending (or taking) your first or your hundredth deposition, you must be ready to handle objections. That means knowing which objections are proper and which are not. Once you know, you can keep the deposition proceeding smoothly — and avoid embarrassing yourself. . . .

Rhode Island Supreme Court Has No Problem With Impeachment.

11 Sunday May 2014

Posted by in Assault, Criminal Law, Evidence, Impeachment, Rhode Island Supreme Court

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Impeachable?: Supreme Court of Rhode Island Finds No Problem With Impeachment Via Old, Similar Conviction, Editor:  Colin Miller, EvidenceProf Blog

http://bit.ly/1oEpyhi

[S]o, assume that a defendant is charged with resisting arrest, and the trial is held in 2012. Also, assume that the defendant has the following convictions: assault on a police officer (1987), a 1982 assault on a police officer (1982), and simple assault (1982). If the defendant files a motion in limine, seeking to preclude the prosecution from introducing evidence of these convictions into evidence, how should the court rule? . . . .

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

05 Monday May 2014

Posted by in Court Rules, Evidence, Rule 801, Rule 803 Exception

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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).

Is Double Hearsay in 911 Call Admissible Evidence?

26 Saturday Apr 2014

Posted by in Court Rules, Evidence, Hearsay, Trial Tips and Techniques

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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.’ . . . .

Using Animation At Trial.

12 Saturday Apr 2014

Posted by in Evidence, Exhibits, Jury Persuasion, Legal Technology, Litigation, Presentations, Trial Tips and Techniques

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Animate: Give Your Jurors Three Dimensions, or More, by Dr. Ken Broda-Bahm, The Persasive Litigator

http://tinyurl.com/m75du78

[I]In trial, we know that demonstrative exhibits are often seen as playing a secondary role: second to evidence and second to the verbal explanation. The higher-end animations, however, are often an even more distant second (or third, or fourth) to exhibits that can be created more simply or more cheaply. Understanding that not all, or even most, cases will be able to afford or to merit the higher-end demonstrative animations, it is still worth it to pay attention to the state of the art and to think about how this technology can be brought to bear when it matters most. The good news is that creating sophisticated graphics is easier and cheaper than it has ever been before. Laptops now surpass what the best production workstations could have created in earlier times. A skilled computer animator can take an idea from design to execution in less time and expense than you might think. . . .

Manhattan Court Reporter Kept Writing “I Hate My Job.”

05 Saturday Apr 2014

Posted by in Court Reporters, Evidence, Transcripts

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Rogue Alcoholic Court Reporter Kept Writing ‘I Hate My Job’, by Rebecca Rosenberg, Reuven Fenton and Bruce Golding with additional reporting by Steven Hirsch and Laurel Babcock, New York Post

http://tinyurl.com/q3m3b9z

An alcoholic Manhattan court stenographer went rogue, channeling his inner ‘Shining’ during a high-profile criminal trial and repeatedly typing,’ hate my job, I hate my job’ instead of the trial dialogue, sources told The Post.

The bizarre antics by Daniel Kochanski, who has since been fired, wreaked havoc on some 30 Manhattan court cases, sources said, and now officials are scrambling to repair the damage.

One high-level source said his ‘gibberish’ typing may have jeopardized hard-won convictions by giving criminals the chance to claim crucial evidence is missing.

Kochanski’s botched transcripts include the 2010 mortgage-fraud trial of Aaron Hand, who was also convicted of trying to hire a hit man to take out a witness against him.

A source familiar with the case said Kochanski’s transcripts of that trial were a total mess.

‘It should have been questions and answers — instead it was gibberish,’ the source said. . . . .

Take 4 on A New Theory of Hearsay.

23 Sunday Mar 2014

Posted by in Evidence, Hearsay, Rule 803 Exception, Rule 807

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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. . . .

Judge Posner’s Theories On Hearsay Exceptions.

23 Sunday Mar 2014

Posted by in Evidence, Excited Utterances, Hearsay, Present Sense Impression, Rule 803 Exception

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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.

New Theory of Hearsay, Take 3!

22 Saturday Mar 2014

Posted by in Criminal Law, Evidence, Federal Rules of Evidence, Hearsay, Legal Writing, Motion to Suppress, Motions, Rule 602, Rule 803 Exception

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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?

How To – Investigating Traffic Accidents.

22 Saturday Mar 2014

Posted by in Damages, Evidence, Forensic Evidence, Litigation, Motor Vehicle, Personal Injury, Product Liability, Uninsured Motorist

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Evidence Collection in a Traffic Investigation, by Dick Warrington, Forensic Magazine

http://tinyurl.com/nko5m2s

This post is an excerpt from Mr. Warrington’s post, Investigating the Fender Bender (http://tinyurl.com/o979zk5). I recommend it, and the links to more information on this subject that you will find at the end of the post. -CCE

Most of the time traffic accidents are fairly standard—the typical fender bender where one person runs into another. The officer on duty responds, assesses the situation, and completes the proper paperwork. But sometimes officers deal with much more serious, complex situations. Dealing with a hundred car pile-up, for example, is quite challenging, since it’s like carrying out multiple investigations simultaneously. When responding to multiple car accidents, hit and runs, fatalities, and high speed chases, officers can benefit by calling in Crime Scene Officers to assist with the investigation.

Because this type of case usually involves extensive damage to property, serious injuries, and/or fatalities, lawsuits will likely result. Questions of liability, product failure, etc. will also come up. Given these facts, it’s important to work together to conduct a thorough investigation. Since the CSO’s responsibilities include documentation, evidence identification, and evidence collection, we’ll look at each of those areas. . . .

Social Media Is Admissible Evidence, But Must Be Authenticated.

16 Sunday Mar 2014

Posted by in Admissibility, Authentication, Discovery, Evidence, Relevance, Social Media

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Social Media Sleuths Find Evidence, But Admissibility Requires Authentication, by Dave Stafford, The Indiana Lawyer.com

http://perma.cc/N638-D84L

What happens on Facebook stays on Facebook – forever – and attorneys conceivably run into risk if they fail to investigate pertinent posts, a judge suggested during a recent presentation about social media evidence. . . .

8th Circuit Decision Raises Evidence Questions.

16 Sunday Mar 2014

Posted by in Appellate Law, Child Molestation, Criminal Law, Evidence, Federal Rules of Evidence, Rule 403, Rule 412, Rule 413, Rule 414, Sexual Assault, Speker evidence

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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? . . . .

Craig Ball On Being A Digital Forensic Witness.

03 Monday Mar 2014

Posted by in Affidavits, Cross-Examination, Depositions, Direct Examination, Discovery, E-Discovery, Evidence, Exhibits, Expert Witness Report, Expert Witnesses, Experts, Forensic Expert Witness, Hearsay, Legal Technology, Legal Writing, Trial Tips and Techniques

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Becoming a Better Digital Forensics Witness, by Craig Ball, Ball In Your Court Blog

 http://tinyurl.com/kgm8epj

I love to testify—in court, at deposition, in declarations and affidavits—and I even like writing reports about my findings in forensic exams.

I love the challenge—the chance to mix it up with skilled interrogators, defend my opinions and help the decision makers hear what the electronic evidence tells us.  There is a compelling human drama being played out in those bits and bytes, and computer forensic examiners are the fortunate few who get to tell the story.  It’s our privilege to help the finders of fact understand the digital evidence.[1]

This post is written for computer forensic examiners and outlines ways to become a more effective witness and common pitfalls you can avoid.  But the advice offered applies as well to almost anyone who takes the stand. . . .

. . .

Google Mistrials – A Continuing Problem.

02 Sunday Mar 2014

Posted by in Internet, Juror Impeachment, Jury Instructions, Mistrials, Research, Rule 606, Trial Tips and Techniques, Verdict

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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.

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

02 Sunday Mar 2014

Posted by in Appellate Law, Criminal Law, Evidence, Federal Rules of Evidence, Rule 706, Summary judgment

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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)?

 

Lexis Launches “Evidence Challenge” For Law Students.

24 Monday Feb 2014

Posted by in eBooks, Evidence, LexisNexis

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It’s Game On for Lexis with Launch of ‘Evidence Challenge,’ posted by Robert Ambrogi, Robert Ambroi’s Law Sites

http://tinyurl.com/ngsud5p

Over the last two years, LexisNexis has been ramping up its library of ebooks, with a growing list of titles for both practitioners and law students. Law students, in particular, are key consumers of ebooks, Lexis says, citing statistics that say six in 10 college students prefer digital books over print. One of the advantages of an ebook over print is the ability to link interactive features that augment and enhance the core text.

That is what Lexis is aiming to do with Evidence Challenge, its new interactive role-playing game designed to help second- and third-year law students test their knowledge of evidence law. . . .

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

16 Sunday Feb 2014

Posted by in 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

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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).

$17 Million – Likely Largest Ever Wrongful Workplace Death Settlement.

13 Thursday Feb 2014

Posted by in Damages, Employment Law, Evidence, Government, Litigation, Negligence, OSHA, Settlement, Wrongful Death

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Philadelphia Electrician’s Widow to Receive Record $17 Million in Wrongful-Death Settlement, by Josh Cable, EHS Today

http://tinyurl.com/mx9kqq5

The widow of an electrician who died in a crane accident at Veolia Energy’s Schuylkill steam plant in Grays Ferry, Pa., will receive $17 million, in what is believed to be the largest wrongful-workplace-death settlement in Philadelphia County history. . . .

A New Theory of Hearsay – Part 2.

11 Tuesday Feb 2014

Posted by in 1st Circuit Court of Appeals, Admissibility, Criminal Law, Evidence, Federal Rules of Evidence, Hearsay, Trial Tips and Techniques, Witnesses

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A New Theory of Hearsay, Take 2: Rule 609(a)(1)(B) & Statements Offered For a Nonhearsay Purpose, by Evidence ProfBlogger (Colin Miller, Editor), EvidenceProf Blog

http://tinyurl.com/m8pcyw8

Dan is on trial for aggravated battery. He has a prior conviction for aggravated battery. After Dan testifies, the prosecution seeks to impeach him through evidence of his five year-old conviction for armed robbery. To be admissible, the evidence cannot simply satisfy Federal Rule of Evidence 403; instead, pursuant to Federal Rule of Evidence 609(a)(1)(B), the prosecution must affirmatively prove that the probative value of the conviction outweighs its prejudicial effect.

A defendant calls an alibi witness at trial. After the alibi witness testifies on direct examination, the prosecution seeks to impeach him with evidence of a prior inconsistent statement that tends to incriminate the defendant. The prior statement is hearsay and only admissible to impeach that alibi witness, not to prove the truth of the matter asserted. My question today is: Should courts apply the same modified Rule 403 analysis that they would apply in the case above?