13 Saturday Jun 2015
Posted in Crime Scene Investigation, Criminal Law, Forensic Evidence
≈ Comments Off on So What Happened To The Body?
Livor Mortis & Placing a Victim in the Trunk of a Car, by Colin Miller, EvidenceProf Blog
For the past week, I’ve been trying to find a case involving lividity and a body in a trunk. The only case that I was able to find is State v. Persitz, 518 N.W.2d 843 (Minn. 1994). The Persitz case isn’t especially factually similar to the Adnan Syed case, but it does provide some interesting points of comparison/contrast. . . .
11 Saturday Apr 2015
Posted in Civil Rights, Excessive Force
≈ Comments Off on Excessive Use of Force And “Fair Warning.”
Tags
Colin Miller, EvidenceProf Blog, Fair Warning, Police Shooting, Probable Cause, Tennessee v. Garner, Use of Force
Fair Warning: Why the Officer Who Shot Walter Scott Likely Had to Give Some Warning Before Shooting, by Colin Miller, EvidenceProf Blog
I’ve been asked a lot today [April 9, 2015] about the shooting of Walter Scott. The topic that always comes up is the so-called ‘fleeing felon’ rule. Here is the thumbnail explanation of this rule by the Supreme Court in Tennessee v. Garner:
This case requires us to determine the constitutionality of the use of deadly force to prevent the escape of an apparently unarmed suspected felon. We conclude that such force may not be used unless it is necessary to prevent the escape and the officer has probable cause to believe that the suspect poses a significant threat of death or serious physical injury to the officer or others.
Obviously, anyone watching the video of the shooting likely has serious doubts about whether such probable cause could have existed. Even if those doubts could be quelled, however, there is a second problem for the police officer who shot Scott….
05 Wednesday Nov 2014
Posted in Admissibility, Appellate Law, Apple, Cell Phones, Civil Rights, Criminal Law, Evidence, Fifth Amendment, iPad, iPhones, Legal Technology, Passwords
≈ Comments Off on iPriviledge – Is It Legal To Be Forced To Use Your Fingerprint To Unlock Your iPhone?
Tags
Colin Miller, DNA Sample, EvidProf Blog, Fifth Amendment, Fingerprints, iPhone, iPriviledge, Password, Passwords, Touch ID
iPrivilege: Virginia Beach Judge Finds Prosecution Can Force Defendant To Supply Fingerprint To Unlock iPhone, by Evidence ProfBlogger, Editor Colin Miller, EvidProf Blogger
In relevant part, the Fifth Amendment states that:
“No person…shall be compelled in any criminal case to be a witness against himself….”
The Supreme Court has stated that the Fifth Amendment only covers “testimonial” evidence that results from compelled communicative acts, i.e., acts which disclose the content of one’s mind. Therefore, the Fifth Amendment does not cover a suspect’s act of appearing in a lineup or giving a blood sample to determine whether there are drugs in his system. The Fifth Amendment also does not cover the act of completing a handwriting exemplar. Imagine that the police find an alleged confession note written by the defendant. The prosecution can force the defendant to complete a handwriting exemplar in which the defendant writes a pre-printed paragraph in his handwriting so that a handwriting expert can compare the exemplar and the confession note. All of these and similar acts are not communicative because they are nontestimonial in that they do not force the defendant to disclose the contents of his mind.
What about if the defendant has encrypted files on his computer? Can the prosecution force the defendant to decrypt them? Some courts have said no. Other courts have said yes.
Can the prosecution force a defendant to supply his fingerprint to use for the TouchID on his iPhone? For the last year, I’ve used this article to teach my students that a judge could likely order a defendant to supply his fingerprint to unlock his iPhone. Recently, this possibility has become a reality.
According to an article in SlashGear:
[A] judge has ruled that you can be forced to relinquish your fingerprint to investigators seeking access to your device. The reason, says the judge, is that the fingerprint isn’t knowledge like a password, but is instead a physical object of sorts, like a key or a DNA sample.
The ruling was made recently by Virginia Beach Circuit Court Judge Steven Frucci, and was the result of a case against EMS captain David Baust, who was accused of attempted murder. The case’s prosecutors wanted access to Baust’s phone, believing that it might have a video of the alleged crime, but the defendant’s lawyer argued against this.
And, according to an article in the Huffington Post:
[I]t’s unclear how the ruling will impact Baust’s case. If his phone is protected by Touch ID, prosecutors could access it using Frucci’s ruling. If the phone is protected by a passcode or both a passcode and Touch ID, they can’t . . . .
One workaround to this issue could be to just turn off your phone if cops approach. In that case, you’d have to enter your four-digit pin when you turn it back on, even if you use Touch ID. . . .
18 Saturday Oct 2014
Posted in Dying Declaration, Evidence, Hearsay, Rule 804
≈ Comments Off on Victim’s Clicking Noises Qualify As Dying Declaration Under Hearsay Exception.
Die Another Day: Ohio Court Finds Victim’s Clicking Noises Qualify as Dying Declarations, by Colin Miller, Editor, EvidenceProf Blog
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?
20 Saturday Sep 2014
Posted 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
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
30 Saturday Aug 2014
Posted 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
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). . . .
20 Sunday Jul 2014
Posted in Montana Supreme Court, Self-Defense
≈ Comments Off on Stand Your Ground Law and the Doctrine of Communicated Character.
Tags
Colin Miller, Communicated Character, EvidProf Blog, Montana, Reasonable Apprehension, Self-Defense, Stand Your Ground Law
Defendant Has To Testify To Support Self-Defense Claim, Despite Stand Your Ground, by Colin Miller, Editor, EvidProf Blog
I’ve written a few posts about the doctrine of ‘communicated character,’ which allows a defendant to present evidence of the alleged victim’s prior violent acts, not to prove the victim’s violent tendencies, but instead to prove the defendant’s reasonable apprehension. Of course, what this means is that a defendant must have knowledge of the victim’s violent past to present such character evidence. So, can a defendant prove that knowledge without himself testifying at trial? And how might a Stand Your Ground law change matters? Let’s take a look at the recent opinion of the Supreme Court of Montana in State v. Montana Ninth Judicial District Court, 2014 WL 3430350 (Mont. 2014). . . .
06 Sunday Jul 2014
Posted 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
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? . . . .
11 Wednesday Jun 2014
Posted in Admissibility, Authentication, Evidence, Forensic Evidence, Litigation, Motor Vehicle, Trial Tips and Techniques
≈ Comments Off on Vehicular Black Box Is Admissible Evidence To Prove Speed.
Tags
Admissible Evidence, Colin Miller, Event Data Recorder, EvidenceProf Blog, Litigation, Trial Tips & Techniques, Vehicle Accident, Vehicular Black Blox
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. . . .
11 Sunday May 2014
Posted in Assault, Criminal Law, Evidence, Impeachment, Rhode Island Supreme Court
≈ Comments Off on Rhode Island Supreme Court Has No Problem With Impeachment.
Tags
Assault, Character Evidence, Colin Miller, Conviction, Evidence, EvidenceProf Blog, Impeachment, Motion in Limine, Police, Resisting Arrest, Rhode Island Supreme Court
Impeachable?: Supreme Court of Rhode Island Finds No Problem With Impeachment Via Old, Similar Conviction, Editor: Colin Miller, EvidenceProf Blog
[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? . . . .
05 Monday May 2014
Posted in Court Rules, Evidence, Rule 801, Rule 803 Exception
Four Amendments: Supreme Court Amends Four Federal Rules of Evidence, by Evidence ProfBlogger, Editor: Colin Miller, EvidenceProf Blog
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).
26 Saturday Apr 2014
Posted 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
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.’ . . . .
23 Sunday Mar 2014
Posted in Evidence, Hearsay, Rule 803 Exception, Rule 807
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
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. . . .
23 Sunday Mar 2014
Posted 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
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.
22 Saturday Mar 2014
Posted 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
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?
02 Sunday Mar 2014
Posted 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
“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
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.
02 Sunday Mar 2014
Posted 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
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)?
11 Tuesday Feb 2014
Posted in 1st Circuit Court of Appeals, Admissibility, Criminal Law, Evidence, Federal Rules of Evidence, Hearsay, Trial Tips and Techniques, Witnesses
≈ Comments Off on A New Theory of Hearsay – Part 2.
Tags
Colin Miller, Criminal Defendants, Evidence, Evidence ProfBlogger, EvidenceProf Blog, Federal Rule of Evidence, Hearsay, Hearsay Exception, Impeach, Nonhearsay Purpose, Rule 609
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
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?
11 Tuesday Feb 2014
Posted in Admissibility, Evidence, Federal Rules of Evidence, Hearsay, Trial Tips and Techniques, Witnesses
≈ Comments Off on A New Theory of Hearsay – Part 1.
Tags
Character Evidence, Colin Miller, Evidence, Evidence ProfBlogger, EvidenceProf Blog, Federal Rules of Evidence, Hearsay, Hearsay Declarant, Hearsay Exceptions, Objections, Witness
A New Theory of Hearsay: Incorporating Rule 403 Into the Hearsay Analysis, by Evidence ProfBlogger (Colin Miller, Editor), EvidenceProf Blog
Federal Rule of Evidence 803 provides exceptions to the rule against hearsay that apply regardless of the availability of the hearsay declarant. Federal Rule of Evidence 804 provides exceptions to the rule against hearsay that apply if the hearsay declarant is ‘unavailable.’ As exceptions to the rule against hearsay, these Rules merely place qualifying statements beyond the scope of Federal Rule of Evidence 802. And what this means is that, like all evidence, statements falling under a hearsay exception must be relevant under Federal Rule of Evidence 401 and have a probative value that is not substantially outweighed by dangers such as the danger of unfair prejudice under Federal Rule of Evidence 403. And yet, parties almost never make Rule 403 objections to evidence offered under a hearsay exception, and courts almost never sustain such objections. Why?
11 Saturday Jan 2014
Posted in Admissibility, Emails, Evidence, Legal Technology, Texas Supreme Court, Trial Tips and Techniques
≈ Comments Off on Authenticating Electronic Evidence Not Always As Straightforward As It Seems.
You’ve Got Mail: Court of Appeals of Texas Finds Alleged E-Mail From Victim’s Mother Improperly Authenticated, by Colin Miller, EvidenceProf Blog
There are many ways to authenticate electronic evidence. But this, says the Texas Court of Appeals, is not one of them. -CCE
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