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The Researching Paralegal

~ Articles and Research for Legal Professionals

The Researching Paralegal

Tag Archives: Evidence

What To Do When You Know the Jury Will Play With the Evidence.

21 Tuesday Nov 2017

Posted by Celia C. Elwell, RP in Evidence, Exhibits, Jury Persuasion, Trial Tips and Techniques

≈ Comments Off on What To Do When You Know the Jury Will Play With the Evidence.

Tags

Dr. Ken Broda-Bahm, Evidence, Juries, Persuasive Litigator

Expect Jurors to Climb into the Cooler, by Dr. Ken Broda-Bahm, Persuasive Litigator™

http://bit.ly/2zXlFCX

Jurors, for the most part, take their job seriously. They want to do the right thing and do a good job. Regardless of whether you parade a cadre of expert witnesses in front of them, if your case hinges on how something works, the jury will want to try it out for themselves.

When you display a key piece of evidence in the courtroom throughout the trial, anticipate that the jurors will want to experiment with it when they adjourn to jury room. Dr. Broda-Bahm explains how to use the jurors’ natural curiosity to your advantage. -CCE

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Using the Wayback Machine To Authenticate Evidence.

24 Tuesday May 2016

Posted by Celia C. Elwell, RP in Evidence, Intellectual Property, Research, Rule 901, Wayback Machine

≈ Comments Off on Using the Wayback Machine To Authenticate Evidence.

Tags

CMLaw Library Blog, Evidence, Internet Archive, Research, Rule 901, Wayback Machine, William P. Statsky

Wayback Machine Builds Reputation with Judiciary, by CMLaw Library Blog (with hat tip to William P. Statsky)

http://cmlawlibraryblog.classcaster.net/2016/05/12/wayback-machine-builds-reputation-with-judiciary/

What is the Wayback Machine? It’s been around since 2001. It is a mega-archive of websites. If you are a serious researcher, it is worth your time to learn how to use it. It is more than just a trip down nostalgia lane. You can easily find blog posts, articles, and videos that will give you an in-depth explanation on the Wayback Machine’s creation and what it does.

I like this post because it is the first illustration I’ve seen in which someone used the Wayback Machine as persuasive evidence in court. Thanks, Bill! -CCE

An April 2016 decision from the District of Kansas has given judicial notice to information contained in screenshots from the Wayback Machine. The Internet Archive’s Wayback Machine preserves images of websites as they appeared at particular points in time. In the case at hand, Marten Transport, Ltd. v. PlattForm Advertising Inc., (D. Kan., Case No. 14-2464-JWL, 4/29/16), Marten sued PlattForm for infringement, alleging that PlattForm had continued to display Marten’s logo on PlattForm’s website after the two had stopped doing business together.

The court determined that testimony from an employee of the Internet Archive concerning the screenshots showing PlattForm’s website at the time in question was enough to meet the standards in Federal Rules of Evidence, Rule 901.

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In Litigation, First Things First.

10 Thursday Mar 2016

Posted by Celia C. Elwell, RP in Brief Writing, Discovery, Evidence, Legal Writing, Litigation, Motions

≈ Comments Off on In Litigation, First Things First.

Tags

Brief Right, Brief Writing, Evidence, Kirby Griffis, Litigation, Motions

Motions first, depositions second, by Kirby Griffis, Brief Right!

http://briefright.com/motions-first/

In my business, litigation, there is a typical order of events. A lawsuit is filed, then discovery is taken, then motions are filed and ruled upon, and then there is a trial. Litigators who haven’t thought carefully about their business may fall into the error of compartmentalizing these steps too much. Have you ever gone to write a crucial motion, only to discover that the testimony or documentary evidence that you need to put forward under the applicable law was never obtained, or came in the wrong way without being fixed?

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Social Media – E-Discovery Waiting To Be Plucked.

19 Saturday Sep 2015

Posted by Celia C. Elwell, RP in E-Discovery, Evidence, Legal Ethics, Social Media

≈ Comments Off on Social Media – E-Discovery Waiting To Be Plucked.

Tags

Allen Mihecoby CLAS RP®, Canadian Lawyer, Dera J. Nevin, E-Discovery, Evidence, Social media

Social Media E-Discovery: Its Time Is Here, by Dera J. Nevin, Canadian Lawyer (with hat tip to Allen Mihecoby, CLAS, RP®)

http://www.canadianlawyermag.com/5732/Social-media-e-discovery-its-time-is-here.html

Social media is an important source of discovery in an increasing range of cases and can often yield the most important evidence. Social media and its derivatives are prevalent with many people using social media as their dominant communications channel, preferring some in-app messaging tools to e-mail. Corporations, too, are using these media to target and communicate with their customers. Ignore these sources and you leave potentially game-changing evidence on the table. . . .

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Spoiled Evidence On Both Sides – What Else Could Go Wrong?

24 Wednesday Jun 2015

Posted by Celia C. Elwell, RP in Depositions, Discovery, E-Discovery, Evidence, Intellectual Property, Preservation, Spoilation

≈ Comments Off on Spoiled Evidence On Both Sides – What Else Could Go Wrong?

Tags

Copyright Infringement, Discovery, E-Discovery, Evidence, K&L Gates, Perjury

Court Finds Wife Liable for Agent-Husband’s Intentional Deletions, Recommends Default Judgment, by K&L Gates in CASE SUMMARIES

http://tinyurl.com/o9p3kmn

Malibu Media, LLC v. Tashiro, No. 1:13-cv-00205-WTL-MJD, 2015 WL 2371597 (S.D. Ind. May 18, 2015)

In this copyright infringement case, the court found that Defendants ‘spoiled evidence, committed perjury, and failed to discharge their duties to conduct discovery reasonably and in good faith’ and recommended default judgment. Notably, in addition to more familiar issues surrounding the topic of spoliation, the court’s opinion addressed the question of whether spoliation occurs when information is still recoverable (yes) and the propriety of imputing an agent’s bad acts in discovery where, as in this case, Defendant Wife ‘left it to her agent—her husband—to respond to Plaintiff’s document requests.’ . . .

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9th Circuit Rules Google Earth Coordinates Are Not Hearsay.

24 Wednesday Jun 2015

Posted by Celia C. Elwell, RP in Admissibility, Authentication, Evidence, Hearsay, Legal Technology

≈ Comments Off on 9th Circuit Rules Google Earth Coordinates Are Not Hearsay.

Tags

Cogent Legal Blog, Evidence, Google Earth, Hearsay, Morgan C. Smith

How to Get Google Earth Images Admitted for Litigation, by Morgan C. Smith, Cogent Legal 

http://tinyurl.com/ngxpzxc

Many attorneys rely on Google Earth as the primary source for finding visual information for specific locations, all over the world, involved in litigation (see my prior post discussing how to use Google Earth for images and obtaining archival images). However, when finding great images, or determining precise locations based on GPS coordinates, the next question is always:

‘How do I get this into evidence?’

This is not an easy question to answer, yet a recent decision by the Ninth Circuit Court of Appeals helps resolve one issue of admissibility for such imagery: Google Earth coordinates are not hearsay. . . .

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“Read Receipt” Email Message Is Not Hearsay.

17 Friday Apr 2015

Posted by Celia C. Elwell, RP in Admissibility, Authentication, Evidence, Federal Rules of Evidence, Hearsay, Litigation, Summary judgment

≈ Comments Off on “Read Receipt” Email Message Is Not Hearsay.

Tags

Doug Austin, eDiscoveryDaily Blog, Email, Evidence, Federal Rules of Civil Procedure, Hearsay, Motion for Summary Judgment, Read Receipt

Court Rules that Automatically Generated Read Receipt is Not Hearsay: eDiscovery Case Law, by Doug Austin, eDiscoverydaily

http://tinyurl.com/ozbratn

In Fox v. Leland Volunteer Fire/Rescue Department Inc., 7:12-CV-354-FL. (E.D.N.C. Mar. 10, 2015), North Carolina District Judge Louise W. Flanagan ruled that a Read Receipt automatically sent from the defendant’s email address to the plaintiff (when the defendant opened an email sent by the plaintiff) was not hearsay.

Case Background

In this wrongful termination case, the court was considering the defendants’ motion for summary judgment, as well as the defendants’ motion to strike certain exhibits attached to plaintiff’s brief in opposition to summary judgment for failure to comply with Federal Rule of Civil Procedure 56(c) & (e). One of the items that the defendants sought to exclude was a read receipt sent from defendant Grimes email address to plaintiff, triggered when an email plaintiff sent defendant Grimes was opened, arguing that the Read Receipt was ‘unauthenticated hearsay’.

Judge’s Opinion

Judge Flanagan made a swift ruling on this issue when she stated ‘Defendants’ argument fails. The Read Receipt is not hearsay.’ . . .

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At Depositions, Ask the Witness To Show, Not Tell.

16 Monday Feb 2015

Posted by Celia C. Elwell, RP in Depositions, Discovery, Evidence, Transcripts, Trial Tips and Techniques, Witness Preparation, Witnesses

≈ Comments Off on At Depositions, Ask the Witness To Show, Not Tell.

Tags

Court Record, Depositions, Elliott Wilcox, Evidence, Transcripts, Trial Theater©, Trial Tips & Techniques

Impeach Witnesses by Creating an Effective Record at Depositions, by Elliott Wilcox, Trial Theater©

http://trialtheater.com/trial-skills/cross-examination/impeach-witnesses-by-creating-an-effective-record-at-depositions/

The depositions were taking longer than expected, and they were some of the most boring depos I’ve ever attended. As we approached 3 o’clock, I could barely keep my eyes open. Luckily, closing my eyes for a brief moment helped me see what the deposition transcript would look like, and pointed out the difference between talking to the witness and talking to the record. Take a look at two sample questions that were asked:

“This blood here, is that from this general area here, or is that from another area?”

“Is this photograph here a photograph of this area here?”

Huh? Do you have any idea what they’re talking about? Do you know where the blood is? Neither will they when the attorney if she tries to impeach the witness using this deposition during trial. . . .

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Failure-To-Warn Case – Can Your Expert Beat The Warning Label?

15 Sunday Feb 2015

Posted by Celia C. Elwell, RP in Daubert Motion, Evidence, Litigation, Product Liability

≈ Comments Off on Failure-To-Warn Case – Can Your Expert Beat The Warning Label?

Tags

Burden of Proof, Daubert Motion, Ernie Goodwin, Evidence, Expert Witness, Product Liability, Product Liability Advocate, Warning Labels

WARNING! If You Assume Your Case Will Survive Because You Have a “Creative” Warnings Expert, You Do So At Your Own Risk, by Ernie Goodwin, Product Liability Advocate

http://tinyurl.com/plkxj4t

Those of us in the business of defending products look at the world in a slightly different way. When I come across a warning label, I actually study it because in a failure to warn case, the language of the warning, the color of the label and its location on the product are relevant to the effectiveness of the warning. In my experience defending manufacturers of various types of products, I have seen plaintiffs make speculative failure to warn claims. Less-experienced plaintiffs’ attorneys assume that a creative theory developed by a well-credentialed “warnings expert” will be enough to leverage a settlement in an otherwise weak case on liability. That is a dangerous assumption to make.

The case law in all jurisdictions is clear when it comes to the burden of proof for a warnings claim; there has to be a direct link between the failure of the manufacturer to warn about the hazard and the cause of the incident. Moreover, the plaintiff’s expert must consider, among many other things, all of the available accident data and not rely only on select facts from the record to support his findings. A manufacturer who is facing a speculative warnings claim has a few options for dealing with these types of claims. The most effective and frequently used tool is the Daubert motion to exclude the expert from testifying at trial. . . .

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Do-It-Yourself E-Discovery? Is There Such A Thing?

08 Sunday Feb 2015

Posted by Celia C. Elwell, RP in Concept Search Tools, Discovery, Document Review, E-Discovery, Emails, Federal Rules of Discovery, Legal Technology, Microsoft Office, Native Format, Outlook, Preservation, Requests for Production, Rule 34

≈ Comments Off on Do-It-Yourself E-Discovery? Is There Such A Thing?

Tags

Ball In Your Court Blog, Computer Forensics, Craig Ball, Discovery, E-Discovery, E-Mail, Evidence, Native Format, PST Files

Do-It-Yourself Digital Discovery, Revisited, by Craig Ball, Ball In Your Court Blog

http://tinyurl.com/ol2urvf

In case you have not noticed, Craig Ball is re-posting older articles, as he explains below. Truly folks, when it comes to e-discovery, when Craig Ball speaks, I listen. Maybe you should too. 

I have posted many of his revisited posts. To find them all, visit his blog, Ball In Your Court at https://ballinyourcourt.wordpress.com/. -CCE

This is the thirteenth in a series revisiting Ball in Your Court columns and posts from the primordial past of e-discovery–updating and critiquing in places, and hopefully restarting a few conversations.  As always, your comments are gratefully solicited.

Do-It-Yourself Digital Discovery [Originally published in Law Technology News, May 2006]

Recently, a West Texas firm received a dozen Microsoft Outlook PST files from a client. Like the dog that caught the car, they weren’t sure what to do next.  Even out on the prairie, they’d heard of online hosting and e-mail analytics, but worried about the cost. They wondered: Did they really need an e-discovery vendor? Couldn’t they just do it themselves?

As a computer forensic examiner, I blanch at the thought of lawyers harvesting data and processing e-mail in native formats. ‘Guard the chain of custody,’ I want to warn. ’Don’t mess up the metadata! Leave this stuff to the experts!’ But the trial lawyer in me wonders how a solo/small firm practitioner in a run-of-the-mill case is supposed to tell a client, ‘Sorry, the courts are closed to you because you can’t afford e-discovery experts.’

Most evidence today is electronic, so curtailing discovery of electronic evidence isn’t an option, and trying to stick with paper is a dead end. We’ve got to deal with electronic evidence in small cases, too. Sometimes, that means doing it yourself.

As a computer forensic examiner, I blanch at the thought of lawyers harvesting data and processing e-mail in native formats. ‘Guard the chain of custody,’ I want to warn. ‘Don’t mess up the metadata! Leave this stuff to the experts!’ But the trial lawyer in me wonders how a solo/small firm practitioner in a run-of-the-mill case is supposed to tell a client, ‘Sorry, the courts are closed to you because you can’t afford e-discovery experts.’

Most evidence today is electronic, so curtailing discovery of electronic evidence isn’t an option, and trying to stick with paper is a dead end. We’ve got to deal with electronic evidence in small cases, too. Sometimes, that means doing it yourself.

The West Texas lawyers sought a way to access and search the Outlook e-mail and attachments in the PSTs. It had to be quick and easy. It had to protect the integrity of the evidence. And it had to be cheap. They wanted what many lawyers will come to see they need: the tools and techniques to stay in touch with the evidence in smaller cases without working through vendors and experts.

What’s a PST?

Microsoft Outlook is the most popular business e-mail and calendaring client, but don’t confuse Outlook with Outlook Express, a simpler application bundled with Windows. Outlook Express stores messages in plain text, by folder name, in files with the extension .DBX. Outlook stores local message data, attachments, folder structure and other information in an encrypted, often-massive database file with the extension .PST. Because the PST file structure is complex, proprietary and poorly documented, some programs have trouble interpreting PSTs.

What About Outlook?

Couldn’t they just load the files in Outlook and search? Many do just that, but there are compelling reasons why Outlook is the wrong choice for an electronic discovery search and review tool, foremost among them being that it doesn’t protect the integrity of the evidence. Outlook changes PST files. Further, Outlook searches are slow, don’t include attachments (but see my concluding comments below) and can’t be run across multiple mail accounts. . . . .

.

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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? . . . .

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Big Change To Military’s Rape Shield Rule.

10 Saturday Jan 2015

Posted by Celia C. Elwell, RP in Evidence, Military Law

≈ Comments Off on Big Change To Military’s Rape Shield Rule.

Tags

Evidence, EvidenceProf Blog, Military Law, Rape, Sexual Assault, Victim's Rights, Writ of Mandamus

Do Ask, Don’t Tell: Significant Change Made to Military’s Rape Shield Rule, by Colin Miller, Evidence ProfBlogger, EvidenceProf Blog

http://tinyurl.com/l2w2bmc

Military Rule of Evidence 412, the military’s rape shield rule, reads as follows:

Rule 412. Nonconsensual sexual offenses; relevance of victim’s behavior or sexual predisposition

(a) Evidence generally inadmissible. The following evidence is not admissible in any proceeding involving alleged sexual misconduct, except as provided in sections (b) and (c):

(1) Evidence offered to prove that any alleged victim engaged in other sexual behavior.

(2) Evidence offered to prove any alleged victim’s sexual predisposition.

(b) Exceptions. In a proceeding under this chapter, the following evidence is admissible, if otherwise admissible under these rules:

(1) evidence of specific instances of sexual behavior by the alleged victim offered to prove that a person other than the accused was the source of semen, injury, or other physical evidence;

(2) evidence of specific instances of sexual behavior by the alleged victim with respect to the person accused of the sexual misconduct offered by the accused to prove consent or by the prosecution; and III-15

(3) evidence the exclusion of which would adversely affect the integrity or fairness of the proceeding.

So, let’s say that a military judge deems evidence of a serviceperson’s sexual history or predisposition admissible under this rape shield rule. What can the serviceperson do?

According to an article in Hawai’i Army Weekly,

victims may now petition the service court of criminal appeals for a writ of mandamus in cases where the victim believes the military judge erred in a ruling pertaining to rape shield evidence under Military Rule of Evidence 412 or violating the psychotherapist-patient privilege under MRE 513.

A writ of mandamus is

an order from a court to an inferior government official ordering the government official to properly fulfill their official duties or correct an abuse of discretion….

In the federal courts, these orders most frequently appear when a party to a suit wants to appeal a judge’s decision but is blocked by rules against interlocutory appeals. Instead of appealing directly, the party simply sues the judge, seeking a mandamus compelling the judge to correct his earlier mistake.

So, assume that a serviceperson is being court martialed for raping another serviceperson, and the military judge deems evidence of the alleged victim’s sexual history or predisposition admissible. Under this new version of Rules 412 and 513, the victim can immediately file a writ of mandamus to have the evidentiary ruling reversed. Here is the specific new language that has been added:

(d) Victim’s Rights. A victim of an offense specified in subsection (b) shall have rights as follows:

(1) To a Special Victims’ Counsel provided under section 1565b(b) of this title.

(2) To have all communications between the victim and any Sexual Assault Response Coordinator, Sexual Assault Victim Advocate, or Special Victims’ Counsel for the victim considered privileged communications for purposes of the case and any proceedings relating to the case.

(e) Availability of Writ of Mandamus. To seek enforcement of the rights accorded a victim under subsection (d), the victim may apply for a writ of mandamus. The right shall first be asserted to the military judge in any court-martial proceeding in which the accused is being tried. The military judge shall take up and decide any motion asserting  a victim’s right in this section. If the military judge denies the  relief sought, the victim may petition the court of criminal appeals  for a writ of mandamus. The Court of Criminal Appeals for an armed force has jurisdiction to grant relief sought under this paragraph. If the court of appeals denies the relief sought, the reasons for the  denial shall be clearly stated on the record in a written opinion.

Given the issues that the military has had with rape and sexual assault, this is a significant change that should make victims of these crimes more willing to come forward.

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Scathing Report on Arizona’s Criminal Justice System.

14 Sunday Dec 2014

Posted by Celia C. Elwell, RP in Arizona Court of Appeals, Criminal Law, Evidence, Justice Reform, Murder

≈ Comments Off on Scathing Report on Arizona’s Criminal Justice System.

Tags

Arizona Court of Appeals, Bob Christie, Criminal Justice System, Criminal Law, Criminal Prosecutor, Debra Jean Milke, Evidence, Huff Post Crime, Jacques Billeaud

Case Tossed Vs. Debra Jean Milke, Woman Held 22 Years In Son’s Death, by Jacques Billeaud and Bob Christie, Huff Post Crime

http://tinyurl.com/ogkwpc5

In a scathing critique of Arizona’s criminal justice system, a state appeals court on Thursday ordered the dismissal of murder charges against a woman who spent 22 years on death row for the killing of her 4-year-old son.

The Arizona Court of Appeals leveled harsh criticism against prosecutors over their failure to turn over evidence during Debra Jean Milke’s trial about a detective with a long history of misconduct and lying. The court called prosecutors’ actions ‘a severe stain on the Arizona justice system.’

A three-judge panel of the appeals court said it agreed with Milke’s argument that a retrial would amount to double jeopardy.

The failure to disclose the evidence ‘calls into question the integrity of the system and was highly prejudicial to Milke,’ the court wrote. ‘In these circumstances — which will hopefully remain unique in the history of Arizona law — the most potent constitutional remedy is required.’ . . .

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Using Location And Time To Exonerate Or Implicate.

26 Wednesday Nov 2014

Posted by Celia C. Elwell, RP in Android Phones, Blackberry Phones, Cell Phones, Criminal Law, Evidence, Experts, Forensic Expert Witness, iPad, iPhones, Legal Technology, Trial Tips and Techniques

≈ Comments Off on Using Location And Time To Exonerate Or Implicate.

Tags

Ball In Your Court Blog, Cell Phones, Cell Towers, Craig Ball, Evidence, Geolocation Data, Legal Technology

Location. Location. Location., by Craig Ball, Ball In Your Court Blog

http://tinyurl.com/mq2u5zv

Okay, you have to admit that it’s pretty cool when a judge calls to pick your brain! – CCE 

I’m peripatetic. My stuff lives in Austin; but, I’m in a different city every few days. Lately looking for a new place for my stuff to await my return, I’m reminded of the first three rules of real estate investing: 1. Location; 2. Location and 3. Location.

Location has long been crucial in trial, too: ‘So, you claim you were at home alone on the night of November 25, 2014 when this heinous crime was committed! Is that what you expect this jury to believe?’ If you can pinpoint people’s locations at particular times, you can solve crimes. If you have precise geolocation data, you can calculate speed, turn up trysts, prove impairment and even show who had the green light. Location and time are powerful tools to implicate and exonerate.

A judge called today to inquire about ways in which cell phones track and store geolocation data. He wanted to know what information is recoverable from a seized phone.  I answered that, depending upon the model and its usage, a great deal of geolocation data may emerge, most of it not tied to making phone calls. Tons of geolocation data persist both within and without phones.

Cell phones have always been trackable by virtue of their essential communication with cell tower sites. . . .

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Basic Evidence Presentation Tips For Young Lawyers.

11 Tuesday Nov 2014

Posted by Celia C. Elwell, RP in Admissibility, Authentication, Evidence, Exhibits, Legal Technology, Presentations, Trial Tips and Techniques, Video

≈ Comments Off on Basic Evidence Presentation Tips For Young Lawyers.

Tags

Evidence, Hon. E. Kenneth Wright Jr., Illinois State Bar Association™, Legal Technology, Trial Preparation, Trial Tips & Techniques, Young Lawyers

Letter To Young Lawyers—Basic Tips And Presentation Of Evidence, by Hon. E. Kenneth Wright Jr.,YLD News, Illinois State Bar Association™, Vol. 55, No. 1 (August 2010)

http://tinyurl.com/po9x3hc

Dear Attorney Jane Doe and Attorney John Doe:

As a young lawyer, you are in a place that I left some time ago. However, I have watched you step into jury courtrooms with a level of anticipation and excitement that is refreshing. While a few of you mask it well, I know there is also some anxiety lurking in the background. Don’t worry, because that anxiety strikes even the most seasoned litigators. Now I sit on the bench, and I sometimes wish I could call a time out during the trial to share with you some simple tips that will put you more at ease as you proceed with your case.

Being a member of the judiciary is an honor that comes with extraordinary powers and responsibilities. These powers do not include a coach’s ability to call for substitution of players, so in this note I want to briefly address some basic practical pointers to improve your overall practice as well as touch upon the specific issue of presentation of evidence to a jury. I hope by doing so I give you peace of mind and contribute, in a small way, to your growth as a fine attorney.

Basic Pointers

How quickly you acclimate yourself to courtroom practice depends in large part on you, your learning style, and how many opportunities you have to appear before the court. In the beginning, you may feel overwhelmed by the number of items you must remember, track and recall at a moment’s notice. In your haste, you may overlook a few very basic points that can actually help you. . . .

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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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Is Eyewitness Testimony Always Credible?

19 Sunday Oct 2014

Posted by Celia C. Elwell, RP in Criminal Law, Evidence, Eyewitness Testimony

≈ Comments Off on Is Eyewitness Testimony Always Credible?

Tags

Criminal Law, Evidence, Eyewitness, Scott Fraser, TED Talks

Why Eyewitnesses Get It Wrong, by Scott Fraser, TED Talks

http://tinyurl.com/mo8rgeb

[interactive Transcript at http://tinyurl.com/l6fokjh.] -CCE

Scott Fraser studies how humans remember crimes — and bear witness to them. In this powerful talk, which focuses on a deadly shooting at sunset, he suggests that even close-up eyewitnesses to a crime can create ‘memories’ they could not have seen. Why? Because the brain abhors a vacuum. Editor’s note: In the original version of this talk, Scott Fraser misspoke about available footage of Two World Trade Center (Tower 2). The misstatement has been edited out for clarity.

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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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Ignore Duty For Litigation Holds At Your Peril.

15 Wednesday Oct 2014

Posted by Celia C. Elwell, RP in Discovery, E-Discovery, Employment Law, Litigation Hold, Preservation, Race Discrimination, Sanctions, U.S. District Court for the Southern District of New York

≈ Comments Off on Ignore Duty For Litigation Holds At Your Peril.

Tags

Andrew P. Sherrod, Discrimination, E-Discovery, EEOC, Employment Law, Evidence, Inside Counsel Magazine, Litigation Hold

Don’t Hit That Delete Button: An Update On Litigation Holds For Employment Claims, by Andrew P. Sherrod, Inside Counsel Magazine

http://tinyurl.com/ka6thgo

By now, most companies are — or at least should be — well aware of their obligation to preserve relevant documents and electronic information when they reasonably anticipate litigation. This duty can arise in many contexts, but employment complaints are a prime example. Despite the multitude of judicial decisions and articles on the subject, companies continue to hinder their defense of employment claims by failing to undertake appropriate preservation measures.

The consequences of failing to implement and monitor a litigation hold in response to an employment claim were reinforced in a recent decision from the United States District Court for the Southern District of New York in Hawley v. Mphasis Corp.

In Hawley, an employee of the defendant company claimed that he was discriminated against on the basis of his ethnicity in a number of ways during the course of his employment. The employee filed an EEOC charge of race and national origin discrimination in September 2009. The company terminated the employee in November 2009, and he thereafter filed a second EEOC charge, which was mailed to the company in December 2009. The employee then filed a discrimination suit in January 2012 against the company under 42 U.S.C. § 1981 and state civil rights laws.

During his employment, the plaintiff received a company-issued laptop computer on which he was required to perform his work. After his termination, the employee returned the computer to the company in December 2009. The next month, the company reassigned the computer to another employee, permanently deleting all of the plaintiff’s data.

The company also waited until April 2012 — almost three months after the filing of the plaintiff employee’s lawsuit and more than two years after his EEOC charges — to instruct the plaintiff’s supervisor and several other employees to preserve all documents and communications related to the plaintiff. . . .

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Is Evidence of Defendant’s Disability Admissible in Police Brutality Trial?

27 Saturday Sep 2014

Posted by Celia C. Elwell, RP in Admissibility, Americans With Disabilities, Criminal Law, Defense Counsel, Evidence, Excessive Force, Fourth Amendment - Search & Seizure, Governmental Tort Claim Act, Law Enforcement, Police Brutality, Trial Tips and Techniques

≈ Comments Off on Is Evidence of Defendant’s Disability Admissible in Police Brutality Trial?

Tags

Criminal Law, Disability, Evidence, Fourth Amendment, Police Brutality, Reasonable Person Analysis, Trial Tips & Techniques

Disabling Condition: Should Evidence of Defendant’s Disability be Admissible in Assault/Police Brutality Trial?, by Colin Miller, EvidenceProf Blog

http://tinyurl.com/plpuz7s

According to an article in the Lake Geneva News,

‘A man who is accused of attacking a police officer, but counters that he is the victim of police brutality, is set for his second jury trial next Monday.

Daniel White, 42, of rural Elkhorn, faces three felony counts and a misdemeanor related to an incident in which his two pit bulls bit two deputies and he allegedly struck a deputy with his fist and a wood board.

White, who walked in the courthouse with a cane and collects disability checks, contends that the officer knocked down his stockade fence, beat him up and lied to conceal their actions.’

Prior to trial, the prosecution asked the judge to (1) prohibit White’s cane from being in the jury; and (2) to exclude evidence of White’s disability. How should the judge rule?

Well, the judge has already ruled ‘refused to force White to hide his cane during the trial.’ I think this seems like the only correct outcome. First, there is simply the matter of logistics. For instance, a defendant has to stand when the judge enters the courtroom. Given that, it’s difficult to see how the cane could be completely hidden from view. Second, courts have found no problem with defendants being in shackles in the courtroom when such restraint is necessary. Reciprocity would thus seem to require allowing a defendant in need of a cane to be able to use it in plain view of jurors.

The more difficult question is whether the defense should be able to present evidence of White’s disability. Part of this depends on the defense’s theory of the case. Is the claim that White’s disability made him physically unable to commit the crimes alleged in the complaint? If so, you might recall the infamous O.J. Simpson trial in which Richard Walsh was allowed to give testimony that the former running back’s football injuries caused problems with his problems with knees, back, shoulder and hands.

Is the claim self-defense, with White’s claim being that his disability should be part of the reasonable person analysis? If that’s the case, check out this excerpt from Hendrix v. State, 369 S.W.3d 93 (Mo.App. 2012):

‘Although Ransom was decided in the context of a civil claim of self-defense, its analysis of the ‘reasonable person’ standard is relevant to determining whether Hendrix’s medical records were relevant to his claim of self-defense….Hendrix’s medical records, if entered into evidence at trial, would have merely established that he suffered from degenerative joint disease in his knees. As Ransom indicated, a defendant’s ‘proclivities or propensities are irrelevant’ to the issue of whether the defendant acted as a ‘reasonable person.’…Williams was not ineffective for failing to present irrelevant evidence because it would have been inadmissible at trial….

Even if evidence of Hendrix’s disabilities would have been relevant and, therefore, admissible, Hendrix offered no evidence at the motion hearing to demonstrate that, had Williams entered Hendrix’s medical records detailing his degenerative joint disease, the jury would have acquitted Hendrix. The jury heard Paynter’s testimony that Hendrix wore knee braces, and the defense’s closing argument utilized Hendrix’s knee injuries to argue the relative size difference between Hendrix and Paynter. Despite the jury hearing that evidence and argument, it rejected Hendrix’s self-defense theory. Hendrix has not demonstrated that, had the medical records been admitted, there is a reasonable probability that he would have been found not guilty.’

Hendrix seems to stand for the proposition that some evidence of a defendant’s disabilities is admissible but that medical records are not. But, of course, those records were offered for a particular purpose which might well be different from the purpose at White’s trial. -CM

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Philadelphia Legal Opinion on Duty to Preserve Social Media Evidence.

25 Thursday Sep 2014

Posted by Celia C. Elwell, RP in Admissibility, Authentication, Discovery, E-Discovery, Evidence, Litigation Hold, Metadata, Preservation, Social Media

≈ Comments Off on Philadelphia Legal Opinion on Duty to Preserve Social Media Evidence.

Tags

Evidence, Facebook, From the Sidebar Blog, Hayes Hunt, Jeffrey Monhait, Litigation Hold, Rule 3.4, Social media, Trial Tips & Techniques

Lawyer’s Duty to Preserve Social Media Evidence, by Hayes Hunt and Jeffrey Monhait, From the Sidebar Blog

http://tinyurl.com/nn6tmor

Lawyers must take ‘appropriate’ steps to preserve their clients’ potentially relevant and discoverable social media evidence. That is the key take-away from an ethics opinion recently issued by the Philadelphia Bar Association. However, lawyers may advise a client to restrict access to the client’s social media so long as the attorney neither instructs nor permits the client to permanently destroy that information. An attorney may even instruct a client to delete information from the client’s page if the attorney preserves that information, including metadata.

You Can Hide, But You Must Preserve
Changing social media settings to ‘private’ merely restricts who may access a web page. The opposing party can still access relevant and discoverable information through discovery or by issuing a subpoena. The committee concluded that this position satisfied Rule 3.4’s prohibition against altering or destroying evidence. As long as the attorney preserves the complete evidentiary record, including metadata, an attorney may advise a client to restrict access to the client’s social media evidence, or remove social media content entirely.

You ‘Must’ Produce Complete Social Media Content
To comply with discovery requests, a lawyer ‘must’ produce the client’s complete social media content if the attorney is aware of this content’s existence. This duty arises from Rule 4.1, which prohibits attorneys from making ‘a false statement of material fact or law to a third person,’ and Rule 8.4, which prohibits ‘conduct involving dishonesty, fraud, deceit, or misrepresentation.’ A lawyer that purposefully omits portions of social media content, or permits or directs the client to destroy social media content, violates these rules.

Also, a lawyer must take reasonable steps to obtain relevant information from the client when the lawyer ‘reasonably believes’ that the client possesses relevant information, such as photographs, links, or other social media content. Despite being obligated to take reasonable steps, a lawyer need not obtain information that was neither in the client’s possession nor the lawyer’s possession.
Frankly, this isn’t groundbreaking or a new duty, it merely reinforces the need for lawyers to better understand social media for purposes of litigation.

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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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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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Government Can Access Individual’s Gmail Account In Money Laundering Probe.

27 Sunday Jul 2014

Posted by Celia C. Elwell, RP in Android Phones, Appellate Law, Apple, Blackberry Phones, Cell Phones, Computer Forensics, Crime Scene Investigation, Criminal Law, Cybersecurity, Discovery, E-Discovery, Emails, Evidence, Experts, Forensic Evidence, Forensic Evidence, Forensic Expert Witness, Fourth Amendment - Search & Seizure, Google, Internet, iPad, iPhones, Legal Technology, Mac, PC Computers, Privacy, Search Warrants, Tablets, Trial Tips and Techniques, U.S. District Court for the District of Columbia, U.S. District Court for the Southern District of New York

≈ Comments Off on Government Can Access Individual’s Gmail Account In Money Laundering Probe.

Tags

Computers, Email, Evidence, Forensic Experts, Gmail, Google, Hard Drives, Magistrate Judge Gabriel W. Gorenstein, Money Laundering, Search & Seizure, Warrants

Federal Judge Rules Gmail Account Can Be Accessed For Investigation, by evanino in Evanino Blog

http://www.evanino.com/federal-judge-rules-gmail-account-can-accessed-investigation/

In a landmark ruling that might fuel a nationwide debate, the New York Court issued a warrant against Google, giving access to user emails.

A New York Court issued a warrant against Google Inc ruling that the government can access all mails of a Gmail account of an individual under a money laundering probe. The judge said that courts have long been waiting for law enforcement to take the required documents in the custody if it is within the purview of the warrant.

Contrary to previous rulings

This decision is not in line with the previous court rulings including courts in the Districts of Columbia and Kansas, Magistrate Judge Gabriel W. Gorenstein of the U.S. District Court for the Southern District of New York noted on Friday. Also, this latest ruling will spark a debate over the privacy, in the country, according to Computer World.

A District of Columbia judge denied from revealing the entire content of the email as this will seize a large amount of emails for which the authorities have not given any reason.

The Court in Kansas, also, did not rule in favor of a similar warrant, stating that it failed to ‘limit the universe of electronic communications and information to be turned over to the government to the specific crimes being investigated.’

However, the New York Court ruled in favor of such warrant, allowing authorities to take into account the emails and other information from a Google inc’s Gmail account, including the address book and draft mails, and also the authority to search the emails for certain specific categories of evidence.

Experts must scan emails, not Google employee

Judge Gorenstein argued that it is not possible to search the hard-disk drives of computers and other storage devices on the spot due to the complexities of electronic searches. Thus, the authorities can seize such storage.

‘We perceive no constitutionally significant difference between the searches of hard drives just discussed and searches of email accounts,’ the judge wrote. He added that in most of the cases data in an email account will be less ‘expansive’ compared to the information contained in the hard drive.

Judge Gorenstein stated that Google employees are not expert enough to know the importance of particular emails without having been given proper training in the substance of the investigation. Judge said this in response to an opinion by the District of Columbia court that gave the government the option of getting the email scanned by the host itself.

He said that an agent, who is completely absorbed in the investigation, will be able to understand the importance of a particular language in emails contrary to the employee.

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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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