EvidenceProf Blog

Editor: Colin Miller
Univ. of South Carolina School of Law

Monday, February 12, 2018

Nebraska & The Inadmissibility of Prior Statements of (Non)Identification

Federal Rule of Evidence 801(d)(1)(C) provides that

A statement that meets the following conditions is not hearsay:...

The declarant testifies and is subject to cross-examination about a prior statement, and the statement:...

identifies a person as someone the declarant perceived earlier.

So, assume that Eve

-is an eyewitness to a crime;

-is shown a photographic lineup that includes Doug, the defendant; and either

-picks Doug out of the lineup; or

-is unable to pick Doug out of the lineup.

If Eve later testifies at Doug's trial, her prior identification or non-identification of Doug would be admissible. As far as I know, 49 states have a similar doctrine in their state rules of evidence or precedent. As is made clear by the recent opinion of the Supreme Court of Nebraska in State v. McCurry, 891 N.W.2d 663 (Neb. 2017), the Cornhusker state seems to be the only exception.

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February 12, 2018 | Permalink | Comments (1)

Wednesday, February 7, 2018

Court of Appeals of New York Finds Statements Before a Defendant Enters a Conspiracy & After His Active Participation Are Admissible Against Him

Federal Rule of Evidence 801(d)(2)(E) provides that

A statement that meets the following conditions is not hearsay:...

The statement is offered against an opposing party and:...

was made by the party’s coconspirator during and in furtherance of the conspiracy.

So, let's say that Al and Bob agree to rob a bank and make statements in furtherance of the conspiracy (e.g., "Let's rob the bank on the corner of State and Main."). Later, they enlist Dan to drive them to the bank so that they can rob it, with the plan to be picked up by a getaway driver, Greg, after the robbery. Then, after the robbery, while being driven by Greg, Al and Bob make more statements in furtherance in the conspiracy (e.g., "Let's hide the money in that cabin in the woods."). 

If Dan is being prosecuted for his role in the conspiracy/robbery, (1) are the statements made before he entered the conspiracy admissible against him under Rule 801(d)(2)(E); and (2) are the statements made after his active participation admissible against him under Rule 801(d)(2)(E)? In a case of first impression, the Court of Appeals of New York answered both questions in the affirmative in People v. Flanagan, 49 N.Y.S.3d 50 (N.Y. 2017).

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February 7, 2018 | Permalink | Comments (0)

Monday, February 5, 2018

11th Circuit Finds Conviction Resulting From Nolo Contendere Plea Insufficient to Satisfy Character Evidence Test

Federal Rule of Evidence 404(b) provides that evidence of a crime, wrong, or other act

may be admissible for another purpose, such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident. On request by a defendant in a criminal case, the prosecutor must:

(A) provide reasonable notice of the general nature of any such evidence that the prosecutor intends to offer at trial; and

(B) do so before trial — or during trial if the court, for good cause, excuses lack of pretrial notice.

Meanwhile, Federal Rule of Evidence 410(a)(2) provides that

In a civil or criminal case, evidence of the following is not admissible against the defendant who made the plea or participated in the plea discussions:...

(2) a nolo contendere plea

So, let's say that a defendant is on trial for a crime (crime #1, e.g., safecracking) and has a prior conviction based upon a nolo contendere plea for a prior crime (crime #2, e.g., safecracking). If the prosecution wants to introduce evidence of the prior crime for a permissible purpose (e.g., knowledge of how to crack a safe), can it prove that prior crime solely through evidence of the defendant's prior conviction resulting from his nolo contendere plea? According to the Eleventh Circuit in United States v. Green, 873 F.3d 846 (11th Cir. 2017), the answer is "no."

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February 5, 2018 | Permalink | Comments (1)

Wednesday, January 31, 2018

Are Subsequent Remedial Measures Admissible at Criminal Trials?

Federal Rule of Evidence 407 provides that

When measures are taken that would have made an earlier injury or harm less likely to occur, evidence of the subsequent measures is not admissible to prove:

  • negligence;
  • culpable conduct;
  • a defect in a product or its design; or
  • a need for a warning or instruction.

But the court may admit this evidence for another purpose, such as impeachment or — if disputed — proving ownership, control, or the feasibility of precautionary measures.

It is well established that Rule 407 applies in civil cases, like tort and nuisance cases. But does the Rule apply in criminal cases? This was the question addressed by the United States District Court for the Northern District of California in United States v. Pacific Gas and Electric Company, 178 F.Supp.3d 927 (N.D.Cal. 2016).

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January 31, 2018 | Permalink | Comments (1)

Tuesday, January 30, 2018

Cyntoia Brown & the "51-To-Life" Project: Final Report

Over the past two months, I've been examining juvenile sentencing laws across the country to test the thesis that Tennessee has the harshest juvenile homicide sentencing law in the country. After reviewing the laws in each state, that thesis has been confirmed. Tennessee indeed has the harshest juvenile homicide sentencing laws in the country by a good margin. You can download the report here: Download Juvenile Sentencing

The full report is also in this post before the fold:

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January 30, 2018 | Permalink | Comments (1)

Sunday, January 28, 2018

Cyntoia Brown & the "51-To-Life" Project: Wyoming

This is the fiftieth in a series of posts on the "51-To-Life" Project. In Tennessee, if a juvenile is convicted of first-degree murder, there are two sentencing options: (1) life without the possibility of parole; or (2) life with the possibility of parole, with that possibility only existing after the juvenile has been incarcerated for 51 years. In this post, I will explain why Wyoming treats juvenile homicide offenders better than Tennessee.  

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January 28, 2018 | Permalink | Comments (0)

Friday, January 26, 2018

Cyntoia Brown & the "51-To-Life" Project: Wisconsin

This is the forty-ninth in a series of posts on the "51-To-Life" Project. In Tennessee, if a juvenile is convicted of first-degree murder, there are two sentencing options: (1) life without the possibility of parole; or (2) life with the possibility of parole, with that possibility only existing after the juvenile has been incarcerated for 51 years. In this post, I will explain why Wisconsin treats juvenile homicide offenders better than Tennessee.  

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January 26, 2018 | Permalink | Comments (4)

Thursday, January 25, 2018

Cyntoia Brown & the "51-To-Life" Project: West Virginia

This is the forty-eighth in a series of posts on the "51-To-Life" Project. In Tennessee, if a juvenile is convicted of first-degree murder, there are two sentencing options: (1) life without the possibility of parole; or (2) life with the possibility of parole, with that possibility only existing after the juvenile has been incarcerated for 51 years. In this post, I will explain why West Virginia treats juvenile homicide offenders better than Tennessee.  

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January 25, 2018 | Permalink | Comments (0)

Wednesday, January 24, 2018

Cyntoia Brown & the "51-To-Life" Project: Washington

This is the forty-seventh in a series of posts on the "51-To-Life" Project. In Tennessee, if a juvenile is convicted of first-degree murder, there are two sentencing options: (1) life without the possibility of parole; or (2) life with the possibility of parole, with that possibility only existing after the juvenile has been incarcerated for 51 years. In this post, I will explain why Washington treats juvenile homicide offenders better than Tennessee.  

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January 24, 2018 | Permalink | Comments (0)

Tuesday, January 23, 2018

Cyntoia Brown & the "51-To-Life" Project: Virginia

This is the forty-sixth in a series of posts on the "51-To-Life" Project. In Tennessee, if a juvenile is convicted of first-degree murder, there are two sentencing options: (1) life without the possibility of parole; or (2) life with the possibility of parole, with that possibility only existing after the juvenile has been incarcerated for 51 years. In this post, I will explain why Virginia treats juvenile homicide offenders better than Tennessee.  

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January 23, 2018 | Permalink | Comments (0)

Cyntoia Brown & the "51-To-Life" Project: Vermont

This is the forty-fifth in a series of posts on the "51-To-Life" Project. In Tennessee, if a juvenile is convicted of first-degree murder, there are two sentencing options: (1) life without the possibility of parole; or (2) life with the possibility of parole, with that possibility only existing after the juvenile has been incarcerated for 51 years. In this post, I will explain why Vermont treats juvenile homicide offenders better than Tennessee.  

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January 23, 2018 | Permalink | Comments (0)

Monday, January 22, 2018

Cyntoia Brown & the "51-To-Life" Project: Utah

This is the forty-fourth in a series of posts on the "51-To-Life" Project. In Tennessee, if a juvenile is convicted of first-degree murder, there are two sentencing options: (1) life without the possibility of parole; or (2) life with the possibility of parole, with that possibility only existing after the juvenile has been incarcerated for 51 years. In this post, I will explain why Utah treats juvenile homicide offenders better than Tennessee.  

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January 22, 2018 | Permalink | Comments (0)

Cyntoia Brown & the "51-To-Life" Project: Texas

This is the forty-third in a series of posts on the "51-To-Life" Project. In Tennessee, if a juvenile is convicted of first-degree murder, there are two sentencing options: (1) life without the possibility of parole; or (2) life with the possibility of parole, with that possibility only existing after the juvenile has been incarcerated for 51 years. In this post, I will explain why Texas treats juvenile homicide offenders better than Tennessee.  

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January 22, 2018 | Permalink | Comments (0)

Sunday, January 21, 2018

Cyntoia Brown & the "51-To-Life" Project: South Dakota

This is the forty-second in a series of posts on the "51-To-Life" Project. In Tennessee, if a juvenile is convicted of first-degree murder, there are two sentencing options: (1) life without the possibility of parole; or (2) life with the possibility of parole, with that possibility only existing after the juvenile has been incarcerated for 51 years. In this post, I will explain why South Dakota treats juvenile homicide offenders better than Tennessee.  

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January 21, 2018 | Permalink | Comments (0)

Saturday, January 20, 2018

Cyntoia Brown & the "51-To-Life" Project: South Carolina

This is the forty-first in a series of posts on the "51-To-Life" Project. In Tennessee, if a juvenile is convicted of first-degree murder, there are two sentencing options: (1) life without the possibility of parole; or (2) life with the possibility of parole, with that possibility only existing after the juvenile has been incarcerated for 51 years. In this post, I will explain why South Carolina treats juvenile homicide offenders better than Tennessee.  

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January 20, 2018 | Permalink | Comments (0)

Friday, January 19, 2018

Cyntoia Brown & the "51-To-Life" Project: Rhode Island

This is the fortieth in a series of posts on the "51-To-Life" Project. In Tennessee, if a juvenile is convicted of first-degree murder, there are two sentencing options: (1) life without the possibility of parole; or (2) life with the possibility of parole, with that possibility only existing after the juvenile has been incarcerated for 51 years. In this post, I will explain why Rhode Island treats juvenile homicide offenders better than Tennessee.  

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January 19, 2018 | Permalink | Comments (0)

Cyntoia Brown & the "51-To-Life" Project: Pennsylvania

This is the thirty-ninth in a series of posts on the "51-To-Life" Project. In Tennessee, if a juvenile is convicted of first-degree murder, there are two sentencing options: (1) life without the possibility of parole; or (2) life with the possibility of parole, with that possibility only existing after the juvenile has been incarcerated for 51 years. In this post, I will explain why Pennsylvania treats juvenile homicide offenders better than Tennessee.  

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January 19, 2018 | Permalink | Comments (0)

Thursday, January 18, 2018

Cyntoia Brown & the "51-To-Life" Project: Oregon

This is the thirty-eighth in a series of posts on the "51-To-Life" Project. In Tennessee, if a juvenile is convicted of first-degree murder, there are two sentencing options: (1) life without the possibility of parole; or (2) life with the possibility of parole, with that possibility only existing after the juvenile has been incarcerated for 51 years. In this post, I will explain why Oregon treats juvenile homicide offenders better than Tennessee.  

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January 18, 2018 | Permalink | Comments (0)

Wednesday, January 17, 2018

Cyntoia Brown & the "51-To-Life" Project: Oklahoma

This is the thirty-seventh in a series of posts on the "51-To-Life" Project. In Tennessee, if a juvenile is convicted of first-degree murder, there are two sentencing options: (1) life without the possibility of parole; or (2) life with the possibility of parole, with that possibility only existing after the juvenile has been incarcerated for 51 years. In this post, I will explain why Oklahoma treats juvenile homicide offenders better than Tennessee.  

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January 17, 2018 | Permalink | Comments (0)

Tuesday, January 16, 2018

Cyntoia Brown & the "51-To-Life" Project: Ohio

This is the thirty-sixth in a series of posts on the "51-To-Life" Project. In Tennessee, if a juvenile is convicted of first-degree murder, there are two sentencing options: (1) life without the possibility of parole; or (2) life with the possibility of parole, with that possibility only existing after the juvenile has been incarcerated for 51 years. In this post, I will explain why Ohio treats juvenile homicide offenders better than Tennessee.  

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January 16, 2018 | Permalink | Comments (0)