EvidenceProf Blog

Facebook Status -- Exonerated: Suspect's Facebook Update Corroborates Alibi In Brooklyn Robbery

I have written several posts on this blog (here, here, here, here, and here) about cases dealing with the admissibility of evidence from MySpace pages. A case out of New York, however, gives me my first opportunity to address the admissibility of evidence from a Facebook page. And indeed, it appears to be the first case in which a Facebook update has been used as alibi evidence.

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Settling For This: Eastern District Of Pennsylvania Finds Settlement Evidence Inadmissible In Criminal Case Under Rule 403, Not Rule 408

If you want a primer on recently amended Federal Rule of Evidence 408, you should read the recent opinion of the United States District Court for the Eastern District of Pennsylvania in United States v. Davis, 2009 WL 3646459 (E.D. Pa. 2009). In Davis, Lee Davis, Jr. was charged with five counts of wire fraud and one count of mail fraud, relating to a scheme to defraud. One of the entities which Davis allegedly defrauded was Regency Oaks. Before trial, Davis brought a 

motion in limine for exclusion of a settlement agreement between [himself] and...Regency Oaks. The document, entitled "Payment Agreement," addresse[d] workers' compensation insurance claims made against Regency Oaks in the absence of insurance coverage, which had been promised by [Davis] but was not actually secured. As part of the settlement, [Davis] agreed to compensate Regency Oaks for attorneys' fees, medical bills, and other statutory penalties in connection with claims for injuries allegedly suffered by employees of Regency Oaks and its clients. In the prefatory clauses laid out at the beginning of the agreement, [Davis] ma[de] several admissions regarding his liability in the matter.

The Eastern District of Pennsylvania thus had to decide whether to exclude this settlement evidence under Federal Rule of Evidence 408.

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Symposium Announcement: Blaine Sloan Lecture on International Law

Pace International Law Review is proud to host this year's Symposium entitled "Comparative Constitutional Law: National Security Across the Globe" in conjunction with the Blaine Sloan Lecture on International Law: "After Gitmo: Obama Grapples with Preventive Detention." Scott Horton of Harper's Magazine is the keynote speaker.   

The symposium will be held on November 13, 2009.  It is a day long discussion on the legal issues faced by various nations which must balance constitutional and civil rights with national security needs. The symposium will be comprised of a series of panel discussions and short lectures throughout the day. 

For additional information & registration, please visit http://www.pace.edu/page.cfm?doc_id=24238.

(Not) Dismissed With Prejudice: First Circuit Finds Judges Have Discretion To Allow Jury Impeachment Based Upon Allegations Of Juror Racial Bias

Last year, in United States v. Benally, 546 F.3d 1230 (10th Cir. 2008), the Tenth Circuit found that Federal Rule of Evidence 606(b) precluded a juror from impeaching the jury's verdict based upon allegations that the verdict was tainted by racial bias against Native Americans. I wrote about Benally in several posts on this blog (here, here, here, here, here, and here), wrote an article inspired by the case, and submitted an amicus brief in support of Benally's petition for writ of certiorari to the Supreme Court (which the Supreme Court will soon hear). My argument is that application of Rule 606(b) to exclude jurors from impeaching their verdicts based upon allegations of juror racial, religious, or other bias violates the right to present a defense recognized in cases such as Chambers v. Mississippi, 410 U.S. 284 (1973), which found that courts cannot apply rules of evidence "mechanistically to defeat the ends of justice." As I note in the article and in the brief, the right to present a defense fits well with cases such as Benally because in McDonald v. Pless, 238 U.S. 264 (1915), the case laying the groundwork for Rule 606(b), the Supreme Court found that jury impeachment is not generally warranted but "recognize[d] that it would not be safe to lay down any inflexible rule because there might be instances in which such testimony of the juror could not be excluded without 'violating the plainest principles of justice.'" My argument is that juror racism is one of those instances. According to its opinion yesterday in United States v. Villar, 2009 WL 3738787 (1st Cir. 2009), the First Circuit agrees.

Continue reading "(Not) Dismissed With Prejudice: First Circuit Finds Judges Have Discretion To Allow Jury Impeachment Based Upon Allegations Of Juror Racial Bias"

The Character Of The Matter: Texas Opinion Reveals Limits On Character Evidence Criminal Defendants Can Present

Like their federal counterparts, Texas Rules of Evidence 404(a)(1)-(2) create a Pandora's box with regard to propensity character evidence and place it firmly in the hands of the criminal defendant. If the defendant does not want the prosecution to present propensity character evidence against him, he merely needs to refrain from presenting any such evidence on his own behalf. Conversely, once the defendant presents propensity character evidence on his own behalf, he opens the door (box) for the prosecution to respond it kind. As the recent opinion of the Court of Criminal Appeals of Texas in Ex parte Miller, 2009 WL 3446468 (Tex.Crim.App. 2009), makes clear, however, there are limits on the types of character evidence that a criminal defendant can present at trial.

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We've Got Insurance: Court Awards New Trial After Husband Tells Wife-Juror About Insurance Information Excluded At Trial

A coal buyer sues the defendants, alleging that they had fraudulently induced it to make advance payments totaling $3.2 million to a coal seller for coal that was never received. At trial trial, and outside the presence of the jury, defense counsel seeks the court's permission to cross-examine a witness about an email exchange that referenced the plaintiff's insurance claim for the missing coal. The court denies permission, finding that the e-mail exchange is irrelevant and unduly prejudicial to the plaintiff. The problem is that a juror's husband is in court during this exchange and later tells his juror-wife about the plaintiff's insurance policy and the debate surrounding the exhibit. The juror-wife subsequently tells the other jurors "I can tell you this now so you won't feel so guilty, that it's possible that [the plaintiff] had an insurance policy." The jury thereafter returns a verdict for the defendants. If the plaintiff learns about the husband's comments after the verdict is entered, can it have the wife impeach the jury's verdict and obtain a new trial? According to a recent opinion by the United States District Court for the Western District of Virginia, the answer is "yes."

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Divine Justice?: Court Refuses To Conduct Voir Dire Of Jurors Besides Foreperson Despite Bible Being Found In Jury Deliberation Room

A defendant is convicted of being a felon in possession of a firearm and ammunition. After the verdict is entered, the judge goes to the jury room with his law clerks to thank the jury. Afterwards, the law clerks inform the judge that they saw a pocket-sized New Testament on a juror notebook on the table. The judge informs the parties of this fact, prompting the defendant to move for a new trial and individual voir dire of each juror to assess any improper influence by a Bible in the jury room. What should the judge do? According to the recent opinion of the United States District Court for the District of Massachusetts in United States v. Rodriguez, 2009 WL 3650857 (D. Mass. 2009), the answer is simply to question the jury foreperson. I fundamentally disagree.

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A Shock To The System: Court Of Appeals Of Texas Makes Difficult Determinations On Excited Utterances In Assault Appeal

Like its federal counterpart, Texas Rule of Evidence 803(2) provides an exception to the rule against hearsay for an "excited utterance," i.e., "[a] statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition." The rationale behind the excited utterance exception is that the stress of nervous excitement or physical shock stills the reflective faculties, thus removing an impediment to truthfulness. Based upon this rationale, I am not sure that I can agree with the recent opinion of the Court of Appeals of Texas, Texarkana, in James v. State, 2009 WL 3643554 (Tex.App.-Texarkana 2009).

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Curiosity Killed The Jury, Take 2: Boston Globe Article Addresses Problems New Technologies Present To Jury Deliberations

Is the jury system broken? I've done several posts over the last year about how new technologies are causing (or should be causing) mistrials across the country. Back in March, I posted an entry about jurors improperly exchanging e-mails during trial and "wonder[ed] whether improper e-mailing among jurors is an increasing problem that courts will have to address at some point." Later that month, I posted an entry about mistrials being declared after jurors improperly used Google and twitter to look up and communicate details about the cases they were hearing.  In May, I  posted an entry about a mistrial being declared after a witness engaged in text-messaging while he was on the witness stand. In June and October, I posted entries about attempts to reign in this type of jury conduct in Michigan and Oklahoma, and it appears clearer than ever that these attempts need to be redoubled because the hits just keep on coming.

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Conspiracy Theory: Second Circuit Reverses Alien Trafficking Convictions Based In Part On Improperly Admitted Co-Conspirator Admissions

Federal Rule of Evidence 801(d)(2)(E) provides that "[a] statement is not hearsay if...[t]he statement is offered against a party and is...a statement by a coconspirator of a party during the course and in furtherance of the conspiracy." Rule 801(d)(2), however, goes on to provide that "[t]he contents of the statement shall be considered but are not alone sufficient to establish...the existence of the conspiracy and the participation therein of the declarant and the party against whom the statement is offered under subdivision (E)." This latter sentence was the problem for the prosecution in United States v. Liera, 2009 WL 3617813 (9th Cir. 2009).

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Steak Umm In Your Mouth: Steak Umm Vs. Steak 'Em Up Trademark Action Prompts Rule 408 Ruling

Steak Umm is a company that manufactures, advertises, and sells Steak Umm steak sandwich meat and hamburgers as part of frozen sandwich food kits (which I used to have when I was a kid but which I haven't had in years). It is also the owner of United States Registration Numbers 1,033,176 (“176”); 1,116,446 (“446”); and 2,375,933 (“933”) for the marks "STEAK-UMM," which were issued in 1976 for steak food products, 1979 for rolls, and 2000 for frozen sandwich kits, respectively. Meanwhile, Steak 'Em Up is a Pennsylvania corporation with its principal place of business, a restaurant, at 2600 South 11th Street in Philadelphia. Steak Umm has sued Steak 'Em Up, claiming that by using terms colorably similar to Steak Umm's marks, including "steak ‘em" or "steak ‘em up," Steak 'Em Up is infringing Steak Umm's marks. So, who will win the action? Who knows, but the case has already produced an interesting evidentiary ruling.

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From Exclusionary To Inclusionary: Kentucky Case Reveals Different Approaches To Character Evidence Under Rule 404(b)

Federal Rule of Evidence 404(b) provides that

Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident, provided that upon request by the accused, the prosecution in a criminal case shall provide reasonable notice in advance of trial, or during trial if the court excuses pretrial notice on good cause shown, of the general nature of any such evidence it intends to introduce at trial.

Kentucky Rule of Evidence 404(b) is similar. It provides that

Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible: 

(1) If offered for some other purpose, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident; or 

(2) If so inextricably intertwined with other evidence essential to the case that separation of the two (2) could not be accomplished without serious adverse effect on the offering party.

Despite the similarities between these two rules, federal courts generally have referred to Federal Rule of Evidence 404(b) as an inclusionary rule while Kentucky courts have referred to Kentucky Rule of Evidence 404(b) as an exclusionary rule. This post explains why the distinction matters.

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But It Was Only A Fantasy: North Carolina Opinion Reveals Troubling Exception To The State's Rape Shield Rule

Rape shield rules prevent the defendant from presenting evidence regarding the alleged victim's other sexual behavior and sexual predisposition to prove that she consented to the sexual act at issue. Typically, these rules contain three exceptions. First, a defendant can sometimes present evidence regarding the alleged victim's other sexual acts close in time to the act at issue to prove that a person other than the defendant was the source of semen, injury, or other physical evidence. Second, a defendant can sometimes present evidence of other sexual acts between the alleged victim and himself to prove consent. Third, a defendant can sometimes present evidence of other sexual acts by the alleged victim if the court concludes that the exclusion of that evidence would violate  the defendant's constitutional rights.

Upon reading the recent opinion of the Court of Appeals of North Carolina in State v. Oliver, 2009 WL 3350638 (N.C.App. 2009), I came upon a fourth exception which appears to be unique to North Carolina. Pursuant to North Carolina Rule of Evidence 412(b)(4), there is an exception to North Carolina's rape shield rule for "evidence of sexual behavior offered as the basis of expert psychological or psychiatric opinion that the complainant fantasized or invented the act or acts charged." This post argues that this exception makes no sense, given the history of rape shield rules.

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Recalculating, Take 6: Supreme Judicial Court Of Massachusetts Finds Installation Of GPS Device On Suspect's Vehicle Constitutes A Seizure

I have written four previous posts (here, here, here, and here) about court opinions and articles addressing the issue of whether police should be required to obtain a search warrant before attaching a GPS device to a suspect's vehicle  Those posts analyzed precedent from across the country and concluded that most courts have found that nothing in the federal constitution requires the obtainment of a warrant but that certain protections in state constitutions could require a warrant. The latest court to address this question was the Supreme Judicial Court of Massachusetts in Commonwealth v. Connolly, 913 N.E.2d 356 (Mass. 2009), which found in dicta that a warrant is required.

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EvidenceProf Blog's 3rd Annual Halloween Movie Pick: John McNaughton's "Henry: Portrait of a Serial Killer"

It's Halloween again, which means that it's time for EvidenceProf's Blog's third annual Halloween movie pick (after "The Gift" and "Homecoming"). For this year's pick, I'm again digging into the archives from my days reviewing DVDs and pulling out a review. This one is of John McNaughton's "Henry: Portrait of a Serial Killer," a film loosely based upon real life serial killer Henry Lee Lucas, the only man that George W. Bush granted clemency while he was governor.

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Don't Rock The Boat, Take 2: Supreme Court Of Iowa Opinion Reveals That Iowa And Federal Rules On Subsequent Remedial Measures Aren't That Different

Back in March, I posted an entry about the opinion of the Court of Appeals of Iowa in Scott v. Dutton-Lainson Co., 2009 WL 398488 (Iowa App. 2009), and how it revealed the differences between Federal Rule of Evidence 407 and Iowa Rule of Evidence 5.407. Well, in its recent opinion in Scott v. Dutton-Lainson Co., 2009 WL 3415937 (Iowa 2009), the Supreme Court of Iowa reversed the Court of Appeals of Iowa, revealing that the two rules aren't that different.

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The Art Of The Steal: The EvidenceProf Blog Review Of The "White Collar" Pilot

Last Friday, USA aired the pilot of its new series "White Collar." The second episode airs tomorrow at 10/9c. If the pilot is a harbinger of things to come, this might be the rare show that I recommend that law students watch. Here is the EvidenceProf Blog review:  

In the early twentieth century, Upton Sinclair coined the phrase "white collar," and he exposed the New York City white collar criminal in "The Moneychangers," his fictionalized account of the Wall Street panic of 1907. The pilot episode of "White Collar" reveals why it is appropriate, especially in the post-Madoff milieu, that the USA Network show takes its name from the famed muckraker's musings.

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Absence Of Malice: Court Vacates Second Degree Murder Conviction Because Juror Read Dictionary Definitions Of "Malice" To Other Jurors

A man is charged with, among other things, second degree murder, which means that the prosecution needs to prove beyond a reasonable doubt that the man acted with malice in order for the jury to convict him. Legally,

Malice is a necessary element which distinguishes second degree murder from manslaughter. Malice arises when an act which is inherently dangerous to human life is intentionally done so recklessly and wantonly as to manifest a mind utterly without regard for human life and social duty and deliberately bent on mischief.

Of course, the word malice is also used outside the legal context, with its usual definition being "desire to cause pain, injury, or distress to another" or "intent to commit an unlawful act or cause harm without legal justification or excuse." 

So, what would happen in the above case if a juror decides to bring a dictionary into the jury room and reads the dictionary definition of malice, with the defendant eventually being convicted of second degree murder? The answer, according to the recent opinion of the United States District Court for the Eastern District of North Carolina in Bauberger v. Haynes, 2009 WL 3450967 (M.D.N.C. 2009), is that the jury can impeach its verdict, leading to the defendant being awarded a new trial.

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The Love Letter: Colorado Judge To Determine Admissibility Of Love Note From Ex-Boyfriend In Second Degree Murder Trial

A man allegedly shoots and kills his girlfriend and is charged with second-degree murder. In order to establish the man's motive for the shooting, the prosecution seeks to introduce a love note allegedly written to the girlfriend by an ex-boyfriend. Should the court admit the note, or should it exclude it as inadmissible hearsay? That's the question that a judge in Colorado is about to answer.

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Hook Me Up: Court Of Appeals Of Indiana Addresses Admissibility Of Polygraph-Related Statements

There's an odd dichotomy under the Federal Rules of Evidence and state counterparts. Evidence of polygraph test results are per se inadmissible (except in New Mexico) unless both sides stipulate to their admission before the test is taken. Conversely, according to some courts, in some circumstances, a defendant can introduce evidence that he volunteered to take a polygraph test to prove his innocent state of mind. As the recent opinion of the Court of Appeals of Indiana in Nugent v. State, 2009 WL 3415318 (Ind.App. 2009), noted, however this opens the door for the prosecution to present evidence calling into question just how willing the defendant was to take the test.

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