EvidenceProf Blog

Q: What Does Nitroglycerin Mean? A: Not Guilty; 3rd Circuit Fails To Decide Whether Text Message Was Recorded Recollection

Federal Rule of Evidence 803(5) provides an exception to the rule against hearsay for

A record that:

(A) is on a matter the witness once knew about but now cannot recall well enough to testify fully and accurately;

(B) was made or adopted by the witness when the matter was fresh in the witness’s memory; and

(C) accurately reflects the witness’s knowledge.

If admitted, the record may be read into evidence but may be received as an exhibit only if offered by an adverse party.

And while the Third Circuit didn't reach the issue in United States v. Blackett, 2012 WL 1925540 (3rd Cir. 2012), it seems pretty clear that a text message can easily qualify as a recorded recollection under Rule 803(5).

Continue reading "Q: What Does Nitroglycerin Mean? A: Not Guilty; 3rd Circuit Fails To Decide Whether Text Message Was Recorded Recollection"

Out Of Time: Court Of Appeals Of Indiana Finds Rule 412(b)(1) Fatal To Ineffective Assistance Claim

Indiana Rule of Evidence 412(a)(1) contains an exception to Indiana's rape shield rule for "evidence of the victim’s or of a witness’s past sexual conduct with the defendant...." That said, pursuant to Indiana Rule of Evidence 412(b)(1), If a party proposes to offer evidence under this rule, "A written motion must be filed at least ten days before trial describing the evidence. For good cause, a party may file such motion less than ten days before trial." It was this latter provision that was fatal to part of the defendant's appeal in Rogers v. State, 2012 WL 1944826 (Ind.App. 2012).

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Outsourcing Blues

It's not evidence law related, but here's a guest post I did over at The Faculty Lounge: Vince Vaughn, Owen Wilson, Interns, Outsourcing, and Why the United States Should Enact a National Film Incentive. Many thanks to Tim Zinnecker for posting it.

-CM

Able To Waive Attorney-Client Privilege In A Single Disclosure: 9th Circuit Rejects Selective Waiver Doctrine In Superman Case

In its 1977 opinion in Diversified Industries, Inc. v. Meredith, 572 F.2d 596 (8th Cir. 1977), the Eighth Circuit adopted the selective waiver doctrine, which allows corporations seeking to use a confidentiality agreement to disclose to the government information protected by the attorney-client privilege and still maintain that privilege against all others. Here's the relevant language from the court's opinion:

We finally address the issue of whether Diversified waived its attorney-client privilege with respect to the privileged material by voluntarily surrendering it to the SEC pursuant to an agency subpoena. As Diversified disclosed these documents in a separate and nonpublic SEC investigation, we conclude that only a limited waiver of the privilege occurred....To hold otherwise may have the effect of thwarting the developing procedure of corporations to employ independent outside counsel to investigate and advise them in order to protect stockholders, potential stockholders and customers.

But since Meredith, every other federal circuit to address the issue has rejected the selective waiver doctrine:

In re Qwest Commc'ns Int'l, 450 F.3d 1179, 1197 (10th Cir.2006); Burden–Meeks v. Welch, 319 F.3d 897, 899 (7th Cir.2003); In re Columbia/HCA Healthcare Corp. Billing Practices Litig., 293 F.3d 289, 295 (6th Cir.2002); United States v. Mass. Inst. of Tech., 129 F.3d 681, 686 (1st Cir.1997); Genentech, Inc. v. United States Int'l Trade Comm'n, 122 F.3d 1409, 1416–18 (Fed.Cir.1997); In re Steinhardt Partners, L.P., 9 F.3d 230, 236 (2d Cir.1993); Westinghouse Elec. Corp. v. Republic of Philippines, 951 F.2d 1414, 1425 (3d Cir.1991); In re Martin Marietta Corp., 856 F.2d 619, 623–24 (4th Cir.1988); Permian Corp. v. United States, 665 F.2d 1214, 1221 (D.C.Cir.1981).

After In re Pacific Pictures Corp., 2012 WL 1640627 (9th Cir. 2012), a case involving D.C. Comics suing the heirs of the creators of Superman and others, you can now add the Ninth Circuit to their ranks.

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Snow White & The Real Huntsman: U.S. v. Dade & How Modern Depictions Of Snow White Might Change The Way Courts Use Her Name

With today's release of Rupert Sanders' directorial debut, "Snow White and the Hunstman," there have now been three pieces of pop culture in the last few months tweaking the classic fairy tale of "Snow White," with the other two being Tarsem Singh's cheeky "Mirror Mirror" and the ABC TV show "Once Upon a Time." Critics have contended that the version of Snow White played by Lily Collins in "Mirror Mirror" is a "feminist reincarnation," "both innocent and powerful, able to fight her own battles and make decisions independently." Kristen Stewart's Snow White in "Snow White and the Hunstman," has been described "as a warrior princess who saves a ravaged kingdom from an evil Queen..., after being trained by a huntsman...instructed to kill her." And Ginnifer Goodwin's Snow White in "Once Upon a Time," transported to present day, ends up engaging in an affair with a married Prince Charming. In other words, in each of these three modern retellings, the story's the same: This isn't your grandmother's Snow White. So the question becomes: As we drag Snow White into the 21st Century (literally, in the case of "Once Upon a Time"), do we change the way that we use her name as she is transformed from the essence of purity and innocence to something a good deal more complicated (and realistic)? And what effect will this have on litigation? Specifically, could we see a case like last year's United States v. Dade, 2011 WL 6301123 (D.Idaho 2011), in the next decade or so?

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Unimpeachable: Supreme Court Of South Carolina Finds Trial Court Conducted Incorrect Felony Impeachment Analysis

Similar to its federal counterpart, South Carolina Rule of Evidence 609(a)(1) provides that

For the purpose of attacking the credibility of a witness,

(1) evidence that a witness other than an accused has been convicted of a crime shall be admitted, subject to Rule 403, if the crime was punishable by death or imprisonment in excess of one year under the law under which the witness was convicted, and evidence that an accused has been convicted of such a crime shall be admitted if the court determines that the probative value of admitting this evidence outweighs its prejudicial effect to the accused....

And, like most federal courts, South Carolina courts apply a five factor test for determining whether evidence of prior convcitions is admissible under Rule 609(a)(1):

(1) the impeachment value of the prior crime; (2) the point in time of the conviction and the witness's subsequent history; (3) the similarity between the past crime and the charged crime; (4) the importance of the defendant's testimony; and (5) the centrality of the credibility issue.

In State v. Howard, 720 S.E.2d 511 (S.C. 2011), the Supreme Couth of South Carolina find that the trial court badly botched its analysis of the first factor, requiring a new trial. So, what happened?

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Kevin Costner, Kevin Reynolds, "Waterworld," "Hatfields & McCoys," & Communicated Character

With "Hatfields & McCoys," director Kevin Reynolds and star Kevin Costner have now teamed up for the most watched non-sports program in basic cable history as well as what was at the time the most expensive movie ever made: "Waterwold." Indeed, "Hatfields & McCoys" is the duo's fifth pairing, with the others besides "Waterwold" being the underrated "Fandango" (which no less than Quentin Tarrantino has called "one of the best directorial debuts in the history of cinema"), one of my two favorite Amazing Stories of the '80s (the other being Robert Zemeckis' "Go the Head of the Class"), and "Robin Hood: Prince of Thieves" (best remembered for Costner's attempt at a British accent, that Bryan Adams' song, and those POV arrow shots that really would have benefited from today's 3D). And while they're not on the level of, say, a Scorsese and De Niro, that's a pretty impressive body of work. Indeed, Reynolds' collaborations with Costner are his only real directorial efforts that have made an impact (he did co-wrote the screenplay for "Red Dawn," which we somehow were allowed to watch in elementary school in the 1980s). The only other thing that he's directed that even created a ripple was his 2002 adaptation of Alexandre Dumas' "The Count of Monte Cristo," which I only remember from its trailer with the awesome tag line, "Count on adventure. Count on intrigue."

But with "Hatfields & McCoys," Reynolds and Costner seem to have really struck a nerve and tapped into something that Americans really want to see (at least in the wake of May sweeps). And that shouldn't be surprising. The story of the Hatfields and the McCoys, and indeed, even just those names are still part of the national conversation and something that you might hear about at dinner tables across the nation as well as in our courts' judicial opinions.

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Rubber & Glue: Supreme Court of California FInds No Problem With Crossover Character Evidence Rule

Federal Rule of Evidence 404(a)(2)(B) provides that in a criminal action

(B) subject to the limitations in Rule 412, a defendant may offer evidence of an alleged victim’s pertinent trait, and if the evidence is admitted, the prosecutor may:

(i) offer evidence to rebut it; and

(ii) offer evidence of the defendant’s same trait....

Somewhat similarly, California Evidence Code Section 1103(b) provides that

In a criminal action, evidence of the defendant's character for violence or trait of character for violence (in the form of an opinion, evidence of reputation, or evidence of specific instances of conduct) is not made inadmissible by Section 1101 if the evidence is offered by the prosecution to prove conduct of the defendant in conformity with the character or trait of character and is offered after evidence that the victim had a character for violence or a trait of character tending to show violence has been adduced by the defendant under paragraph (1) of subdivision (a).

In other words, the California rule, like the federal rules, allows for the prosecution to attack the character of the defendant after the defendant has attacked the character of the victim (although the California rule is limited the evidence of violent character). So, what's the basis for these rules, and how many states follow the federal rule? Let's take a look at the recent opinion of the Supreme Court of California in People v. Fuiava, 269 P.3d 568 (Cal. 2012).

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Plea Plea Me: Plea Allocution & Waiver Triggers Rule 410(a)(3) & 410(b)(1) In Arson Case

Federal Rule of Evidence 410(a)(3) 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:...

a statement made during a proceeding on either of those pleas under Federal Rule of Criminal Procedure 11 or a comparable state procedure....

Rule 410(a)(3) explains why incriminatory statements that Volkan Mergen made during a plea allocution ould have been inadmissible against him in United States v. Mergen, 2010 WL 395974 (E.D.N.Y. 2010), if he hadn't signed a waiver. That waiver explains why his statements were admissible against him. And Federal Rule of Evidence 410(b)(1) likely explains why the defendant could place his statements in context.

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Juvenile Record: Court Of Appeals Of North Carolina Finds Error In Allowing Impeaching Of Defendant Through Juvenile Adjudication

Similar to its federal counterpart, North Carolina Rule of Evidence 609(d) provides that

Evidence of juvenile adjudications is generally not admissible under this rule. The court may, however, in a criminal case allow evidence of a juvenile adjudication of a witness other than the accused if conviction of the offense would be admissible to attack the credibility of an adult and the court is satisfied that admission in evidence is necessary for a fair determination of the issue of guilt or innocence.

As the language of Rule 609(d) makes clear, juvenile adjudications are per se inadmissible to impeach the credibility of criminal defendants, which is why the Court of Appeals of North Carolina in State v. Lacy, 711 S.E.2d 207 (N.C.App. 2011), found that the trial court erred. But was that error reversible or harmless?

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It's In My Report: 9th Circuit Finds Police Report Insufficient To Prove Conviction Fell Under Rule 609(a)(2)

Federal Rule of Evidence 609(a)(2) provides that

The following rules apply to attacking a witness’s character for truthfulness by evidence of a criminal conviction:...

for any crime regardless of the punishment, the evidence must be admitted if the court can readily determine that establishing the elements of the crime required proving — or the witness’s admitting — a dishonest act or false statement.

Obviously, for certain crimes involving crimen falsi such as perjury, embezzlement, false pretenses, and larceny by trick, it is clear that the porsecution has to prove a dishonest act or false statement to secure a conviction, making such a conviction per se admissible to impeach under Rule 609(a)(2). But let's say that you have a crime such as larceny or robbery that can be accomplished through violent or deceptive means. If a party wants to use such a conviction to impeach a witness under Rule 609(a)(2), how does it go about establishing that the prosecution had to prove a dishonest act or false statement to secure the conviction. According to the opinion of the Ninth Circuit in United States v. David, 639 Fed.Appx. 639 (9th Cir. 2009), using a police report is not a proper method.

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Best Evidence?: 1st Circuit Asserts That Fairness Exception To Rule 1003 Only Applies In Cases Of Fraud/Manipulation

Federal Rule of Evidence 1003 provides that

A duplicate is admissible to the same extent as the original unless a genuine question is raised about the original’s authenticity or the circumstances make it unfair to admit the duplicate.

So, what circumstances make it unfair to admit the duplicate? According to the recent opinion of the First Circuit in Asociacion De Periodistas De Puerto Rico v. Mueller, 2012 WL 1699915 (1st Cir. 2012), the answer is "not many."

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Deal Or No Deal?: 8th Circuit Prevents Defendant From Presenting Evidence That She Rejected A Plea Bargain

Pursuant to Federal Rule of Evidence 410(4),

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:...

a statement made during plea discussions with an attorney for the prosecuting authority if the discussions did not result in a guilty plea or they resulted in a later-withdrawn guilty plea.

So, evidence of a statement made during plea discussions "is not admissible against the defendant who made the plea or participated in the plea discussions." But is evidence of such a statement admissible on behalf of the defendant who made the plea or participated in the plea discussions? According to most if not all courts, including the Eighth Circuit in its recent opinion in United States v. Alexander, 2012 WL 1660944 (8th Cir. 2012), I explain why opinions such as Alexander no longer make sense, assuming that they ever did.

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Can't Stop The Music, Take 3: Supreme Court Of California Rejects Challenge To Victim Impact Video With Flashbacks & Special Effects

Back in 2007, I posted an entry about the Supreme Court of California rejecting a Constitutional challenge to the admission of a 20-minute victim impact video with a montage of photographs of the victim's life that was accompanied by her mother's narration and Enya and Celine Dion music. In 2008, I followed up on that post with a second post concerning the United Supreme Court's refusal to grant cert in the case despite two strongly written dissents. Well, I just realized that last year, the California Supremes addressed a similar challenge to a similar victim impact video in People v. Garcia, P.3d 751 (Cal. 2011). So, was the result the same?

Continue reading "Can't Stop The Music, Take 3: Supreme Court Of California Rejects Challenge To Victim Impact Video With Flashbacks & Special Effects"

Make Me Whole, Take 8: Court Of Appeals Of Minnesota Yet Again Badly Botches The Felony Impeachment Analysis

Like its federal counterpart, Minnesota Rule of Evidence 609(a) provides that

For the purpose of attacking the credibility of a witness, evidence that the witness has been convicted of a crime shall be admitted only if the crime (1) was punishable by death or imprisonment in excess of one year under the law under which the witness was convicted, and the court determines that the probative value of admitting this evidence outweighs its prejudicial effect, or (2) involved dishonesty or false statement, regardless of the punishment.

I've written on seven previous occasions about how Minnesota courts continually bungle the Rule 609(a) analysis (here, here, here, here, here, here, and here), and the recent opinion of the Court of Appeals of Minnesota in State v. McNeal, 2012 WL 1658819 (Minn.App. 2012), is the latest entry into the state's hall of shame.

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Hawaii 5-0: Supreme Court Of Hawai'i Seemingly Errs in Deeming Police Report Admissible As Recorded Recollection

Like its Federal Rule of Evidence 803(5), Hawai'i Rule of Evidence 802.1(4) provides an exception to the rule against hearsay for 

A memorandum or record concerning a matter about which the witness once had knowledge but now has insufficient recollection to enable the witness to testify fully and accurately, shown to have been made or adopted by the witness when the matter was fresh in the witness' memory and to reflect that knowledge correctly. If admitted, the memorandum or record may be read into evidence but may not itself be received as an exhibit unless offered by an adverse party.

In its recent opinion in State v. Keohokapu, 2012 1701368 (Hawai'i 2012), the Supreme Court of Hawai'i found all of the elements of the elements of this exception satisfied. I think that one was missing.

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The Vermonster: Supreme Court Of Vermont Finds Exception To Confidential Marital Communications Privilege Applied In Assault Case

Like many states, Vermont has a privilege for confidential marital communications. Vermont's privilege is housed in Vermont Rule of Evidence 504(b), which provides that

Any person has a privilege to refuse to disclose and to prevent his spouse or any other person from disclosing any confidential statement, conversation, letter, or other confidential communication between such person and his spouse occurring while they were lawfully married, and to refuse to testify and prevent his spouse from testifying in any case as to any matter which in the opinion of the court would lead to a violation of marital confidence. This privilege exists whether or not the person and spouse are still lawfully married at the time at which the spouse's testimony is to be given.

And, like many states, Vermont has an exception to this privilege in cases in which a spouse is charged with a crime against the other spouse or the couple's children. As is made clear by the recent opinion of the Supreme Court of Vermont in State v. Kolibas, 2012 WL 1738979 (Vt. 2012), Vermont's exception is broader.

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A Certain Cache: Court Of Appeals Of New York Finds Web "Cache" Evidence Insufficient To Uphold Child Pornography Convictions

A defendant is charged with two counts of promoting a sexual performance by a child and 134 counts of possessing a sexual performance by a child. Some of these charges are the result of the discovery of images of child pornography in the Web "cache" on the defendant's computer. Does the prosecution have to prove that the defendant had knowledge that when he viewed child pornography on his computer,the pornography was automatically stored in the cache to secure his conviction? According to the recent opinion of the Court of Appeals of New York in People v. Kent, 2012 WL 1580439 (N.Y. 2012), the answer is "yes."

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Last Dance With Mary Jane: Will Evidence of THC In Trayvon Martin's Blood Be Admissible In George Zimmerman Trial?

According to several sources,

The medical examiner's report showed traces of THC - the active ingredient in marijuana - in [Trayvon] Martin's blood and a positive test for cannabinoids in his urine.

Of course, this begs the question of whether George Zimmerman will be able to present this drug evidence in support of his claim of self-defense in his impending second-degree murder trial. The admissibility of this drug evidence will depend on a variety of factors, but the opinion of the Court of Appeal, Fourth District, Division 3, California, in People v. Sanchez, 2010 WL 2842158 (Cal.App. 4 Dist. 2010), supports the proposition that the judge could exclude it.

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Deborah Tuerkheimer's Judging Sex & The En Banc Opinion That Reversed The Rape Shield Killing Ruling

Back in 2010, I posted an entry about the Sixth Circuit's opinion in Gagne v. Booker, 596 F.3d 335 (6th Cir. 2010), the (in)famous rape shield case in which the dissent accused the majority of "effectively abrogat[ing] every rape-shield statute in this circuit…." At the time, I thought that this statement was a bit hyperbolic but agreed with the dissenting judge that the opinion was a nasty piece of work, so I am glad to report that the Sixth Circuit overturned it in in en banc opinion issued yesterday: Gagne v. Booker. In this post, I will address the court's holding as well as a terrific forthcoming article, Judging Sex (forthcoming, Cornell Law Review), by Professor Deborah Tuerkheimer.

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