Evidence Holding

United States v. Owens

(1) No. The admission of a witness' testimony about a currently held belief when the witness cannot remember the basis for the belief does not violate a criminal defendant's rights under the Confrontation Clause. The Confrontation Clause only guarantees the opportunity for cross-examination. It does not guarantee effective cross-examination. In a case where the witness cannot remember the reason for his adoption of a particular belief, the Confrontation Clause is satisfied by affording the defendant the opportunity to cross-examine the witness. The correctional counselor testified that he remembered identifying Owen as his assailant during his interview with the FBI agent, but also testified that he could not remember any reason why he identified Owen. Owen had the opportunity to cross-examine the counselor about his memory loss and about the possibility that suggestion may have influenced his identification. The court of appeals relied upon standards applicable to the introduction of hearsay evidence as grounds for concluding that the counselor's testimony violated Owens' constitutional rights. Although there is some overlap between hearsay rules and the Confrontation Clause, inquiry into the reliability of hearsay evidence is unnecessary when the witness is present in court and open to cross-examination. The judgment of the court of appeals is reversed.(2) Yes. A prior, out-of-court statement identifying a person after perceiving him is not hearsay if the declarant testifies at trial and is subject to cross examination concerning the statement. Thus, if a witness cannot remember a prior identification that he made, the prior identification is still admissible as long as the opposing party has a chance to cross examine the witness about the identification. In this case, Foster takes the stand and the defendant is able to cross examine him about his prior identification. As a result, the identification is admissible as non hearsay. The rule specifies that the required cross examination must only "concern the statement." Even though Foster's memory loss prevented him from recalling the exact circumstances surrounding his identification, he was still cross examined about that identification which is sufficient to satisfy the rule. In fact, the legislative history of the rule seems to show that it was in part drafted for this very problem.

United States v. Barrett

(1) Yes. FRE 804(b)(3) requires a declaration against the declarant's interest offered to exculpate a defendant to be corroborated. A statement against the declarant's interest at the time the declarant made it is admissible as an exception to the hearsay rule if the declarant is unavailable as a witness. However, if the declaration exculpates a defendant, it must also be corroborated by circumstantial evidence to verify the statement's trustworthiness. In this case, the trial court erred in holding that Tilley's statement was not against his interest. Tilly's statement indicated that he participated in the theft, which would subject him to criminal liability and thus was against his interest. Tilly's statement exculpating Barrett can also be interpreted as being against Tilley's interest because it shows that he had intimate knowledge of the theft. Since Tilley's statement was against his interest, the district court should have determined whether the statement was corroborated by circumstantial evidence. (2) No. FRE 613(b) does not require a party to lay a foundation for introducing extrinsic evidence of a witness's prior inconsistent statement during cross-examination. While such a requirement previously existed, Congress relaxed FRE 613(b) to only require the court to give the witness a chance to explain or deny the prior inconsistent statement. If the witness is unavailable to do so, the court can allow extrinsic evidence of the prior inconsistent statement into evidence. Here, the court excluded the extrinsic evidence without inquiring into Adams's availability. Thus, the trial court erred in excluding Delaney and Kelley's testimony. The ruling of the district court is vacated and remanded.

United States v. Hubbell

(1) Yes. The constitutional privilege against self-incrimination protects the target of a grand-jury investigation from being compelled to answer questions designed to elicit information about the existence of sources of potentially incriminating evidence. That protection extends to the testimonial aspect of a response to a subpoena seeking discovery of those sources. In this case, Hubbell needed to make extensive use of the contents of his own mind in identifying the documents responsive to the subpoena. Thus, Hubbell could not be compelled to produce the documents without first receiving a grant of immunity. Under U.S.C. § 6002 (which provides that the prosecution may not use the act of production against the defendant or any evidence derived from the testimonial aspects of the act of production), the indictment against Hubbell must be dismissed unless the prosecution can show that the evidence it used to obtain the indictment and the evidence it proposes to use at trial came from sources "wholly independent" of the testimonial aspect of Hubbell's assembling and producing the documents. The prosecution has admitted it cannot, and so the indictment must be dismissed. (2) No. Once the government has granted a witness immunity coextensive with the privilege against self-incrimination so that he may be compelled to produce documents, the government may not use evidence derived from those documents in a criminal prosecution of that witness. An individual may be compelled to produce incriminating documents without violating the privilege so long as he was not forced to create the documents. Nevertheless, production of subpoenaed documents may have a testimonial quality and convey factual statements. Further, the individual may be forced to answer questions about those documents to prove compliance with the subpoena. The testimonial component of document production is the proof of the documents' existence, authenticity, and ownership or custody. The privilege against self-incrimination applies to these testimonial aspects of document production. In this case, although the government claims it will not enter the produced documents into evidence, it has made substantial derivative use of the production. Complying with the extensive subpoena in this case was equivalent to responding to interrogatories or answering questions about the documents' existence, types, and locations. The document production provided the prosecutor with sources and leads for gathering inculpatory evidence, which the prosecutor used to secure a series of indictments wholly unrelated to Hubbell's prior plea agreement. Hubbell could not have been forced to produce the documents in this case without being granted immunity as broad as the privilege itself. The derivative use of the documents produced by Hubbell violated that grant of immunity. The government cannot demonstrate that its evidence against Hubbell came from a "wholly independent" source, as required by Kastigar v. United States, 406 U.S. 441 (1972). The judgment of the court of appeals is affirmed.

United States v. Whitmore

(1) Yes. Under FRE 608, a party may offer evidence of a witness's character for truthfulness in the form of an opinion or the witness's reputation. A witness's character for truthfulness is always at issue. To offer reputation evidence, a party must establish that the character witness is qualified by having an acquaintance with the witness and the witness's community. In this case, the district court did not abuse its discretion by excluding the testimony of Whitmore's three character witnesses. Cherkis's reputation testimony was properly excluded, because Cherkis did not have the requisite acquaintance with Soto or his community. Cherkis's interviews about Soto had too remote of a connection with Soto to satisfy the acquaintance requirement. Cooper's reputation testimony was also properly excluded, because Cooper had only discussed Soto with a particular subset of the court community, i.e., defense attorneys. These conversations did not qualify Cooper as being acquainted with the entire community. Similarly, Edmonds's reputation testimony was properly excluded, because Edmonds had not been acquainted with Soto or Soto's community for several years. Finally, Cooper's and Edmonds's opinion testimony was properly excluded, because the probative value of their testimony was minimal, particularly compared to the prejudicial effect of the testimony, which would essentially call Soto a liar. Whitmore provided little evidence that Soto had actually lied about Cooper's clients. Moreover, because Soto had testified against Cooper's clients, Cooper had an inherent bias against Soto. Whitmore also did not provide evidence that Soto was actually involved in Edmonds's arrest. In sum, the testimony of Whitmore's character witnesses was properly excluded. (2) Yes. Under FRE 608(b), a party may attack a witness's credibility on cross-examination by asking about specific instances of prior conduct. The prior conduct must be probative of the witness's character for truthfulness, but the conduct need not have resulted in a criminal conviction. During cross-examination pursuant to FRE 608(b), the questioner is limited to the witness's answers regarding the prior conduct and may not prove the prior conduct through extrinsic evidence. In this case, the district court erred in preventing Whitmore from cross-examining Soto on the three requested areas. First, the previous court's finding that Soto lied under oath is highly probative of Soto's character for untruthfulness. Whitmore should have been allowed to cross-examine Soto on this topic, particularly given the importance of Soto's testimony to the prosecution's case against Whitmore. Although the previous judge's assertion of misconduct did not result in a perjury conviction, a conviction is not a requirement for a proper subject of cross-examination under FRE 608(b). Moreover, the district court improperly excluded the entire line of cross-examination out of the court's misguided concern that the probative value of the evidence would be substantially outweighed by the risk of prejudicing the jury or distracting from Whitmore's trial. The court could have given limiting instructions to the jury or limited the scope of the government's rehabilitation of Soto, rather than prohibiting the cross-examination in its entirety. Additionally, the court erred in excluding the cross-examination on Soto's suspended driver's license and failure to pay child support. The driving record provided Whitmore's counsel with a sufficient basis for cross-examination, and defense counsel indicated that he would limit himself to Soto's answers and not seek to introduce the document into the record. The district court's improper refusal to allow Whitmore's proposed cross-examination was not harmless error. Soto's testimony against Whitmore was the sole basis for Whitmore's firearm conviction, and a highly probative attack on Soto's character for truthfulness could have impacted the jury's consideration of his testimony. Accordingly, Whitmore's firearm conviction is reversed. His conviction for possession of a controlled substance is affirmed.

Palmer v. Hoffman

A business record is admissible if made in the regular course of business and it is the regular course of business to make such a record. However, the fact that a company regularly makes a record in certain situations does not necessarily mean that that record is the regular course of business as contemplated by the hearsay exception. The record must actually be made for the "conduct of the business as a business." Thus, although the railroad company always interviews those employees that get into accidents, this conduct is still not within the regular course of business for a railroad company. Unlike recording transactions, payrolls, trip routes, etc., interviewing employees after an accident is not a systematic routine of the railroad business. A railroad company's business is the railroad business, not the business of litigation. The reports containing these employee interviews are for use in the courts and not the regular course of the railroad business. As a result, the statement of the engineer is not admissible under the business records exception to the hearsay rule. The lower courts are affirmed.

United States v. Vigneau

A business record is admissible if made in the regular course of business if it is the regular course of business to make such a record. However, the source of the information contained in the business record must be trustworthy. Under Johnson v. Lutz, 253 N.Y. 124 (1930), the business records exception does not apply to statements within a business record that are made by an individual who is not a part of the business. In this case, whoever wrote Vigneau's name on the Western Union form (even if it was in fact Vigneau) was not a part of Western Union's business. And because the sender's identity was not verified, the information is not trustworthy because it theoretically could have been anyone who wrote Vigneau's name on the form. The Western Union form itself is admissible as a business record, but not in its entirety. The parts of the form with Vigneau's unverified personal information should have been redacted. The district court is reversed, the conviction is vacated, and the case is remanded.

Chambers v. Mississippi

A criminal defendant's due process rights are violated when the trial court prohibits the defendant from cross-examining his own witness and excludes hearsay testimony of statements against the witness' penal interests when assurances of reliability warrant an exception from the hearsay rule. Mississippi adheres to a common law that prohibits a party from impeaching the credibility of his own witness through adverse examination. The common law rule is founded on a predicate known as the "voucher rule" which presumes that a party vouches for the credibility of his own witness by calling the witness to testify. Although the voucher rule may have made sense in the past, the reality of modern criminal process is that a defendant must often rely on witnesses with personal motives adverse to the defendant's interests. In Chambers' case, the voucher rule detracted from his ability to present an effective defense by prohibiting him from cross-examining McDonald to impeach the credibility of McDonald's repudiation of his confession. The state argues that the Confrontation Clause of the Sixth Amendment applies only to witnesses adverse to the accused. McDonald's testimony was highly adverse to Chambers. McDonald's retraction of his confession tended to inculpate Chambers and the denial of cross-examination gave Chambers no opportunity to explore exculpatory evidence that might have given more weight to McDonald's confession. Even if the denial of cross-examination was not sufficient in itself to deprive Chambers of due process, the trial court's exclusion of the testimony of other witnesses warrants reversal. The purpose of the hearsay rule is to exclude evidence of statements not made under oath and not immediately subject to cross-examination on grounds that they lack sufficient indicia of reliability. An exception to the hearsay rule generally applies to statements made against a party's interests on the principle that a person is unlikely to make a false statement against his own interests. Mississippi recognizes the exception only with respect to statements against a party's pecuniary interests. Most states exclude statements against the declarant's penal interests on the theory that confessions in criminal matters suffer from a vulnerability to external motivations that are typically not present in cases involving statements against pecuniary or proprietary interests. In this case, McDonald's confessions were made to close friends shortly after the murder took place and they were corroborated by other evidence. McDonald stood nothing to gain by confessing his involvement to friends. Any questions as to the reliability of his confessions could have been effectively addressed through cross-examination by the state. Under the circumstances, concerns about reliability that might justify exclusion of the witness' testimony are not implicated. The hearsay rule should not be applied in such a manner as to deprive a defendant of a fair trial in violation of due process rights. The judgment of conviction is reversed.

Olden v. Kentucky

A defendant charged with sexual assault is permitted, within reasonable limits that avoid undue prejudice to the complainant, to cross-examine the complainant about a motive to lie about the alleged assault. Under the Confrontation Clause of the Sixth Amendment, a criminal defendant has a right to confront witnesses against him and impeach those witnesses by, among other things, exposing a witness's bias and motive to lie. This information is necessary for jurors to assess the witness's reliability. A trial judge is permitted to impose reasonable limits on a defense counsel's inquiry into a prosecution witness's bias if the questioning could lead to harassment, prejudice, threats to the witness's safety, confusion of the issues, or repetitive or irrelevant questioning. In this case, Olden was not afforded a reasonable opportunity to cross-examine Matthews for purposes of impeaching her, and this was a violation of his constitutional rights. If Olden's defense counsel had been permitted to question Matthews about her living arrangement with Russell, this may have uncovered details about Matthews's fear of jeopardizing her relationship and may have caused the jury to assess her credibility differently. Matthews's testimony was vitally important to the prosecution's case, the testimony was not strongly corroborated, and the prosecution's case besides the testimony was not very strong, as evidenced by Olden's acquittal on the charges of kidnapping and rape. Thus, the denial of Olden's right to rebut Matthews's testimony was not harmless error. Olden's petition for certiorari is granted, the judgment of the Kentucky Court of Appeals is reversed, and the case is remanded.

Stephens v. Miller

A defendant has a constitutional right to testify in his own defense. However, that right is not unlimited; it must accommodate other public interests. The court is required to evaluate whether the interests furthered by the rape shield statute justify the limitations imposed on the defendant's right to testify. The purpose behind rape shield statutes is to protect victims of rape from harassment and invasions of privacy. In this case, the interests served by the Indiana rape shield statute justify the limitations on Stephens' right to testify. Stephens was only limited in his ability to testify as to what he said. Stephens was able to testify that he said something to the victim to anger the victim to cause her to fabricate the attempted rape story. The Constitution requires no more. To allow Stephens to testify regarding the "doggy style" and "switching partners" comment would only serve to embarrass the victim. With regard to Stephens' res gestae argument, to allow this doctrine would gut the rape shield statute because defendants could always claim they said something to the victim near the time of the offense about a victim's sexual history. Furthermore, res gestae is not a doctrine that has been adopted by the federal courts through the Federal Rules of Evidence. There is no constitutional right to present res gestae evidence. The denial of the petition for writ of habeas corpus is affirmed.

Ohler v. United States

A defendant who preemptively introduces evidence of a prior conviction on direct examination may not, on appeal, claim that the trial court's decision to admit the evidence was error. After a court rules that the prosecution may introduce evidence of a prior conviction, the prosecution can still choose whether to actually introduce the evidence. The prosecution could, for a variety of reasons, decide not to introduce the evidence. Thus, any potential harm to a defendant by a court's admission of a prior conviction is speculative. As a general rule, a defendant who introduces evidence waives her right to argue on appeal that the evidence should not have been admitted. In this case, Ohler may not argue on appeal that the evidence of her prior conviction was admitted in error. Ohler chose to preemptively introduce evidence of the conviction on direct examination, before the prosecution had a chance to admit the evidence on its own. This choice was within Ohler's rights, but she may not now claim that the district court's ruling on the prosecution's motion in limine was in error. The district court's ruling did not cause the prior conviction to be placed in evidence. Rather, the cause of this evidence was Ohler's own testimony. Therefore, Ohler may not claim that the district court's ruling was in error. The appellate court's judgment is affirmed.

United States v. Gray

A defendant who wrongfully and intentionally renders a declarant unavailable as a witness in any proceeding forfeits the right to exclude, on hearsay grounds, the declarant's statements at that proceeding and any subsequent proceeding. Federal Rule of Evidence 804(b)(6) codifies the common-law rule of "forfeiture by wrongdoing," which allows a declarant's out-of-court statements to be admitted when the defendant has by her misconduct rendered the declarant unavailable for trial. To admit evidence under this rule, the court must find that the defendant committed or acquiesced in wrongdoing with the intent to make the declarant unavailable as a witness, and that the declarant was in fact rendered unavailable. The purpose of the rule is to prevent wrongdoers from benefiting from their misconduct, and specifically to prevent defendants from intimidating or eliminating potential witnesses against them. The rule does not specify that a defendant must have intended to render the witness unavailable at a particular trial, nor does the rule limit the scope of the declarant's admissible statements to only those matters relevant to a particular proceeding. Instead, the rule applies whenever a defendant intends to, and does, render a declarant unavailable as a witness against the defendant. In this case, Gray argues that Rule 804(b)(6) should not apply because Gray did not intend to procure Robert Gray's unavailability at this particular trial, but rather her criminal trial for assaulting him. However, the rule is not limited to a particular trial in this way. The only relevant inquiry is whether Gray engaged in or acquiesced in wrongdoing with the intent of, and effect of, rendering Robert Gray unavailable as a witness. Gray had Robert Gray killed when she was well aware that he was to be a witness at court proceedings regarding his criminal complaint for her assaults on him. Thus, the district court correctly admitted Robert Gray's out-of-court statements. The conviction is affirmed, but Gray's sentence is vacated and remanded for resentencing on other grounds.

Howell v. Joffe

A federal court with diversity jurisdiction applies the law on attorney-client privilege of the state in which it sits. First, the conversation between Kagan and Lynch was privileged. By discussing their impressions of Howell's vocal characteristics and comparing Howell to other persons who had sued the Diocese, Lynch and Kagan were evaluating which claims had merit. Although some of the comments made by Kagan were not obviously related to evaluating claims or seeking legal advice, the general purpose of the privilege is to encourage attorney-client communication, so courts should not parse different elements of a conversation lest it undermine clients' ability to speak freely with their attorneys. I believe that Illinois courts would apply the balancing test set forth in Dalen v. Ozite Corp., 230 Ill. App. 3d 18, 28 (1992), to determine whether attorney-client privilege should be waived by inadvertent disclosure. Under this test, a court should weigh (1) the reasonableness of precautions taken to prevent disclosure, (2) the time taken to rectify the error, (3) the scope of the discovery, (4) the extent of the disclosure, (5) the overriding issue of fairness. Under this test, the defendants did not waive the privilege. The error was a common one and upon discovering the waiver, Lynch immediately took steps to recover the recordings. I also find that the scope of discovery, the extent of the disclosure, and fairness support a finding of privilege. The defendant's motion is granted. Howell's claim for intentional infliction of emotional distress is barred.

In re Grand Jury

A parent-child testimonial privilege does not exist. Although Rule 501 allows courts to define witness privileges through the use of "common law principles...in the light of reason and experience," no such reason or experience can be drawn upon to create a parent-child testimonial privilege. The Advisory Committee on the Rules of Evidence did not recommend adoption of a parent-child privilege despite its recommending nine other specific privileges. Unlike many of these recognized privileges, confidentiality is not essential to a successful parent-child relationship. In addition, no federal courts of appeals and no state supreme courts have recognized such a privilege. Moreover, the court finds that a parent-child privilege would have no positive impact on the parent-child relationship and the absence of such a privilege does not create a substantial harm to the relationship. The court thus declines to adopt a specific parent-child testimonial privilege. The testimony of the father in the Virgin Islands case and the daughter in the Delaware case are not excluded. The district courts are affirmed.

Johnson v. State

A past recorded recollection of a witness is admissible under Texas Rule of Evidence 803(5) (similar to Federal Rule of Evidence 803(5)) if (1) the witness had firsthand knowledge of the event; (2) the written statement was made at or near the time of the event; (3) the witness lacks a present recollection of the event, and (4) the witness vouches for the accuracy of the written statement. To meet the fourth requirement, the witness must testify that she presently remembers recording the fact correctly or remembers recognizing the writing as accurate when she read it at an earlier time. An assertion in the statement that it is accurate or a previous acknowledgement under oath is not sufficient as these statements are not self-verifying. Taylor's testimony on the stand did not lay the proper predicate for admitting Taylor's statement as Taylor did not state that his recollection was accurately transcribed in the statement or that the statements in it were true. The judgment is reversed and the case remanded for a new trial.

Simms v. Dixon

A photograph may be admitted when it is identified by a witness as a correct representation of certain facts relevant to the issue in the case. C. McCormick, Evidence § 181, at 387 (1954). Here the trial court simply required the photographer to testify, when Simms could have laid the proper foundation. It did not investigate whether Simms could lay the proper foundation. Reversed and remanded for a new trial.

Wagner v. State

A videotape can be authenticated through pictorial testimony, which would require that an eyewitness testify that, according to his or her personal knowledge, the videotape fairly and accurately depicted what transpired. However, pictorial testimony is not the exclusive means of authenticating a videotape. The silent witness theory allows for the admissibility of a videotape if there is proof that the process that produced the videotape was reliable. Factors to consider are: (1) a depiction of the time and date the videotape was created; (2) evidence that the videotape has been tampered with; (3) the operating condition and capability of the equipment used; (4) the procedure used to prepare, test, operate, and secure the equipment; and (5) testimony in which the participants videotaped are identified. Here, Duncan identified the time and date of the recording and later testified as to the installation and operation of the video camera. A witness identified Wagner on the videotape. There is no evidence the videotape was tampered with. Based on the trial court's consideration of the five factors, this court finds that the videotape was properly authenticated. The admission of the videotape into evidence is sustained.

Bruton v. United States

Admitting one defendant's confession implicating a co-defendant is a violation of the Sixth Amendment Confrontation Clause. A jury instruction to disregard the reference to the co-defendant in assessing the co-defendant's guilt or innocence is not a sufficient replacement for the right to cross-examination. The ruling in Delli Paoli v. United States, 352 U.S. 232 (1957), that a properly instructed jury could ignore one defendant's out-of-court confession implicating another co-defendant is overruled. It is not feasible to expect a jury of ordinary people to disregard such a confession during deliberations. Judge Learned Hand has discussed the practical impossibility of juries ignoring inadmissible hearsay, and Judge Hand and Judge Jerome Frank have compared the limiting jury instruction to a "placebo" or a "judicial lie." Although joint trials are generally more efficient than separate trials, that efficiency cannot be valued above the constitutional rights of the accused. The jury instructions in this case were clear. Nevertheless, a jury instruction to disregard incriminating statements made by one defendant implicating a co-defendant cannot cure the Sixth Amendment violation.

Michelson v. United States

After a defendant has put his character at issue by calling witnesses to testify to his good reputation, it opens the door to the prosecution cross-examining the witnesses about that reputation and providing contradictory witnesses. Specifically, the prosecution may cross-examine a witness about knowledge of the defendant's prior arrest after the defendant has put his character at issue, but only for the purposes of refuting evidence of the defendant's good character or to test the sufficiency of the witness's knowledge about the defendant. Generally, the prosecution may not bring up this type of character evidence unless it goes to an ultimate issue in the case. However, once the defendant opens the door by bringing forth positive character evidence, the prosecution may bring its own evidence as to the reputation of the defendant in the community as well as for the limited purpose of testing the qualifications of the witness to reliably testify about the defendant's reputation. If a witness has not heard at least rumors about the defendant's poor character traits, such as an arrest, then it is questionable whether the witness has sufficient knowledge of his reputation to be reliable. In this case, because Michelson voluntarily opened the door to character evidence by calling witnesses to testify about his good reputation in the community, the prosecution was permitted to respond with evidence of poor character to refute that testimony. Although the crime Michelson was on trial for, bribery, is not the same as receipt of stolen goods, they both stem from poor character traits that the witnesses claimed the defendant did not have. As a result, it was proper to admit evidence of Michelson's prior arrest because if proved, it would weaken the claim that Michelson had a reputation as a good, law-abiding citizen in the community. In addition, it was proper to cross-examine the witnesses about the arrest, not for purposes of proving that the arrest occurred, but for the limited purpose of testing the qualifications of the witnesses to reliably testify about the defendant's reputation in the community. If they were reliable witnesses, they likely should have known about an event such as an arrest. Accordingly, the court of appeals is affirmed.

Hygh v. Jacobs

Although Federal Rule of Evidence 704 does not exclude expert testimony that goes to an ultimate issue, it does exclude expert testimony that addresses an ultimate legal issue. This prevents against the risk of an expert telling the jury what conclusion to reach. Even if the jury were not led into following an expert, testimony as to an ultimate legal conclusion would be objectionable because it tells the jury what standard to adopt. It is the province of the judge to instruct the jury. In this case, Cox's testimony was not proper, because he defined "deadly physical force," and New York already provides a statutory definition of deadly physical force. However, this error was harmless, because there are only minimal differences between Cox's definition and the statutory definition, and the judge thoroughly instructed the jury regarding the standards for measuring use of force. Further, Cox's testimony that Jacobs's conduct was not "warranted under the circumstances" was also improper, because this testimony effectively told the jury what conclusion to reach. However, this error was also harmless. The improper testimony was given within a larger body of proper testimony regarding police procedures for arresting violent people; the jury could have reached the same conclusion as Cox based on this larger body of testimony. Additionally, the judge instructed the jury that if the jury disagreed with the expert testimony after considering all the evidence, the jury could disregard the testimony. Furthermore, the judge thoroughly instructed the jury regarding Jacobs's use of force, and there was a great deal of evidence that Jacobs used excessive force. Accordingly, even though the testimony was improperly admitted, this error does not require a new trial. The judgment is affirmed.

People v. Collins

Although mathematics is not always excluded in a court's fact-finding process, it must not distort the jury's judgment by allowing the court to determine guilt or innocence based purely on odds. In this case, there were a number of problems with the prosecution's theory and use of mathematics, including that the testimony lacked foundation in both evidence and theory, and that the testimony distracted the jury from properly making a decision on the guilt or innocence of Collins. Firstly, in terms of the evidentiary foundation of the mathematics, the prosecution made no evidentiary showing as to the probabilities it assigned each of the characteristics. These probabilities (e.g. an estimation that one in 10 cars are yellow, one in three girls have blonde hair, etc.) were simply arbitrary estimates by the prosecutor and thus improper. Secondly, in terms of the statistical foundation of the mathematics, under the product rule, each of the characteristics must be mutually independent for the calculation to be accurate. Here, it cannot be said that a man with a beard and a man with a mustache are mutually independent. Likewise, a woman with blonde hair and a woman with a ponytail are also not mutually independent. Thus, the statistical theory on which the prosecution bases its probability is faulty. Finally, the prosecution did not prove that the assailants exhibited those specific characteristics beyond a reasonable doubt. Moreover, the prosecution provided no evidence that out of all the couples exhibiting each of the characteristics, the Collinses were the couple that committed the robbery. The prosecution attempted to prove that it was likely that a couple with those characteristics committed the robbery, but not that the Collinses specifically were the assailants. Very few reasonable jurors could be expected to be able to see past the flashy, but distorting mathematical theory that the prosecution put forth. The prosecution's theory not only lacked a proper foundation in both evidence and theory, but once contrived, it distracted the jury from properly making a decision based on the traditional tests of guilt or innocence. Accordingly, the court erred in admitting the mathematical expert's theory of probability and the trial court is reversed.

Tuer v. McDonald

Although proving feasibility or impeachment are exceptions to the general rule that evidence of subsequent remedial measures is not admissible, a professional judgment call in not instituting the measure sooner does not trigger those exceptions. Particularly in the medical context, the concept of feasibility encompasses something more than just that an alternative is physically possible, because it might be possible to do nearly anything to a body. A doctor's judgment call should not be read as a broad pronouncement of the general feasibility of a protocol or course of action; rather, it is a product of the doctor weighing the risks and benefits of the course of action to the patient in the doctor's care. Similarly, a doctor's exercise of professional judgment to follow an existing protocol may not be impeached by evidence of the change in protocol. A protocol change means simply that risks and benefits of a course of conduct have been reevaluated; it does not mean that the doctor made an incorrect or dishonest decision to follow the prior protocol at the time it was still in effect. In this case, although Dr. McDonald said that it was unsafe to restart Mr. Tuer's Heparin, that claim of lack of safety was in comparison to having Mr. Tuer go into surgery with Heparin in his blood. This was a reasonable professional judgment based on Dr. McDonald's experience with complications arising from the presence of Heparin during surgery. Thus, contrary to Mrs. Tuer's contention, this was not an assertion that it was not feasible to restart Heparin. Similarly, in terms of impeachment, the change in protocol is not admissible to impeach Dr. McDonald in regards to his statement that restarting Heparin was unsafe. This was not a false statement, as complications can arise due to Heparin in the blood during surgery. The fact that the hospital and Dr. McDonald changed their Heparin protocol after Mr. Tuer's death does not mean that Dr. McDonald's statement about the lack of safety of Heparin was incorrect and does not mean that Dr. McDonald did not believe at the time of the incident that it was appropriate not to restart the Heparin. Accordingly, the evidence of the subsequent remedial change in protocol was correctly excluded. The appellate court's judgment is affirmed.

Lannan v. State

Although under Indiana common law evidence of other sexual misconduct has been admissible in child molestation cases under the "depraved sexual instinct" exception to the rule excluding character evidence, this court now finds that this exception is not warranted. There were two justifications to the rule: (1) that sexual predators are more prone to recidivism and (2) there is a need to bolster the testimony of child witnesses regarding crimes that might seem improbable to a jury. Regarding the first justification, the social science finds that sexual predators are no more prone to repeat their crimes than other criminals. Furthermore, there is no reason why a high rate of recidivism would justify admitting this sort of evidence for sex crimes, when a high recidivism rate does not do so for other crimes. There are also high rates of recidivism among those who violate drug laws, but evidence of other crimes is not admissible in those cases. With regard to the second justification, while it may have been the case in the past that juries and judges would not believe the testimony of a child victim of sexual crimes without some corroborating evidence, now awareness that child molestation does occur is more widespread. This court adopts Federal Rule of Evidence 404(b) instead of the "depraved sexual instinct" exception. Thus evidence of other sex crimes is, like evidence of any other crime, inadmissible except under certain exceptions. It is still admissible to show, for example, motive, identity, intent, or opportunity. The conviction is affirmed. Concurrence/Dissent (Givan, J.) I concur with the majority's affirmation of Lannan's conviction, but I strongly disagree with its abolition of the "depraved sexual instinct" exception. A jury should know of a defendant's history of other sex crimes because of the nature of the crime and because a child victim may not be believable.

United States v. Zolin

An in camera review of supporting materials is not automatic in a determination of whether the crime-fraud exception to the attorney-client privilege applies. Courts should not review documents in camera with no apparent showing of crime or fraud. Such automatic review would unduly force the responding party to disclose exactly what they are trying to protect. On the contrary, to obtain an in camera review, the requesting party must show a factual basis adequate to support a good faith belief by a reasonable person that an in camera review of the materials may reveal sufficient evidence to establish the claim that the crime-fraud exception applies. In making such a determination, the court may use any relevant evidence that is not itself privileged. Accordingly, in this case, the lower courts' decisions to categorically exclude the tapes and the transcripts without an inquiry into the applicability of the crime-fraud exception were improper. The decisions of the lower courts are vacated and the case is remanded for a determination of whether the IRS is able to show a factual basis adequate to support a good faith belief by a reasonable person that an in camera review of the tape recordings would reveal that the crime-fraud exception applies. In addition, because the partial transcripts of the tapes were obtained legally by a third party and thus not subject to privilege, the court should use these transcripts in its determination of whether the factual basis exists.

State v. Bocharski

Arizona Rule of Evidence 403 (identical to Federal Rule of Evidence 403) provides that where the danger of unfair prejudice outweighs the evidence's probative value, the evidence should be excluded. The rule governing the relevance of evidence defines relevant evidence broadly to include any evidence which makes relevant "the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." Arizona Rule of Evid. 401. Photographs of the victim, as in this case, are generally admissible because "the fact and cause of death are always relevant in a murder case." State v. Harding, 141 Ariz. 492,499 (1984). However, Bocharski did not challenge the fact of Brown's death, the extent of her injuries or how she was killed. Where a fact is uncontested, the probative value of the evidence on that fact is minimal. Exhibits 42-45, which show injuries to the body, are of minimal probative value but the trial court did not abuse its discretion in admitting them because they were not highly prejudicial. Exhibits 46-47, which show the victim's skull opened, however, should have been excluded. Although they meet the standard of relevance, the probative value is minimal because they do not show what kind of knife was used, and the manner of death was not in question. They were more prejudicial than probative because they were very gruesome. However, the error did not affect the verdict. The jury chose felony murder instead of premeditated murder, indicating that it considered the issues carefully and was not affected by the prejudicial photos. Concurrence (Martone, J.) I disagree with the majority in finding that Exhibits 46-47 should have been excluded by Rule 403. Murder by its nature is rather graphic and jurors understand that. The courts need not be paternalistic toward jurors.

Bourjaily v. United States

Before a coconspirator's statement is admitted into evidence under the hearsay exception, a preliminary determination that a conspiracy exists between the declarant and the defendant must be made by a preponderance of the evidence. In making such a determination, a court may use the hearsay evidence sought to be admitted under the coconspirator statement exemption. This is in part because coconspirators' statements themselves can be very valuable in determining whether there was in fact a conspiracy. In this case, Lonardo's statements indicated that he was involved in a conspiracy to distribute cocaine with a "friend." He stated that the "friend" was interested in buying cocaine and then set up a meet with himself, Greathouse, and the "friend." Other than Lonardo and Greathouse, a third person, the defendant, showed up at the meet exactly as planned. That is sufficient evidence to prove by a preponderance of the evidence that a conspiracy existed to sell cocaine between Lonardo and the defendant. Therefore, because a conspiracy existed, Lonardo's recorded statements are admissible as an admission by a coconspirator under Rule 801(d)(2)(E) of the Federal Rules of Evidence. The statements were clearly in furtherance of the conspiracy in that they helped to set up the defendant with Greathouse so he could purchase cocaine. As a result of the foregoing, the telephone conversation is admissible and the decisions of the lower courts are affirmed.

Beech Aircraft Corp. v. Rainey

Conclusions and opinions made pursuant to a public agency's investigation it was required to make are admissible as long as the conclusion or opinion is based on the factual findings from investigation. The conclusion or opinion must also satisfy a trustworthiness requirement built into Rule 803(8). This is because "factual findings" as written in Rule 803(8)(C) should not be read to literally mean "facts." A finding of fact may also be a conclusion based on facts. Furthermore, Rule 803(8)(C) does not actually state that factual findings are admissible, but rather that "reports . . . setting forth . . . factual findings" are admissible. Thus the Rule does not specifically distinguish between facts and opinions contained in those reports. On this reading of Rule 803(8)(C), it is clear that Morgan's conclusions in his report are admissible. His conclusions were based on his investigation and the facts that he discovered. And based on those facts, he concluded that pilot error was probably the reason for the crash. Under the plain language of 803(8)(C), such a conclusion is admissible as long as it satisfies the trustworthiness requirement. Because the trial judge found that the conclusions were trustworthy, he properly admitted the statements. The court of appeals is reversed on this issue.

Old Chief v. United States

Evidence is not admissible if its unfair prejudicial effect substantially outweighs its probative value. Although the prosecution is generally able to prove its case the way it sees fit, this is not the case where proffered evidence has the tendency to taint the juror's minds so that they reach a verdict on an improper basis. In this case, admission of the full record was error by the trial court because the full record had very limited probative value, if any, once Old Chief stipulated to the fact that he was a convicted felon. On the other hand, admission of the full record of an assault conviction could paint Old Chief as a violent man and a lifelong felon in the eyes of the jury, neither of which would be a proper basis upon which to render a decision. As a result, the unfair prejudice of the full record of Old Chief's prior conviction outweighs its very limited probative value and thus is not admissible. The United States Court of Appeals for the Ninth Circuit is reversed, and the case is remanded for further proceedings consistent with this opinion

State v. Sibley

Evidence of a lack of chastity and virtue is admissible to impeach a female witness, but not a male witness. The lack of chastity and virtue does not affect a man's predilection for truth as it does a woman's. There have been many esteemed men known for their truthfulness who have also been adulterers. This rule follows earlier cases in this jurisdiction such as State v. Grant, 79 Mo. 113 (1883), and overturns more recent cases, State v. Rider, 95 Mo. 474 (1888) and State v. Shroyer, 104 Mo. 441 (1891), which have allowed evidence of a lack of chastity and virtue to impeach both male and female witnesses. Evidence of a lack of chastity and virtue should not have been admitted against Sibley. The judgment is reversed and the case remanded.

Halloran v. Virginia Chemicals, Inc.

Evidence of a person's habit is admissible to prove that the person acted in conformity with that habit where the habit involves a deliberate, repetitive pattern of conduct such that similar future conduct is predictable. In this case, Halloran admits that he has serviced hundreds of air conditioning units using thousands of cans of the refrigerant. If it can be proved then, that as part of his routine in servicing these units, he habitually used an immersion coil when he needed to accelerate the flow of the refrigerant, that evidence would be admissible habitual conduct. The appellate court was incorrect in refusing to allow the jury to hear this evidence. The appellate court is reversed and the case is remanded for a new trial.

United States v. Myers

Evidence of flight is admissible if the evidence can support these inferences: (1) from the defendant's behavior to flight; (2) from flight to consciousness of guilt; (3) from consciousness of guilt to consciousness of guilt concerning the crime charged; and (4) from consciousness of guilt concerning the crime to actual guilt of the crime charged. In this case, the evidence did not. The events in California did not support the first factor, that Myers' behavior could be construed as flight. There is conflicting evidence about whether Myers and Coffie were moving away when agents approached. It also seems unlikely that they would have attempted to flee by getting off the motorcycle. The evidence regarding the event in Florida is also insufficient to support the flight instruction. Flight is indicative of guilt because it is instinctive and indicates fear of apprehension. The events in Florida occurred over a long period of time (several weeks) and suggest that Myers took these actions for reasons other than feelings of guilt regarding the robbery. The error was not harmless and the conviction is reversed.

United States v. Stevens

Evidence of other crimes is admissible for purposes of exonerating the defendant, for example to show that it was not the defendant who committed the crime. For example, if the defendant is accused of a crime and the crime can be shown to be connected to a string of other crimes for which another person is responsible, defendant can use the evidence of the other crimes to show that he has been a victim of mistaken identity. When evidence of other crimes is used for this purpose, a lower standard of similarity of crimes should be used because there is no prejudice to the defendant. This is in contrast to use of evidence of other crimes to incriminate the defendant, where a strong similarity between the crime charged and the other crime is needed. Evidence of this sort should be admitted if it tends to negate the defendant's guilt and it is more probative than prejudicial. Here, Stevens sought to use evidence concerning a similar robbery, where the victim, Mitchell, stated that he was not the robber, to show that he was mistakenly identified as the Fort Dix robber. In addition, he sought to introduce expert evidence that Mitchell's belief that it was not Stevens was more reliable because he was of the same race as Stevens, whereas the two victims of the Fort Dix robbery were not. This evidence is relevant to the issue of his guilt. In addition, the risk of misleading the jury or wasting time was minimal. Accordingly, the conviction is reversed and the case remanded for a new trial.

State v. Kinney

Evidence regarding rape trauma syndrome is similar to evidence regarding post-traumatic stress disorder suffered by child victims of sexual assault that this court previously found admissible in State v. Catsam, 148 Vt. 366 (1987). Such evidence was admissible to help the jury understand the behavior of these particular victims. Since Catsam, the Supreme Court has decided Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), which required the court to determine whether expert opinion evidence is sufficiently reliable and relevant before it is admissible. It was sufficient under Daubert for the trial court to find that the evidence regarding rape trauma syndrome was admissible because its reliability equals that of other technical evidence determined to be admissible and because other courts have determined such evidence to be admissible. It was proper of the trial court to admit Tyler's evidence concerning rape trauma syndrome to assist the jury in evaluating the evidence and to address defense arguments that the victim's behavior was not consistent with what laypeople would expect of a person who had been raped. Tyler's testimony about the incidence of false reporting by victims, however, was not admissible. Tyler testified that 98 percent of the rapes reported actually occurred. This was akin to an expert opinion that the victim in this case was telling the truth, which infringes on the role of the jury to determine the victim's credibility. The testimony regarding false reporting rates was inadmissible and prejudicial. However, Kinney made no specific objection to this testimony, and the trial court did not commit plain error in admitting such testimony. Therefore, the conviction is affirmed.

People v. Zackowitz

Evidence that serves only to demonstrate that a defendant has a propensity to commit a crime is known as character evidence, and is inadmissible to prove the defendant's guilt. This rule of evidence ensures that a jury is not unfairly prejudiced against a defendant whom they know to have a propensity to commit bad acts. A jury might otherwise place too much emphasis on the defendant's prior bad acts rather than on what the defendant has done in the case at hand, or convict based on the mere fact that the defendant is a bad person. To avoid such results, courts will generally exclude character evidence. This is not to say that a defendant's character has no relevance in a criminal case. A person with a history of violence may very well be more likely to commit a violent crime than a peaceful person. However, the high likelihood that such evidence would unfairly prejudice a jury against a defendant outweighs the minimal relevance of character evidence. In this case, the trial court permitted the prosecution to admit evidence that Zackowitz owned several dangerous weapons, none of which were the murder weapon, and all of which were stored in a box in his apartment at the time of the murder. It is apparent that the prosecution's sole aim in admitting this evidence was to demonstrate that Zackowitz, by virtue of owning such dangerous weapons, is an evil and dangerous man who is therefore more inclined to have killed the victim with premeditation rather than on impulse. The evidence has little other relevance to the case. Zackowitz did not use these weapons to commit the crime, and in fact, did not bring these weapons to the scene of the crime. To be sure, if Zackowitz had brought these weapons with him, the evidence would be admissible to show that he prepared for the crime. But this was not the case, and because the evidence is only relevant to show Zackowitz is a dangerous person with a propensity to commit the crime with premeditation, the evidence is inadmissible. Accordingly, the conviction is reversed and a new trial is ordered.

State v. Small

Evidentiary Rule 901(b)(4) provides that a caller may be identified as a particular person if he utters statements that under the circumstances, only that person would utter. The party must produce direct and circumstantial evidence which reasonably identifies the defendant as that person. The fact that the defendant identifies himself as such is not sufficient. Instead, the content of the call, the caller's voice, accent and other circumstances must be such that it would be improbable for the caller to be anyone other than the defendant. Here, the telephone conversation between Ellos and Dominique passed the test. Dominique had a Jamaican accent like Small and claimed that Medhin owed him money. Small's wife testified that Small was often called Dominique. It was highly improbable that the caller who spoke with Ellos was anyone other than Small. The evidence authenticates Small as "Dominique" and the statements made during the call therefore constitute admissible party admissions. Judgment affirmed.

State v. Batangan

Expert testimony with its aura of special reliability and trustworthiness has the danger of unduly influencing the jury. According to Hawaii Rule of Evidence 702 (similar to Federal Rule of Evidence 702), expert testimony is only permitted in knowledge not possessed by the average layman who does not have the expert's special training or skill. However, the average layman has the capacity to judge a witness's credibility. Thus the credibility of a witness is not a proper area for expert testimony. However, sexual abuse of children is a relatively unknown phenomenon and an average layman may not be able to assess the credibility of a child who complains of sexual abuse. Child victims have exhibited unique behaviors which may seem inconsistent with the norms of other victims of assault, such as delayed reporting of the assault and recanting the assault. It is proper for an expert to testify as to the unique behaviors exhibited by child victims of sex abuse, but it is improper for the expert to testify, as Bond did here, as to his conclusion that abuse occurred here. Once the jury has learned that the victim's behavior is consistent with that of other child victims of sex abuse, it can draw its own conclusions. Bond provided little testimony as to how child victims of sex abuse behave, and provided only his implicit opinion that the victim here was believable. Bond's testimony was impermissible and clearly prejudicial to Batangan. Conviction vacated and case remanded for a new trial.

Tome v. United States

Federal Rule of Evidence (FRE) 801(d)(1)(B) allows admission of consistent, out-of-court statements made by a witness to rebut a charge of fabrication or improper motive. However, the statements are only admissible if made before the motive to fabricate arose. This is consistent with the common-law rule before the adoption of the FRE. These types of statements are not considered hearsay. The Advisory Committee Notes make clear that these statements may be used as substantive evidence, not just for rebuttal purposes. That said, the evidence will not be admitted to bolster a witness's testimony. Further, the Advisory Committee Notes do not indicate any intent to do away with the pre-motive requirement that existed at common law. If statements are made after the charge of fabrication or improper motive, their rebuttal is not as strong because the declarant may have already formed the intent to make false statements. Allowing these post-charge statements would broaden the rule and shift the focus of trial to out-of-court statements. The prosecution here argues that the pre-motive rule should be done away with in favor of a balancing test that weighs the probative value of a statement against the prejudicial effect. The Advisory Committee expressly rejected a balancing-test approach. Hearsay is often relevant. Nevertheless, a categorical approach to admissibility minimizes judicial discretion and ensures consistency. In this case, A.T.'s out-of-court statements were made after her alleged motive to lie—i.e., a desire to live with her mother—arose. Moreover, A.T.'s out-of-court statements do not rebut the charge that the statements were fabricated as much as provide additional supporting evidence for the prosecution. Only consistent statements made before the motive to fabricate arose fall within Rule 801(d)(1)(B). The appellate court is reversed, and the case is remanded.

Bankcard America, Inc. v. Universal Bancard Systems, Inc.

Federal Rule of Evidence 408 prohibits the admission of statements made during settlement negotiations to prove or disprove liability. The purpose of Rule 408 is to encourage settlements, and if parties feared that their statements during settlement negotiations could be used against them, it would discourage settlements. Rule 408 does not however, prohibit the admission of statements made during settlement negotiations offered for other purposes. Here, Universal wanted to admit statements made during settlement negotiations to show why it rolled over the accounts. Although the better course of action would have been for Universal to wait until a settlement was final before rolling over the accounts, it would be unfair for the court to exclude the evidence. Excluding the evidence would not fulfill the purposes of Rule 408 because a settlement is not encouraged if one party is allowed to seduce the other into violating the contract with promises that its actions will be allowed as part of the settlement, and then accuse the other party of violating the contract when the settlement falls through. Universal should be allowed to bring the settlement for purposes of explaining why it took its actions. The order for a new trial is reversed.

United States v. Biaggi

Federal Rule of Evidence 410 excludes evidence of plea negotiations used against defendants, but it does not apply to evidence of immunity offers that a defendant seeks to use to show a state of mind consistent with innocence. This sort of evidence is probative in that when a defendant refuses to testify to others' wrongdoing when doing so would give him immunity from prosecution, it is a reasonable inference that he must not have any such knowledge. A jury could reasonably believe that most people would not reject immunity if they had knowledge that could grant them immunity and to refuse immunity means that the defendant has no such knowledge. There is no such inference with regard to plea negotiations. While it is possible that a defendant would reject an offer to plead guilty to reduce charges because he was innocent of the charges, it could also mean that a defendant wanted to take his chances of acquittal of all charges rather than accept a certain punishment on a lesser charge. Here, Marriotta was entitled to introduce evidence of the immunity offer. Further, considering Federal Rule of Evidence Rule 403, the evidence's probative value outweighed its danger of unfair prejudice. The evidence was highly probative because the government presented evidence of Marriotta's consciousness of guilt-that his wife withdrew a large amount of money from their joint account and put it in her own name. A new trial is warranted because of the exclusion of this evidence.

United States v. Guardia

Federal Rule of Evidence 413 permits the admission of evidence of other sexual assaults committed by the defendant if the evidence meets three requirements: (1) the defendant is accused of sexual assault; (2) the evidence is of an act of sexual assault; and (3) the evidence is relevant. Here, the evidence met the requirements. Guardia was accused of sexual abuse, the evidence was of other acts of sexual abuse, and the evidence was relevant. It was relevant because a defendant who has committed acts similar to the charged crimes is more likely to have committed the charged crimes than another. Although Rule 413 specifically permits this sort of evidence, evidence admissible under Rule 413 must also meet the more probative than prejudicial test of Rule 403. Here, the district court did not abuse its discretion in finding the evidence more prejudicial than probative. Because the alleged abuse took place in the course of gynecological exams, whether or not there was abuse depends on whether Guardia's conduct fell outside medically accepted standards. If evidence of four other instances of alleged abuse was brought in, it would have confused the jury because the jury would have to look at whether the conduct was appropriate in each instance. Furthermore, there was no way for the prosecution to present the evidence that would have minimized the confusion. The trial would have been a trial on each of the six instances of alleged abuse. The decision of the district court is affirmed.

United States v. Ince

Federal Rule of Evidence 607 provides that the credibility of a witness may be attacked by any party, even the party calling the witness. One way of impeaching a witness is to show that she made a prior inconsistent statement. At a criminal trial, however, there are limits to what the prosecution can do to impeach its own witness. The prosecution may not use impeachment as an end-run around the rules of hearsay. In United States v. Morlang, 531 F.2d 183 (4th Cir. 1975), the prosecution called a witness, Wilmoth, it knew would be hostile, so that the witness would deny having a conversation in which another inmate implicated the defendant, Morlang. The prosecution then called another inmate to impeach Wilmoth, in order to get in the hearsay statement in which the inmate implicated Morlang. The court reversed the conviction because the prosecution could not present through impeachment what would otherwise be inadmissible. When determining whether the prosecution's witness's testimony is admissible, the trial court must apply Federal Rule of Evidence 403 to determine whether the evidence is more prejudicial than probative. It is often more prejudicial because a jury often does not understand the difference between impeachment evidence and substantive evidence. Here, the court should not have permitted the prosecution to call Stevens to impeach Neumann. Stevens testified that Neumann had told him that Ince confessed to firing the gun. No evidence could be more prejudicial than an alleged confession, particularly when the defense was mistaken identity. The probative value was minimal. Neumann did not hurt the prosecution's case; she simply did not give evidence that the prosecution hoped would bolster its case. It was no surprise that Neumann did not give this testimony because she also refused to testify at the first trial. Because the probative value was minimal and the prejudicial value high, the trial court should have excluded the evidence. Conviction reversed and case remanded for a new trial.

United States v. Brewer

Federal Rule of Evidence 609 provides for the admission of such evidence if it is (1) evidence of a crime punishable by death or more than one year in prison, and (2) more probative than prejudicial. If the conviction is more than ten years old, it must meet the standard of Rule 609(b), which is that the probative value of the evidence, supported by specific facts and circumstances, substantially outweighs its prejudicial effect. The more stringent test of 609(b) does not apply here because the convictions are not more than ten years old. The relevant date is when the defendant was released from custody. For the Ohio crimes, since all of the sentences were for at least one year, and Brewer was sentenced on March 22, 1968, the earliest date he could have been released was March 22, 1969—less than 10 years ago. For the federal kidnapping conviction, although Brewer was initially released on June 27, 1967, Brewer was returned to prison for parole violations and not released again until February 9, 1976. We find that the imprisonment due to parole violation is part of the imprisonment imposed for the original conviction and therefore the second release date is the one used for computing the time under Rule 609(b). Since none of the convictions are more than ten years old, Rule 609(b) does not apply. With regard to whether the convictions are more probative than prejudicial, we consider five factors: (1) the nature of the crime; (2) the time of conviction and defendant's subsequent history; (3) the similarity between the past crime and the crime charged; (4) the importance of the defendant's testimony; and (5) the centrality of the credibility issue. For the first factor, Brewer's crimes were one of violence and have little to do with Brewer's character for truthfulness. This weighs against admitting them. On the second factor, Brewer's history of repeated crimes is a factor for admission. On the third factor, the kidnapping charge is the same as the one charged here. This is a factor against admission, since it has great prejudicial effect. The jury might believe that if Brewer has kidnapped someone in the past, Brewer is probably guilty of kidnapping in this instance. The fourth and fifth factors seem to cancel each other out. The fact that Brewer's testimony is important favors non-admission, but the fact that his credibility may be an issue favors admission of the evidence. Weighing these factors, the court finds that evidence of all the crimes except the kidnapping charges are admissible for impeachment under Rule 609. The kidnapping conviction is not admissible because of the risk of prejudice. Because all the other crimes are admissible, the omission of evidence of the kidnapping charge should have a negligible effect on the government's ability to impeach Brewer.

United States v. Iron Shell

Federal Rule of Evidence 803(4) provides for the admission of three types of statements made during medical treatment: (1) medical history; (2) past or present sensations; or (3) inception or general cause of the disease or injury. All three are admissible when "reasonably pertinent to diagnosis or treatment." Fed. R. Evid. 803(4). Lucy's statements fell within the third category. The issue is whether the statements were reasonably pertinent to diagnosis or treatment. The rationale behind the rule is that a patient has a strong incentive to tell a doctor the truth because the diagnosis and treatment will depend on what the patient says. The two-part test to determine whether a statement is reasonably pertinent to diagnosis or treatment is: (1) whether the declarant's motive consistent with the purpose of the rule; and (2) whether it is reasonable for the doctor to rely on the information for diagnosis or treatment. Lucy's statement passed the test. There is no indication that Lucy was responding to Hopkins' question of what happened for any other reason than for treatment. Significantly, the question concerned what happened rather than who assaulted Lucy. The former question is relevant to medical diagnosis or treatment, the second is not. Hopkins explained that he used Lucy's answers to determine where on Lucy's body to examine more closely. It was reasonable of Hopkins to rely on Lucy's answers to diagnose and treat her. It was not abuse of discretion for the trial court to admit Hopkins' testimony. The conviction is affirmed.

United States v. DiNapoli

Federal Rule of Evidence 804(b)(1) provides that testimony given by a currently unavailable witness is not excluded by the hearsay rule if the party against whom the evidence is offered had an opportunity and similar motive to develop the testimony by direct, cross or redirect examination. This requires not only that the party be on the same side of the issue at both proceedings, but also that the party had a substantially similar interest in asserting that side of the issue. It is not a substantially similar interest where the two proceedings are different in their purposes or burdens of proof. A grand jury proceeding has a different purpose and burden of proof than a criminal trial. The purpose of a grand jury investigation is to investigate possible crimes and identify possible criminals. The prosecutor is not necessarily the opponent of grand jury witnesses, even if she sometimes subjects them to questioning not unlike cross-examination. The burden of proof at a grand jury investigation is also different than at a criminal trial. A prosecutor need only establish probable cause to believe a suspect is guilty to get an indictment. Furthermore, the circumstances of a grand jury also limit a prosecutor's ability to question a witness. When an investigation is ongoing, the prosecutor will be reluctant to disclose the existence of cooperating witnesses and non-public evidence. For these reasons, the prior testimony of DeMatteis and Bruno is not admissible under Rule 804(b)(1). The defendants had already been indicted so the prosecution did not have the motive to further cross-examine the witnesses. The grand jury had indicated to the prosecutor that it did not believe Bruno, so the prosecutor had no interest in showing the falsity of testimony that the jury already did not believe. Finally, the prosecutor had a strong interest in not disclosing witnesses and wiretaps and so did not pursue questioning on that basis. The court was correct to exclude the grand jury testimony. This ground for reversal of the convictions is rejected.

United States v. Laster

Federal Rule of Evidence permits the admission of a trustworthy statement not covered by Rules 803 and 804 if the statement is material, if the statement is more probative on the point for which it is offered than any other which can be obtained through reasonable efforts, and if its admission best serves the interests of justice. Although some courts have held that if the offered evidence fails to meet the requirements of a Rule 803 or 804 exception, it cannot be admitted under the residual exception, this court does not read Rule 807 so narrowly. The evidence here is admissible under Rule 807. The Wilson Oil Company records are not admissible under the business records exception of 803(6), because Aquisto was not familiar with Wilson Oil Company's bookkeeping and was not qualified to admit these records. There was no indication the records were not reliable and so the residual exception applies. Judgment affirmed.

Shepard v. United States

For a dying declaration to be admissible as an exception to the hearsay rule, the person making it must expect to die soon and have no hope of recovery. In addition, the declaration must be made with knowledge of facts, not mere suspicion or conjecture. Here, Shepard's wife did not not appear to believe that her death was imminent when she told the nurse that Shepard had poisoned her. In fact, she appeared to be recovering and expressed to the doctor her hope that she would get better. The District Court should not have admitted the nurse's report of the wife's statement as a dying declaration. The Court of Appeals admitted the same statement under the state-of-mind exception, as it was offered to rebut the defense's theory that the wife had committed suicide. Aside from the fact that it was improper to admit evidence offered for one purpose at trial for another purpose on appeal, the prosecution did not use the declaration as proof of the wife's thoughts or feelings but of someone else's actions. This was an improper use of hearsay evidence. The judgment of the United States Court of Appeals for the Tenth Circuit is reversed and the case is remanded for a new trial.

United States v. Duenas

Former testimony at a hearing by an unavailable witness is not hearsay if it is offered against a party who had an opportunity and similar motive to develop the testimony through direct, cross-, or redirect examination as he would have at trial. Here, Ray's motive to cross-examine Smith at the suppression hearing was to show that his statement to Smith was involuntary and in violation of Miranda. Thus, Ray's counsel at the hearing only questioned Smith about the circumstances surrounding the arrest and statement. At trial, Ray's motive for cross-examining Smith would have been to challenge the substance of Smith's statements. The voluntariness of his statement or his Miranda rights would not even be at issue at trial. Therefore, Ray did not have a similar motive to develop Smith's testimony, and his conviction must be reversed.

Daubert v. Merrell Dow Pharmaceuticals, Inc.

Frye held that an expert witness's scientific knowledge must be "generally accepted" in the relevant field to be admissible. However, the Court overrules Frye because since-enacted Rule 702 and its legislative history do not mention Frye or the "generally accepted" test. Rule 702 provides that expert testimony is admissible if it will assist the jury in comprehending the evidence and determining issues of fact. Thus, to determine whether scientific knowledge is admissible as expert testimony, the court must make a preliminary determination under Rule 104(a) that the reasoning behind the testimony is scientifically valid and can be applied to the facts of the case. Such a determination should be made by taking into account a number of factors, including, but not limited to the following: the testability of the theory/methodology; whether the theory has been published and subject to peer review; any potential rate of error; and finally, whether the knowledge has reached general acceptance (the test laid out in Frye). Because the inquiries of the lower courts focused only on the "general acceptance" test from Frye, the decision of the United States Court of Appeals for the Ninth Circuit is vacated and the case is remanded for proceedings consistent with this opinion.

Commonwealth v. Serge

Holding and Reasoning (Newman, J.) Yes. A CGA demonstrative is admissible, even if it makes the testimony more persuasive that it otherwise might have been. The potency of a demonstrative is not a factor to be considered for its admission. The standard for admission of a demonstrative is (1) it is a fair and accurate representation of the evidence it purports to portray; (2) it is relevant; and (3) it has probative value that is not outweighed by the danger of unfair prejudice. Concurrence (Cappy, C.J.) I emphasize that the economic ability of the defendant to counter with his own CGA is a relevant factor when considering prejudice. Concurrence (Castille, J.) Given the limited value of a CGA demonstrative, it may be better for the trial court to exclude all such evidence if the defense cannot afford a similar CGA. Concurrence (Eakin, J.) A defendant's ability to afford a demonstrative equal to the prosecution's should be irrelevant to the issue of whether the demonstrative is prejudicial.

Williamson v. United States

Holding and Reasoning (O'Connor, J.) No. Non-self-inculpatory statements are inadmissible under the declarations-against-interest exception to the hearsay rule. This is true even if a non-self-inculpatory statement is made as a part of broader statement that is generally against the declarant's interest. The non-self-inculpatory statements are not trustworthy enough to be admitted under a hearsay exception, because declarants often have a motive to implicate the defendant in order to exculpate themselves. In this case, Harris's confession to the DEA agent implicated Harris in the possession of the cocaine. However, this does not mean that the entirety of Harris's confession was properly admitted. Harris's self-inculpatory statements are clearly against his own interest and admissible, but his statements that tended to implicate Williamson are not as clearly against his interest. Harris may have had incentive to implicate Williamson to decrease his own exposure to criminal liability. The lower courts did not establish whether each of the statements Harris made to the DEA agent was truly self-inculpatory before admitting the statements. As a result, the judgment is vacated, and the case is remanded to the court of appeals for further proceedings including a determination of whether each statement in Harris's confession was truly against Harris's interest. Concurrence (Scalia, J.) The Court correctly concludes that the declarations-against-interest exception to the hearsay rule does not extend to non-self-inculpatory statements, even if those statements are made as part of a larger statement that tends to implicate the declarant. A statement can be admissible as against the declarant's interest even if it does not amount to an explicit confession. Furthermore, a statement against the declarant's interest is not automatically inadmissible simply because the declarant names someone else or implicates a potential codefendant. The necessary inquiry is whether the statement, when made, tended to subject the declarant to liability such that a reasonable person in the declarant's position would not have made the statement unless the person believed it was true. Categories like "collateral neutral" statements and "collateral self-serving" statements have no place in this straighforward inquiry. Concurrence (Ginsburg, J.) All of Harris's statements should be inadmissible. The statements were not truly made against Harris's interest, but rather were an attempt to shift the primary blame of the cocaine onto Williamson. However, the ultimate decision to remand this case to the court of appeals is correct, but only insomuch as the government should be given a chance to show that the admission of the statements was harmless error. Concurrence (Kennedy, J.) Under the declarations-against-interest exception to the hearsay rule, collateral non-self-inculpatory statements should be admissible if they are neutral and not so self-serving as to render them unreliable.

In re Grand Jury Subpoena, Judith Miller

Holding and Reasoning (Sentelle, J.) No. The Supreme Court already decided that there is no reporter's privilege in Branzburg v. Hayes, 408 U.S. 665 (1972). In that case, Branzburg, a reporter, had published a piece in which he described seeing two people smoking hashish. He was subpoenaed to identify the two people, which he refused to do under a reporter's privilege. The Supreme Court stated that the public interest in possible future news about crime is outweighed by the public interest in prosecuting those crimes reported to the press. Therefore, there is no reporter's privilege from testifying before a grand jury. As for a common law privilege, the court finds that if there is such a privilege, it is not absolute, and has been overcome in the circumstances here. Judgment affirmed. Concurrence (Sentelle, J.) I find Branzburg to also hold that there is no common law reporter's privilege as well as no privilege under the First Amendment. Concurrence (Henderson, J.) I decline to find whether there is a common law reporter's privilege. Because this court is in agreement that any privilege is overcome by the Special Counsel's showing, there is no need to determine whether such a privilege exists. Concurrence (Tatel , J.) I believe that there is a common law reporter's privilege based on my review of common law history. However, such a privilege is not absolute, and is overridden under the circumstances of this case.

United States v. Hines

Kassin's testimony regarding factors that might affect the accuracy of identification is based on accepted psychological studies. The prosecution claims that this testimony is not needed to assist the triers of fact, the jurors. The court disagrees. While jurors may think that they can draw the proper inferences from an eyewitness identification, their common sense inferences may not be quite applicable. Therefore, the testimony of the expert may assist the jury. The testimony also does not usurp the function of the jury. Kassin is not going to testify as to the credibility of Dunnes or to the accuracy of her identification. Kassin is merely going to provide them with the science of identification and the jury can use these tools as it likes. The testimony of Kassin is permitted, and the government may present its own witness as well.

Jinro America, Inc. v. Secure Investments, Inc.

If a witness is admitted as an expert, the witness may testify based on hearsay and opinion rather than first-hand knowledge, and the testimony carries special weight with the jury because of the "expert" label. Accordingly, it is crucial that a person actually be qualified as an expert before being admitted as an expert witness. Federal Rule of Evidence 702 provides, among other things, that a qualified witness may testify as an expert if the witness possesses "specialized knowledge" that will assist the factfinder in understanding the evidence or determining a fact in issue. The district court must serve as gatekeeper and determine whether the purported expert's testimony is reliable and relevant. The testimony must be trustworthy and based in the "knowledge and experience" of the purported expert's discipline. Moreover, the court must take special care to weigh the prejudicial effect of the testimony against its probative value under Federal Rule of Evidence 403, because expert testimony can be very powerful and potentially misleading for the factfinder. In this case, the district court abused its discretion in allowing Pelham to testify as an expert. Pelham is not trained in any discipline that would allow him to analyze the substance of the transaction or opine generally on Korean culture. He cited no research, study, or data supporting his sweeping generalizations about the Korean business community; rather, he provided only hearsay and generalized anecdotal evidence from his personal experiences. Pelham's unreliable personal opinions are not worthy of being admitted as expert testimony. Furthermore, the ethnic biases and stereotyping in Pelham's testimony were so unfairly prejudicial that his testimony should have been excluded under Rule 403. Pelham's testimony conveyed that in his experience, Korean businesses are corrupt, and that because Jinro is a Korean business, Jinro must be corrupt. This is impermissible. Accordingly, the district court's judgment is reversed, and the case is remanded.

Morales v. Portuondo

In Chambers v. Mississippi, 410 U.S. 284 (1973), the Supreme Court recognized that a defendant's right to present evidence at trial is a matter of due process. Then, in People v. Robinson, 89 N.Y.2d 648 (1997), citing Chambers, the New York Court of Appeals held that inadmissible evidence could be admitted if necessary to ensure due process if (1) the testimony was vital to the defense; (2) the witness who gave the testimony was unavailable; and (3) the testimony bore sufficient indicia of reliability. Here, Towle's and Cohen's testimony regarding what Fornes told them was admissible. It was clearly vital to Morales's defense and Fornes was unavailable. Though inadmissible hearsay, the confessions had sufficient indicia of reliability. Fornes confessed to four different people. The fact that a defendant has made numerous confessions is a factor finding that the confession is reliable. Furthermore, Fornes had no reason to lie to Towle and Cohen because he was seeking their advice and guidance. In addition, Fornes' statement to Towle was not protected by the priest-penitent privilege. It was not a formal confession. Even if it was, Fornes waived the privilege. He disclosed portions of the conversation to Montalvo's mother, Morales' attorney and Cohen and thus acted in a manner inconsistent with a desire to maintain the priest-penitent privilege. Fornes' statements to Cohen were protected by the attorney-client privilege. Fornes clearly went to Cohen seeking legal advice. The attorney-client privilege is not waivable by the attorney after death. Despite the fact that it was privileged, Fornes's statements to Cohen were admissible. The exclusion of the evidence would render Morales's trial fundamentally unfair. Although Fornes spoke to Cohen to obtain legal advice, he had already confessed to three other people. Fornes has been dead for four years and two men have served 13 years in prison for a crime they did not commit. Under these circumstances, Fornes's statements to Cohen are admissible. Considering all the evidence, Morales was denied due process in his trial. Accordingly, his petition for writ of habeas corpus is granted.

Fletcher v. Weir

In Doyle v. Ohio, 658 U.S. 610 (1976), this court held that it violates a defendant's due process rights if he is impeached for post-arrest silence when Miranda warnings are given. The reasoning is that the government had induced the defendant's silence by assuring the defendant that silence would not be used against him. In this case, the arresting officers did not immediately read Weir his Miranda warnings. In the absence of the sort of assurances embodied by the reading of Miranda warnings, it does not violate due process for a state to permit post-arrest silence to be used against a defendant when a defendant chooses to take the stand. Accordingly, Weir's due process rights were not violated by the prosecution's cross-examination of him. The judgment of the appeals court is reversed.

Cox v. State

In Indiana, such evidence is governed by Indiana Rule of Evidence 104(b) (identical to Federal Rule of Evidence 104(b)). It provides that such evidence is admissible upon, or subject to, the introduction of evidence sufficient to support to the fulfillment of the condition. The standard for making such a finding is that the judge "must determine only that a reasonable jury could make the requisite factual determination based on the evidence before it." United States v. Beechum, 582 F.2d 898, 913 (5th Cir. 1978). The court is not required to weigh the credibility of the evidence or make a finding. In this case, a reasonable jury could find that Cox had knowledge of Hammer's bond hearing. Cox spent nearly every day at Hammer's mother house before and after the hearing, Hammer and Cox were close friends, and Hammer's mother attended the hearing. Such evidence is sufficient to support the finding that Cox knew what had happened at Hammer's hearing. Accordingly, the trial court did not abuse its discretion in admitting the evidence of Hammer's hearing at Cox's trial.

Huddleston v. United States

It is sufficient for evidence of prior acts to be admitted if there is enough evidence to support a finding by the jury that the defendant committed the prior act. Requiring the trial court to make a preliminary finding on such a collateral issue superimposes a level of judicial oversight that is not consistent with Rule 404(b) or its legislative history. Thus if a jury could reasonably find that the defendant committed the prior act, and the act is otherwise admissible under Rule 404(b), evidence of the prior act is admissible. In this case, the evidence of Huddleston selling the televisions, if proven true, is admissible under the knowledge exception to Rule 404(b)—that Huddleston knew the televisions were stolen due to a history of dealing with Westby. Therefore, the evidence can be admitted if a jury could reasonably find that the televisions that Huddleston previously sold were stolen. The low price of the televisions, the large quantity for sale, and Huddleston's inability to produce a bill of sale, as well as Huddleston's role in the sale of other stolen merchandise provided by Westby—the appliances and tapes—would lead a reasonable jury to believe that the televisions were stolen. As a result, the trial court properly admitted the evidence of the televisions under an exception to Rule 404(b). The trial court is affirmed.

In re: Grand Jury Investigation [Rowland]

It is undisputed that communications between government officials and government attorneys acting as their counsel are privileged. The district court found that the privilege must yield if disclosure would serve the public interest because the attorney also has a duty to serve the public. However, there is also a public interest for government officials to receive and act upon the best possible legal advice. Government officials may be deterred from seeking out legal advice if they know that these communications may later be disclosed. Government officials will not be able to perform their jobs well if they do not have good legal advice. Thus the governmental attorney-client privilege is the same as that between a private individual and his attorney. The court declines to fashion a balancing test whereby the privilege would yield to a demonstrated need for the evidence. The protections of the attorney-client privilege must be reliably enforced to effectuate the goal of promoting compliance with the law. Reversed.

State v. Smith

Louisiana Code of Evidence Article 412 (similar to Federal Rule of Evidence 412), a "rape shield statute," bars evidence of a victim's prior sexual behavior. However, it does not bar the admission of evidence of prior false allegations of molestation. It is not evidence of the victim's sexual behavior or reputation for chastity, but evidence that the victim may not be credible. Prior false allegations of sexual assault by the victim do not constitute "past sexual behavior" for the purposes of Article 412. Defendants should therefore be allowed to introduce evidence that a victim has made false allegations of sexual assault in the past for impeachment purposes. Smith should have been allowed to do so here. Because the jury's decision weighed almost exclusively on the victim's testimony and credibility, the error was not harmless. Conviction reversed and case remanded.

United States v. Knox

Military Rule of Evidence 412 (similar to Federal Rule of Evidence 412) prohibits the use of evidence concerning a rape victim's sexual history or reputation, except when it is relevant and constitutionally required. It was not relevant here. Knox claims that it is relevant to his state of mind—whether he thought Theresa was consenting to sex by her actions—but that is not where Knox and Theresa's stories differ. In Knox's story, she was awake; in Theresa's story, she was asleep. Knox's state of mind has no relevance here. The factfinders must simply choose which story to believe. To allow Knox to bring in this evidence would have allowed him to do what the rape shield statute seeks to prevent, portray the victim as a bad person who got what she deserved. The conviction and sentence are affirmed.

State v. Kirsch

New Hampshire Rule of Evidence 404(b) (similar to Federal Rule of Evidence 404(b)) provides that evidence of a defendant's other crimes is admissible to show motive, intent, or opportunity. However, the evidence offered in this case did not meet the standard. The prosecution offered evidence of other instances of sexual molestation by Kirsch to show that Kirsch targeted the same type of girls in each case. This merely shows Kirsch's propensity for the same type of victim. The evidence also does not show intent, as the prosecution's rationale for a showing of intent is the same as for motive—intent to target the same type of victim. This is also merely propensity. Finally, the evidence does not show a common plan. A common plan does not mean the commission of similar sexual assaults. For a common plan to exist, there must be some overall scheme of which each crime is a part. There is no such overall scheme here. The evidence merely shows Kirsch's propensity to commit the same type of crime repeatedly. The evidence should have been excluded. The conviction is reversed and remanded.

United States v. Mound

No. It does not violate the Due Process Clause because evidence meeting the requirements of Rule 413 must also pass the more probative than prejudicial test of Rule 403. Because Rule 403 still applies, the defendant is still guaranteed a fair trial. The conviction is affirmed.

Williams v. McCoy

North Carolina Rule of Evidence 411 (similar to Federal Rule of Evidence 411) prohibits the use of evidence concerning insurance used to prove wrongful or negligent conduct, but such evidence is admissible when used for other purposes. Williams' desire to testify concerning the meeting with the claims adjuster did not go to the question of McCoy's liability for the accident. It merely explained Williams' behavior when defense counsel asked her about hiring an attorney before visiting the chiropractor. Her answer, without mentioning the claims adjuster in the timeline, was confusing. Williams should have been allowed to testify concerning her meeting with the claims adjuster to explain her actions. The trial court should also have analyzed the evidence under Rule of Evidence 403 to determine whether the evidence was unfairly prejudicial to McCoy. Weighing the probative versus prejudicial effect of the evidence, the evidence was admissible because it would have been prejudicial to Williams not to be able to explain her behavior, which allowed McCoy's counsel to argue that she was litigious and therefore not credible. It was not prejudicial to McCoy because the reality is that most jurors are drivers and are aware that most drivers carry insurance. Accordingly, the judgment is reversed and remanded to the trial court for a new trial.

Gray v. Maryland

Out-of-court statements made by a codefendant that incriminate another defendant are inadmissible at trial even with a limiting instruction or if the name of the defendant is redacted. Bruton held that if a codefendant confesses and names another defendant, the confession is inadmissible at trial, even with a limiting instruction. Considering the Bruton rule, the Court in Richardson v. Marsh, 481 U.S. 200 (1987), held that the Confrontation Clause is not violated if a codefendant's confession is redacted to eliminate the other defendant's name and any reference to the other defendant. The Richardson opinion noted that Bruton was concerned about the prejudicial effect of naming another defendant. The Court reasoned that concern did not exist if a redacted confession eliminated any reference to another defendant. In such a case, a limiting instruction would be sufficient. However, a jury often realizes that a confession that replaces a defendant's name with an obvious blank space or the word "deleted" refers to the defendant. This may be especially true if a judge specifically tells the jury not to consider the confession as evidence against the defendant. Additionally, an obvious deletion can call the jury's attention to the removed name and encourage the jury to speculate as to who the removed name might be. In this case, Grey's name was either replaced with an obvious blank space or the word "deleted" in the redacted confession. The redacted confession serves as a directly accusatory statement against Gray. Therefore, Bell's confession is inadmissible and the judgment of the Court of Appeals is vacated.

Mutual Life Insurance Co. of New York v. Hillmon

Out-of-court statements that show the declarant's intentions are admissible to prove such intentions if the act intended is material to an issue of the case. Such a statement of a then-existing intention is just as trustworthy, if not more so, as the declarant's own testimony regarding his prior intentions would be. Thus, in this case, the letters are admissible to prove Walters's then-existing intent to join Sallie's husband on his trip to Crooked Creek. The letters do not prove that Walters actually went to Crooked Creek, merely that he had the intention to do so. This is relevant because it makes it more probable that he did actually go to Crooked Creek and thus more probable that the body found was his. The judgment of the district court is reversed and the case is remanded for a new trial.

Swidler & Berlin v. United States

Review of the case law shows that the case law implicitly accepts the survival of the privilege after the death of the client, with certain exceptions. There are reasons for the survival of the privilege after death. Knowing that communications will be privileged even after death encourages frank communications by clients. Clients may be concerned about reputation, civil liability or harm to friends or family if communications are disclosed after death. Reversed.

Jaffee v. Redmond

Rule 501 allows federal courts to define witness privileges through use of "common law principles . . . in the light of reason and experience." The Rule thus creates leeway for courts to develop privileges that it finds necessary based on that standard. The Court determines that because a psychotherapist-patient relationship depends on confidence and trust between the patient and therapist, the important interests that the privilege promotes outweigh the need for the evidence that would come from psychotherapist-patient communications. In addition, the Court notes that all 50 states and the District of Columbia have adopted some form of the privilege. Finally, a psychotherapist-patient privilege will serve the public good because it will facilitate the appropriate treatment to improve the mental health of the country. As a result, reason and experience dictate the adoption of a federal psychotherapist-patient privilege. In this case, there is no distinction between counseling from psychotherapists and counseling from social workers as social workers provide many of the same mental services, but at more affordable costs. Therefore, the content of Redmond's counseling sessions with her licensed social worker is protected under the psychotherapist-patient privilege here established under Rule 501. The United States Court of Appeals for the Seventh Circuit is affirmed.

Tanner v. United States

Rule 606(b) provides that a juror may only testify to a matter occurring during the jury's deliberations that had an effect on the jury's verdict if it constituted an improper extraneous influence. Evidence of jurors' drug and alcohol abuse does not qualify as such an extraneous influence as the substances are voluntarily ingested by the jurors themselves. In addition, the legislative history of Rule 606 indicates that intoxication was specifically and intentionally excluded from consideration as an outside influence. Post-verdict inquiries into a jury's state of mind would surely open the door to an investigation into the personal matters of all jurors in the hopes of finding some form of misconduct to invalidate the verdict. Such public scrutiny of juries cannot be permitted. As a result, the district court was correct in denying Tanner's motion for an evidentiary hearing at which he could interview jurors. Tanner's only allegation of true jury misconduct is that some jurors fell asleep during the trial. Drinking a bit of alcohol during a recess or consuming drugs during the trial do not automatically render a jury incompetent. Misconduct of jurors does not automatically translate to incompetence. In addition, Tanner had an opportunity to present non-juror evidence of such misconduct to the district court, but failed to do so convincingly. Indeed, the district court judge even stated that he did not notice members of the jury falling asleep during the trial. As a result, the district court was correct in denying Tanner's motion to call jurors as witnesses and denying his motion for a new trial. Finally, this holding does not violate Tanner's Sixth Amendment right to a fair trial before an impartial and competent jury. Tanner's right to a competent jury is protected in voir dire, and also throughout the trial through observations of the jury by both parties and court personnel. Accordingly, because of the inadmissibility of the jurors' testimony and the lack of non-juror evidence, the decisions of the lower courts are affirmed.

United States v. Ganier

Software programs such as Microsoft Word may be very common, but specialized knowledge is required to interpret the kind of forensic software reports that Drueck ran. The 2000 amendment to Federal Rule of Evidence 701 clarified that lay opinions cannot be based on scientific, technical or other specialized knowledge within the scope of Rule 702. Even before the amendment, lay witnesses who performed after the fact investigations were generally not allowed to apply specialized knowledge in giving lay testimony. The district court did not err in determining that Drueck's testimony and his forensic reports were expert testimony and evidence within the scope of Rule 702. However, exclusion of such evidence for failure to provide a summary is not the only remedy. There is no evidence that the prosecution did this in bad faith or that Ganier was prejudiced in a way that could not be remedied. The decision of the district court is vacated and the case remanded for further proceedings.

Mahlandt v. Wild Canid Survival & Research Center, Inc.

Statements made by a party or its agent within the scope of his agency about any material fact are admissible against that party if proffered by the opponent. Similarly, statements made by individuals authorized by a party to make such statements on the subject in question are admissible against the party. These statements are not hearsay because they are reliable in that it is highly unlikely that a party, its agent, or an individual authorized by the party to speak would make a false statement against itself. In this case, all of the statements in question are admissible as admissions by a party opponent. The note and statement made by Poos are admissible against Poos because they were his own statements. They are also admissible against the Center because Poos is an agent employee of the Center and his custody of the wolf is within the scope of that employment. Although he had no personal knowledge of the truth of his statements, this is not a requirement under the admission by party opponent rule. It is sufficient that he was an agent of the Center and was acting within the scope of his agency when he made the statements. Similarly, the minutes of the Center meeting are admissible against the Center. The directors at the meeting, as primary officers of the Center, had the authority to make statements on behalf of the corporation. As a result, the minutes of their Directors meeting are admissible against the Center under Rule 801(d)(2)(C). However, because Poos was not present at the meeting, the minutes are not admissible against him because there is no provision in the rule that statements made at a corporate directors meeting can be used against a non-attending, nonparticipating employee. As a result of the foregoing, the judgment of the trial court is reversed and the case is remanded for a new trial.

Davis v. Washington

Statements made to law enforcement personnel are not testimonial if they are made under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency. In Crawford v. Washington, this Court held that testimonial hearsay triggers the Sixth Amendment right to confrontation. Here, the circumstances in Davis made McCottry's statements nontestimonial. McCottry was speaking about events that were happening as she spoke, not about events in the past. It was clear that McCottry was in the middle of an emergency, as she was being beaten by Davis. The judgment is affirmed. In Hammon, the circumstances were not of the same nature. There was no ongoing emergency. The domestic disturbance had already happened and the police were there to find out what happened. There was no immediate threat to Amy Hammon. The purpose of the questioning was to investigate a possible crime, not gather information necessary to assist in an emergency. The police officer's hearsay testimony and Amy Hammon's affidavit should have been excluded pursuant to the Sixth Amendment. The case is remanded.

Bullcoming v. New Mexico

The Confrontation Clause of the Sixth Amendment entitles a criminal defendant to cross-examine a witness's testimony against him. The confrontation requirement cannot be met by questioning one witness about another's testimonial statements, even if a court believes that the questioning provides a fair enough opportunity for cross-examination. In Crawford v. Washington, 541 U.S. 36 (2004), this court held that under the Confrontation Clause, a testimonial statement of an unavailable declarant could only be admissible if the defendant had a prior opportunity to cross-examine the declarant. This is true even if the statement is obviously reliable. The point of the Confrontation Clause is not that the statement is reliable, but that the statement is able to be scrutinized through cross-examination. Since the trial in this case took place, this court decided Melendez-Diaz v. Massachusetts, 557 U.S. 305 (2009), in which it held that documents created for evidentiary purposes are testimonial in nature. Here, Caylor tested Bullcoming's blood sample at the police's request and provided the report directly to the police. The findings made in the report were intended to aid the police in their investigation and are thus testimonial in nature. Because Caylor's report is testimonial, Caylor must be made available for confrontation unless he is unavailable and Bullcoming had a prior opportunity to cross-examine him. Here, however, there was no assertion that Caylor was unavailable, and Bullcoming did not have a prior opportunity to cross-examine Caylor about his testimonial statements in the report. Although Razatos's testimony about the report may be reliable, under the Confrontation Clause, it is not a sufficient substitute for Caylor's testimony. Razatos could certainly read the BAC level in the report effectively enough, but Caylor also certified in the report that he received the blood sample intact, that the blood tested was in fact Bullcoming's blood, and that no other circumstances affected the validity of the report. Razatos is not able to accurately testify to any of this because Razatos did not perform or witness the test. Simply put, Razatos is unable to testify to what Caylor knew or observed about the test. Cross-examination of Razatos, then, would not be complete. Razatos's testimony about the report does not meet the requirements of the Confrontation Clause. The judgment of the New Mexico Supreme Court is reversed.

Crawford v. Washington

The Confrontation Clause of the Sixth Amendment provides that a defendant has the right to confront the witnesses providing "testimonial" statements against him with a reasonable opportunity for cross examination. Testimonial statements consist of in-court testimony and its functional equivalent—statements that the declarant would reasonably expect to be used by the prosecution. Although the Confrontation Clause on its face negates almost every hearsay exception, hearsay may still be admissible under the clause if the declarant is unavailable and the defendant had a prior opportunity for cross examination. In this way, the court modifies the reliability test laid out in Ohio v. Roberts, 448 U.S. 56 (1980). Although the point of the Confrontation Clause is to ensure that evidence is reliable, this is a procedural, not a substantive guarantee. It cannot be done away with simply because the court determines that the evidence is reliable. In addition, reliability is an amorphous concept, depending on myriad factors, which produces judicial unreliability and indeed has allowed admission of testimonial statements the Confrontation Clause clearly means to exclude. As a result, the reliability test laid out in Ohio v. Roberts (1980) is overruled in favor of the standard outlined by the Court: testimonial statements of unavailable witnesses are admissible only where the defendant had a prior opportunity for cross examination. In this case, Sylvia's taped statement against Crawford is testimonial because it was made to law enforcement officials in an interrogation and Sylvia knew or should have known that the statement was going to be used at the subsequent trial. Thus, because Sylvia is unavailable at trial due to her marital privilege, and because Crawford did not have an opportunity to cross examine the statement, its admission would be a violation of the Confrontation Clause. As a result, the statement is inadmissible, the judgment of the Washington Supreme Court is reversed, and the case is remanded.

Cruz v. New York

The Confrontation Clause prohibits the admission of a non-testifying codefendant's confession where the defendant's own incriminating statement is introduced at trial, even if the jury is told that the codefendant's statement is not to be used against the defendant. Under the Confrontation Clause, where two or more defendants are tried jointly, any pre-trial confessions that implicate the other codefendants are inadmissible against the others unless the confessing codefendant takes the stand and can be cross-examined. However, in Bruton v. United States, 391 U.S. 123 (1968), it was held that the Confrontation Clause cannot be used to validate the admission of a non-testifying codefendant's confession that implicates the defendant, even where the jury is instructed that the confession is not to be used against the defendant. The concern was that there are situations where the jury will simply not be able to follow instructions by ignoring certain evidence. In a subsequent case, Parker v. Randolph, 42 U.S. 62 (1979), a plurality interpreted Bruton to mean that the Confrontation Clause is only violated when the codefendant's statement is devastating to the defendant. In addition however, under Bruton, where the defendant's confession and the codefendant's confession are consistent, the codefendant's statement is inadmissible where he chooses not to testify. This is because consistency between the two statements is more harmful to the defendant than inconsistency. Both statements appear more reliable to the jury because they are corroborated by each other. Therefore, the incriminating statement by a non-testifying codefendant is not admissible at the joint trial even where the defendant's own incriminating statement is admitted.

United States v. Johnson

The Ninth Circuit has held that expert testimony is warranted when (1) the subject of the testimony is "distinctly related to some science, profession, business or occupation as to be beyond the knowledge of the average layman"; and (2) the witness has "such knowledge or experience in that field or calling as to make it appear that his opinion or inference will probably aid the trier in his search for truth." Fineberg v. United States, 393 F.2d 417, 421 (9th Cir. 1968). The expert testimony here meets the standard. First, illegal drugs and the science of botany are not ones known to the average layman. To obtain a conviction, the prosecution had to prove the marijuana came from outside the United States. De Pianelli's testimony would clearly aid the jury in making that determination. Rule 702 provides that expertise may be obtained from experience as well as formal training. De Pianelli's testimony revealed that he had substantial experience. Furthermore, the defendants had the opportunity to counter de Pianelli with their own witness, and did so. It was not error for the trial court to allow the jury to consider the expert testimony. Affirmed.

United States v. Crumby

The Ninth Circuit has previously held that polygraph evidence is per se inadmissible because it is unreliable and jurors give it to much weight due to its aura of infallibility. This court reconsiders this rule, and finds that the polygraph evidence is admissible here under these circumstances. There have been advances in polygraph science and now tests are more reliable. This court finds that the evidence meets the Daubert standard for reliability. It has been tested by scientific method, has fairly low error rates and has been generally accepted in the psychophysiology community. Although polygraph evidence has the potential to be very prejudicial due to its "aura of infallibility," it meets the more probative than prejudicial standard of Federal Rule of Evidence 403. The prosecution intends to present evidence of how polygraph tests can be flawed. Instructions can be given to the jury regarding the proper consideration of polygraph evidence. These circumstances will help the jury properly consider the polygraph evidence. Accordingly, the court will allow the polygraph evidence under three conditions: (1) Crumby must give notice to the prosecution; (2) the prosecution is given the opportunity to have its own examiner administer a polygraph test to Crumby; (3) the polygraph evidence will be admissible only to impeach or corroborate Crumby's testimony if he testifies and the prosecution impeaches his credibility. So ordered.

People v. Gionis

The attorney-client privilege applies when "a person seeks the assistance of an attorney with a view to employing him professionally." Estate of Dupont, 60 Cal. App. 2d 276, 288-89 (1943). The attorney-client privilege does not apply whenever legal matters are discussed with an attorney. Other jurisdictions have held that when an attorney refuses employment, statements made thereafter are not privileged. Here, Lueck made it clear that he was not going to represent Gionis. That Lueck agreed to represent Gionis on an emergency basis later does not make Gionis's earlier statements privileged. The judgment of the Court of Appeals is reversed.

Seiler v. Lucasfilm

The best evidence rule requires that originals of writings, recordings or photographs be submitted. The original rationale for the rule was the prevention of fraud in days before electronic copying became common. In modern times, the rationale is that human memory is fallible. When the contents of a writing are at issue, there is a greater risk of error in oral testimony than there is in the original or a true copy of the original. This court holds that Seiler's drawings are writings for purposes of the rule. To hold otherwise would frustrate the purpose of the rule. Therefore, the originals of Seiler's Striders must be submitted. Seiler claims that The Empire Strikes Back infringes the original drawings of the Striders, but he cannot provide the original drawings to so demonstrate. The "reconstructions" are of no use, since we do not know how similar they are to the originals, were made after The Empire Strikes Back, and Seiler may have intentionally or unintentionally been influenced by The Empire Strikes Back's Imperial Walkers in making them. Judgment affirmed.

United States v. Jackson

The cut-and-paste document is not the best evidence of the chat under Federal Rule of Evidence 1001(3) (the best evidence rule). The cut-and-paste document is also inadmissible under Rule 1004 (which allows for secondary evidence if the evidence has been destroyed). It does not accurately reflect the entire conversation between Jackson and Margritz. The fact is that the file languished in the U.S. Attorneys' Office intentionally. The prosecution clearly did not make prosecution of this case a priority. Had it been more of a priority, some of the documentary evidence now destroyed may have been available. The prosecution's four-year delay in prosecuting this case was extremely reckless. Jackson's motion in limine is granted.

Kumho Tire Company, Ltd. v. Carmichael

The general principles outlined in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993) apply to all expert testimony provided for in Rule 702. The Rule makes no distinction between "scientific" knowledge and "technical" or "other specialized" knowledge and thus its reliability standard applies to all expert knowledge. It would be almost impossible for courts to distinguish between evidentiary rules for scientific knowledge and technical knowledge, as they often overlap. Additionally, because the court in Daubert stressed that the factors it laid out to assist a court in its preliminary determination of the admissibility of the expert testimony are not exclusive, a trial judge may consider the factors that Daubert specifically discussed, but may consider other factors as well. Indeed, the reliability inquiry is very flexible and at the discretion of the trial court, with the primary emphasis being validity and reliability. In this case, the district court did not abuse its discretion in holding that Carlson's methodology in determining whether a defect caused the blowout was unreliable. According to the trial court, Carlson's premise that he could tell by visual inspection whether a tire had been abused was questionable. Also questionable was Carlson's explicit theory that two out of his four tire abuse symptoms were necessary to prove that abuse caused the blowout. Finally, the district court also questioned how Carlson determined that the blowout was caused by a defect despite evidence of each of the four symptoms of tire abuse. These were all valid criticisms of Carlson's methodology. More importantly, the district court found that none of the factors explicitly laid out in Daubert indicated that his methodology was reliable, and the district court could not come up with any relevant factors that would make his testimony reliable. As a result, the district court did not abuse its discretion and the United States Court of Appeals for the Eleventh Circuit is reversed. Concurrence (Scalia, J.) The majority is correct in its holding, but in some cases failure to apply one of the criteria from Daubert might be unreasonable and constitute an abuse of discretion. Concurrence/Dissent (Stevens, J.) The majority is correct in its holding that Daubert applies not only to scientific knowledge, but all expert testimony. However, the majority should not have decided whether the trial judge in this case abused his discretion in excluding Carlson's testimony.

Lloyd v. American Export Lines, Inc.

The old Federal Rule of Evidence 804(b)(1) permitted admission of prior testimony of an unavailable witness against a party if any person with a motive and with interest similar to the party had an opportunity to question the witness. Congress then revised the rule to situations where a "predecessor in interest" to the party had an opportunity to question the witness. This was because Congress did not consider it fair to impose upon the party responsibility for the way the witness was handled by another party to which it was not related. Congress did not define predecessor in interest, but in this case, Alvarez and the Coast Guard shared a sufficient "community of interest" so that the Coast Guard was a predecessor in interest within the meaning of the rule. The facts were the same. Alvarez and the Coast Guard had the same interest in exacting a penalty for Lloyd's behavior. The fact that Alvarez sought damages and the Coast Guard sought to revoke Lloyd's merchant marine license did not matter. The Coast Guard investigating officer functioned as a prosecutor and sought to establish the same things as Alvarez: Lloyd's intoxication, prior hostility to Alvarez and Lloyd's role as aggressor in the altercation. Because the testimony should have been admissible, the judgment of the district court is reversed and the case remanded for a new trial. Concurrence/Dissent (Stern, J.) I concur with the majority's opinion but dissent from the part of the opinion construing "predecessor in interest." The majority reads "predecessor in interest" to mean nothing more than person with similar motive, which disregards the change in the rule. Alvarez and the Coast Guard were positioned very differently. The Coast Guard, representing the government, has an interest in seeing justice done. The Coast Guard investigator did not have an interest in advancing every argument against Lloyd that Alvarez would. He simply did not represent Alvarez.

Koch Foods of Alabama, LLC v. General Electric Capital Corp.

The parties agree that the document is privileged so the only issue is whether the privilege was waived. Alabama law does not clearly specify the standard for determining when attorney-client privilege is waived. After reviewing the various standards adopted by various jurisdictions, we find that Alabama would likely adopt the totality-of-the-circumstances standard, which appears to be the modern trend. This standard hold that a court should weigh (1) the reasonableness of precautions taken to prevent disclosure, (2) the time taken to rectify the error, (3) the scope of the discovery, (4) the extent of the disclosure, and (5) the overriding issue of fairness. Under this standard, Koch Food did not waive the privilege. The email was disclosed on its privilege log. Koch Foods' counsel did review the documents before production, but failed to see the one page. The fact that a single page was inadvertently included among the produced documents does not waive privilege. The magistrate judge correctly found that privilege had not been waived.

Dallas County v. Commercial Union Assurance Co.

The requirements for admission of hearsay evidence is that the hearsay evidence (1) be necessary and (2) be trustworthy. The first requirement means that unless the hearsay evidence is admitted, the facts it brings out may be lost because there is no other source readily available for the fact. When a fact occurred long ago, hearsay evidence may be the only evidence of that fact. The second requirement means that the circumstances are such that a sincere and accurate statement would naturally be uttered, or that other considerations, such as a fear of punishment would deter one from lying, or where a false statement was made under conditions of publicity that an error would have been detected and corrected. The hearsay evidence concerning the 1901 fire at the Dallas Courthouse meets this two-part test. Since the fire occurred 58 years ago, there are likely no eyewitnesses who were older than children currently alive. If there are any, their memories of the incident are likely dimmed after 58 years. There is realistically no other way to ascertain the fact of the fire other than the newspaper article. Second, there would have been no reason for a newspaper to have falsely reported a fire at the courthouse if there was none. A reporter would have no motive to falsify such a report, and a false report would have subjected him and the newspaper to embarrassment. The newspaper article is admissible, not under a particular hearsay exception, but because it is necessary and trustworthy. It was within the trial court's discretion to admit it. Judgment affirmed.

Mattox v. United States

The right of defendants to confront witnesses against them is not absolute. It must sometimes give way to consideration of public policy and the necessities of the case. It would be carrying the rule too far to allow a criminal to go free at his second trial just because some of the witnesses who testified against him at the first trial have died. The substance of the right to confront a witness is served if the defendant had at a previous time the opportunity to face and cross-examine the witness. Mattox had that opportunity at his first trial. Thus it was not error for the court at this second trial to admit the transcript of the witnesses' testimony from his first trial. Mattox's conviction is affirmed.

Frye v. United States

The standard for admission of expert scientific evidence is that evidence is admissible if the science has gained general acceptance in the relevant scientific community. Here, the "systolic blood pressure deception test" has not gained such acceptance. Therefore, the trial court correctly excluded such evidence. Judgment affirmed.

State v. Guilbert

This court finds that Kemp and McClendon must be overruled, as it is commonly accepted among the scientific community and the courts that the average juror is unaware of factors affecting the reliability of eyewitness testimony. Moreover, the scientific community and courts have accepted that devices such as cross-examination, closing arguments, and jury instructions are inadequate in informing jurors of the factors that affect the reliability of identifications. Therefore, this court holds that expert testimony on the fallibility of eyewitness identification is admissible when that testimony would assist the jury in evaluating the identification. Here, however, the prosecution argues that the risk that Baldwin and Gomez misidentified Guilbert was minimal since they knew Guilbert personally prior to the incident. This court agrees that the identifications of these witnesses are reliable enough to preclude the need for expert testimony. However, Lang was unfamiliar with Guilbert and the risks of misidentification are present in regards to his identification. Thus, the expert testimony would have been useful to the jury. Consequently, this court finds that the trial court abused its discretion by precluding the expert testimony in regards to Lang's identification. However, this error was harmless, as there was sufficient corroborating evidence establishing Guilbert's guilt. Therefore, the judgment of the trial court is affirmed.

United States v. Trenkler

Under Federal Rule of Evidence 404(b), evidence of other crimes is admissible for purposes of proving that the defendant was indeed the person who committed the crime if there is a high degree of similarity between the crimes. There must be a commonality of distinguishing features to earmark the crimes as the work of the same person. Here the bombs were similar in design, characteristics and components. Further, a bombing is in itself a distinctive method of killing people. The Quincy and Roslindale bombs thus bore a high degree of similarity. The evidence of the Quincy bomb was admissible to show that Trenkler also built the Roslindale bomb. The evidence is also admissible under Rule 403, because the evidence was important to the prosecution's case and the district court minimized prejudice with a careful instruction to the jury. Accordingly, the conviction is affirmed.

Commonwealth v. Weichell

Under Federal Rule of Evidence 801, a statement of prior identification is not hearsay if it is made by a witness who testifies at trial and is subject to cross-examination. The statements by Foley that form the basis for the composite would thus be admissible since Foley was available for cross-examination. It thus follows that the composite is admissible either because it retains the character of the statements that led to its creation or because it is not a statement within the meaning of the hearsay rule. There is no reason why a composite should be distinguished from statements describing the physical characteristics the witness saw. Judgment affirmed.

United States v. Stelmokas

Under Federal Rule of Evidence 901(b)(8), an ancient document is properly authenticated if the document is in such condition as to create no suspicion as to its authenticity, was in such a place where, if authentic, it would likely be, and has been in existence 20 years or more. The documents used against Stelmokas meet this requirement. The documents were found in the archives of the former Soviet Union. There were also documents from German archives showing that when Stelmokas was in the Luftwaffe, he was hospitalized in Germany. The experts on the Holocaust called by the government testified that the documents were authentic. These locations are where documents of this sort are likely to be, and their condition, as examined by the experts, suggest that they are authentic. It is also difficult to believe that someone set out to falsely implicate Stelmokas by placing fake documents in scattered places. These documents have been in closed archives not accessible to the public for many decades. Stelmokas was not a prominent person and he offers no reason why anyone would go to such lengths to falsely implicate him. Judgment affirmed.

Williams v. District of Columbia

Under Rule 502(b) of the Federal Rules of Evidence, the inadvertent disclosure of a document covered by the attorney-client privilege does not constitute a waiver of the privilege if: (1) the disclosure was inadvertent; (2) the holder of the privilege took reasonable steps to prevent the disclosure of the privileged document; and (3) the holder of the privilege promptly took reasonable steps to remedy the disclosure. If these elements are not satisfied, the privilege is waived. Here, the District has not shown it took reasonable steps to prevent inadvertent disclosure of the email. The District has not explained the methodology it employed to review and produce documents. It merely makes a conclusory statement that a review was conducted. The District has also failed to indicate the size of the production as a whole, which makes it impossible for this court to determine whether the inadvertent disclosure was reasonable in light of the size of the production. Moreover, the District provides no indication of how burdensome the document demand was, or what kind of time pressure the District was under. Consequently, this court finds that the District did not take reasonable steps to prevent disclosure. The District has also failed to demonstrate that it took reasonable steps to remedy the disclosure. The District did notify Williams about the inadvertent disclosure. However, when Williams failed to respond, the District was required to take further action. Instead, the District failed to resolve the dispute with Williams and waited two years and eight months before it brought the issue before this court. Consequently, the District's motion is denied.

United States v. Semrau

Under Rule 702 of the Federal Rules of Evidence, when determining whether the results of a lie detection test are admissible, two factors to be considered include the rate of error and whether there are controlling standards. In regards to the rate of error factor, error rates produced solely in a laboratory setting, as opposed to a real world setting, may be rejected, since the different settings may produce different rates of error. Here, Semrau has failed to produce any known error rates in a real world setting. This failure necessitates the finding that Semrau has not only failed to satisfy the rate of error factor, but also the controlling standards factor. Additionally, Semrau has failed to demonstrate that Laken's scientific studies were generally accepted by the relevant scientific community. Therefore, this court finds Laken's testimony regarding the results of the lie detection test inadmissible under Rule 702. Moreover, Laken's testimony that Semrau was truthful overall is inadmissible under Rule 403, in part because the testimony would not be helpful to the jury unless it revealed which specific questions Semrau lied about. Therefore, the judgment of the district court is affirmed.

United States v. James

Under the Federal Rules of Evidence (FRE), prior criminal convictions may be admissible to corroborate witness testimony. United States v. Pitts, 6 F.3d 1366 (9th Cir. 1993). This is true even if the evidence may be somewhat prejudicial to the defendant. Id. The rule should apply equally to the defense as well as the prosecution. Corroborating evidence of this type was held admissible under FRE 404(b) in the key case, United States v. Burks, 470 F.2d 432 (D.C. Cir. 1972). Questions of law are reviewed de novo; questions about the probative value or potential prejudice of evidence are reviewed for abuse of discretion. The doctrine of self-defense is a quintessentially "moral and legal principle," and it is only natural that a mother would feel compelled to protect her child. In this case, James's self-defense claim is rooted in her belief in Ogden's extremely violent history. The trial judge refused to admit corroborating evidence, because he believed that the evidence was only relevant to show James's state of mind when she gave Jaylene the gun. In fact, the corroborating evidence would have tended to show that (1) James was telling the truth about what she believed and (2) James's fear was legitimate in light of Ogden's history, which gave a "ring of truth" to his boasts. Thus, the trial judge was mistaken as a matter of law regarding the acceptable functions of the evidence. Further, if the judge weighed the probative value of the evidence and decided it was too prejudicial to admit, he abused his discretion. The evidence was admissible to prove James's credibility, not Ogden's bad character. The conviction is therefore reversed.

People v. Abbot

Whether the victim has engaged in acts of prostitution in the past is relevant to the issue of whether the victim consented in the alleged rape. The court believes that a jury could more readily infer that someone who has been a prostitute consented to the sexual encounter with the defendant than someone who has not been. This follows along with the case law which provides that the defense may present evidence that the victim is a prostitute or that the victim had previous consensual sexual encounters with the defendant. Abbot should have been allowed to question the victim on this issue. A retrial is ordered.

United States v. DeGeorge

While Federal Rule of 404(b) generally prohibits evidence of other acts to show that a defendant has a character for committing those sorts of acts, evidence of other acts is admissible when the evidence is "inextricably intertwined" with the facts giving rise to the charges against the defendant. There are two categories of "inextricably intertwined" evidence: (1) evidence of other acts that form part of the transaction that serves as the basis for the criminal charge; or (2) evidence necessary for the prosecution to offer a coherent narrative regarding the commission of the crime. Here, the evidence fits the second category. The evidence concerning DeGeorge's previous boat losses was necessary for the prosecution to explain why the fraudulent scheme included sham transactions to hide DeGeorge's ownership of Principe. Without evidence that DeGeorge could not obtain insurance in his own name because of DeGeorge's previous boat losses, the prosecution's narrative of the fraud would not have made sense. The district court also properly took steps to minimize the prejudicial effect of the evidence by preventing the prosecution from presenting evidence that DeGeorge collected on the losses. DeGeorge's conviction is affirmed.