EvidenceProf Blogtag:typepad.com,2003:weblog-14410662009-12-25T08:30:00-05:00A Member of the Law Professor Blogs NetworkTypePadEvidenceprofBloghttp://feedburner.google.comJust Forget It: Oklahoma Court Finds Calendar Entry About Nike Air Max 2 Shoe Purchase Admissible As A Recorded Recollection In Christmas Related Casetag:typepad.com,2003:post-6a00d8341bfae553ef0120a75c6639970b2009-12-25T08:30:00-05:002009-12-24T08:14:04-05:00Like Federal Rule of Evidence 803(5), 12 O.S.2001 Section 2803(5) provides an exception to the rule against hearsay for: A record concerning a matter about which a witness once had knowledge but now has insufficient recollection to testify fully and...Evidence ProfBloggerLater On, We'll Conspire: Court Of Appeals Of Indiana Notes That Statements After A Crime Has Been Perpetrated Cannot Be Co-Conspirator Admissionstag:typepad.com,2003:post-6a00d8341bfae553ef0120a77597fd970b2009-12-24T08:14:31-05:002009-12-23T09:04:46-05:00Like its federal counterpart, Indiana Rule of Evidence 801(d)(2)(E) provides that [a] statement is not hearsay if...[t]he statement is offered against a party and is... a statement by a co-conspirator of a party during the course and in furtherance of...Evidence ProfBloggerMistaken Identification: Supreme Court Of Utah Reverses Past Precedent, Allows Expert Testimony On Inaccuracy Of Eyewitness Identificationstag:typepad.com,2003:post-6a00d8341bfae553ef0120a7646716970b2009-12-23T17:25:44-05:002009-12-23T11:06:54-05:00I have done several posts on this blog (here, here, here, here, and here) about the inaccuracy of regular and cross-racial eyewitness identifications and whether expert testimony about this inaccuracy should be allowed. My general sense is that most courts...Evidence ProfBloggerThe Best Of Everything, Take 3: Evidence Professors Submit Amicus Brief In Best Evidence Casetag:typepad.com,2003:post-6a00d8341bfae553ef0120a7681f33970b2009-12-22T10:26:16-05:002009-12-22T10:28:28-05:00A few days ago, I posted an entry about the filing of a petition for a writ of certiorari with the Supreme Court in United States v. Smith, 2009 WL 1452045 (4th Cir. 2009), the case in which I think...Evidence ProfBloggerMake Me Whole, Take 4: Court Of Appeals Of Minnesota Calls Out Supreme Court Of Minnesota Over "Whole Person" Approach To Impeachmenttag:typepad.com,2003:post-6a00d8341bfae553ef0120a75c634b970b2009-12-22T10:13:55-05:002009-12-22T10:13:55-05:00Wow! I have railed against Minnesota's "whole person" approach to the felony conviction impeachment rule on several occasions, with my my most recent post on the topic coming a few days ago. Well, it appears that someone agrees with me....Evidence ProfBloggerIncomplete Ruling: Third Circuit Opinion Implies That Violations Of Rule 106 Can Never Lead To A Reversal On Appealtag:typepad.com,2003:post-6a00d8341bfae553ef0128765b6d11970c2009-12-21T08:15:07-05:002009-12-19T15:14:49-05:00Federal Rule of Evidence 106, the rule of completeness, provides that When a writing or recorded statement or part thereof is introduced by a party, an adverse party may require the introduction at that time of any other part or...Evidence ProfBloggerArticle Of Interest: No Strict Rules Of Evidence In Labor And Employment Arbitration, By Professor Michael Z. Greentag:typepad.com,2003:post-6a00d8341bfae553ef0128766aac2f970c2009-12-20T08:53:01-05:002009-12-20T08:53:01-05:00I have written several previous posts on this blog about cases in which the Federal Rules of Evidence or state counterparts do not apply (see, e.g., here, here, here, here, and here). What I have found in most of these...Evidence ProfBloggerMake Me Whole, Take 3: Minnesota Opinion Involves Yet Another Disastrous Application Of Minnesota's "Whole Person" Rationaletag:typepad.com,2003:post-6a00d8341bfae553ef01287631948c970c2009-12-19T09:49:24-05:002009-12-12T09:27:39-05:00I have done a couple of previous posts (here and here) about Minnesota's wrongheaded "whole person" approach to felony conviction impeachment, and I am going to continue posting about it until Minnesota courts abandon this horribly misguided approach. The latest...Evidence ProfBloggerNot So Refreshing, Take 2: Minnesota Opinion Reveals Difference Between Minnesota And Federal Rule of Evidence 612tag:typepad.com,2003:post-6a00d8341bfae553ef0120a72ea4a4970b2009-12-18T09:18:51-05:002009-12-12T09:48:56-05:00Federal Rule of Evidence 612 provides that if a "writing" is used to refresh a witness' recollection, an adverse party is entitled to have the writing produced at the hearing, to inspect it, to cross-examine the witness thereon, and to...Evidence ProfBloggerNot So Refreshing: New Jersey Opinion Reveals Key Difference Between Federal And New Jersey Rule of Evidence 612tag:typepad.com,2003:post-6a00d8341bfae553ef012876301b6a970c2009-12-17T09:26:15-05:002009-12-12T09:24:22-05:00Federal Rule of Evidence 612 indicates that: Except as otherwise provided in criminal proceedings by section 3500 of title 18, United States Code, if a witness uses a writing to refresh memory for the purpose of testifying, either-- (1) while...Evidence ProfBloggerThe Best Of Everything, Take 2: Federal Public Defender Files Petition For Writ Of Certiorari With Supreme Court In Best Evidence Casetag:typepad.com,2003:post-6a00d8341bfae553ef0120a75855b1970b2009-12-16T14:51:58-05:002009-12-16T14:51:58-05:00Back in June, I posted an entry about the Fourth Circuit's recent opinion in United States v. Smith, 2009 WL 1452045 (4th Cir. 2009). In Smith, Cordell Smith was convicted of possessing with intent to distribute a quantity of crack...Evidence ProfBloggerWaiving Away Uniformity: D.C. Opinion Reveals Why Rule 502 Will Not Harmonize Privilege Waiver Practicestag:typepad.com,2003:post-6a00d8341bfae553ef0120a73d7aab970b2009-12-16T11:48:13-05:002009-12-15T09:08:18-05:00The new Federal Rule of Evidence 502(b) provides that: When made in a Federal proceeding or to a Federal office or agency, the disclosure does not operate as a waiver in a Federal or State proceeding if: 1. the disclosure...Evidence ProfBloggerCuriosity Killed The Jury, Take 3: Baltimore Sun Lists Several Instances Of Technology-Assisted Jury Misconducttag:typepad.com,2003:post-6a00d8341bfae553ef0128764e1b9c970c2009-12-15T10:28:43-05:002009-12-15T10:28:43-05:00Is the jury system broken? I've done several posts over the last year about how new technologies are causing (or should be causing) mistrials across the country. Back in March, I posted an entry about jurors improperly exchanging e-mails during...Evidence ProfBloggerForfeit Victory: Florida Opinion Reveals That Florida Has Not Adopted The Forfeiture By Wrongdoing Doctrinetag:typepad.com,2003:post-6a00d8341bfae553ef0120a735c0de970b2009-12-14T16:06:14-05:002009-12-14T16:06:14-05:00Federal Rule of Evidence 804(b)(6), the forfeiture by wrongdoing doctrine, provides an exception to the rule against hearsay for A statement offered against a party that has engaged or acquiesced in wrongdoing that was intended to, and did, procure the...Evidence ProfBloggerHardwood, Hard Coaching: Sixth Circuit Finds Evidence Covered By Rule 407 In Corporal Punishment Appealtag:typepad.com,2003:post-6a00d8341bfae553ef012876486a1c970c2009-12-13T10:24:20-05:002009-12-12T16:40:55-05:00Federal Rule of Evidence 407 provides that: When, after an injury or harm allegedly caused by an event, measures are taken that, if taken previously, would have made the injury or harm less likely to occur, evidence of the subsequent...Evidence ProfBloggerThe Areas Of My Expertise: Fifth Circuit Reverses Expert Witness Ruling In Hurricane Katrina Related Appealtag:typepad.com,2003:post-6a00d8341bfae553ef01287604acb9970c2009-12-12T09:18:33-05:002009-12-12T09:18:33-05:00Federal Rule of Evidence 701 provides that If the witness is not testifying as an expert, the witness' testimony in the form of opinions or inferences is limited to those opinions or inferences which are (a) rationally based on the...Evidence ProfBloggerAllow Me To Demonstrate: California Case Reveals Lack Of Standards Governing Admissibility of Demonstrative Evidencetag:typepad.com,2003:post-6a00d8341bfae553ef0120a7198104970b2009-12-11T08:08:08-05:002009-12-11T08:08:08-05:00In contrast to testimonial or documentary evidence, demonstrative evidence is "principally used to illustrate or explain other testimonial, documentary or real proof, or judicially noticed fact. It is, in short, a visual (or other) sensory aid." A diagram of the...Evidence ProfBloggerConduit For Sale: Fourth Circuit Finds No Problem With Experts Relying Upon Testomonial Hearsay As Long As They Are Not Mere Conduitstag:typepad.com,2003:post-6a00d8341bfae553ef01287610d1e8970c2009-12-10T10:00:51-05:002009-12-10T10:00:51-05:00Federal Rule of Evidence 703 provides that: The facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by or made known to the expert at or before the hearing....Evidence ProfBloggerWholesale Changes: Supreme Court Of California Disapproves Of Prior Precedent In Attorney-Client Ruling In Costco Appealtag:typepad.com,2003:post-6a00d8341bfae553ef0128761be051970c2009-12-09T08:41:11-05:002009-12-09T08:41:01-05:00California Evidence Code Section 954, California's attorney-client privilege, indicates in relevant part that Subject to Section 912 and except as otherwise provided in this article, the client, whether or not a party, has a privilege to refuse to disclose, and...Evidence ProfBloggerThe Shrink(ing) Privilege, Take 2: New York Times Article Reports That Exceptions To Military Psychotherapist-Patient Privilege Are Hindering Therapytag:typepad.com,2003:post-6a00d8341bfae553ef0120a72dbeda970b2009-12-08T10:14:02-05:002009-12-09T14:49:21-05:00Although it was ultimately rejected, Proposed Federal Rule of Evidence 504 set forth a psychotherapist- patient privilege, under which A patient has a privilege refuse to disclose and to prevent any other person from disclosing confidential communications, made for the...Evidence ProfBlogger