Evidence in the News

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Jurors Questioning Witnesses
Posted: 10/11/2008

The Seventh Circuit's "American Jury Project Commission" has released a report analyzing several facets of the jury system. The Commission analyzed 50 different jury trials conducted in the federal courts of the Seventh Circuit. Jurors, attorneys, and judges completed questionnaires about the trial process.

In some trials, judges allowed jurors to submit written questions to witnesses. Judges, attorneys, and jurors all responded favorably to this technique. Based on those surveys, the Seventh Circuit Commission "strongly recommends use of this procedure in future state and federal jury trials." P. 15.

Follow the link below to the full report, giving more detail on this recommendation and several others.

Read more: Jury Project Report

The Confrontation Clause and the Jailhouse Snitch
Posted: 9/30/2008

The Eighth Circuit's decision in United States v. Honken, 2008 WL 4181150, offers a colorful example of a wrongdoer's admission to a jailhouse informant. The government charged Dustin Honken and Angela Johnson with murdering five people. While in jail awaiting trial, Johnson met another prisoner, Robert McNeese. McNeese told Johnson that another inmate, who was already serving a life sentence, could take the rap for her and Honken by confessing to the murders. To make the confession realistic, McNeese told Johnson, she should supply information about where the murder victims were buried.

Johnson obligingly drew a map showing the location of the victims' graves. She also provided information about the victims' appearance. McNeese turned the information over to prison authorities, who used it to locate the bodies. The location and condition of bodies matched the information given by Johnson.

The government tried Honken and Johnson separately for the murders. Johnson refused to testify at Honken's trial, claiming her Fifth Amendment privilege. The government then offered Johnson's map and other notes against Honken. Honken objected on hearsay and Sixth Amendment grounds.

We discuss the district court's disposition of Honken's objection in Chapter 55. The court correctly ruled that Johnson's map and other notes were not admissible as the statements of a co-conspirator. There was no evidence that a conspiracy still existed when Johnson drew the map or that she was acting in furtherance of that conspiracy. The court, however, properly admitted the evidence as statements against penal interest.

The Eighth Circuit affirmed the latter decision and addressed the admissibility of this evidence under the Sixth Amendment. Although McNeese may have intended to obtain information that the government would use at trial, so that Johnson's statements were "testimonial" from his perspective, Johnson's viewpoint was different. She did not believe that she was making a "solemn statement" or providing information that would be used at trial. On the contrary, she believed she was speaking to a confidante who would help her and Honken escape trial.

Like other courts that have considered this issue, the Eighth Circuit held that Johnson's perspective controlled the Sixth Amendment analysis. From her perspective, the map and other notes did not satisfy any of the criteria associated with testimonial statements. Admitting that evidence against Honken, therefore, did not violate the Confrontation Clause.

Thanks to the Federal Evidence Review for the text of the opinion.

Read more: United States v. Honken

Rule 502 Takes Effect
Posted: 9/22/2008

On September 19, President Bush signed the law authorizing new Federal Rule of Evidence 502. The final text of the rule remains unchanged from the Judicial Conference's proposal. Congress, however, added a "Statement of Congressional Intent" to the rule. This explanatory material supplements the Advisory Committee's note.

The final text of the Rule and the Statement of Congressional Intent are available in the Congressional Record. The U.S. Courts website has created a pdf of the relevant pages, which you can link to below.

Read more: Congressional Record

Judicial Notice and Online Sources
Posted: 9/19/2008

Federal Rule of Evidence 201 allows judges to take judicial notice of facts that are "capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned."

The rule allows judges to take judicial notice of a fact reported on a website, as long as the site meets Rule 201's high accuracy standard. Several courts have cited websites to support judicially noticed facts. See, e.g., Citizens for Peace v. City of Colorado Springs, 477 F.2d 1212 (10th Cir. 2007).

At least two appellate decisions, however, rein in use of websites to support judicial notice. In Victaulic Co. v. Tieman, 499 F.3d 227 (3d Cir. 2007), the Third Circuit criticized the district court's reliance upon a defendant's commercial website to support a judicially noticed fact. Anyone, the court noted, may purchase an internet address and publish information on the web. A company's website is no more likely than its marketing brochures to contain reliable information. Both often contain puffery, rather than statements reaching the high accuracy level demanded by Rule 201.

In Badasa v. Mukasey, No. 07-2276 (8th Cir. Aug. 29, 2008), the Eighth Circuit went further, remanding a decision in which the trial court had taken judicial notice of information contained in Wikipedia. Drawing upon Wikipedia's own description of its authorship and editing practices, the court raised several questions about the source's reliability.

These opinions, of course, refer only to particular web sources. Web sites, like books and other materials, cover a spectrum of reliability. The easy availability of web-based information makes it an appealing source for judicially noticed facts. But when drawing information from the internet, judges and parties should follow the same caution that they exercise with other sources.

For more information on this topic and these cases, see the post in the Federal Evidence Review Blog that is linked below.

Read more: Internet and Rule 201

A New Twist on 911 Calls
Posted: 9/15/2008

Joe Stalnaker, an Arizona resident, trained his dog Buddy to dial 911. Stalnaker suffers from repeated seizures from a head injury; to protect himself, he trained Buddy to recognize seizure symptoms and press programmed numbers to reach 911.

Buddy has already made three 911 calls for Stalnaker. In the most recent, made last week, Buddy barked and whimpered in response to the operator's requests. An emergency team reached Stalnaker in time to take him to the hospital.

Is a canine call to 911 hearsay? Under Federal Rule 801(a), only a "person" can make a statement, so apparently not. Judges and scholars have assumed that animals are too honest to invoke hearsay concerns. But if dogs are smart enough to call 911, are they also smart enough to lie?

Read more: Rover, Call Me an Ambulance

Brain Scans to Prove Guilt?
Posted: 9/15/2008

Scientists continue to work on technologies that they claim will literally read minds. One, the Brain Electrical Oscillations Signature (BEOS) test, measures electrical signals to determine whether a person remembers a particular event. Some police investigators hope to use the technology to probe whether a suspect remembers details of a crime. If the BEOS test identifies a memory, that memory offers evidence that the suspect committed the crime.

According to an article in the International Herald Tribune, India is the only country that allows BEOS evidence in court. And in June, India became the first country to convict a defendant based on BEOS evidence.

The state accused Aditi Sharma of poisoning her former fiance by feeding him arsenic-laced food at a local McDonald's. Sharma denied the accusations and submitted to a BEOS test. According to the prosecutor, the test showed that Sharma remembered purchasing arsenic, meeting her ex-fiance at the McDonald's, and poisoning him food. A judge convicted Sharma, relying primarily on the BEOS results.

For further discussion of this technology, its potential, its shortcomings, and its implications, see the International Herald Tribune article below.

Read more: India

Status of Proposed Rule 502
Posted: 9/8/2008

The House of Representatives today approved proposed Rule of Evidence 502, which limits inadvertent waivers of the attorney-client and work-product privileges. The Senate approved the rule (S. 2450) in February. Since the rule affects a privilege, it required affirmative action by Congress.

President Bush is expected to sign the bill during the next few weeks. The new rule will take effect immediately.

For the text of the rule and its history, see the U.S. Courts website linked below. This site is an excellent resource for information on proposed and pending Rules of Evidence.

Read more: Federal Rules Website

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