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| Deborah J. Merritt
Moritz College of Law
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9/22/2008 | Rule 502 Takes Effect | | | 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 |
9/19/2008 | Judicial Notice and Online Sources | | | 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 |
9/15/2008 | A New Twist on 911 Calls | | | 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 |
9/15/2008 | Brain Scans to Prove Guilt? | | | 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 |
9/8/2008 | Status of Proposed Rule 502 | | | 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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