Articles Posted in Evidence

Remember that under Mil. R. Evid. 1102, any changes to the federal rules become effective in court-martial practice 18 months after federal enactment, unless the President directs changes.  So, federalevidencereview brings us:

Public Comments Critical Of Proposed Amendment To FRE 801(d)(1)(B) (Prior Consistent Statement) (Part IV)

Under what circumstances may prior consistent statements be considered? A proposed amendment under consideration would broaden the use of prior consistent statements. Public comment on the proposal ends today. While few comments have been received, the comments question the necessity of any amendment.

No, not that Army running thing.

Hash Values Used To Confirm Seized Video Clips And Images

h/t federalevidence review

A cynic will remark that the government’s argument on an issue can be reduced to, “we are the government, we win.”  I have noted that “talismanic incantations” from the government should be challenged as just that and the government should be challenged to actually lay out the evidence or specific theory to support their argument.

Here is a case which reminds us.

The trial court held that inevitable discovery led to defendant’s computer getting seized, but there was no evidence that supported that, just argument. Defendant did not consent to a search of his laptop merely by telling the police where it was when they asked. That proves nothing of voluntariness.State v. Wells, 2013 N.C. App. LEXIS 121 (February 5, 2013)

The public comment period on a pending amendment to the business record and public record hearsay exceptions under FRE 803(6), (7), (8) expires next week on February 15, 2013. To date, there appears to be no opposition or controversy to the amendment as no public comments have been submitted.

The pending amendment concerns the trustworthiness requirement for the business and public records hearsay exceptions under FRE 803(6), (7), (8). Specifically, the amendment would clarify who holds the burden of proof to show lack of trustworthiness. The proposed amendment would modify this requirement for each rule as follows (noting strike out for deletions and underline for insertions):

The business or public record is admissible where the foundational requirements are met and "neither the opponent does not show that thesource of information nor or the method or circumstances of preparation indicate a lack of trustworthiness."

Keep in mind that an adopted change goes into effect 18 months after adoption, absent Presidential action to the contrary.

Michael H. Graham (University of Miami – School of Law) has posted two articles on "other crimes" evidence under Federal Rule of Evidence 404(b) on SSRN. The first is Other Crimes, Wrongs, or Culpable Acts, Fed.R.Evid. 404(B): ‘Defining’ a New Paradigm (Criminal Law Bulletin, Vol. 47, p. 998, 2011). Here is the abstract:

Commentators addressing the incredible theoretical and functional difficulties surrounding the long accepted general principal that while other crimes, wrongs, or culpable acts are not admissible to prove the character of a person in order to show action in conformity therewith, such evidence may “be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident,” Fed.R.Evid. 404(b), have more or less thrown in the towel reverting to the bromide that fundamentally it all is a question of proper application of discretionary balancing, basically some version or another of Fed.R.Evid. 403. Such an approach is recommended by those adopting a totally theoretical approach to the enterprise as well not surprisingly also by the two commentators, Imwinkelried and Leonard, who have authored treatises devoted solely to the subject.

The second is Reconciling Inextricably Intertwined/Intricately Related Other Crimes, Wrongs, or Culpable Acts Evidence with Fed.R.Evid. 404(B): Don’t Throw the Baby Out With the Bath Water (Criminal Law Bulletin, Vol. 47, p. 1258, 2011). Here is the abstract:

Federal Evidence Review has this list of issues they see as important in the coming year.

Note item 2 was decided by the Supremes 9 January, with a ruling that the accused bears the burden to establish withdrawal from conspiracy.

Similar to its federal counterpart, Minnesota Rule of Evidence 803(6) provides an exception to the rule against hearsay for

A memorandum, report, record, or data compilation, in any form, of acts, events, conditions, opinions, or diagnoses, made at or near the time by, or from information transmitted by, a person with knowledge, if kept in the course of a regularly conducted business activity, and if it was the regular practice of that business activity to make the memorandum, report, record, or data compilation, all as shown by the testimony of the custodian or other qualified witness, unless the source of information or the method or circumstances of preparation indicate lack of trustworthiness.

After he was convicted, the appellant appealed, claiming, inter alia, that the State failed to lay a proper foundation for admission of the transaction journal as a business record under Minnesota Rule of Evidence 803(6).