Wasserman's Evidence

BP's fight over evidence of prior event

2012-02-10T15:17:00.000-05:00

This will be in Monday's Daily Business Review. Bet you can already predict Professor's questions if he picked out two of us to argue relevancy of BP's prior event!
"A federal judge has ruled out testimony about a deadly 2005 explosion at a BP refinery in Texas from the first phase of a trial over the oil giant’s liability for the 2010 oil spill in the Gulf of Mexico.
U.S. District Judge Carl Barbier in New Orleans decided evidence of BP’s “alleged prior misconduct,” including the Texas City refinery disaster that killed 15 workers, isn’t relevant in determining what caused the catastrophic blowout of BP’s deepwater well in 2010.
That’s the focus of the first of three phases of a trial scheduled to start Feb. 27.
However, Barbier said some of the evidence could become more relevant at a later phase of the trial if the judge weighs punitive damages or Clean Water Act penalties against BP."

Have a great weekend, gang.

For Tuesday

2012-02-10T12:33:00.002-05:00

Thursday audio.

On Tuesday, we will discuss the Sexual Assault rules. Consider how they fit together as a matter of policy and underlying rationales. Also, does the special treatment of prior acts of sexual assault make sense? We then will do the Relevancy Review, with some final questions showing how basic relevancy works. We then turn to Witnesses, which will consider not what facts we can prove, but rather the form that evidence takes and how it is presented. This will take us on to Thursday, where time permitting we will get to Introduction to Impeachment.

For Thursday

2012-02-08T10:11:00.002-05:00

Tuesday audio.

On Thursday, we will continue with FRE 407 and the rest of the policy-based exclusions. Be ready to talk about the rationales for each of these rules, both as to the truth-finding process and policies extraneous to truth-finding.

Time permitting, we will begin our conversation on Sexual Assault, which covers the rape shield (FRE 412) and special rules governing prior acts of sexual assault and child molestation (FRE 413-415). There are no problems associated with these rules; just read the rules, committee notes, and treatise pages.

Character Evidence and C. Anthony

2012-02-05T23:10:00.000-05:00

Putting any personal feelings about Casey Anthony aside, I think her case is a good example when the jury was able to ignore Casey’s character evidence. I just watched the interview on ABC given by one of the jurors. All the character evidence the prosecution was trying to bring in did not destruct this woman. I surely would not want to be in her shoes.
http://www.youtube.com/watch?v=Au8tu3HDssc

I imagine the prosecution tried to argue something similar to the FRE 404(b)(2) in bringing in Anthony’s prior acts. Chapter 90 of the Florida Statutes seems to mirror the federal rules. Fla Stat 90.404(2) has the same language about “motive, opportunity, intent, preparation, plan, knowledge, identity.” I think all seven would have worked.
http://www.leg.state.fl.us/Statutes/index.cfm?App_mode=Display_Statute&Search_String=&URL=0000-0099/0090/Sections/0090.404.html

FRE 404 v. FRE 406

2012-02-05T22:14:00.002-05:00

I came across the case of U.S. v. Silber (2012 WL 171397 (6th Cir. 20120)), which deals with the admission of evidence under FRE 404, 405 and 406. In this case, the defendant, Dr. Silber, was convicted of defrauding Medicare by prescribing expensive medication to homeless patients who did not need the medication.

In his defense, Dr. Silber relied on rule 404(2)(A) to introduce evidence of his “honest” character. This evidence consisted of showing that Medicare had not previously become aware of his overbillings. The Court disagreed and found that this evidence was not allowed because the rule provides that such evidence must be established through his “testimony about his reputation or by testimony in the form of an opinion.”

Dr. Siber, additionally, attempted to introduce the evidence under rule 406, which relied on his habit. I found this argument to be amusing, as he claimed he had a habit of being honest because Medicare had not previously discovered his actions. As we learned in class, the defendant needs to establish that an action is non-volitional in which we then consider the consistency, specificity, multiplication, and nature of the action.

Dr. Silber’s actions were clearly volitional as he had to prescribe the medication to his patients (which were unnecessary), dilute the medication, and administer the medication to his patients. All acts which consisted of Dr. Silber making a choice and then a decision.

104(a) - Privilege

2012-02-04T06:38:00.002-05:00

In a case challenging a new Florida voting law:

Ruling from the bench after a brief intermission, Hinkle said common law and long-standing precedent give state lawmakers and their staff members a qualified privilege not to disclose the reasons for their actions relating to legislation.

Though not an absolute privilege, Hinkle said plaintiffs — which also included the U.S. Department of Justice and the National Council of La Raza, a Hispanic voter advocacy group – -failed to make their case that the circumstances surrounding the request were so extraordinary that the court should overlook precedent that grants lawmakers wide latitude to keep their motivations private.

http://blogs.orlandosentinel.com/news_politics/2012/02/judge-lawmakers-staff-dont-have-to-answer-questions-about-voting-rights-bill.html?utm_source=feedburner&utm_medium=feed&utm_campaign=Feed%3A+news%2Fpolitics%2Fpoliticalpulse+%28Central+Florida+Political+Pulse%29

For Tuesday

2012-01-31T23:33:00.000-05:00

Tuesday audio. Remember, no class this Thursday.

We will continue with Habit/Routine Practice, starting where we left off on Question # 39 and The Shadow: If the prosecution's objection is that listening to a radio show is too non-volitional (even if "like a religion"), what is the defense's argument that this should come in under FRE 406. We will get through the remaining questions on Habit.

We then will move on to Policy-Based Exclusions, covering FRE 407-411. These rules exclude certain categories of evidence; each can be justified on two grounds: 1) Furtherance of the truth-finding process and 2) Service of social policies extraneous to the truth-finding process. What are the rationales for each of these rules, both as a way to discover the truth and as a way to serve other social values? Do the rationales make sense? Are the exclusions justified? Which rationale is stronger for each: the truth-finding rational or the social-policy rationale?

2012-01-30T17:28:00.000-05:00

In a Bell-esque case, here's an evidence decision the Daily Business Review is publishing Tuesday. DCA ruled you are allowed to combine bags of cocaine for a drug-trafficking charge, but other DCAs had tossed previous convictions for that practice. Florida Supreme Court will get a stab at it.

Case: Greenwade v. State

Opinion Issued: Jan. 24, 2011
Holding: The state may combineseized cocaine that is found separately packaged for purposes of testing andweighing, the 1st DCA held.

A jury found Baron Greenwade guilty oftrafficking cocaine in an amount in excess of 200 grams, but less than 400grams. The Jacksonville Sheriff’s Office had found nine bags of cocaine whileexecuting a search warrant on Greenwade’s home. They were stored together inone larger green bag that Greenwade admitted contained cocaine. Deputies alsofound a scale and a spoon with cocaine residue — “tools of the drug trade.”

Consistent with standard procedure, deputiesfield-tested each bag before combining the contents. The tests were positivefor cocaine. The forensic chemist tested and weighed the combined powder andconfirmed it contained cocaine. She did not test for purity.

Greenwade argued for an acquittal on thetrafficking charge because the state combined, tested and weighed the nine bagsinstead of testing each bag.

The 2nd and 3rd DCAs have reversed or reducedtrafficking charges when the contents of multiple bags were combined beforetesting.

But the 1st DCA refused to follow these courts.To do so would draw a baseless distinction between cases in which multiplepackages were found and cases in which only one package was found, Judge SimoneMarstiller wrote for the three-judge panel.

The contents of separate bags may be combinedso long as the circumstances surrounding the discovery and seizure allow areasonable conclusion they contained cocaine to be used in illegal drugdistribution, the court held.

Affirming Greenwade's conviction, the 1st DCA certified a conflict with the 2nd and 3rd DCAs.

For Tuesday

2012-01-27T12:06:00.001-05:00

Thursday audio. Remember that we will not have class next Thursday evening (February 2).

We will continue with Conditional Relevancy and how it connects with FRE 104(a) and (b). We then will move on to Habit and Routine Practice. Be sure to read the Committee Notes on FRE 406, which help to define habit and distinguish it from character.

If you are still having trouble with the difference between 104(a) and (b), give last night's class another listen or come see me.

For Thursday

2012-01-24T23:37:00.004-05:00

Tuesday audio.

On Thursday, we will continue with "other acts" evidence, then turn to Conditional Relevancy and FRE 104. Note that FRE 104 and FRE 404 then will tie back together, as the questions on this section will show.

There is a chance we will get through Conditional Relevancy and at least be ready to introduce Habit and Routine Practice. So read FRE 406 and the Advisory Committee Notes, but don't worry about prepping the questions for right now.

Gingrich and Marianne Hypo

2012-01-24T10:15:00.002-05:00

To answer Professor Wasserman’s last question about Marianne’s statement concerning Gingrich’s request for an open marriage, if Gingrich sued Marianne for defamation Marianne could claim “truth”as an affirmative defense. Since the burden would rest on Marianne to prove that Gingrich did make the request, Marianne may bring character evidence (unless there is a direct written or recorded statement made by Gingrich requesting an open marriage) of Gingrich’s adulterous past to show his preference for extramarital affairs. This would be evidence of the truthfulness of Marianne’s statement.

Under Rule 405(b), “When a person’s character or character trait is an essential element of a . . . defense, the character or trait may also be proved by relevant specific instances
of the person’s conduct.”

2012-01-22T12:44:00.002-05:00

I have watched the movie, Law Abiding Citizen, before and after Thursday’s class (1/19). In one of the scenes, the pro se defendant proclaims in court, “I am a law abiding citizen.” Before Thursday’s class, my reaction was “who cares?” After Thursday, I subconsciously add “and could not have committed those heinous crimes.” This is similar to question # 21 covered in class.

In addition, in one scene, the prosecutor said that the DNA evidence was inadmissible due to the exclusionary rule. Rule 402.

Gingrich and Defamation

2012-01-19T23:28:00.000-05:00

Let me weigh in on this very quickly to make a couple of points.

First, be careful when talking about whether someone can "offer evidence." The former Mrs. Gingrich can testify that her husband requested an open marriage. That testimony is evidence of the conversation and it is up to the jury to believe her. Someone who can testify to X based on her first-hand knowledge of X is giving evidence. There is no requirement that it be corroborated in order to be evidence.

Second, Gingrich is not going to sue because, as a public figure/public official, his burden is too high--he would have to prove the statements were knowingly false. And what is he suing over? Her statement that he is unfit to be president is a statement of opinion and cannot form the basis for defamation liability.

Third, what about her statement about the open marriage request? That is a statement of fact which Gingrich presumably would say is false. But this provides a nice example of what we ended class on tonight and will begin with on Tuesday: Is defamation a claim in which character is an essential element? Remember that the requirement for this is that character be a fact of consequence to be proved, not that character is being use to prove some fact. So, if Gingrich sues Marianne for defamation for saying that he requested an open marriage, is his character something that must be proven in the case?

For Tuesday

2012-01-19T23:16:00.005-05:00

Thursday audio. In thinking about class prep, it should be clear that you should be answering these questions with reference to the text of the rule. Any answer should be able to point to a rule and the relevant language and requirements/elements of a rule.

We will continue with character evidence, starting with the question of whether and when defamation generally is a claim in which character is an essential element and whether MacIntyre is a case in which character is an essential element. Note what turns on this: If character is an essential element, then you are outside the prohibition of FRE 404(a). When character is an element, you are not using evidence of a character trait to prove action in accordance with the trait, you are using evidence of a character trait to prove the character trait. So now that character trait can be proven by reputation, opinion, or specific instances of conduct.

We then will turn to FRE 404(b) and other acts evidence. Familiarize yourself with FRE 404(b) and its requirements, as well as U.S. v. Bell, which provides a nice gloss and elaboration on the requirements of FRE 404(b). This will take us through Tuesday.

For Thursday (for those of you reading ahead), we will start Conditional Relevance and FRE 104.

Probative vs. Prejudice

2012-01-19T20:20:00.001-05:00

In the Miami Herald article which reported that the 3rd DCA reversed a jury award in a age discrimination suit, I see that character traits of businesses are also protected by the courts.

See:
http://www.miamiherald.com/2012/01/19/2596332/reporters-age-bias-win-reversed.html

This case concerned a suit brought against WSVN by Marilyn Mitzel, a one-time popular personality of the station. The initial suit alleged age discrimination in that WSVN fired Mitzel because she was too old. She was 52 years old at the time. The plaintiff produced an expert witness who testified that WSVN staffed its stations with “sweet young things rather than
seasoned professionals.”

The appellate court ruled that the expert’s testimony “reached beyond the scope of this case
to come to conclusion she was not competent to reach, and served only to interject irrelevant conjecture into the jury’s consideration.” The two points that I get from this opinion is that 1)the
probative value of the “sweet young things” comment was far outweighed by the prejudicial
effect it would have against the defendant.

While the purpose of the statement may have been able to satisfy the relevancy test of Rule 401, Rule 403 ws an insurmountable barrier. If the comment was stated differently, such as “my studies have shown WSVN to consistently favor hiring women in the age range of 21-25,” then I believe that the court would not have made such a fuss about the testimony.

The court also held that the trial court erred by allowing the plaintiff to add a charge of sex discrimination late in the case. While this may have been a civil procedure matter on this issue, I can still see how allowing the sexual harassment claim to be entered late would be prejudicial to the defendant in its defense against the age discrimination claim. There was a good possibility that the appearance of sexual discrimination may cause the jury to want to punish the defendant in the age discrimination case, and not base its decision on its own merits.

Marianne Gingrich Interview – Defamation?

2012-01-19T20:17:00.000-05:00

Cherisse, I agree with your assessment that this could lead to a potential law suit for defamation. From the plaintiff’s side, the video certainly has probative value and is consequential to the potential claim that such statements harmed him, lowered him in the opinion polls and/or discouraged others from associating with him or dealing with him. From the defendant’s side, it will be interesting to see if Ms. Gingrich can provide any evidence of the “open marriage” request given that the conversation presumably took place in a private setting. My prediction: Mr. Gingrich will likely NOT pursue a law suit. Giving his track record, he has a strong interest in not unintentionally opening the door to admissible character evidence. He still has to protect his congressional reelection.

Marianne Gingrich interview - defamation?

2012-01-19T13:33:00.002-05:00

In MacIntyre v. Easterfield, we are still questioning whether it was Ross Easterfield’s aim to ensure that Jesse suffer and not be able to find a job in Nita County by giving her negative recommendations. After all, he only seems to be responding to questions that he is asked by prospective employers right?

Now let’s multiply that by 100 as Marianne Gingrich, the 2^nd ex-wife of Newt Gingrich sits down and gives an interview on ABC’s Nightline (tonight) telling the public what type of man Newt Gingrich “really” is. In her opinion he “lacks the moral character to serve as President.”

The most shocking allegation is that he requested an open marriage from her, with the woman he was cheating on her with (who is now his present wife Callista). In the public eye he campaigns on the “sanctity of marriage and the importance of family values.”

The interview is taking place before the South Carolina primary. She seems to be giving the interview from a perspective of wanting to educate the public on the type of man they are voting for. This is the 1^st TV interview she will give since their divorce in 1999. Unlike our case in class, she is giving this (negative) information to the general public.

Politics aside and from an evidence-class perspective, we start to look at issues in a different light anticipating the possible law suits that may be sparked from such an interview.

I am thinking defamation – as plaintiff, Mr. Gingrich would have to prove that the statements harmed him, lowered him in the opinion of others or discouraged others from associating with him or dealing with him. However, the other side of the argument is that substantial truth is a defense to defamation with the burden on the defendant.

I have posted a link with the preview to the interview.

http://abcnews.go.com/Blotter/exclusive-gingrich-lacks-moral-character-president-wife/story?id=15392899#.TxiAFW-vKSo

Cpt. Schettino

2012-01-18T17:48:00.003-05:00

One can only imagine the case that is building against the captain who is blamed for "human error" resulting in the unimaginable sinking of the Costa Concordia. Italian officials took him into custody and charges of manslaughter and abandoning ship are planned. From an evidence perspective, what "news" may become evidence ( if the case were theoretically prosecuted in Miami)? News organizations are scrambling to interview his colleagues and find out more about Schettino. What testimony could be relevant under R 401 or would Rule 404(a)(1) prohibit the admission of this evidence? If the evidence could be admitted, Rule 405 (a) could limit the testimony to reputation or opinion. With the number of interviews so far, Rule 403 could limit the amount of testimony to avoid needlessly presenting cumulative evidence. I don't know that I have any real answers but it does raise interesting questions that are on point to our current discussion.

For Thursday

2012-01-17T22:35:00.003-05:00

Tuesday audio.

We will continue with character evidence, starting with the requirement of a "pertinent trait" and how to tell whether a particular trait is pertinent. Be sure to continue reviewing the materials in MacIntyre, which we will begin talking about; know what the claims and defenses in the case are.

2012-01-17T19:53:00.000-05:00

I was part of a jury the summer before starting law school. We found the defendant guilty of first degree murder on mostly circumstantial evidence. The weapon was never found; there was no gunshot residue found on the defendant; and there was no eyewitness to the crime. The witness testimonies drew a chain of inference that placed only the defendant with the victim before and after he was shot because no one else had been in the room with the victim prior to the shooting and there was nowhere for anyone to go other than past a door where the employees would have seen them. The employees saw the defendant drive up and leave in the same car. With the car description and the tag #, police found the defendant a few hours later. Although the defense attorney argued that there was no evidence tying his client to the crime and did not really present a case, a lot of emphasis was placed by the jury on the fact that no one else was in the area at the time of the shooting and the defendant was the only person seen leaving the scene. The prosecution presented expert testimony to explain the evidence or lack thereof. The crime scene technician explained the lack of gunshot residue. The assistant medical examiner went over the cause of the victim’s death. The officers and employees went over the layout of the shopping center to prove that there was nowhere for anyone to enter and exit without being seen by the employees. The victim’s estranged wife provided a motive. Her testimony proved that her estranged husband knew she was dating the victim. Her house had been ransacked several times while she was not there. There was proof in her house of the person she was dating. There was no direct evidence linking the husband to these unauthorized entries into her home but he was the only person with a key to her home. In addition, the prosecution had a witness who tied the estranged husband to the defendant and to the car used in the crime. This witness was somewhat impeached by the defense attorney so her testimony really did not make that much of a difference during deliberations. The prosecutors blew up one of the crime scene photos of the victim and placed it on an easel in front of the jury for an entire day. It was gruesome but that fact never entered into deliberation and did not affect our verdict. I later met the defense attorney’s law clerk who was a visiting student at FIU. According to her, the defense team was shocked at the guilty verdict because they felt there was no evidence. As we’ve learned, circumstantial evidence does count. I also ran into one of the prosecutors and found out that the defendant was sentenced to life in prison. A lot of the evidence was stipulated to in advance. There were many, many sidebars over what other evidence should be admitted and sometimes the jury had to be excused. It was very difficult for the witnesses not to include testimony that was considered “hearsay.” It was obvious that the husband was also charged with the crime but nothing about that case was admitted. All in all, it was an interesting experience.

For Tuesday

2012-01-13T09:32:00.000-05:00

Thursday audio.

We will continue with Intro to Relevancy and those assigned questions. We then will begin our discussion of Character Evidence and Prior Acts, which will take us through next Thursday and into the following week. Note that the assignment includes reviewing the MacIntyre case file; pay close attention to what the claims and defenses in the case are. Note also that the Character section includes one case to read, United States v. Bell.

For Thursday

2012-01-10T22:24:00.002-05:00

Tuesday audio.

We will begin focusing on the Federal Rules of Evidence and Introduction to Relevance, relevance being the fundamental concept in evidence and everything else we'll do starting from that. Note that the Rules Enabling Act is on pp. 449-50 in the FRE Pamphlet. And again, be ready to go through those questions from the perspective of both parties. You should begin reviewing the case file and really familiarizing yourselves with the case.

Welcome to Evidence and the Evidence Blog

2011-12-12T15:34:00.004-05:00

Welcome to the FIU Evidence Blog. The blog serves several purposes in the class, which are discussed at length in the Syllabus, which you should download from the right side of the blog. Course materials (indicated as Blog in the Syllabus) can be downloaded at right.

Everyone must register as an author. To register as an author, please send an e-mail to me (howard.wasserman@fiu.edu). In the subject line, type “Evidence Blog Registration;” in the body of the e-mail, please type your name and your e-mail address. You then will receive an e-mail “Invitation” inviting you to join as an author on the blog. Follow the steps in the invitation e-mail to register (under your full name, no handles or usernames) as an author. Please register under your full (first and last) name, not initials or nicknames or usernames.

Once you have registered, take a few minutes to explore how to write a post. Note that you can put up photographs and video. You also can put web links in the text by highlighting the text you want to use for the hyperlink and clicking the "Link" button.

Name cards

2011-12-12T15:33:00.001-05:00

At our first meeting on January 10, there will be a stack of name cards on the table in the front of the classroom. When you come to the room, please find the card with your name on it and place it in front of you at your seat. You will be responsible for keeping that card and having it with you at every class.

If you are not yet registered for the class (or are shopping classes), a card will be made once you have registered.

Course Materials and First Class Assignments

2011-12-12T15:32:00.003-05:00

Please download and read the Syllabus (from the right side of the blog) for complete details about the course, assignments, pedagogical approach, and grading methods. You should bring the Syllabus with you to every class.

Required Class Materials
1) Robert P. Burns, Steven Lubet, and James H. Seckinger, Evidence in Context (4th ed. 2010) (NITA) (Case files and problems)
(Note: You must get the 4th edition, from 2010--the old 2004 edition will not work).
2) Federal Rules of Evidence (2011) (Rules Pamphlet)
3) Graham C. Lilly, Daniel J. Capra, and Stephen A. Saltzburg, Principles of Evidence (5th ed. 2009) (West) ("LCS")
4) Additional statutes, cases, and other materials can be downloaded from this blog at right, under "Course Materials."

The focus of this course will be on the Federal Rules of Evidence and the two case files in Evidence in Context; the criminal case is State v. Mitchell and the civil case is MacIntyre v. Easterfield. Class discussions will focus primarily on discussing the rules and answering evidentiary questions under the Rules, based on those case files. Your class preparation should focus on 1) Thorough familiarity with the text and history (from the Advisory Committee Notes) of each assigned rule; 2) Thorough, in-depth familiarity with the facts and details of both case files so you can prepare and discuss the questions in class; 3) Arguments and answers for the assigned questions from the perspective of the opponent and proponent of a piece of evidence.

You should write-out the answers to the evidence questions prior to class. You must bring your FRE pamphlet with you to every class, have it open to the assigned rules, and be ready to closely examine the text of the Rules.

"Reading" an assigned rule or statute means understanding the rule; by the time you come to class, you should be able to discuss and explain what the rule or statute says and means and how it applies.

All rules and commentary are contained in the Federal Rules of Evidence pamphlet. On December 1, 2011, the Restyled Federal Rules of Evidence took effect. This project rewrote all of the rules, modernizing language and usage and restructuring rules into sub-parts. The goal was to clarify the language and structure and make the Rules easier to understand and use, while not changing the meaning or application of any rules. We will be working with the new Rules, which are contained in Part II of the pamphlet, in a chart laying out the new language next to the old language for each rule. This is the part of the pamphlet you should be working with in class.

When a rule is assigned, you should read the text of the rule first, then read the Advisory Committee Notes (which are in Part III of the Pamphlet), then go back and read the rule again. “Reading” a rule means understanding the rule; by the time you come to class, you should be able to paraphrase the rule in plain English and discuss and explain what it says and means and how it will apply. Again, you must have your rules pamphlet with you for every class and it should be tabbed, dog-eared, and marked-up.

Assignments for First Day of Class:

1) Fed. R. Evid. 101-102, 611, 614 (Read from the Restyled version in Part 2 of Pamphlet)
2) LCS 1-7, 11-16, 65-67
3) Case File: People v. Mitchell: Begin to familiarize yourself with the basic facts/information on the case.
4) Damaska, Presentation of Evidence and Factfinding Precision (Blog)
5) Pizzi and Montagna, The Battle to Establish an Adversarial Trial System in Italy (Blog)
6) Asimow, Popular Culture and the Adversary System (Blog)
7) Sklansky and Yeazell, Comparative Law Without Leaving Home (Blog)

Additional Notes:
No laptops permitted in the classroom.

Please be on time unless it is unavoidable. Please do not leave once class has begun, unless absolutely necessary.