Saturday, November 27, 2010
New Jersey Rule of Evidence 406 provides that
(a) Evidence, whether corroborated or not, of habit or routine practice is admissible to prove that on a specific occasion a person or organization acted in conformity with the habit or routine practice.
(b) Evidence of specific instances of conduct is admissible to prove habit or routine practice if evidence of a sufficient number of such instances is offered to support a finding of such habit or routine practice.
Meanwhile, N.J.S.A. 2A:18-61.1(j) provides that
No lessee or tenant or the assigns, under-tenants or legal representatives of such lessee or tenant may be removed by the Superior Court from any house, building, mobile home or land in a mobile home park or tenement leased for residential purposes...except upon establishment of one of the following grounds as good cause:
j. The person, after written notice to cease, has habitually and without legal justification failed to pay rent which is due and owing.
So, what does the definition of "habit" in New Jersey Rule of Evidence 406 tell us about the definition of "habitually" under N.J.S.A. 2A:18-61.1(j)? According to the recent opinion of the Superior Court of New Jersey, Appellate Division, in Matthew G. Carter Apartments v. Richardson, 2010 WL 4739934 (N.J.Super.A.D. 2010), the answer is "a great deal."
Friday, November 26, 2010
Confusion Causin' Pollution: Court Of Appeals Of Indiana Finds Rule 407 Applies In Insurance Coverage Dispute Cases
When after an event, measures are taken which, if taken previously, would have made the event less likely to occur, evidence of the subsequent measures is not admissible to prove negligence or culpable conduct in connection with the event. This rule does not require the exclusion of evidence of subsequent measures when offered for another purpose, such as proving ownership, control, or feasibility of precautionary measures, if controverted, or impeachment.
Rule 407 is typically associated with personal injury and other negligence cases, but does it also apply in insurance coverage dispute cases? According to the recent opinion of the Court of Appeals of Indiana in State Auto. Mut. Ins. Co. v. Flexdar, Inc., 2010 WL 4723188 (Ind.App. 2010), the answer is "yes."
Thursday, November 25, 2010
Federal Rule of Evidence 414(a) provides that
In a criminal case in which the defendant is accused of an offense of child molestation, evidence of the defendant's commission of another offense or offenses of child molestation is admissible, and may be considered for its bearing on any matter to which it is relevant.
Rule 413, like its counterparts Rules 414 and 415, was enacted in 1994 as part of the Violent Crime Control and Law Enforcement Act of 1994. The drafters' purpose was to supersede Rule 404(b)'s prohibition on evidence of like conduct showing propensity in sexual assault and child molestation cases. Of course, evidence sought to be admitted under Rule 414(a) is still subject to Federal Rule of Evidence 403, which provides that
Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.
But when is evidence of past sexual crimes "unfairly" prejudicial, presenting a problem under Rule 403, and when is it merely "highly" prejudicial? That was the question addressed by the recent opinion of the Second Circuit in United States v. Davis, 2010 WL 4366481 (2nd Cir. 2010). And I would say that the court got it wrong.
Wednesday, November 24, 2010
Double Your Hearsay: SDNY Finds Customer Complaints In Business Records Inadmissible In Action Against MTA
Federal 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, or by certification that complies with Rule 902(11), Rule 902(12), or a statute permitting certification, unless the source of information or the method or circumstances of preparation indicate lack of trustworthiness.
The rationale behind the Rule is that employees of a business have an interest in recording events accurately to ensure that the business functions smoothly. Conversely, customers of that business have no similar interest, so customer complaints are not admissible under this Rule. Instead, they are hearsay within hearsay and inadmissible unless they meet an independent exception to the rule against hearsay as is clear from the recent opinion of the United States District Court for the Southern District of New York in Rivera v. Metropolitan Transit Authority, 2010 WL 4545579 (S.D.N.Y. 2010).
Tuesday, November 23, 2010
The Invention Of Lie Detection: Dr. William Marston And The Creation Of The Lie Detector Test, Frye, & Wonder Woman
I recently came across an interesting piece of information: Wonder Woman's creator, Dr. William Moulton Marston, created not only her Lasso of Truth, but also the systolic blood pressure test, i.e., the predecessor to the modern lie detector (polygraph) test. The systolic blood pressure test should be familiar to those who have taken Evidence in law school because it was the subject of the landmark expert evidence opinion, Frye v. United States, 293 F. 1013 (D.C. Cir. 1923).
Apparently, Marston was both a graduate psychology and law student at Harvard in 1915 when he began working on his blood pressure approach to deception (Marston eventually got his law degree in 1918). He got the idea for a lie detection machine based upon blood pressure after his wife, Elizabeth, suggested to him that "When she got mad or excited, her blood pressure seemed to climb." Marston eventually created his systolic blood pressure test, and,"[a]ccording to Marston..., he and his colleagues tested a total of 100 criminal cases in Boston criminal court, and his systolic blood pressure test led to correct determinations in 97 of them...." Dr. Marston soon thereafter either coined the phrase "lie detector" himself or adopted it from a reporter to whom he described the wonders of his device. See Vincent V. Vigluicci, Note, Calculating Credibility: State v. Sharma and the Future of Polygraph Admissibility in Ohio and Beyond, 42 AKRON L. REV. 319, 321 (2009).
Monday, November 22, 2010
Car And Driver: Court Of Appeals Of Texas Lays Out Corroborating Circumstances Test For Statements Against Interest
Texas Rule of Evidence 803(24) provides an exception to the rule against hearsay for
A statement which was at the time of its making so far contrary to the declarant's pecuniary or proprietary interest, or so far tended to subject the declarant to civil or criminal liability, or to render invalid a claim by the declarant against another, or to make the declarant an object of hatred, ridicule, or disgrace, that a reasonable person in declarant's position would not have made the statement unless believing it to be true. In criminal cases, a statement tending to expose the declarant to criminal liability is not admissible unless corroborating circumstances clearly indicate the trustworthiness of the statement.
So, when do the corroborating circumstances clearly indicate the trustworthiness of the statement? That was the question addressed by the recent opinion of the Court of Appeals of Texas, Amarillo, in Rodriguez v. State, 2010 WL 4628580 (Tex.App.-Amarillo 2010).
Sunday, November 21, 2010
A memorandum or record concerning a matter about which a witness once had knowledge but now has insufficient recollection to enable the witness to testify fully and accurately, shown to have been made or adopted by the witness when the matter was fresh in the witness's memory and to reflect that knowledge correctly. If admitted, the memorandum or record may be read into evidence but may not itself be received as an exhibit unless offered by an adverse party.
So, when does a witness have "insufficient recollection" for Rule 803(5) purposes? Must the witness have no present knowledge of the pertinent information, or is it enough if the witness has insufficient recollection to testify fully and accurately? As the recent opinion of the Court of Appeals of Indiana in Horton v. State, 2010 WL 4634609 (Ind.App. 2010), makes clear, Indiana courts used to apply the former standard but now apply the latter standard.