Marquette University Law School Faculty Blog

As most students at Eckstein are frantically and diligently studying to ensure we put forth our best efforts during this finals period, I can’t help but think about the certain “presumptions” built into our institution of law. Numerous assumptions and presumptions are used in many different areas of law, but they seem to be accentuated when looking at the Federal Rules of Evidence.

Let’s look at Federal Rule 801 2(b), for instance. Is it really true that a failure to respond makes for an adopted admission? Those who have had, or have, a significant other: have you ever been silent to an assertion made by your significant other? I’m assuming that, like me, you remained silent not because you wanted to tacitly give your approval of the assertion, but rather because you wanted to save the feelings of your significant other, or eliminate a needless argument. I am aware that most things that end up in court may not be so trivial, but nevertheless this example popped into my head rather quickly without much thought. I am sure that the same could be said for many others, and it is the basis of the presumption in general I find unreliable.

Let’s turn to another presumption by looking at Federal Rule 804(b)(2), the “Dying Declaration.”   Read more »

What do you remember about November 29, 1995? That was the day when one of the jurors in Jesse Webster’s drug trafficking trial was out sick. The next day, with all twelve jurors again present, Webster was convicted. Many years later, Webster claimed in a petition for post-conviction relief that the eleven jurors who showed up on November 29 improperly proceeded with deliberations that day at the direction of a rogue bailiff.

In response to the petition, an investigator tracked down the jurors to ask them what they recalled about November 29, 1995. The interviews took place between 2001 and 2006. (Evidently, the investigation was not exactly a high priority.) The results, as the Seventh Circuit put it with considerable understatement in an opinion last week, were a “mixed bag”:

The first question was: “The court records show that on one day one of the jurors did not appear. Do you recall any such time when that might have occurred?” Seven jurors said they did not recall a juror being absent; four jurors said they did. Of the four who did remember a juror’s absence, three recalled that an alternate juror replaced the absent juror, a claim wholly unsubstantiated by court records. One of the four thought the juror was absent on the day before Thanksgiving; another claimed the juror was absent on the first two days of deliberations. Two correctly recalled that the absent juror was male; one said the absent juror was female. The second question was: “Do you recall being sent home early because of this juror’s absence?” The jurors answered either “no” or that they did not recall.

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The Supreme Court continues to refurnish the modern courtroom with eighteenth-century antiques. Without the slightest glint of irony, or even humor, the Court assessed the admissibility of twenty-first century scientific evidence using legal doctrine crafted on parchment with quill pens in an age when mirrors were placed to direct sunlight into the face of the accused at trial. (Why the mirrors at a time when the accused could not testify in his defense anyway? That’s another story.)    

In its June 23, 2011 decision in Bullcoming v. New Mexico http://www.supremecourt.gov/opinions/10pdf/09-10876.pdf the Supreme Court once again addressed the admissibility against the accused of lab reports prepared by analysts who do not testify at trial. The report was offered through a “surrogate witness.” Bullcoming was charged with drunken driving. A blood test pegged his BAC at 0.21, “an inordinately high level,” as the Court helpfully observed. At trial, however, the State did not call as a witness “Caylor,” the lab analyst who measured the BAC. Caylor, it seems, was enjoying an “unpaid leave for a reason not revealed” – always an intriguing “uh oh” when assessing credibility. Instead, the State called another lab “scientist” who had not observed Caylor’s testing of Bullcoming’s sample but who could talk about lab procedures and the reliability of the report in general. The Court tells us that a “startled defense counsel” objected. (N.B. How the Court knew she was “startled” is unclear, but it is abundantly clear that the confrontation right requires only a timely objection by counsel, startled or unstartled.) Read more »

In late January the “tort reform” package imposed the staid Daubert rules on the Wisconsin Rules of Evidence. Now it’s spring, although the weather feels a lot like January, and we must get serious about what to do with this gift that the judiciary did not want. The new rules require that expert testimony be based on demonstrably reliable methods and principles. To be determined is whether Wisconsin will be a “strict” or a “lax” Daubert jurisdiction — whatever that is. It is worth noting that the first wave of Wisconsin Daubert cases, which will likely set the mold for what follows, are also those that least interested the tort reformers, namely, criminal cases and “chapter 980” sexually violent offender cases.

Right now, however, we are in a state of nature, legally speaking. Case law under the relevancy test, the current standard, is of little avail. And while the new rules are copied from the federal rules, state courts are not bound by federal precedent (yes, that includes Daubert itself!). Last week alone I spoke at two conferences, one a large, attentive gathering of state judges in Elkhart Lake and the other an even larger, equally engaged joint convocation of state prosecutors, public defenders, and private defense counsel here at Eckstein Hall. There is a clamor for answers and a discernable unease about what to do. Read more »

In some ways I should be grateful for doctrinal train wrecks. Messy case law provides endless excuses for writing articles and blog posts as well as delivering lectures that purport to see “the way” through the swamp. Like a child’s kaleidoscope, such cases offer something different for everyone to see, and no one is clearly wrong. Yet Supreme Court opinions are not solely intended for the entertainment of academics or the bewilderment of law students and lawyers.

Of the three metaphors I used in the preceding paragraph, a “train wreck” is the most apt way to describe Michigan v. Bryant, the Supreme Court’s latest attempt to illuminate the interrelationship between the hearsay rules of evidence and the Sixth Amendment’s confrontation right. “Swamp” and “kaleidoscope” are apt, but “train wreck” best captures the real cost of confusion. Bryant not only failed to illuminate a much-rumored “dying declaration” exception to the confrontation right, it also raises considerable confusion about what constitutes the “testimonial hearsay” that is protected by the confrontation right in the first place. For the defense lawyers and prosecutors who must eat this mush (fourth metaphor) every day, you have my best wishes and these words of solace.

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Well, that didn’t take long.  In its first week of political life, the new legislature has proposed sweeping “tort reform” legislation.  The compass of the 30-plus page bill is manifold, embracing punitive damages, fee shifting, product liability claims, and damages caps.  What interests me more, however, are proposed changes to the Wisconsin Rules of Evidence governing expert opinion testimony.  For years, some have bemoaned Wisconsin’s failure to adopt the so-called Daubert rule (see below), an often restrictive, ad hoc standard that ostensibly identifies those “reliable” expert methodologies worthy of consideration by the courts.  Unreliable methods, of course, are excluded.  And while courts and commentators still debate how one goes about reliably identifying reliable methodologies, Wisconsin will apparently make up for lost time by not only adopting Daubert, but also go it one better by requiring that expert methodologies be “true” as well as reliable.

True in what sense you ask?  Well, it’s unclear, although I concede it has a nice Old Testament ring to it and the idea that courts should use “true” evidence is appealing in all senses of that word.  While you’re pondering what “true” might mean (and I still am), let me offer some background. Read more »

Last weekend I had the pleasure to participate in a conference sponsored by the Wisconsin Association of Criminal Defense Lawyers entitled, “Whatever Happened to the Science in Forensic Science?”  The conference centered upon the 2009 report by the National Academy of Science (NAS) that confirmed suspected and significant concerns about how the criminal justice system had been using science for decades.   And as if the NAS report wasn’t bleak enough, a number of speakers pointed to looming problems with DNA evidence, heretofore the vaunted “gold standard” for forensic science, and even with medical experts who diagnose child abuse.  In sum, the whole field is starting to resemble a mass of toxic Hungarian red sludge that is oozing over and through the law’s inadequate bulwarks.  (And no, I don’t believe that the answer is the Daubert “reliability” standard, which has proven to be ineffectual in most ways and pernicious in others.) 

 Kudos for organizing the conference go to Amelia Bizzaro (Law ‘03).  The conference drew excellent criminal lawyers and forensic experts from across the country (Boston, New York, Phoenix) as well as locally talented lawyers, such as Jerry Buting and Craig Albee.  Professor Paul Giannelli (Case Western) spoke about the NAS report itself while I discussed its impact on Wisconsin law governing expert evidence.  Paul and I agreed that the NAS report itself could be used to cross-examine forensic experts about deficiencies in their methodologies and theories, an inexpensive yet effective way of putting this information before a jury. Read more »

Thanks to Colin Miller over at the Evidence Prof Blog who has an interesting post up today at Feminist Law Professors about an evidence issue near and dear to my heart in a recent employment gender discrimination class action, E.E.O.C. v. Bloomberg L.P., 2010 WL 3466370 (S.D.N.Y. 2010) (can’t find a non-pay version, sorry). The case involved allegations by the EEOC that the company had engaged in multiple forms of pregnancy and sex discrimination against 58 female employees.

At issue specifically was whether the court should allow in so-called “social framework evidence.” As Melissa Hart and I described in our recent article, A Matter of Context: Social Framework Evidence in Employment Discrimination Class Actions, 78 FORDHAM L. REV. 37, 39 (2009), such evidence involves using general research results to construct a frame of reference or background context for deciding factual issues crucial to the resolution of a specific case.  More specifically, in employment discrimination cases, we wrote: “Social framework evidence, offered by qualified social scientists, plays a central role in modern employment discrimination litigation. By offering insight into the operation of stereotyping and bias in decision making, social framework experts can help fact finders to assess other evidence more accurately.” Read more »

I’ve blogged on a number of occasions about the messy state of the law relating to the admissibility of “other bad acts” evidence (e.g., here and here).  Federal Rule of Evidence 404(b) indicates that other bad acts may not be used against a criminal defendant to show bad character or a propensity to commit crime.  However, the Rule includes a number of exceptions, and courts have not only tended to interpret those exceptions expansively, but have also recognized an additional exception for evidence that is “inextricably intertwined” with proof of a charged offense.

Given the expansively interpreted exceptions set forth in Rule 404(b) itself, the inextricable intertwinement exception seemed to me an unnecessary and confusing addition to the law.  The Seventh Circuit has now indicated its agreement with that view.   Read more »

Chief among the bundle of rights one obtains in property ownership is the right to exclude others from the use and enjoyment of that property.  This “sole and despotic dominion” that an individual commands over their property is placed in danger, of course, when the property becomes subject to the wants and needs of others.  Absent the owner’s consent (as in the case of licensing) or operation of law (as with adverse possession), a property owner would be able to bring an action for trespass for such intrusions.

A judge holding a defendant liable for trespass perhaps carries the vision of plaintiffs having their rights vindicated, but cases do not end at liability.  The judge must also determine whether further remedies beyond damages are appropriate, including whether a permanent injunction should issue.  Such is a weighty decision touches upon an extraordinary remedy: a court order that a defendant must cease and desist its illegal activity or face punishment for contempt.   That being said, in many property cases, a court order only issuing damages would effectuate a judicial licensing of the behavior.  With that result, the incentives are adjusted such that the right to exclude does not rest with the plaintiff; instead, it is determined only by the extent to which the defendant is willing and able to engage in the trespassing behavior.  As such, the courts have presumptively treated infringement of property rights as worthy of injunctive relief.

That has also been the rule in copyright infringement cases for the last few decades.  Read more »

The Supreme Court was not the only court wrestling this week with the admissibility of crime-lab evidence.  A day after the Justices heard oral argument in Briscoe v. Virginia, the Seventh Circuit decided United States v. Turner (No. 08-3109).  Both cases put into question the vitality of Melendez-Diaz v. Massachusetts, 129 S. Ct. 2527 (2009).

A jury convicted Turner of selling crack to an undercover police officer.  The drugs were sent to the Wisconsin State Crime Laboratory, where they were analyzed by a chemist named Hanson, who confirmed that they were indeed crack.  The government intended to call Hanson to testify to this effect, but she went on maternity leave before the trial.  So Hanson’s supervisor, Block, was summoned instead.  Based on Hanson’s notes and data, Block testified that he agreed with her conclusion that the drugs were crack.

On appeal, Turner argued that Block’s testimony violated Melendez-Diaz.  Read more »

The Seventh Circuit had only one new opinion in a criminal case this week, and it is not one in which the court broke new legal ground.  In United States v. Harris (No. 07-4017) (Williams, J.), the court affirmed the defendant’s convictions for drug trafficking and unlawful gun possession.  The defendant raised various evidentiary objections on appeal, including a challenge to the use of other bad acts evidence against him.  Specifically, the government introduced evidence of prior drug sales perpetrated by Harris in order to show that he intended to distribute the drugs he was charged with possessing.

Litigation over other bad acts seems a routine feature of appeals in drug-trafficking cases.  As I suggested in this earlier post, it strikes me that the Seventh Circuit has pretty well interpreted the Rule 404(b) restrictions on evidence of other bad acts out of existence, at least in drug cases.  Although not as broadly worded as some other opinions, nothing in Harris seems inconsistent with the view that drug defendants are unlikely to find success with their Rule 404(b) arguments on appeal.