EvidenceProf Blog

Breaking Down the Three Charges Against Derek Chauvin

EvidenceProf Blog

On Monday, there will be closing arguments in the Derek Chauvin trial. In this post, I will break down the three charges that Chauvin faces in connection with the death of George Floyd. Second Degree Murder First, Chauvin is charged

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Court Circumscribes Firearm Toolmark Testimony in Murder Trial

EvidenceProf Blog

With firemark toolmark testimony, a ballistics expert testifies that a particular shell casing came from a particular gun. Here is how we described it in our recent Undisclosed series about the Darrell Ewing trial: When Derrico Searcy was arrested for

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Judge Grants Keith Davis a New (Sixth) Trial

EvidenceProf Blog

Today, Judge Sylvester Cox granted the motion of Keith Davis Jr. for a new trial (Download Motion for new trial). Amelia McDonell-Parry covered Keith's case on the Undisclosed podcast. Keith's case is far too complicated to cover in a single

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Fifth Circuit Grants Qualified Immunity To Officers Who Tased Man Soaked in Gasoline, Knowing it Would Light Him on Fire

EvidenceProf Blog

The qualified immunity doctrine insulates governmental agents from liability for unconstitutional acts as long “as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” The primary purpose of the doctrine

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Building a 5-Star Online Reputation for Your Business

Speaker: Brent Werbeck, GetMoreReviews Co-Founder

Trying to figure out how to turn your happy customer’s comments into 5 star reviews may seem like a daunting task. From internal feedback to Google reviews, what is "really" the way to go? Join Brent Werbeck, Co-Founder of Get More Reviews, in this discussion of how to foster and grow your business's 5-star online reputation.

Rarer Than Steak Tartare: Former New York Prosecutor Suspended 2 Years for Brady Violation

EvidenceProf Blog

They say* the only thing rarer than steak tartare is a prosecutor being disciplined for failing to disclose material exculpatory evidence pursuant to Brady v. Maryland. But the case of Glenn Kurtzrock is an exception. A petition, filed by the

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Undisclosed Mega-Update Thread 8

EvidenceProf Blog

On Friday, July 16, 2020, DA Keith Higgins moved to drop charges against Dennis Perry because the evidence doesn't support a case against Perry for the murders of Harold and Thelma Swain. Assuming the judge signs off on the motion

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Supreme Court of Oregon Holds a 10-2 or 11-1 "Not Guilty" Vote is a "Not Guilty" Verdict and Not a Hung Jury

EvidenceProf Blog

In Ramos v. Louisiana, the Supreme Court held that "if the Sixth Amendment’s right to a jury trial requires a unanimous verdict to support a conviction in federal court, it requires no less in state court." Before, this opinion, a

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Tenth Circuit Finds Trial Court Properly Denied Tiger King's Motion to Sequester Carole Baskin at his Trial

EvidenceProf Blog

Federal Rule of Evidence 615 provides that At a party’s request, the court must order witnesses excluded so that they cannot hear other witnesses’ testimony. Or the court may do so on its own. But this rule does not authorize

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Supreme Court of Minnesota Finds Sex With a Victim Who Has Blacked Out From Drinking is Not Criminal Sexual Conduct

EvidenceProf Blog

609.341, subd. 7 states that "Mentally incapacitated" means that a person under the influence of alcohol, a narcotic, anesthetic, or any other substance, administered to that person without the person's agreement, lacks the judgment to give a

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Process Serving Made Easy: Serve in All 50 States Using One Platform

Speaker: PROOF

PROOF has revolutionized service of process. Using our online platform, create serve requests nationwide and receive live updates with mapped verification of each attempt. PROOF’s technology provides users with complete transparency from start to finish.

Second Circuit Holds District Court improperly Precluded Psychiatrist From Answering PTSD Hypothetical

EvidenceProf Blog

Federal Rule of Evidence 704(b) provides that In a criminal case, an expert witness must not state an opinion about whether the defendant did or did not have a mental state or condition that constitutes an element of the crime

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Court of Appeals of Alaska Finds the 12 Step Drug Recognition Evaluation Protocol is Scientific Evidence Subject to the Daubert Standard

EvidenceProf Blog

What is a drug recognition evaluation (DRE)? The DRE protocol, which is also known as the Drug Influence Evaluation, consists of twelve steps: (1) a breath alcohol test to rule out alcohol as the source of the driver's impairment; (2

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Western District of Virginia Finds Jurors Accusing Latinx Juror of Applying Mexican Law Doesn't Trigger Pena-Rodriguez

EvidenceProf Blog

Federal Rule of Evidence 606(b) states the following: (b) During an Inquiry into the Validity of a Verdict or Indictment. (1) 1) Prohibited Testimony or Other Evidence. During an inquiry into the validity of a verdict or indictment, a juror may

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Sixth Circuit Finds Detective's Statements Didn't Violate Rule 704(a)

EvidenceProf Blog

Federal Rule of Evidence 704(a) provides that An opinion is not objectionable just because it embraces an ultimate issue. So, would it violate this Rule, in a prosecution of a defendant for possessing a firearm after being convicted of a

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Wills, Trusts, and Estates: The Essentials of Wealth Management

Speaker: Vi Pham, Attorney at Law

Wealth management is a guaranteed practice: as paralegals, it's essential that you know the complexities of wealth management in order to ensure that your client's rights are protected to their fullest extent. Join Vi Pham, Attorney and educator, in this exclusive webinar that will leave you feeling brushed up and ready. This seminar meets the requirements of the NALA Certifying Board for continuing legal education credit required to maintain the CP (Certified Paralegal) credential.

North Carolina Governor Roy Cooper Gives a Pardon of Innocence to Ronnie Long

EvidenceProf Blog

Today, North Carolina Governor Roy Cooper issued a Pardon of Innocence for Ronnie Long, whose case we covered on the Undisclosed Podcast: So, why is this a big deal? On August 26th, the United States Court of Appeals for the

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Southern District of Mississippi Rejects Reptile Theory Evidence

EvidenceProf Blog

Reptile strategy has taken the plaintiffs' bar by storm. The Reptile theory asserts that you can prevail at trial by speaking to, and scaring, the primitive part of jurors' brains, the part of the brain they share with reptiles.

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Ninth Circuit Grants Qualified Immunity to LAPD Detectives Who Used Psychological Torture to Get a False Confession From a 13 Year-Old

EvidenceProf Blog

The qualified immunity doctrine insulates governmental agents from liability for unconstitutional acts as long “as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” The primary purpose of the doctrine

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Superior Court of Pennsylvania Holds That Own Witness Impeachment Doesn't Require Surprise or a Hostile Witness

EvidenceProf Blog

Like Federal Rule of Evidence 607, Pennsylvania Rule of Evidence 607(a) provides that Any party, including the party that called the witness, may attack the witness’s credibility. Federal courts have held with regard to own witness impeachment by a prosecutor

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Undisclosed Mega-Update Thread 7

EvidenceProf Blog

On December 17, 2020 North Carolina Governor Roy Cooper issued a Pardon of Innocence for Ronnie Long. And yesterday, a settlement was reached, pursuant to which Chester Hollman III will be awarded $9.8 million for his 28 years of wrongful

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Colorado Court of Appeals Finds Fifth Amendment Guarantees the Contemporaneous Advice of Counsel on a Question-by-Question Basis

EvidenceProf Blog

The Fifth Amendment privilege against self-incrimination provides that No person.shall be compelled in any criminal case to be a witness against himself. So, does the Fifth Amendment also guarantee a testifying witness the contemporaneous advice of counsel — on a

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Judge Makes Key Evidentiary Rulings in George Floyd Trial

EvidenceProf Blog

Everyone likely learned about the George Floyd case last year, with Derek Chauvin eventually charged with second-degree unintentional murder and second-degree manslaughter in connection with his death and his fellow police officers J. Alexander Kueng and Thomas Lane being charged

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Eastern District of Pennsylvania Deems Nolo Contendere Plea Inadmissible Against Possible Plaintiff

EvidenceProf Blog

Federal Rule of Evidence 410(a)(2) provides that In a civil or criminal case, evidence of the following is not admissible against the defendant who made the plea or participated in the plea discussions: a nolo contendere plea. As I noted

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Case Illustrates Difference Between Federal & Indiana Rule of Evidence 704(b)

EvidenceProf Blog

Federal Rule of Evidence 704(b) states that In a criminal case, an expert witness must not state an opinion about whether the defendant did or did not have a mental state or condition that constitutes an element of the crime

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District of Delaware Deems Doctor's Testimony Under Rule 704(b)

EvidenceProf Blog

Federal Rule of Evidence 704(b) provides that In a criminal case, an expert witness must not state an opinion about whether the defendant did or did not have a mental state or condition that constitutes an element of the crime

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Court Finds Judge's Questions to Fingerprint Expert Threw Shade on the Defense, Requiring a New Trial

EvidenceProf Blog

Federal Rule of Evidence 614(b) states that "[t]he court may examine a witness regardless of who calls the witness." California does not have a direct counterpart to Rule 614(b), but Section 775 of California's Evidence Code states that The court

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The Pervis Payne Case Comes Full Circle

EvidenceProf Blog

In its 1987 opinion in Booth v. Maryland, 482 U.S. 496 (1987), the Supreme Court "conclude[d] that the introduction of a [victim impact statement] at the sentencing phase of a capital murder trial violates the Eighth Amendment." Four year later

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Central District of Illinois Finds Rule 615(b) Only Covers One Officer/Employee

EvidenceProf Blog

Federal Rule of Evidence 615 states that At a party’s request, the court must order witnesses excluded so that they cannot hear other witnesses’ testimony. Or the court may do so on its own. But this rule does not authorize

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Southern District of Florida Distinguishes Demonstrative Aids From Demonstrative Exhibits

EvidenceProf Blog

What's the difference between a "demonstrative aid" and a "demonstrative exhibit"? That was the question addressed by the United States District Court for the Southern District of Florida in its recent opinion in Apple, Inc. Corellium, LLC, 2021 WL

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My First Post on the Changes to Federal Rule of Evidence 404(b)

EvidenceProf Blog

Federal Rule of Evidence 404(b) has been amended, effective December 1, 2020. Here's the new version of the Rule (with markups from the old Rule): In the next few posts, I will go through the changes to Rule 404(b). First

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Louisiana State University, Paul M. Hebert Law Center Seeks An Evidence Professor

EvidenceProf Blog

LOUISIANA STATE UNIVERSITY, PAUL M. HEBERT LAW CENTER seeks to hire pre-tenure or tenured lateral faculty members in constitutional law, criminal law and procedure, federal courts and procedure, evidence, and professional responsibility. Applicants should have a J.D. from an ABA-accredited

Judge Gives an Implicit Bias Jury Instruction in the Derek Chauvin Trial

EvidenceProf Blog

Today, the judge in the Derek Chauvin trial gave an implicit bias jury instruction. Here was the instruction: I think these instructions are a good addition to the standard jury instructions. Indeed, in my new article, "The Constitutional Right to

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The Supreme Court Issues a (Possibly) Landmark Ruling on Qualified Immunity

EvidenceProf Blog

Yesterday, the United States Supreme Court issued a summary disposition in McCoy v. Alamu that could end up being a landmark ruling on qualified immunity. So, what is qualified immunity? As the Supreme Court explained in Mullenix v. Luna, 577

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Texas Court of Appeals Finds Sergeant Improperly Opined on Defendant's Guilt

EvidenceProf Blog

Can a witness testify that he believes the defendant is guilty? For example, consider the following testimony by a sergeant at the trial of Charles Reedy for the murder of Glen Burford: Q. Have you had training and experience in

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Colorado Court of Appeals Finds Trial Court Can't Rely on Additional Race-Neutral Reasons Given on Remand in Resolving Batson Claim

EvidenceProf Blog

In Batson v. Kentucky, the Supreme Court "ruled that a State may not discriminate on the basis of race when exercising peremptory challenges against prospective jurors in a criminal trial."* Under Batson, once the opponent of a peremptory challenge has

My Fifth Post on the Changes to Federal Rule of Evidence 404(b)

EvidenceProf Blog

As noted in Friday's post, Federal Rule of Evidence 404(b) has been amended as of December 1, 2020. The Rule now states: (b) Other Crimes, Wrongs, or Acts. (1) 1) Prohibited Uses. Evidence of any other crime, wrong, or act is

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