Is Swag Admissible in Court?

Three juveniles in Galveston, Texas allegedly committed a small-time burglary a couple of weeks ago.  They broke into an "amphibious vehicle" at a local water park and stole the fire extinguisher, doing some minor damage in the process.  They were captured on surveillance video, part of which is linked above.  

One of the suspects is apparently known throughout his high school for his "swag," or his "signature dance move," which he "regularly performs in the hall ways," according to the local Police Captain Jeff Heyse.  Apparently, someone who knows this kid's swag identified him to police and he was arrested.

So, the question, as presented by Lowering the Bar, the legal humor blog, is whether this video will be admissible to identify him based on his swag, even though his face is not clearly visible.  According to Lowering the Bar, it may be admissible under Texas Rule of Evidence 406, which says that "evidence of the habit of a person... is relevant to prove that the conduct of the person... on a particular occasion was in conformity with the habit or routine practice."

The Lowering the Bar blog notes that a creative defense lawyer would probably parade several witnesses through the courtroom and have them all perform this dance move in front of the jury to show that this kid's swag is not so distinctive after all.  

I wish I could think of a good catch phrase for the closing argument, similar to the Johnny Cochran classic "if it doesn't fit, you must acquit."  Anybody got one for me????????

Admissibility of Writings and Recorded Statements

I am slowly going through the new Illinois Rules of Evidence, which will become effective on January 1, 2011.  I will be writing about some of the more interesting ones.  The new rules are on the Supreme Court's website here.

Rule 106 concerns the remainder of writings and recorded statements. Here is the rule:

When a writing or recorded statement or part thereof is introduced by a party, an adverse party may require the introduction at that time of any other part or any other writing or recorded statement which ought in fairness to be considered contemporaneously with it.

This would probably not be an issue in a case where you have completed discovery. That way, if my opponent offers only part of a document, I will simply offer the rest of it during my case because I will have a copy going in.

But this rule could become useful in small claims court. I have seen lawyers try to introduce only parts of documents a couple of times. Mainly in credit card cases where the plaintiff only seeks to admit certain paragraphs or pages of the 25 page cardholder agreement.

With an objection under this rule, you would hope that they don't even have the complete document with them. That way even the portion that they have should be excluded.

New Illinois Rules of Evidence

The Illinois Supreme Court has announced the Illinois Rules of Evidence, which are effective January 1, 2011. 

Click here to see the new rules on the Supreme Court's website.

Authenticating Web Pages as Evidence

This is an excellent article concerning the authentication of web pages for evidentiary purposes written by M. Anderson Berry and David Kiernan. An excerpt--

Plaintiff sues your client, claiming that his injuries have significantly affected his lifestyle. He is unable to work, travel or bowl. Not surprisingly, his spouse alleges loss of consortium. On the eve of trial, you discover pictures and other details on a social networking website about plaintiff's recent trip to the International Bowling Museum & Hall of Fame, including a picture of plaintiff proudly holding a fluorescent orange bowling ball and a four-foot tall gilded trophy dated four days earlier. As you approach the witness with printouts of the web pages, you are stopped in your tracks: "Objection, lack of foundation."

The article contains tips for authenticating web pages pursuant to the Federal Rule of Evidence, easily adaptable for state court arguments. It also has an interesting section about court cases involving the Internet Archive, a digital archive of web pages that are no longer active.

Arpaio Deputies Caught in the Act

Last week I wrote a lengthy post on Sheriff Joe Arpaio and inferenced the notion that his office follows no rule of law. It is widely known out here in the southwestern desert that the Maricopa's Sherriff's Office do as they please.

Unbelievably, one of Sheriff Joe's Deputies were caught on tape. In this video, a defense attorney is speaking to the judge. Watch the Deputy in the back, walk towards the defendant, begin to peruse the attorney's files, call another Deputy over and then steal a few documents from her.

I'm sorry for dwelling on this guy, but you just can't make this stuff up.

UPDATE: CNN's Rick Sanchez reported and showed the video during CNN's Newsroom this afternoon, calling for the attention of the Justice Department.

Expert Testimony and the Dangers of Email

A case in Illinois has recently been brought to my attention. As most of us know, expert testimony is often times essential to proving a case.

In the case that I mentioned, correspondence between the experts through email was made public.

How you ask?

Through the Freedom of Information Act.

Most experts are considered as such due to their involvement in University research. Thus they are often times, in the cases of Public Universities, State employers. Thus their emails and who knows what else (notes, research, etc.) can be viewed as public domain and thus received through the Freedom of Information Act.

This obviously can be damaging to any case and I urge each of you to inform attorneys using experts to be aware.

Refresher Course - Hearsay

I knew a guy in college who decided to run from the police just to see if they would chase him. He had done absolutely nothing wrong, but he was walking past two police officers, made eye contact, and then took off running just to see if they would chase him. They did. But they didn't catch him. We all had a good laugh about that one. We never could figure out why they were chasing him. What my friend did not know was, that under Illinois' statutes, he could have been charged with resisting a peace officer (if they would have caught him).

The defendant in People v. Sorrels, 906 N.E.2d 788 (Ill.App. 4 Dist. 2009) was approached on foot by a police officer for no reason whatsoever. The police officer testified that he drove past a church and saw three men standing in the doorway. He circled the block and when he came back around, the three men were still standing in the doorway. So he decided to park his car and go investigate this outrageous and egregious display of three people standing on a sidewalk doing nothing wrong. Two men stayed, but one man ran. The officer yelled "stop," but the man did not stop. The police officer eventually caught the man. The man was arrested for nothing other than resisting a peace officer. He was eventually convicted.

Defendant appealed. One issue on appeal was whether the officer's testimony that he yelled "stop" was inadmissible hearsay. Hearsay, as you recall, is defined as an out-of-court statement offered to prove the truth of the matter asserted. The court, however, went on to explain that many out-of-court utterances fall within such categories as "greetings, pleasantries, expressions of gratitude, courtesies, questions, offers, instructions, warnings, exclamations, expressions of joy, annoyances, or other emotion, etc." The court found that such utterances "are not intended expressions of fact or opinion. They are not assertions, at least for purposes of the hearsay rule. Thus they are not hearsay."

I completely agree that the officer's statement is not hearsay, but I don't necessarily agree that you can simply say that greetings, instructions, warnings, etc. can never be hearsay. That seems a little too easy. Maybe if this appellate court would have written our evidence text book it wouldn't have been 1600 pages long.

They should make a movie.

I just read an interesting article about one of the most highly publicized criminal cases currently pending in Germany. Three men allegedly lowered themselves from the roof of one of Berlin's most luxurious department stores via ropes down into store's jewelry department, all the while evading the store's motion sensors.

After smashing the glass and stealing more than than $7 million worth of jewels, the men escaped. The police, however, found a glove at the scene that contained DNA. The DNA, however, belonged to two diferent people. The suspects were identical twins. Their DNA was indistinguishable.

The defendants were granted separate trials. Neither man could be conclusively linked to the scene, even though there is speculation that they were both there. Both men could argue that someone else's DNA was found at the scene. The charges were dropped and the men were released on Wednesday. The jewels have not been recovered.

Time reports that the statute of limitations for burglary cases in Germany is ten years. I wonder if these guys will be followed around for a while. More details here.

Discovery deposition of deceased plaintiff excluded from trial

The Illinois Trial Pracice Weblog has a great summary of a recent 5th District case which outlines the limited areas in which a discovery deposition transcript can be used as substantive evidence at trial.

To summarize briefly, the plaintiff in Berry v. American Standard, Inc. passed away before trial and before his evidence deposition was taken. He had been deposed in a discovery deposition however. The trial court barred the use of the discovery depostion at trial because "Supreme Court Rule 212(a)(5) bars that use where the deponent is a party to the action."

In affirming the trial court, the appellate court noted that none of the exceptions in Rule 212(a) applied (impeachment, admission, as an exception to the hearsay rule, for purposes for which affidavits may be used, or as former testimony if not by a party). The court also noted the purpose of the rule: "knowing in advance that a deposition is for discovery only and hence of limited availability, counsel ordinarily do not urge technical objections, and the taking of the deposition proceeds informally and expeditiously."

Please click here to read the original post from the Illinois Trial Practice Weblog.