Questions that Reiterate Defendant’s Testimony not an Attack of Character

A prosecutor’s line of questioning during cross-examination did not call into question the defendant’s character, thereby preventing the defendant from offering two character witnesses

State v. Issacson, 2017 UT App 1. 

The Utah Court of Appeals found that the trial court did not abuse its discretion in excluding the testimony of the defendant’s character witness because the prosecution did not call into question the character or truthfulness of the defendant during cross-examination. The defendant was convicted of carrying a loaded and concealed weapon after being spotted at a city library with a handgun in his jacket pocket. During the bench trial, the defendant stated that he did not think he needed a concealed-carry permit because of the Second Amendment Right to bear arms. Additionally, the defendant sought to produce two character witnesses to testify on his truthfulness and his ability and knowledge of the concealed carry laws. The trial court reserved a ruling on the witnesses after the prosecution objected to the use of the testimony of the witnesses, who were neither at the scene of the crime nor would have relevant testimony to the elements of the crime.  The court later granted the objection after the prosecution cross-examined the defendant and prevented the witnesses from testifying.

Under Evidence Rule 608, evidence of the defendant’s character’s reputation or truthfulness may be admitted, but only after the character was attacked. The Court of Appeals affirmed the trial court’s ruling, finding that the prosecution’s line of questioning, including specific questions regarding the finances of the defendant did not “suggest that [the] defendant was lying about his finances or….that he was being untruthful about anything.” Rather, the questions “merely reiterated” the responses that the defendant gave in his testimony to the defense counsel’s questions. Since the defendant’s reputation was not attacked, the trial court did not abuse its discretion in excluding the defendant’s character witnesses


https://www.utcourts.gov/opinions/appopin/State%20v.%20Isaacson20170106.pdf

Jury Allowed to Determine Whether Deleted Email Existed

A district court did not abuse its discretion in admitting testimony regarding the existence of an email that was missing because it would be possible for a jury to determine whether it existed

United States v. Wilde, 2017 BL 3483, 9th Cir. App., No. 15-10302, 1/9/17.

The Ninth Circuit held that a district court did not abuse its discretion in allowing evidence regarding the existence of an email that implicated the state of mind of the defendant in a murder case. The circuit court found that the trial court “exercised its gate-keeping function under Rule 104(b) and determined a reasonable jury could conclude that the disputed email existed.” Additionally, the Ninth Circuit found that the trial court did not commit plain error by not instructing the jury that it should determine whether the email existed before weighing the contents of the missing email. The court stated, “[B]ecause the testimony made clear that there was no record that the contested email was sent or received and its existence was hotly contested, no rational juror would rely on its alleged contents if he or she did not first conclude that it had in fact existed; any instruction to that effect thus could not have made a difference.”

Conversations from Facebook Admissible in Child Pornography Case

“Facebook Chat” messages are admissible in court when they are properly authenticated using extrinsic evidence

United States v. Browne, 2016 BL 276680, 3d Cir., No. 14-1798, 8/25/16.

   The Third Circuit held that messages from “Facebook Chat” are admissible in court when they are authenticated using extrinsic evidence. The government at trial argued that the evidence was self-authenticating under the “business records” rule under the Federal Rules of Evidence 902(11). Although the messages were later certified by a “Facebook records custodian,” the business records exception could not apply because Facebook did not “purport to verify or rely on the substantive contents of the communications in the course of its business.” Instead, the records expert could only testify to the accuracy of the Facebook accounts at a particular time, not to the content of the messages.

   Although the business records exception did not apply, extrinsic evidence presented in court was “more than sufficient extrinsic evidence to link” the defendant to the explicit messages.

http://www.bloomberglaw.com/public/document/United_States_v_Browne_No_141798_2016_BL_276680_3d_Cir_Aug_25_201.