“Plain Hearing” Rule Used to Make Evidence Admissible

“Plain Hearing” Rule Used to Make Prosecutors “may” be able to admit evidence from a legal wiretap that includes conversations of people targeted conspiracy not included in the Admissible

 United States v. Carey, 2016 BL 291176, 9th Cir., No. 14-50222, 9/7/16.

The Seventh Circuit found that evidence collected from an untargeted person under a legal wiretap may be admissible under a “plain hearing” rule. The court found that the plain hearing rule was a logical corollary to the “plain-view” rule that allows police to collect evidence from things in plain sight during a legal search. The court based its decision on dicta from an earlier case where the court suggested that the plain hearing rule “is just the plain view doctrine translated from the visual to the oral dimension.”

The court cautioned, however, that this rule is not without limits. In one such example, the court noted that the police cannot collect incriminating information from people once they realize the audio being captured is unrelated to the wiretap warrant.

http://www.bloomberglaw.com/public/document/United_States_v_Carey_No_1450222_2016_BL_291176_9th_Cir_Sept_07_2.

Spouses May Consent to Child Porn Searches on Home Computers

A wife had the legal authority to consent to the search and seizure of her husband's electronic devises that contained child pornography.

 

United States v. Thomas, 2016 BL 103144, 11th Cir., No. 14-14680, 4/1/16

     The Eleventh Circuit Court of Appeals ruled that the evidence found on his computer should not be suppressed because his then-wife shared authority and access over the home and the computers inside. Any search made prior to the prisoner revoking consent was within the Fourth Amendment.

     The court found it 'particularly significant that Thomas did not protect his Internet history from [his wife] by maintaining a separate login name and password or by encrypting his files.'

http://www.bloomberglaw.com/public/desktop/document/United_States_v_Thomas_No_1414680_2016_BL_103144_11th_Cir_Apr_01_?1462392789

Iowa's Medical Hearsay Rule Stays Firm

An attacker-identifying statement made by an adult victim of domestic abuse to a health-care professional is not automatically admissible.

 

State v. Smith, 2016 BL 66012, Iowa, No 13-1202, 3/4/16

     The Iowa Supreme Court ruled that even though statements made by child victims to health-care providers are routinely admitted, identifying statements made by adult victims will not be automatically admissible.

     The state wanted to court to follow other jurisdictions, including the 10th Circuit, which allow these identifying statements because the identity of the abuser is pertinent and necessary to the victim's treatment. However, the court ruled that it would require the state to prove on a case-by-case basis how the identification of the abuser was necessary to provide treatment.

http://www.bloomberglaw.com/public/desktop/document/State_v_Smith_No_131202_2016_BL_66012_Iowa_Mar_04_2016_Court_Opin?1458314791

Prosecutor's Undercover Facebook Chats Deemed Unethical

Using a fake Facebook identity to talk to alibi witnesses is unethical behavior for a prosecutor.

 

Disciplinary Council v. Brockler, 2016 BL 66525, Ohio, No. 2015-0280, 2/25/16

     The Ohio Supreme Court ruled that no matter the intentions of a prosecutor, there is no public policy exception for the Ohio prosecutor who used fake Facebook accounts to speak with alibi witnesses. The Ohio Supreme Court ruled that the fake Facebook account violated Ohio Rule of Professional Conduct 8.4(c) dishonesty, fraud, deceit, or misrepresentation. The court refused to recognize a public policy exception that would permit deceptive prosecutorial investigative tactics.

      This ruling is similar to the 2002 case in Colorado where a prosecutor was suspended for pretending to be a public defender to talk a suspect into giving himself up. See, In the Matter of Mark C. Pautler.

http://www.bloomberglaw.com/public/desktop/document/Disciplinary_Counsel_v_Brockler_2016Ohio657_Ohio_Feb_25_2015_Cour?1457969598

The plain language of Utah Rule of Evidence 403 is the legal standard, nothing more or less.

 

State of Utah v. Cuttler, 2015 UT 95 

    The Utah Supreme Court overturned the district court's determination that propensity evidence could be allowed. The district court had looked to "factors set forth in State v. Shickles[,] 760 P.2d 291 (Utah 1988)," but the Utah Supreme Court indicated that the text of rule 403 controls and that anything beyond or below that is the wrong legal standard and an abuse of discretion. The Utah Supreme Court held that "courts are bound by the text of rule [of evidence] 403, not limited lists of considerations used in cases."

http://www.utcourts.gov/opinions/supopin/State%20v.%20Cuttler20151224.pdf

Carter v. Utah - Rule60(b)

Limits to additional evidence given under Rule 60(b) motions.

Carter v. Utah, 2015 UT 38.

Carter was convicted of 1st degree murder and sentenced to death in 1985. The testimony of a couple, the Tovars, was integral to the conviction. They testified that they received nothing in exchange for their testimony other that the standard $14 fee for court-ordered witnesses. In 2011 the Tovars indicated that during the trial, decades earlier, the Police had given them various forms of remuneration. Carter made several motions with regard to this "new" evidence.

The District court denied Carter's rule 60(b) motion attempting to overturn a denial of post-conviction relief. The Utah Supreme Court affirmed this ruling that the motion was made in an untimely fashion.

The Court clarified that rule requires that the motion "be made within a reasonable time, and the 60(b)(6) exception may be used only if the ground asserted for relief is not "one other than those listed" in the preceding subsection. This is to ensure that the ninety-day limitation for submitting motions is not circumvented. See Kanzee v. Kanzee, 668 P.2d 495, 497 (Utah 1983) (holding that because appellant asserted grounds for relief that were listed in subsection (1), the appellant was “not entitled to use [rule 60(b)(6)] to circumvent the three-month limitation”).

The fact that the evidence is new because of the prior suppression by the state is not convincing for the Court to rule in favor of his motion. The statute does not differentiate between various types of newly discovered evidence. Carter's 60(b) motion was brought more than two years after the judgment, long after the ninety-days had passed.

2. District court dismissed Carter's successive post-conviction petitions for lack of subject matter jurisdiction because the case-number was not assigned to the court. The Utah Supreme Court reversed this dismissal. The district court did have jurisdiction over the petition in question, regardless of the case number assigned to it.

“[T]he concept of subject matter jurisdiction relates to the relationship between the claim and the forum that allows for the exercise of jurisdiction.” Johnson v. Johnson, 2010 UT 28, ¶ 9, 234 P.3d 1100. The Court stated that "it has nothing to do with the case number assigned to a particular pleading." The assignment of a case number is a ministerial duty and does not effect the jurisdiction of a case and, if done erroneously, is a clerical error not a jurisdictional defect.

http://www.utcourts.gov/opinions/supopin/Carter150220.pdf

Michigan v. Mitchell Jordan Young - Captions with Photographic Evidence

Photographic evidence with captions that accurately relay the evidence are proper.

Michigan v. Mitchell Jordan Young

This case arises from the brutal murder of a man, and the attacks on his wife and son in Farmington Hills, MI. The defendant argues that the prosecutor was relaying their personal opinion of the defendant’s guilt through the use of photographs with accompanying text. The court determined that as long as an image and caption “accurately relays the evidence presented through the use of photographs with accompanying text. The court determined at trial,” will not be deemed improper.

Even when photographs of a victim are graphic they will be accepted in court when they “mirror[] the photographs already admitted into evidence.” According to People v. Howard, 226 Mich App 528, 550; 575 NWnd 16 (1997) autopsy photographs that depict injury and are probative to intent can be admitted. As long as the photographs are properly admitted in the first place, they may be used in court even if they arouse the emotions of the jury, so long as it is not because of the use of text to “modify” the photograph.

The defendant relies on In re Glasman, 175 Wash.2d 696, 706; 286 P.3d 673 (2012) (en banc), to argue that the prosecutor’s photograph captions are “the equivalent of unadmitted evidence” that indicate the prosecution’s personal opinion of the defendant’s guilt. The court in this case, however, ruled that since the text in the photographs only “recited admitted evidence and reasonable inferences from that evidence” there is no issue.

http://www.michbar.org/opinions/appeals/2014/122314/58991.pdf