Hypothetically Summing Up Case Improper

The prosecution may not ask a hypothetical question to an expert that would ask them to assume a piece of disputed evidence as fact.

State v. Simms, 2016 BL 78140, N.J., No A-14, 3/15/16

     The New Jersey Supreme Court ruled that experts are forbidden to summarize disputed evidence or give opinions on ultimate issues that most jurors could resolve without any help. It also indicated that prosecutors may not use an expert's hypothetical as a proxy for closing argument.

     "A hypothetical question in a drug case should not be used as a prosecutorial tool to sum up an entire case in a single question for the purpose of eliciting an expert's opinion on a defendant's guilt," the court ruled. In this case, the hypothetical question was improper because it called on the expert to assume facts that weren't established through testimony.

http://www.bloomberglaw.com/public/desktop/document/State_v_Simms_No_A14_September_Term_2014_2016_BL_78140_NJ_Mar_15_?1459440312

Wittnesses' Opinion That Speaks To All Elements of Crime Disallowed

The opinion of a detective testifying as an expert should have been inadmissible because it spoke to all elements of the crime.

 

Williams v. State, 2015 BL 353500, Ind., No. 48S05-1507-CR-424, 10/26/15

    The detective was testifying as an expert and expressed that he had "zero doubt" that the exchange between the defendant and the informant was a drug transaction. The Indiana Supreme Court ruled that his testimony should have been declared inadmissible as an opinion on the ultimate issue of guilt.

    The rules of evidence bar witnesses from giving their opinion regarding guilt or innocence, and the court ruled that the detective's testimony violated that rule. The court indicated that this was different from testimony regarding intoxication or identity, which can be allowed, because this testimony discussed all of the elements of the crime, including mens rea.

http://www.bloomberglaw.com/public/desktop/document/Williams_v_State_No_48S051507CR424_2015_BL_353500_Ind_Oct_26_2015?1449089156

Confrontation Rights Violated By A Letter From Beyond The Grave

The Sixth Amendment right to confront witnesses was violated by showing the jury a letter from the victim written two weeks before her death predicting that her husband would kill her.

 

Jensen v. Clements, 2015 BL 289651, 7th Cir., No. 14-1380, 9/8/15

    The U.S. Court of Appeals for the 7th Circuit said that it was not a harmless error because "[n]o other piece of evidence had the emotional and dramatic impact as did this 'letter from the grave."

    The Wisconsin Supreme Court had originally ruled that the letter was admissible (overturning the trial court's decision not to allow it), holding that it was admitted under the doctrine of "forfeiture by wrongdoing." That doctrine allows testimonial evidence to be allowed from an absent witness if the state can show by a preponderance of the evidence that the accused caused the witness's absence.

    The U.S. Supreme Court, while this case was on appeal, clarified the "forfeiture by wrongdoing" doctrine in the case of Giles v. California, 554 U.S. 353 (2008). They indicated that the "forfeiture by wrongdoing exception can only be invoked if there is proof that the defendant caused the declarant's unavailability with the intent of silencing the witness.

    The Wisconsin Supreme Court had ruled that because the poisoning - if any - was to kill the wife, not keep her from testifying, the "forfeiture by wrongdoing" exception did not apply. It also, however, held that the confrontation clause violation was harmless.

    The federal district court found, on habeas review, that the state court's application of the harmless-error doctrine was unreasonable. This subjected it to review under the Antiterrorism and Effective Death Penalty Act, 28 U.S.C. 2254(d)(1).
   
    The Seventh Circuit agreed, and voided the conviction, and invoked the recent Supreme Court decision in Davis v. Ayala, 2015 BL 193928 (U.S. June 18, 2015). This held that a state court's rejection of a claim of federal constitutional error on the ground that any error that occurred was harmless qualifies as a reviewable adjudication on the merits for AEDPA reasons.

http://www.bloomberglaw.com/public/document/Jensen_v_Clements_No_141380_2015_BL_289651_7th_Cir_Sept_08_2015_C

No Abuse of Discretion for Uncovering Witness's False Credentials

There is not an abuse of the trial court's discretion if it were to decline to find a lack of due diligence when defense counsel failed to discover that an expert witness lied about credentials.

 

State v. Hunt, 2015 BL 193541, Md. No. 72.

 

     The Maryland Court of Appeals held that a trial court did not abuse their discretion when it did not find a lack of due diligence on the part of the defense counsel for not finding that a state's expert witness may have lied about their credentials. Maryland's state rules provide that a petition for a writ of actual innocence must allege that there is newly discovered evidence and that evidence "with due diligence, could not have been discovered" in time to seek a new trial by a direct route.

 

     In this case the petitioners sought the write because it was revealed that the ballistics expert who testified at their trials, and had testified for the state for over 20 years, had allegedly been lying about his credentials and qualifications.

 

    The opinion states that "it would not be an abuse of discretion for a hearing judge to find that a defense attorney might fail" to find problems with a witness "after nonetheless exercising due diligence." This confirms that an attorney's investigation attempts need not be perfect.

 





 

http://www2.bloomberglaw.com/public/desktop/document/State_v_Hunt_No_72_and_73_2015_BL_193541_Md_June_18_2015_Court_Op