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June 26, 2009




Mark O

No. Not another distraction, like that free speech thing. What’s next, requiring due process? Drat.


As his Sunset years approach, Scalia, like Bush is scrambling to salvage his legacy by appearing counterintuitve to dispel any bad History over his (with 4 others) 'one time only' interference in the 2000 election.

It's the softer side of the Gentle Giant.


As for Thomas...well, it would be kind to say he gave the subject serious, in-depth consideration before he said 'ditto' to Scalia.

Dave in OC

Sorry I don't know how to do links yet but this is downright funny and just a little OT



Dave's link

Danube of Thought

Interesting split; interesting issue. I haven't read the opinion, but at the very least I guess this means the "business records" exception to the federal rules of evidence is kaput in criminal cases.

Danube of Thought

For those who are interested (there seem to be precious few), this is how Federal Rule 803(6) [listing those items of evidence that are excepted from the ban on hearsay evidence] reads:

"(6) Records of regularly conducted activity.

"A memorandum, report, record, or data compilation, in any form, of acts, events, conditions, opinions, or diagnoses, made at or near the time by, or from information transmitted by, a person with knowledge, if kept in the course of a regularly conducted business activity, and if it was the regular practice of that business activity to make the memorandum, report, record or data compilation, all as shown by the testimony of the custodian or other qualified witness, or by certification that complies with Rule 902(11), Rule 902(12), or a statute permitting certification, unless the source of information or the method or circumstances of preparation indicate lack of trustworthiness. The term "business" as used in this paragraph includes business, institution, association, profession, occupation, and calling of every kind, whether or not conducted for profit."

Whaddya mean anyone can edit these?

I'll bet they have fun in court with provenance of documents purported to be 'business as usual'.


Don't you think it should be kaput in criminal cases, DoT? Over and over we learn years after the fact about sloppy record keeping and testing and forensic errors in state and federal labs.



My recollection was that the comments to that rule specifically exclude documents prepared for litigation purposes from the exception.

As I understand the rationale for the exception to the hearsay rule was that a random clerk unconnected to the parties would have little to no motivation to doctor the record on the off-chance that someone, somewhere, might sue over something.

I do not see how these analyst reports differ significantly from, say, police reports. Eckenrode, anyone?

I am a trusting guy, but if you submit a piece of paper that says I signed an agreement to pay you $100, I'm going to want to ask some questions of the person who prepared that document--regardless of whether or not you regularly employ someone to draft similar documents in the course of your business.

On the other hand, I will take a delivery ticket from UPS at face value when they are not a party to a dispute.

I have had a prosecutor spend a half-hour trying to convince a government witness that his contemporaneous notes of weather conditions that he was reading must be wrong because they did not agree with her theory of the case. It is only fair that defense lawyers should recieve the same opportunity to be an idiot that she did.


In addtion to noting that I really do know how to spell receive, I should add that I found her attempt to discredit the material data safety sheet to be a bit over the top. I can conceive of no theory under which that document was drafted in order to influence a minor case in a Missouri county courtroom.

It is entirely possible that J. Scalia disagrees.


I tend to agree that the prosecution should be compelled to produce the experts if so requested by defense counsel. We are in an era of prosecutorial abuse where the state has all the advantages in many cases and in some has proven willing to bend or break the law.


Kennedy gives the example of the FBI lab.
IIRC wasn't it the wellspring a few years back of a pretty serious scandal concerning a bunch of incompetent, and or, doctored lab reports used in numerous trials?
Not sure that advances his argument.


Aren't there any clerks who have watched CSI or NCIS at some point, Then again seeing
the Eckenrode revelations and the stories from the Stevens case, I'm right to be somewhat suspicious, right.

Danube of Thought

Walter, my recollection--and it is unrefreshed in the decades since law school--is that the rationale for the business records exception was pretty close to that for the "inherently trustworthy" exception (which is a separate, enumerated one that I have never seen successfully invoked).

I can see a very different risk of abuse between cases where the affiant knows what outcome is desired by the prosecution and those where he does not. Police reports should require that the cop take the stand. But if a lab tech certifies a report in which he says "the questioned DNA is the same as that of Mr. B," I might come out differently (the tech presumably wouldn't know whether what he was saying was incriminatory or exculpatory).

I seem to recall in civil trials having the judge see pretty clearly through efforts to bootstrap stuff in through the business records exception, and setting a pretty high threshhold for what would qualify. But I'm retired and am happy to watch others litigate this stuff unto eternity.

Mark O

By the way, not to diminish the insightfulness of the business records negation, I am in favor of vexing prosecutors. The Constitution sets forth the policy that we will tolerate a certain amount of lawlessness in return for a great deal of privacy. I still like that balance. Most prosecutions are only of cases that the prosecutors see as lay-down hands. The remainder are processed, like so much beef, according to local conventions. The immense weight and power of the government in a criminal matter is nearly impossible to defend against. Then, there are the tactics of counsel (particularly witnesses) that can sink any defense. To me it remains a mystery why the law affords more discovery to any civil party than to one whose liberty is at risk.

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That last poster came to us through the circuitous way tha Charles Hill, seems to come up in search queries.

Jim Rhoads a/k/a vjnjagvet

I haven't read the opinions in this case. But I do remember my experience as both defense counsel and trial counsel (prosecutor) in the army. I also remember my experience as a patient in a hospital.

Unfortunately, mistakes are made in "chain of custody" (which compromise identity evidence) and in testing procedures (which compromise test conclusions). There is essentially no discovery of either of those subjects in criminal cases, so defense counsel cannot test the government's evidence on them before trial. Without confrontation, these subjects could never be adequately tested in the real world of criminal trials until this case.

I agree with the majority in this case, no matter who made up that majority.

Danube of Thought

"To me it remains a mystery why the law affords more discovery to any civil party than to one whose liberty is at risk."

Me too. Does anyone have any explanation for how this came to pass? (I suppose we'll have to go back to the Magna Carta, the Cromwellian courts and Jarndyce v. Jarndyce, at the very least, for an accounting.)

Walter, concerning the weather conditions issue, my recollection is that a local newspaper account will suffice as a basis for a court to take judicial notice of what they were.

I think we can all agree that if we want to enter in evidence the fact that June 1st was a Monday, we don't have to call an astronomer to the stand.

And so, as an issue for potential future litigation, I believe that this decision is as fecund as the shad. I just hope that the right people get rich in the process.



With any luck it will not be me getting rich. There is nothing (apart from family law) that has weighed more heavily on me than defending an innocent person. The best thing about tax law is that only money is at stake and, let's face it, it is really difficult to feel bad about the IRS losing.

The weather issue had to do with the wind speed and direction at a particular time and place. Unfortunately, not the sort of thing that makes the daily news--but it was silly all the same. Her emphasis on that issue was one of the factors that helped undermine her case.


On the prosecutorial side, was it your experience that most of the sloppiness would not lead to a different result?

Except for a few out-of-control police/prosecutors, it has been my (uninformed) impression that the reason prosecutors generally maintain a 90% conviction rate is because cases that depend only on lab results are not brought in the first place or get plead down.

In other words, I've thought that "innocent" is far less common than "not proven guilty" and that the 'errors' are more likely to move a case from "not proven" to convicted more often than from "innocent" to convicted.

Of course, that's what they want me to think...


Sorry, Jim. I should have said "unjust" rather than "different".


The Nifong/Mangum Hoax finally blew up when the DNA tester showed up at Nifong's urging to a pre-lim hearing without warning (to the defense) and admitted under cross that he conspired with Nifong to withhold exculpatory info from his report...also proving Nifong lied multiple times to the court in previous hearings about his discussions with the lab.

Thomas Collins

DebinNC points to the poster child case concerning the misuse of scientific evidence.
Kennedy's dissent overlooks the reality that courts will continue to refine the Confrontation Clause rules if such refinement is necessary to avoid a breakdown in the system.

By the way, couldn't criminal defendants "gum up" the current criminal justice system if they all demanded a jury trial? Would that be a ground for a judge's limiting that right? Of course not.


On the other hand, I will take a delivery ticket from UPS at face value when they are not a party to a dispute.

Even that is not totally safe. I know a driver with another company who forged a delivery signature because he was running late and no one was around to sign for the package.


All of a sudden, Obama finds when it comes to North Korea...and a host of other places...sitting in the Oval Office makes him look and act a lot like his predecessor no matter how much he wishes it weren't so.


Here's the IG report on the FBI lab from the mid 90's.

Can't say it inspires confidence in either the quality of work or many of the people manning the lab, including Whitehurst the whistleblower.
Seems to me a pretty vital thing, being able to examine the fallible chap who says he has discovered evidence placing one at the scene of or participating in a crime.


Ignatz, yeah, me too.


Dallas DA on criticism of new cable show Dallas DNA - "...we're doing good work here, and I'm benefitting politically from it." Hmm. That the cameras are rolling during staff discussions of cases, except those involving the death penalty, is troubling....especially with someone who loves the spotlight and sees it as career enhancing.

Patrick R. Sullivan

A prosecution witness in the Martha Stewart case was charged with perjury over what he represented about lab tests he'd supposedly supervised.

Captain Hate

As for Thomas...well, it would be kind to say he gave the subject serious, in-depth consideration before he said 'ditto' to Scalia.

It would be kind to say you're qualified to shine Thomas's shoes, idiot.

Jim Rhoads a/k/a vjnjagvet

Walter, my answer to your question is yes. But "most" isn't good enough when I'm defending someone whose freedom depends on the validity of scientific tests.

There are many tricks in the "expert" business that can only be exposed by "thorough and sifting" cross examination. That's why Daubert was such an important decision.

This case may begin a trend to hold prosecutors (who theoretically have the most stringent burden of proof) to some of the same evidentiary standards as plaintiffs' counsel in a civil trial.

It seems perverse if civil defendants had more rights than criminal defendants, even though the right to confront witnesses under the sixth amendment expressly runs only to criminal defendants.

Danube of Thought

On reflection, I think I'd be inclined to limit the discovery available to civil litigants rather than expand that available to criminal defendants. It is civil discovery that has turned litigation into a hugely expensive brawl in which a deep-pocket party can often bludgeon a less affluent one into submission.

My understanding is that in the UK the system is much closer to "trial by ambush," which is the very thing US discovery rules are intended to eliminate. They do so, but at huge cost. Also in the UK they have the rule that the loser pays the winner's attorneys' fees, which occurs only rarely in the US (in circumstances where it is provided for by statute).

Jim Rhoads a/k/a vjnjagvet

I'm with you, DOT on loser pays.

As far as discovery is concerned, in the UK, though, the barristers are used to cross examining witnesses without benefit of discovery. They tend to get to the heart of the actual testimony that way (and not the testimony anticipated because of discovery). They question extemporaneously, but carefully and incrementally, and don't "testify" through cross as skilled cross examiners do here.

I also agree with you that both written and deposition discovery now goes well beyond what was intended when the FRCP were adopted in the thirties, and is often abused. In my experience, local rules and judges in some Districts manage this problem better than others. Suffice it to say it can be managed if the judges are so inclined.

In the area of expert opinions, though, the disclosure rules seem finally to be working quite well. A report before trial and the opportunity to cross examine the expert on his report, either by deposition or at trial should be the bare minimum, IMO.


You can say that again about civil discovery..way overdone..and generally of little use. I'd not fo away with it re production of documents and tangible matters and expert reports, but it is way over used,adds substantially to the costs, works to the advantage of the wealthier party and is often more a burden than an assistance to the parties.
BTW NO OTHER COUNTRY in the world has such a system. When I had to explain it to procurators around the world as we took depositions overseas in their offices or in embassies they were flabbergasted.

Jim Rhoads a/k/a vjnjagvet

Quick war story:

About 10 years ago, I represented an ex-employee in a suit against American Express in the Southern District of NY for breach of a contract of sale for an internet business model which the employee had developed for AMEX, and which AMEX no longer wanted. Orrick defended AMEX. I staffed the case with one associate and me. Most of the discovery was conducted in NYC, so the out of pocket costs eventually reached $500k, which my mid-sized regional firm of about 200 lawyers advanced. I was a regular on the Delta flights between LaGuardia and Atlanta, and at the Omni Berkshire Hotel for about 18 months.

All discovery questions in that case were handled by a Magistrate Judge who knew the Rules inside and out. He took phone calls and ruled on the spot if either side thought it uncovered shenanigans from the other side. As he had the reputation for awarding sanctions where warranted, no one messed with him.

The case finally settled favorably to my client primarily because of a skillful mediator (another story in itself). This would not have been possible without strong judicial management of the discovery process. In many jurisdictions, we would have been overwhelmed by AMEX's unlimited resources. This was one case where the system seemed to work.


It's really murder when you're representing individuals whose record keeping is not the same as corporate record keeping. You explain over and again the questions and what they need to provide you and yet you are always in fear that they have not done so..

Jim Rhoads a/k/a vjnjagvet

That's true, Clarice. I have had that problem, too.

In the above case my client, who graduated first in his Harvard MBA entrepreneurship class, kept better records than AMEX had. As a matter of fact, he had the original of the smoking gun document (copies of which they naturally could not locate for their production).

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