Case Law Update: 2011-2014 Cumulative Edition

Holding: When a Defendant presents objective evidence giving rise to a reasonable inference that a prior conviction being used to enhance punishment involved an invalid waiver of counsel, the burden shifts to the prosecution to prove the waiver was valid.
U.S. v. Hampton, 93 Crim. L. Rep. 542, 2013 WL 3185044 (D.C. Cir. 6/25/13):

Holding: FBI agent should not have been permitted to testify as to the meaning of several cryptic phone calls because this was improper lay opinion testimony.
U.S. v. Moore, 89 Crim. L. Rep. 722, 2011 WL 3211511 (D.C. Cir. 7/29/11):

Holding: Gov’t cannot present a law enforcement “overview” witness to give a preview summary of the case.
King v. U.S., 2013 WL 4779710 (D.C. 2013):

Holding: Trial court was required to consider argument that Defendant was absent from his home for 10 days after a murder due to a juvenile matter, and not due to “consciousness of guilt” of murder, when determining whether the evidence of absence was admissible in murder trial.
U.S. v. Rosario, 2013 WL 1141726 (D.D.C. 2013):

Holding: In prosecution for drug crime, the probative value of Defendant’s 10-year old prior arrest for a drug crime of which Defendant was acquitted was outweighed by danger of unfair prejudice, especially where it would be difficult for defense counsel to attack the Gov’t’s evidence since a decade had passed.
Minor v. U.S., 2012 WL 6617802 (D.C. 2012):

Holding: Expert testimony about unreliability of eyewitness identification should have been allowed.
Brooks v. U.S., 2012 WL 850427 (D.C. 2012):

Holding: The Government’s efforts to ensure an eyewitness’ presence at the defendant’s retrial for first-degree murder and other crimes were not reasonable, and thus, the Government failed to establish that the eyewitness was unavailable, as a prerequisite to admission of trial testimony from first trial.
Smith v. U.S., 2011 WL 2899126 (D.C. 2011):

Holding: (1) Where Witness identified Defendant as his assailant, Defendant should have been allowed to impeach Witness with prior statement that Witness did not know who stabbed him; and (2) where Detective testified that she did not coach a witness, Defendant should have been allowed to impeach Detective with evidence that she was being investigated for coaching witnesses in other cases to testify falsely.
Harrison v. U.S., 90 Crim. L. Rep. 201 (D.C. 10/27/11):

Holding: Even though Defendant was charged with sexual assault on a teenage girl, evidence that Defendant made sexually suggestive comments to other girls was improper propensity evidence, not evidence of motive.
U.S. v. Dupree, 2011 WL 5884219 (E.D. N.Y. 2011):

Holding: Defendants were entitled to cross-examine a government witness regarding her use of antianxiety medication because it was probative of her ability to recall the events about which she was expected to testify.
U.S. v. Taylor, 2010 WL 4963333 (S.D. N.Y. 2010):

Holding: Where Defendant was on trial for pharmacy robbery, evidence that Defendant previously sold heroin was more prejudicial than probative.
Young v. Conway, 2011 WL 240578 (W.D. N.Y. 2011):

Holding: Robbery victim’s in-court identification of Defendant was not independently reliable where her recollection was tainted by pre-trial viewing of Defendant in line-up and hearing him speak.
U.S. v. Colon-Ledee, 2010 WL 6675045 (D.P.R. 2010):

Holding: Defendant’s conviction for failure to pay child support was not a crime involving dishonesty or false statement and, hence, could not be used to impeach Defendant’s credibility.
Fisher v. Ozaukee County Circuit Court, 2010 WL 3835098 (E.D. Wis. 2010):

Holding: Trial court’s application of general law prohibiting admission of preliminary breath test (PBT) results so as to preclude defense expert from testifying that Defendant’s BAC would have been lower violated right to present a defense.
U.S. v. Zajac, 2010 WL 3489597 (D. Utah 2010):

Holding: Pipe bombing in another city was not admissible to show Defendant’s identify and knowledge in pipe bomb charge in different city.
State v. Ferrero, 91 Crim. L. Rep. 93 (Ariz. 4/11/12):

Holding: To be admissible, prior bad acts must be directly linked to the charged crime; they may not be admitted “merely to complete the story or because the evidence arises out of the same course of events.”
State v. VanWinkle, 2012 WL 1149345 (Ariz. 2012):

Holding: A police officer’s testimony regarding the defendant’s post-arrest pre-Miranda silence, coupled with the prosecutor’s comment on that silence, violated the defendant’s right to remain silent.
State v. Machado, 88 Crim. L. Rep. 593, 2011 WL 519752 (Ariz. 2/16/11):

Holding: Defendant may support a third-party culpability defense by presenting other bad acts of the third-party without the ban on propensity evidence that would apply if trying to admit evidence of other bad acts of the defendant.
Porta v. State, 2013 WL 3070389 (Ark. 2013):

Holding: Even though forensic mental health examiner had warned Defendant about the nonconfidential nature of his competency exam, trial court erred in allowing his inculpatory statements made during the exam to be admitted at trial, because this violated his constitutional right not to incriminate himself and forced him to choose between one constitutional right in order to claim another.
People v. Cottone, 159 Cal. Rptr. 3d 385 (Cal. 2013):

Holding: Even though prior sex conduct is admissible to show propensity in California, where the prior conduct occurred before Defendant was 14 years old, the State must show that Defendant knew his conduct was wrongful and such conduct can only be admitted if it constituted a “crime” under the law.
People v. Gonzales, 92 Crim. L. Rep. 787 (Cal. 3/18/13):

Holding: Even though Defendant was seeing a therapist as a condition of his parole, the statutory doctor-patient privilege applied and State could not obtain the therapy records to use in SVP proceeding against Defendant.
O’Shaughnessy v. People, 90 Crim. L. Rep. 670 (Colo. 2/13/12):

Holding: A defendant charged with attempt can present an abandonment defense even if the victim was injured.
State v. Maguire, 2013 WL 5989742 (Conn. 2013):

Holding: (1) Prosecutor’s argument that Defendant and defense counsel were asking jury to “condone child abuse” and to find that “child abuse that happens in secret is legal” was highly improper in that it appealed to emotions and demeaned defense counsel; and (2) Prosecutor’s objection during defense counsel’s cross-examination of forensic interviewer which left misleading impression that redacted portions of interview refuted defense counsel’s assertions was improper.
State v. Favoccia, 92 Crim. L. Rep. 6 (Conn. 9/21/12):

Holding: State cannot present expert in child sex abuse case to testify that victim exhibits behavioral characteristics of an abused child.
State v. Victor O., 2011 WL 2135671 (Conn. 2011):

Holding: Results of an Abel Assessment of Sexual Interest (Abel test), which purports to show sexual interest minors, were not sufficiently reliable in a nontreatment context to be admitted in criminal case.
Watkins v. State, 2011 WL 2556913 (Del. 2011):

Holding: Defendant claiming mistaken identification in robbery at a bank’s ATM should have been allowed to present evidence that another person who met general description of Defendant had pleaded guilty to robbery of a nearby bank as exculpatory evidence.
Gosciminski v. State, 93 Crim. L. Rep. 753 (Fla. 9/12/13):

Holding: Polygraph results are still considered unreliable in relevant scientific community so are not admissible under Frye test.
Jackson v. State, 2012 WL 5514937 (Fla. 2012):

Holding: Court erred in admitting lengthy video of interrogation of Defendant in which Officers stated their personal opinion that Defendant was guilty and stated positive things about victim, where Defendant did not confess, and even though Officers may have been using this as a technique to try to elicit a confession.
State v. Bowers, 90 Crim. L. Rep. 721 (Fla. 2/23/12):

Holding: Implementation of the Fourth Amendment’s “fellow officer” rule does not open the door to testimony about a seizure by a police officer who did not observe the seizure.
Harris v. State, 89 Crim. L. Rep. 177 (Fla. 4/21/11):

Holding: For drug dog evidence to be admissible, State must not only show that dog had proper training and certification, but also evidence that particular dog is reliable; State failed to show this where there was no evidence of field performance records about the dog at issue or about dog’s performance on false alerts. Tennessee issued a similar ruling in State v. England, 19 S.W.3d 762 (Tenn. 2000).
Murphy v. State, 90 Crim. L. Rep. 651 (Ga. 2/6/12):

Holding: A defendant’s conviction for murdering a baby must be reversed because the trial judge made remarks during the testimony of a prosecution witness that bolstered the witness’ testimony.
Boring v. State, 2011 WL 2119377 (Ga. 2011):

Holding: Evidence of Defendant’s “gothic” lifestyle was not admissible in murder prosecution where there was no nexus between victim’s murder and Defendant’s “gothic” beliefs or subculture.
State v. DeLeon, 2014 WL 144528 (Haw. 2014):

Holding: Trial court denied Defendant his right to present a defense where court excluded defense expert who would have testified that shooting-victim’s ingestion of cocaine would have affected victim’s behavior and would have supported Defendant’s self-defense defense, even though expert did not know the amount of cocaine ingested or time of ingestion.
State v. Mundon, 92 Crim. L. Rep. 303, 2012 WL 6045001 (Haw. 12/5/12):
Holding: Where Defendant was acquitted of certain acts, that evidence is inadmissible at a later trial on other charges.
State v. Almaraz, 2013 WL 1285940 (Idaho 2013):

Holding: Identification procedure was impermissibly suggestive where Officer told witness that they had the suspect in custody, showed witness a single photo showing Defendant in the center of a group of men with a chandelier hanging over his head, and asked witness which man had the gun, implying the shooter was in the photo.
People v. Villa, 90 Crim. L. Rep. 393 (Ill. 12/1/11):

Holding: Prior juvenile adjudications can only be used to impeach a Defendant if he “opens the door” to them.
People v. Ward, 89 Crim. L. Rep. 595 (Ill. 6/16/11):

Holding: Where the State admits evidence of a prior unrelated sex offense against Defendant, Defendant is allowed to show that he was acquitted for that offense.
VanPatten v. State, 2013 WL 1844141 (Ind. 2013):

Holding: Statements made by alleged child sex victim to forensic nurse examiner were not admissible because they were hearsay, and the exception for treatment or diagnosis did not apply.
Hoglund v. State, 2012 WL 759416 (Ind. 2012):

Holding: Although the conviction was affirmed, the Indiana Supreme Court overruled prior case law to hold that testimony concerning whether an alleged child victim is not prone to exaggerate or fantasize about sexual matters is a functional equivalent of saying the child is telling the truth, and is thus inconsistent with the rule of evidence prohibiting witnesses from testifying as to whether another witness testified truthfully.
In re Detention of Stenzel, 92 Crim. L. Rep. 734 (Iowa 3/1/13):

Holding: In SVP case, expert should not have been allowed to testify that a person has already been carefully screened for sex offender status before SVP proceedings are instituted because this is unduly prejudicial in that it may prompt jury to find SVP status due to knowledge of this screening.
State v. Hutson, 92 Crim. L. Rep. 498 (Iowa 1/25/13):

Holding: Where Defendant was charged with child endangerment, a DFS worker should not have been permitted to testify that child abuse report against Defendant was administratively determined to be “founded.”
State v. Nelson, 88 Crim. L. Rep. 342 (Iowa 12/10/10):

Holding: Evidence of other crimes can only be admitted under the “inextricable intertwinement” doctrine when they are so closely related in time and place and so connected to the crime charged as to be a continuous transaction; in trial for murder, evidence of Defendant’s drug dealing under rationale that victim was purchasing drugs was not admissible under this test.
State v. Rochelle, 93 Crim. L. Rep. 101, 298 P.3d 293 (Kan. 4/12/13):

Holding: Judge has discretion to allow child witness to testify with a “comfort person” without a finding of necessity, but may also consider alternatives which may lessen potential prejudice such as whether the comfort person is related to the child, which may lessen prejudice; where the “comfort person” is seated in relation to child; the availability of items in the courtroom (such as child-sized chairs) that would eliminate the need for a “comfort person”; a cautionary instruction to jurors to disregard the “comfort person” and not permit the person’s presence to influence credibility determinations; and a cautionary instruction to the “comfort person” not to speak or gesture to influence answers of child.
State v. Everett, 93 Crim. L. Rep. 18 (Kan. 3/29/13):

Holding: State can no longer circumvent evidentiary rules to admit otherwise inadmissible other-bad-act evidence on grounds that Defendant “opened the door” to its admission; court rejects “open the door” rule and holds that State’s evidence must be independently admissible.
State v. Smith, 88 Crim. L. Rep. 591 (Kan. 2/11/11):

Holding: Even though defense counsel believes his client is guilty, counsel is not precluded from presenting truthful documentary evidence that would demonstrate client may not be guilty and arguing that the truthful evidence demonstrates client is not guilty; this is true even though counsel believed his client was the person shown on crime scene video; trial court should have inquired further into whether counsel who refused to present documentary evidence of alibi for Defendant should have been replaced.
Ordway v. Com., 2013 WL 656175 (Ky. 2013):

Holding: Officer could not offer an opinion based on his experience investigating self-defense cases that Defendant did not act like people who have lawfully acted in self-defense, but acted like someone fabricating the claim.
Blount v. Com., 2013 WL 646202 (Ky. 2013):

Holding: Mother’s testimony describing behavior changes in victim-daughter which she implied were symptoms of sexual abuse based on discussions she had had with a psychologist were inadmissible as evidence relating to child sexual abuse accommodation syndrome and were unreliable and unaccepted theories.
Webb v. Com., 2012 WL 5877963 (Ky. 2012):

Holding: In jury sentencing proceeding, trial court erred in admitting details of Defendant’s prior convictions that included names of prior victims of Defendant and identified them as police officers; this exceeded the scope of permissible relevant evidence at sentencing.
Meyers v. Com., 2012 WL 5274650 (Ky. 2012):

Holding: Even though felon-in-possession charge was originally charged in the same indictment as other offenses where Defendant’s Wife was a victim, where the possession charge was later severed, Defendant-Husband could then invoke spousal privilege to prevent Wife from testifying against him since she was not a victim of the possession charge.



Perry v. Com., 92 Crim. L. Rep. 157 (Ky. 10/25/12):

Holding: The “sheer volume” of sex abuse claims alleged child victim made against 12 family members and third-parties supported an inference that at least some of the claims were false and, thus, child could be cross-examined about them despite the rape shield statue since false claims do not relate to actual sexual behavior.
Mullikan v. Com., 89 Crim. L. Rep. 600 (Ky. 6/16/11):

Holding: Even though a statute allows jury in noncapital penalty phase to hear “the nature of prior offenses,” the evidence of prior convictions must be limited to conveying only the elements of the crimes previously committed; “We suggest that this be done either by reading of the instructions of such crime from an acceptable form book or from the Kentucky Revised Statute itself”; details of the prior crimes beyond the statutory elements are improper.
Com. v. Adkins, 88 Crim. L. Rep. 572, 2011 WL 193397 (Ky. 1/20/11):

Holding: Drug possession statute implicitly recognizes “innocent possession” defense because some possessions are innocent (such as where teacher finds drugs in classroom and gives drugs to principal); “Whenever the evidence reasonably supports such a defense – where there is evidence that the possession was incidental and lasted no longer than necessary to permit suitable disposal – [a jury instruction] should [be given] to reflect this.” Here, Defendant claimed he found drugs in a sock and was trying to turn them over to police.
State v. Oliphant, 2014 WL 812244 (La. 2014):

Holding: State failed to lay proper foundation to admit evidence from a tracking dog where dog was not a pure bloodhound, the State presented little information about dog’s training, dog was not “certified,” and dog’s law enforcement history was uncertain.
Whack v. State, 93 Crim. L. Rep. 694 (Md. 8/21/13):

Holding: Trial court abused discretion by giving a curative instruction rather than granting a mistrial after prosecutor mischaracterized the statistical significance of DNA evidence in murder case.
Duylz v. State, 91 Crim. L. Rep. 73 (Md. 3/21/12):

Holding: Where a judge restricted Defendant’s right to cross-examine a witness at a pretrial motion to suppress hearing, this precluded the State from later using the testimony at trial when the witness did not appear.
Thomas v. State, 2011 WL 4389167 (Md. 2011):

Holding: A showing that a witness committed the conduct underlying an unconstitutional guilty plea can be used to impeach the witness.
Hannah v. State, 2011 WL 25555406 (Md. 2011):

Holding: State’s cross-examination of Defendant using violent rap lyrics which Defendant had written was unduly prejudicial in attempted murder prosecution.
Griffin v. State, 89 Crim. L. Rep. 179, 2011 WL 1586683 (Md. 4/28/11):

Holding: Police investigator’s testimony that he accessed a MySpace page displaying a person’s photo and date of birth was not sufficient to authenticate the page as having been created by that person, since this does not account for risks of account fabrication or unauthorized account access.
Com. v. Canty, 94 Crim. L. Rep. 209, 2013 WL 5912050 (Mass. 11/6/13):

Holding: Although Officer can testify that Defendant-Driver appeared intoxicated, Officer cannot offer opinion that Driver’s intoxication impaired his ability to operate a car, because this was tantamount to an opinion that Defendant was “guilty” of DWI.
Com. v. Gray, 2012 WL 5503894 (Mass. 2012):

Holding: Defendant was denied a fair trial where court refused to allow Defendant to use grand jury testimony to impeach a trial witness.
Com. v. Woodbine, 2012 WL 1002763 (Mass. 2012):

Holding: A police officer could not testify at a first degree murder trial as to the unrecorded portion of the defendant’s two-part statement because the defendant’s only meaningful opportunity to cross-examine the officer would involve using the contents of the other portion of the statement, which had been suppressed.
Com. v. Heang, 88 Crim. L. Rep. 594 (Mass. 2/15/11):
Holding: Ballistics expert should avoid testifying that ballistics matches have more certainty than they do, and should avoid terms like “absolute certainty” and “reasonable degree of scientific certainty,” but can say “reasonable degree of ballistic certainty.”
People v. Kowalski, 2012 WL 3078584 (Mich. 2012):

Holding: Expert testimony regarding false confessions and interrogation techniques may be admissible in some cases, because this is beyond the common knowledge of ordinary persons.
State v. Brown, 2011 WL 13753 (Minn. 2011):

Holding: Defendant’s statements made at pretrial hearing about a possible guilty plea were statements made in connection with a plea offer and were not admissible at trial.
Butler v. State, 92 Crim. L. Rep. 309 (Miss. 12/6/12):
Holding: Photo lineup was unduly suggestive where the people were standing in front of a height ruler and everyone except Defendant was more than 6 inches taller than the perpetrator of the crime.
City of Missoula v. Paffhausen, 2012 WL 5866259 (Mont. 2012):

Holding: Where Defendant alleged she had been involuntarily drugged by a “date rape” drug, she should have been allowed to present this as an affirmative defense in a DWI case.
State v. Chavez-Villa, 92 Crim. L. Rep. 222 (Mont. 11/7/12):

Holding: Where State introduced a video of drunk driving Defendant that showed him taking field sobriety tests, this triggered the requirement that the State lay a foundation for reliability of the sobriety tests.
State v. Gai, 92 Crim. L. Rep. 127 (Mont. 10/23/12):

Holding: Even though this jurisdiction requires that if the defense wants to cross-examine a forensic expert who prepared a report the defense has to make such a demand for appearance before trial, this does not preclude the defense from arguing that the report is not credible at a trial in the absence of such a demand; “The rule speaks to the admission of the reports not the effect of the admitted evidence.”
State v. Pangborn, 93 Crim. L. Rep. 585 (Neb. 7/26/13):

Holding: Demonstrative exhibits should not be sent to the jury during deliberations unless the court first weighs their potential prejudice against usefulness and gives a limiting instruction to avoid prejudice; here, jury sought to see an exhibit prepared by the prosecutor that was a chart that outlined various charges against Defendant, various dates and injuries; “use of limiting instructions that advise a jury of the limited purpose [of such] demonstrative exhibits should be employed.”
State v. Richardson, 2013 WL 1923390 (Neb. 2013):