Case Law Update: 2011-2014 Cumulative Edition

Holding: Even though lab chemist testified to the general procedures he used in weighing drugs, the foundation required for admission of drug weights requires more detail about the scale used, including calibration and whether the scale was tested against a known weight.
State v. Riley, 89 Crim. L. Rep. 192, 2011 WL 1587118 (Neb. 4/28/11):

Holding: Trial court should have granted mistrial where State’s witness, who Defendant claimed was the perpetrator of the charged offense, testified he had taken a polygraph test.
Rodriguez v. State, 2012 WL 1136437 (Nev. 2012):

Holding: In order to properly authenticate text messages, evidence in addition to the identity of the cellular telephone’s owner is required to establish the identity of the sender; proponent of evidence must produce evidence of authorship.
State v. Eigth Judicial Dist. Court of State ex rel. County of Clark, 2011 WL 6840685 (Nev. 2011):

Holding: Danger of unfair prejudice outweighed relevance of retrograde extrapolation from single blood sample taken two hours after accident in a DUI case.
State v. Belonga, 90 Crim. L. Rep. 857 (N.H. 3/16/12):

Holding: Other-crimes evidence that an accused child abuser hit her child months before striking fatal blows should have been kept from the jury in view of its limited probative value and high potential for prejudice.
State v. McDonald, 90 Crim. L. Rep. 550 (N.H. 12/28/11):

Holding: Police Officer should not have been allowed to testify that Defendant’s protestations of innocence were “very feigned,” “flamboyant,” and “over-exaggerated” in body language because this was tantamount to the Officer testifying to his belief that Defendant was lying.
State v. Langill, 88 Crim. L. 292 (N.H. 11/30/10):

Holding: Hearsay rule prohibited fingerprint examiner from testifying that her fingerprint results were confirmed by a second examiner, even though the ACE-V method requires two examiners to compare results.
State v. Parker, 94 Crim. L. Rep. 472 (N.J. 1/15/14):

Holding: Even though Defendant was convicted of underlying crimes during which he gave police false names, his giving of the false names could not be used to impeach him at later unrelated trials because witnesses cannot be impeached with specific instances of untruthfulness that do not result in conviction, and the prior convictions weren’t for giving false names.
State v. Sowell, 2013 WL 141620 (N.J. 2013):

Holding: State could not elicit testimony from Officer in the form of a “hypothetical” about “Person A” and “Person B” that described facts of the case, and then had Officer give his opinion that this was a drug transaction; an average juror did not need expert testimony that transferring an item from one person to another was a drug transaction.
State v. Lazo, 90 Crim. L. Rep. 646 (N.J. 2/1/12):

Holding: A police detective improperly bolstered a victim’s identification testimony by testifying the he though a picture of the defendant used in a photo array closely resembled the composite sketch of the unknown assailant.
State v. Henderson & State v. Chen, 89 Crim. L. Rep. 817 (N.J. 8/24/11):

Holding: New Jersey adopts new standards for eyewitness identification cases that require prosecutors to prove the reliability of identifications, require judges to determine reliability of identifications, and require use of jury instructions on factors affecting the reliability of identifications.

State v. Rose, 89 Crim. L. Rep. 467 (N.J. 6/8/11):

Holding: The “res gestae” doctrine should no longer be used to allow prosecutors to admit evidence of other bad acts intrinsic to the offense charged in light of the adoption of the formal Rules of Evidence.
State v. McLean, 89 Crim. L. Rep. 68 (N.J. 3/31/11):

Holding: Officer cannot testify as “lay opinion” that a series of roadside transactions involving Defendant looked like drug deals since this invaded fact-finding province of jury.
State v. Lebya, 92 Crim. L. Rep. 132 (N.M. 10/22/12):

Holding: Even though Defendant claimed self-defense, murder victim’s diary that she was afraid of Defendant was not admissible under the “state of mind” exception to hearsay rule; the victim’s state of mind was not relevant to the claim of self-defense, only the Defendant’s state of mind was relevant.
People v. Cantave, 2013 WL 3185171 (N.Y. 2013):

Holding: Prosecutor violated Defendant’s right against self-incrimination where he cross-examined Defendant at trial about a prior, unrelated conviction that was pending on direct appeal and thus Defendant remained at risk of self-incrimination.
People v. Williams, 2013 WL 1195635 (N.Y. 2013):

Holding: Expert testimony discussing Child Sexual Abuse Accommodation Syndrome (CSAAS) could not be tailored to facts of the case through use of hypotheticals, because this left impression that the expert had found the testimony of victim to be credible.
People v. Robinson, 90 Crim. L. Rep. 108 (N.Y. 10/13/11):

Holding: Court abused discretion in not allowing Defendant who testified to explain what he meant when he said “possession is 9/10^th’s of the law” when he was arrested for gun possession; Defendant should be allowed to explain ambiguous remarks.
People v. Fernandez, 89 Crim. L. Rep. 378, 2011 WL 2149523 (N.Y. 6/2/11):

Holding: Defendant charged with sex abuse of family-member Victim should have been allowed to present evidence that Victim had a bad reputation for truth and veracity in her circle of family and friends; family and friends constitute a “relevant community” for purposes of introducing testimony about an opposing witness’ bad reputation for truthfulness.
State v. King, 2012 WL 22136832 (N.C. 2012):

Holding: A lay witness can testify that they did not recall, forgot or had no memory of an incident, but cannot testify that they had “repressed” or “recovered” memory unless an expert testifies to this.
Ohio Supreme Court Bd. of Comm’rs on Grievances & Discipline, Op. 2013-4 (10/11/13), reported in 94 Crim. L. Rep. 182:

Holding: A Public Defender generally will be permitted to impeach a former client with a prior conviction. Rule of professional conduct that lawyers have a continuing obligation to past clients including a duty to avoid using “information relating to the representation to the disadvantage of the former client” has an exception for information that “has become generally known.” That exception applies where a Public Defender seeks to examine a former client about a prior conviction because the prior conviction is generally known as a matter of public record. However, counsel would be prohibited “from using any other information” learned during the prior representation. “For example, if the former client indicated to the public defender a willingness to lie under oath within the prior representation, the public defender may not use that information against the former client.” A lawyer should not be forced against his own judgment to continue a representation that requires the lawyer to impeach a former client. Additionally, if a conflict is found, the conflict would be imputed to every lawyer in that Public Defender’s office.
State v. Newman, 2013 WL 2370589 (Or. 2013):

Holding: DWI requires proof that Defendant’s act of driving was volitional, and thus evidence that Defendant had suffered from “sleep driving” was relevant to whether Defendant was “conscious” at the time of driving.
State v. Lawson, 92 Crim. L. Rep. 266 (Or. 11/29/12):

Holding: Noting that the rules followed by most state courts on eyewitness identification need updating, the court adopts new procedures that encourage expert testimony and jury instructions based on scientific research addressing the reliability of eyewitness identification.
State v. Sarich, 2012 WL 5490285 (Or. 2012):

Holding: The probative value of a video of Defendant’s 19-year-old autistic son leading police to a murder victim’s body was outweighed by its prejudicial effect where police made suggestive remarks that could have led the son to the body.
State v. Pitt, 92 Crim. L. Rep. 191 (Or. 10/18/12):

Holding: Evidence that child sex abuse Defendant had committed other uncharged acts of child sex abuse were not admissible because they weren’t relevant to identity, absence of mistake or accident, or other reasons why such evidence may be admissible.
State v. Davis, 90 Crim. L. Rep. 9 (Or. 9/22/11):

Holding: Where Defendant’s theory in child’s death was that a prior injury caused the death not Defendant’s conduct, court erred in not allowing evidence of the prior physical abuse of child.
Com. v. Koch, 2011 WL 4336634 (Pa. 2011):

Holding: Police officer’s testimony about how he transcribed text messages from cell phone was insufficient to authenticate who was the author of the messages; no testimony was presented from person who sent or received the texts.
State v. Rivera, 2013 WL 518629 (S.C. 2013):

Holding: Trial court (under apparent prompting by defense counsel) violated Defendant’s right to testify where it prevented Defendant from testifying at trial under paternalistic belief, shared by defense counsel, that such testimony would undermine his own defense.
State v. Kromah, 92 Crim. L. Rep. 500, 2013 WL 239070 (S.C. 1/23/13):

Holding: Forensic interviewers and nurses in child sex abuse cases should not be permitted to testify that the child was told to be truthful; to an opinion that the child told the truth; that any interview tests (such as the RATAC method of interviewing) or other statements showed a “compelling findings” of abuse; that the child’s behavior indicated the child was telling the truth; or any statement to indicate to the jury that the interviewer believes the child’s allegations.
State v. Black, 92 Crim. L. Rep. 90 (S.C. 10/3/12):

Holding: Court abused discretion in allowing impeachment of a witness who had a manslaughter conviction more than 10 years ago since violent crimes are not very probative of credibility.
State v. Sexton, 2012 WL 4800459 (Tenn. 2012):

Holding: Prosecutor was not permitted to state in opening statement that Wife gave prior statements against Defendant but Wife could not be forced to testify due to spousal privilege; this evidence was inadmissible under spousal privilege and led jury to infer that Husband-Defendant was preventing Wife from testifying.
State v. Turner, 90 Crim. L. Rep. 99 (Tenn. 10/12/11):

Holding: Even though Defendant claimed as his defense than other persons committed the crime, this did not open the door for the State to present evidence that the other persons had been acquitted of the crime; the evidence of prior acquittals did not make it more or less probable that Defendant committed it.
In re Commitment of Bohannan, 2012 WL 3800317 (Tex. 2012):

Holding: Even though proffered defense expert in SVP civil commitment case was not a psychologist or medical doctor, she should have been allowed to testify where she had a Ph.D. in family science and therapy, was a sex offender treatment provider, and the SVP statute did not require that an expert be limited to psychologists or medical doctors.
State v. Perea, 94 Crim. L. Rep. 273 (Utah 11/15/13):
Holding: Scientific evidence on false confessions has advanced to where expert should be permitted to testify about empirical research as to when people give false confessions, including sleep deprivation, presentation of false evidence, questioners’ “minimization” techniques, defendant’s age, defendant’s intelligence, and certain personality traits.
State v. Verde, 92 Crim. L. Rep. 7 (Utah 9/25/12):

Holding: Propensity evidence is not admissible in sex case, even if relevant, where its probative value is outweighed by its prejudicial effect.

State v. Memoli, 88 Crim. L. Rep. 641 (Vt. 2/10/11):

Holding: Rape shield law did not bar Defendant’s defense that alleged rape victim had consented for sex in exchange for drugs, and Defendant should have been able to show alleged victim’s cocaine habit.
State v. Herring, 2010 WL 4904646 (Vt. 2010):

Holding: Exclusion of victim’s prior inconsistent videotaped statement as impeachment evidence in child sexual assault prosecution was error.
Allen v. Com., 752 S.E.2d 856 (Va. 2014):

Holding: Testimony by Defendant’s daughter that he slept with and wrestled with alleged child victim provided only the opportunity to commit the corpus delicti of sexual battery, and was insufficient to provide slight corroboration of Defendant’s confession of that crime to police.
State v. Memoli, 88 Crim. L. Rep. 641 (Vt. 2/10/11):

Holding: Rape shield law did not bar Defendant’s defense that alleged rape victim had consented for sex in exchange for drugs, and Defendant should have been able to show alleged victim’s cocaine habit.
State v. Kurtz, 94 Crim. L. Rep. 17, 309 P.3d 472 (Wash. 9/19/13):

Holding: Defendant charged with illegally growing marijuana should have been allowed to raise common law defense of medical necessity, even though state had a medical marijuana law making it legal for some persons to use marijuana.
State v. Gresham, 2012 WL 19664 (Wash. 2012):

Holding: Statute permitting admission of evidence of other prior sex offenses violated separation of powers doctrine, where the statute conflicted with rule of evidence barring introduction of prior acts evidence for the purpose of showing a defendant’s character.
State v. Maggard, 94 Crim. L. Rep. 121 (W.Va. 10/7/13):

Holding: Rape victim’s testimony that she “had heard how he is” and that “he just wants to get one thing from girls” was inadmissible bad character and propensity evidence.
State v. Yonkman, 312 P.3d 1135 (Ariz. App. 2013):

Holding: Where State was allowed to admit evidence of prior sexual charges in Defendant’s sex abuse trial, trial court erred in precluding Defendant from admitting evidence that he was acquitted of the prior charges.
State v. Bayardi, 281 P.3d 1063 (Ariz. App. 2012):

Holding: Statutory exception to driving with impermissible drug in body when a person takes prescribed medication is an affirmative defense requiring Defendant to prove by preponderance of evidence that he used the drug as prescribed by a licensed doctor.
Lear v. Fields, 2011 WL 102572 (Ariz. Ct. App. 2011):

Holding: Statute which adopted Daubert test for expert testimony violated separation of powers because Arizona courts had rejected Daubert.
People v. Hendrix, 2013 WL 831199 (Cal. App. 2013):

Holding: Even though Defendant was charged with resisting arrest, his prior crimes were not admissible to show his “knowledge” that he was being arrested by police since the prior crimes were not similar to the charged incident.
People v. Frazen, 2012 WL 5395253 (Cal. App. 2012):

Holding: Officer’s testimony that he identified a telephone number via an internet telephone information site was not admissible under the “published compilation” exception to hearsay since the internet site was not a traditional published compilation and the site used was not generally relied upon as accurate.
People v. Paniagua, 2012 WL 4127801 (Cal. App. 2012):

Holding: Admission in SVP civil commitment trial of (false) evidence of a Homeland Security document that Defendant had flown from Thailand on a flight that did not actually exist was prejudicial because Thailand is perceived as a place where pedophiles go to have sex with children.
People v. Self, 2012 WL 1109091 (Cal. App. 2012):

Holding: The defendant’s prior DUI conviction in Arizona was not equivalent to a California DUI for the purpose of sentence enhancement because the Arizona conviction was for driving under the influence “to the slightest degree.”
People v. Wells, 2012 WL 1025740 (Cal. App. 2012):

Holding: Evidence that defendant may have fallen asleep at the wheel due to an unrelated medical condition warranted a jury instruction on the unconsciousness defense to the offense of driving under the influence of marijuana and causing injury.
People v. Covarrubius, 2011 WL 6350541 (Cal. App. 2011):

Holding: Expert testimony regarding structure and practices of drug trafficking organizations was improper, absent evidence connecting drug defendant to such an organization.
People v. Cattone, 2011 WL 1744968 (Cal. App. 2011):

Holding: Where statute provided that a child under 14 cannot commit a crime unless State proves by clear and convincing evidence that defendant knew the wrongfulness of his conduct, this same standard must be applied to adult defendant who committed crime when he was less than 14 and State seeks to use that prior crime to show propensity to commit newly charged crime.
People v. Cortes, 2011 WL 83732 (Cal. App. 2011):

Holding: Trial court abused discretion in limiting psychiatrist’s testimony about Defendant’s diminished capacity to abstract conditions and their effect on the general population, rather than discussing Defendant’s condition specifically as applied to Defendant.



People v. Soojian, 2010 WL 4751762 (Cal. App. 2010):

Holding: Where defense counsel had been surprised at trial by testimony that truck used in crimes may have belonged to Defendant’s cousin, counsel should have been able to present new evidence discovered after trial about this in a new trial motion; this was an exception to rule that such evidence cannot be presented where counsel could have discovered it earlier by exercise of due diligence.
Rolon v. State, 2011 WL 4809119 (Fla. Dist. Ct. App. 2011):

Holding: Where, during his first trial, defendant was deprived of effective assistance of counsel during his direct and cross-examination, the court erred in allowing the state to introduce defendant’s statements from the first trial during the second trial.

Odeh v. State, 2011 WL 2694434 (Fla. Ct. App. 2011):

Holding: A police officer’s statement of opinion during his interrogation of Defendant that officer did not believe Defendant had a legally valid claim of self-defense should not have been admitted, because it was a lay opinion on guilt or innocence.
McCoy v. State, 2010 WL 5540946 (Fla. Ct. App. 2010):

Holding: A prescription defense is available to an innocent possessor of another person’s prescribed drugs where the innocent possessor had a legally recognized reason for having the drugs, such as an agency relationship with the other person.
Robinson v. State, 2011 WL 923975 (Ga. Ct. App. 2011):

Holding: Rape-shield statute applies only to the enumerated offenses in the statute, which do not include child molestation.
People v. Miranda, 2012 WL 171868 (Ill. App. Ct. 2012):

Holding: Defendant’s refusal to submit to a urine sample resulted in revocation of his implied consent to chemical testing under the implied consent statute.
State v. Wade, 88 Crim. L. Rep. 434 (Kan. Ct. App. 12/30/10):

Holding: Where Defendant was charged with battery for striking his son, he was entitled to raise common-law defense of parental discipline, even though the legislature has not established this as a statutory affirmative defense.
State v. Oliphant, 2013 WL 6091712 (La. App. 2013):

Holding: Trial court abused discretion in admitting drug tracking dog evidence where there was no evidence of any qualifications or certifications of the two dogs, and their tracking raised questions as to accuracy since neither dog tracked the same trail.
Simpson v. State, 2013 WL 5354206 (Md. Ct. Spec. App. 2013):

Holding: Officer’s testimony in arson case regarding his observations of a dog that had been trained to detect accelerants was “expert testimony” subject to expert testimony rules; thus, this Witness should have been identified prior to trial as an expert and the court should have had to rule on whether he was an expert.
Banks v. State, 2013 WL 4710575 (Md. Ct. Spec. App. 2013):

Holding: Conviction for resisting arrest is not admissible to impeach Witness, because such offense does not tend to show a person is unworthy of belief.
Payne v. State, 2013 WL 706913 (Md. App. 2013):

Holding: Officer’s lay testimony regarding details of cell phone tower tracking of Defendant was inadmissible because Officer was not qualified as an expert.
Correll v. State, 2013 WL 66867637 (Md. Spec. App. 2013):

Holding: Offense of failure to register as a sex offender is not an offense that tends to show a person is “unworthy of belief,” and therefore, the person could not be impeached with such prior conviction; the elements of the crime of failure to register do not include an intent to deceive.
Hajireen v. State, 2012 WL 676470 (Md. Ct. Spec. App. 2012):

Holding: Alleged victim’s statements to social worker regarding the alleged sexual assault by the defendant did not detract from or rebut logically defense counsel’s claim that the victim made up the whole incident, and therefore the statements were not admissible to rehabilitate the victim’s credibility in a sexual assault prosecution.
Dionas v. State, 2011 WL 2585962 (Md. Ct. Spec. App. 2011):

Holding: Trial court erred in limiting cross-examination of State’s witness as to whether they had an expectation of leniency from State for testifying at Defendant’s probation revocation hearing.
Com. v. Podgurski, 2012 WL 171725 (Mass. App. 2012):

Holding: Evidence of alleged informant’s background and criminal past was admissible for entrapment defense.
Com. v. Buzzell, 2011 WL 1744241 (Mass. App. 2011):
Holding: Information regarding victims’ immigration status was not connected to their credibility as witnesses and could not be used to impeach them.
State v. Granskie, 2013 WL 5629000 (N.J. App. 2013):