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Tag Archives: evidence

Criminal Practice – Evidence – Blood Alcohol Content – Retrograde Extrapolation – ‘Smell Test’ (access required)

State v. Davis While the state’s expert did present studies dealing with his method for calculating blood alcohol content based on the smell of alcohol on a person’s breath, the expert still failed to show that his method met the rigorous standards for chemical analysis of breath under G.S. § 20-139.1.

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Criminal Practice – Evidence – Other Bad Acts – Witness’s Conviction – Burglary & Assault (access required)

State v. Ellerbee Although the trial court should not have admitted evidence that defendant had assaulted someone else and that a defense witness had been convicted of manslaughter in 1986 (released in 1991), the evidence of defendant’s guilt was so overwhelming that these errors were not prejudicial: (1) The victim testified that he observed defendant’s face and recognized his voice during the beating, (2) Katie Lane testified that she recognized defendant’s voice as being the one who was yelling at the victim in the road, and (3) Abbie McRae testified that she witnessed defendant beating the victim, had a conversation with defendant, and had known defendant her entire life.

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Criminal Practice – Larceny of a Dog – Evidence – Present Recollection Refreshed – Reading of Statement – Sent to Jury Room – Constitutional – Fifth Amendment (access required)

State v. Harrison Witness Kristyn Stanco testified that her past recorded statement refreshed her memory; nevertheless, she was allowed to read that statement to the jury. Even if this was error, it was not plain error. Stanco testified independently about the contents of the statement, and the jury heard nothing from her reading of the statement that it did not hear from her. In addition, defendant had the opportunity both to cross-examine Stanco about the statement and to testify himself when he took the stand.

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Criminal Practice – Extortion – Entitlement – Threats of Violence – First Impression — Evidence – New Trial – Possession of Stolen Goods – Constructive Possession (access required)

State v. Privette Even if defendant was innocent of the charges for which he was jailed, he could still commit extortion by threatening to assault or kill the guilty party if he did not turn himself in. Nevertheless, evidence of hypothetical violence (what defendant said he would do to his wife if she were a man) should not have been admitted.

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Criminal Practice – Larceny – Evidence – Surveillance Tape – Authentication — Sentencing (access required)

State v. Cook Where facilities manager James McDonald described his office’s surveillance machine as “a live streaming recording device that sends the image back to a server that records,” and where Mr. McDonald testified that he viewed the surveillance video immediately following the incident and that the footage presented in court was the same as what he viewed just after the theft, the trial court did not abuse its discretion by admitting the surveillance video. We find no error in defendant’s conviction of felonious breaking or entering, larceny after breaking or entering, and attaining habitual felon status. However, we remand for resentencing.

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Administrative – Social Security – Evidence — Mental Retardation – Single IQ Test (access required)

Hancock v. Astrue An administrative law judge can reject findings that a claimant is mentally retarded even if there is only one set of test scores in the record; the 4th Circuit joins the majority of federal appeals courts in this view, and upholds the ALJ’s rejection of this claimant’s application for supplemental security income benefits, in light of her past work history and ability to manage daily life.

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Criminal Practice – Evidence – ‘Sexually Dangerous Person’ – Civil Commitment Denial (access required)

U.S. v. Hall The 4th Circuit affirms a district court finding that the government failed to prove by clear and convincing evidence that Clyde M. Hall is a “sexually dangerous person” under the civil commitment procedure in 18 U.S.C. § 4248. Hall had a history of physical, emotional and sexual abuse as a child. He was banished from his family home at age 16 and supported himself as a prostitute. He was convicted for sexual offenses involving minors in 1989 and in 1999. In 1999, he was convicted on federal charges of possession of child pornography. In 2008, his supervision was revoked for a second time and he also was convicted of failure to register as a sex offender.

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Criminal Practice – Murder – Evidence – Cell Phone Records – Authentication (access required)

State v. Crawley Even though the records custodian from the telephone company did not personally send the phone records at issue to the police, he testified that he believed the records shown to him at trial to be accurate and that he was familiar with such documents. He testified that the records were kept in the normal course of business and that the documents presented at trial were the same as those normally sent to law enforcement in connection with a case. The witness’s testimony was sufficient to show that the records were, as the state claimed, phone company records. Any question as to the accuracy or reliability of such records was a jury question.

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