In judicial calculation of statutory attorney's fees in a Title VII retaliation suit, the trial court, sua sponte, could take judicial notice of the Consumer Price Index (CPI) but must comply with the FRE 201(e) "procedural requirement" that "the parties be given notice and an opportunity to object; here judge should not have taken judicial notice of the CPI found on the web unless it allowed parties the "opportunity to contest the application of the CPI or to argue for a particular manner of applying it," in Pickett v. Sheridan Health Care Center, __ F.3d __ (7th Cir. Dec. 15, 2011)

Eleventh Circuit reverses health care fraud conviction based on the introduction of autopsy report prepared by non-testifying witnesses and the testimony of a medical examiner who had not performed the autopsy; the chief medical examiner could not provide surrogate testimony for non-testifying examiners who prepared autopsy reports, in United States v. Ignasiak, _ F.3d _ (11th Cir. Jan. 19, 2012) (Nos. 09-10596, 09-160)

The survey of all active and senior federal district court judges, in which more than half responded, reveals that six percent had detected the use of social media during the trial process; the use of jury instructions barring the use of electronic social media and other steps to discourage access during the trial are noted, in a new Report to the Judicial Conference Committee on Court Administration and Case Management

In trial for conspiracy to engage in a “pump and dump” securities fraud scheme, admitting expert testimony of professor of securities law to explain the complex and intricate regulatory landscape and market influences on the securities trading involved in the case; although the testimony arguably stated legal conclusions, it was admissible under FRE 702 because it also helped the jury understand the federal securities registration requirements, registration exemptions, and specific regulatory practices, that they would need to apply in the case, in United States v. Offill, __ F.3d __ (4th Cir. Dec. 6, 2011) (No. 10–4490)

Fourth Circuit holds that the use of pseudonyms for two El Salvadorian police officers without identifying their background information did not violate the Confrontation Clause based on a showing of actual danger to the officers and their families and the ability of the defense to effectively cross-examine the witnesses with the information provided, in United States v. Ramos-Cruz, _ F.3d _ (4th Cir. Jan. 18, 2012) (No. 08-4647)

A consensus has emerged among the circuits that prior inconsistent statements at a plea hearing pursuant to Fed. R. Crim. P. 11 may be admitted and considered as substantive evidence under FRE 801(d)(1)(A), in United States v. Cervantes, 646 F.3d 1054, 1060 (8th Cir. 2011) (No. 10-3544), and other cases.

In possession and distribution of child pornography case involving the Internet, police agent's testimony identifying the defendant as the user who distributed the charged child pornography was not improper "overview" testimony, but it should have been excluded as inappropriate lay opinion testimony not based on the witness's personal observations under FRE 602 and as not "helpful" to the jury under FRE 701, in United States v. Vazquez-Rivera, __ F.3d __ (1st Cir. Dec. 22, 2011) (No. 10-1930)

Since the Supreme Court left to juries the role of assessing the reliability of eyewitness identification evidence which does not involve "improper law enforcement activity" in Perry v. New Hampshire last week, what steps can counsel take to assist the jury on this issue? One of five "protections" in the criminal justice process noted by the Court includes "jury instructions on the fallibility of eyewitness identification." A review of the model eyewitness identification instructions cited in Perry reveals similar yet varied approaches and that most are based on United States v. Telfaire, 469 F. 2d 552, 558–59 (DC Cir. 1972) (per curiam)

In diversity invasion of privacy and breach of confidentiality trial by plaintiff patient against defendant doctors who performed cosmetic surgery on the patient, reversing in part and remanding for a new trial on the level of punitive damages because the trial court erroneously excluded testimony by the reporter who received from the defendant doctors certain nude photographs of the plaintiff patient, which subsequently were published in the newspapers; the trial court's exclusion of the witness's testimony on the basis that its use would "unfair[ly] surprise" the defendants was not authorized by FRE 403 but could be sanctioned under Fed. R. Civ. P. 37 under appropriate circumstances, in Doe v. Young, __ F.3d __ (8th Cir. Dec. 28, 2011) (No. 10–3442)

Photo: November 2, 1983, President Ronald Reagan signed legislation establishing the Martin Luther King, Jr. Day Holiday.