Federal Evidence Blog
Highlighting recent cases and issues involving the Federal Rules of Evidence and other topical evidence matters. Topics range from
the new Attorney-Client Privilege Rule (FRE 502), electronic, Internet and expert evidence issues, Confrontation Clause, pending rule amendments, legislation,
privilege issues, recent noteworthy cases and other issues, practical tips, "Supreme Court Watch" entries and more.
Disputed FRE 408 Coverage Of Third Party Settlement Activities
Fri, 05/24/2013 
The Ninth Circuit joins the Third, Fourth and Eleventh Circuits in rejecting an Immigration Judge's look outside the record to determine if an acknowledged conviction was one "involving moral turpitude" under the immigration laws, creating a split from the Seventh and Eighth Circuits which have not rejected application of the Attorney General’s decision in Matter of Silva-Trevino, 24 I&N Dec. 287 (AG 2008), that in alien removal proceedings the administrative court may rely on alleged facts about the alien's criminal conduct that were never established in the criminal case record, in Olivas-Motta v. Holder, __ F.3d __ (9th Cir. May 17, 2013) (No. 10–72459)
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Seventh Circuit highlights two options to authenticating recorded conversations and voice identification, in a case where the recordings were obtained by a cooperating witness and provided to law enforcement, in United States v. Collins, _ F.3d _ (7th Cir. May 15, 2013) (No. 11-3098)
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In conspiracy to distribute cocaine trial, admitting law enforcement lay testimony identifying the defendant’s voice as helpful to “this particular jury, sitting in Massachusetts” because there was “no evidence” jurors “possessed the same mastery of the Spanish language” as did the agent "a native speaker familiar with the particular accents, intonations and speaking habits of persons from” the defendant’s native country, in United States v. Díaz-Arias, _ F.3d _ (1st Cir. April 29, 2013) (No. 11-2271)
Read moreCongress Watch: Renewed Focus On Reporter Shield Law Following Use Of Subpoenas For Reporters' Telephone Records
Mon, 05/20/2013
The recent attention on the use of federal grand jury subpoenas to obtain the telephone records of reporters has refocused the issue of protecting First Amendment rights and striking the balance to safeguard evidence from the media; as calls for a Reporter Shield Law are renewed, last week, the Free Flow of Information Act of 2013 was reintroduced in the House of Representatives and Senate along with other legislation in Congress
Read moreForeign Government Website Was “Presumptively Authentic”
Fri, 05/17/2013
In considering the admissibility of a foreign government website in an asylum case, Seventh Circuit notes that a foreign government website was “presumptively authentic” since a document on a the site from China could “be verified by visiting the website itself,” in Chen v. Holder, _ F.3d _ (7th Cir. May 9, 2013) (No. 12-2563)
Read moreCivil Antitrust Case Highlights Factors For An Adverse Inference In Civil Cases Based On Assertions Of The Fifth Amendment
Thu, 05/16/2013
In civil antitrust price fixing trial, trial court excludes evidence concerning the invocation of the Fifth Amendment Privilege Against Self-Incrimination by non-party witnesses after considering applicable factors, in In re: Urethane Antitrust Litigation (D. Kansas) (No. 04-MD-1616)
Read moreFRE 701 Lay Testimony About What A Declarant's Statement Meant
Wed, 05/15/2013
As proof of a conspiracy, admitting lay testimony by borrower that he had told the defendant bank that “things would get very messy” if the bank continued its inquiry into the "legitimacy of borrower's corporation and it's auditor" which was admissible to show that the bank "was aware" of and had agreed to join in the conspiracy to defraud the plaintiff, in American Bank of St. Paul v. TD Bank, N.A., _ F.3d _ (8th Cir. April 26, 2013) (Nos. 12–1806, 12–1862, 12–2399)
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Fifth Circuit highlights the need to object to the exclusion of the expert testimony under FRE 702and also make "an offer of proof, unless the substance was apparent from the context” under FRE 103(a)(2); the trial court's error in excluding the expert testimony could not be assessed in the absence of a sufficient record, in United States v. Liu, _ F.3d _ (5th Cir. May 6, 2013) (No. 12-30105)
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Fourth Circuit Identifies Open Issue On Using FRE 804(b)(3) Statements Against Interest In Civil Cases
Mon, 05/13/2013
