Federal Evidence Blog

FEDERAL EVIDENCE BLOGHighlighting 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.

Using Circumstantial Evidence For FRE 804(b)(6) Forfeiture By Wrongdoing

In kidnapping trial, admitting victim's prior statements to police about what the defendant did to her, after she declined to testify about the statements contending that she could not remember; the statements were admissible under the FRE 804(b)(6) Forfeiture by Wrongdoing hearsay exception because the defendant "successfully procured" the witness's "unavailability by incessant pretrial manipulation" in which he "worked tirelessly for seven months to persuade" the victim "to recant," in United States v. Jonassen, _ F.3d _ (7th Cir. July 16, 2014) (No. 13-1410)

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Updated Federal And Other Jury Instructions (2014)

As part of our periodic review, the Federal Evidence Review highlights updates to model jury instructions for four circuits including the First, Fifth, Sixth and Eighth Circuits; all updates are included on the Federal Jury Instruction Resource Page

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Using English Transcripts To Follow Foreign Language Recordings Played At Trial

While trial court employed an "unorthodox" practice in admitting the foreign language recordings instead of the transcript, the circuit found the transcripts were sufficiently reliable notwithstanding corrections that had been made; while the expert who prepared the transcripts based on the foreign language lacked formal certifications, they were not required in light of his other interpreter experience, in United States v. Gutierrez, _ F.3d _ (8th Cir. July 8, 2014) (Nos. 13-1327, 12-4019)

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Comparing Physical And Circumstantial Evidence

Is physical evidence better than circumstantial evidence? The Seventh Circuit recently considered whether the admission of the actual cell phone was error and whether physical evidence is better than circumstantial evidence, in United States v. Arrellano, _ F.3d _ (7th Cir. July 2, 2014) (No. 13-1474)

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Taking The Conspiracy As He Finds It

When an individual joins a conspiracy, are statements of other co-conspirators made before he joined admissible against him? Seventh Circuit confirms that they are so long as the requirements of FRE 801(d)(2)(E) are met, in United States v. Arrellano, _ F.3d _ (7th Cir. July 2, 2014) (No. 13-1474)

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Indemnification Agreement Was Inadmissible To Show Liability Under FRE 411

In a civil rights action involving a tragic death, the plaintiff sought to admit an indemnification agreement to show which entity had decision making responsibility over medical matters. Seventh Circuit affirmed the exclusion of the agreement under since the primary issue concerned "questions of liability" which is an impermissible purpose under FRE 411, in King v. Kramer, _ F.3d _ (7th Cir. July 10, 2014) (No. 13–2379)

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Taking Judicial Notice Of The Government’s Prior Statements

In a Freedom of Information Act action seeking disclosure of documents and information concerning the government drone program, Second Circuit takes judicial notice under FRE 201 of statements made by the government following the ruling by the district court, in New York Times Co. v. U.S. Dept. of Justice, _ F.3d _ (2d Cir. June 23, 2014) (Nos. 13–422 (L), 13–445(CON))

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Considering Trial Transcripts From A Related Case At Sentencing

Since the FRE do not apply at sentencing under FRE 1101, can a district court consider the trial transcripts from related proceedings as part of its sentencing determination? The Eighth Circuit affirms this practice, in United States v. Mohamed, _ F.3d _ (8th Cir. July 2, 2014) (No. 13-2188)

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Playing An Audio Tape During Closing Argument That Was Not Admitted At Trial

The jury is supposed to consider only admissible evidence. How does a court address the situation where one party plays a recording during closing argument that was not admitted at trial? The First Circuit considered the impact of the recording and curative instruction given by the trial court, in United States v. Rojas, _ F.3d _ (1st Cir. July 7, 2014) (No. 13-1352)

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Rejecting "But For" Test For Application Of The Attorney-Client Privilege In Corporate Internal Investigations

In a case involving discovery of documents from the defendant's "prior internal investigation into ... alleged fraud," D.C. Circuit explains that defendant's investigation documents were protected by the attorney-client privilege even though the "sole purpose" of the investigation was not to obtain legal advice, but rather receiving legal advice was just one of the "significant purposes" of the investigation, in In Re Kellogg Brown & Root, Inc., _ F.3d _ (D.C. Cir. June 27, 2014) (No. 14-5055)

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