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.

Authenticating Evidence From A Web Site

Are there any special considerations that go into authentication of material found on a web site so it can be introduced into evidence? The Seventh Circuit recently assessed an effort to authenticate postings on a web site that its proponent claimed would have shown that it had not abandoned its trademark, in Specht v. Google, Inc., __ F.3d __ (7th Cir. April 4, 2014) (No. 11-3317)

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Coconspirator Disagreements And Disputes "In Furtherance" Of The Conspiracy?

Can disputes among alleged coconspirators be admitted as coconspirator statements in furtherance of the alleged conspiracy? Like most human endeavors, participating in a conspiracy often involves disagreements and conflicts among the conspiracy's members. The Tenth Circuit recently examined how evidence of coconspirators grappling with each other after achieving the conspiracy's criminal goal can be considered as actions in furtherance of the conspiracy, even though the conspiracy seemed to be tottering towards contention and dispute. This made little difference in admitting these statements as FRE 801(d)(2)(E) coconspirator statements, in United States v. Morgan, __ F.3d __ (10th Cir. April 9, 2014) (Nos. 12–1408, 12–1442, 13–1032)

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Blanket Exclusion Of Trade Secret Evidence Results In Reversal Of $920 Million Jury Verdict

In reversing a $920 million trade secret jury verdict, the Fourth Circuit concludes that the trial court imposed "too stringent" of a standard in requiring the defendant to show that trade secrets from prior litigation were publicly available; the jury was entitled to consider the evidence based on a "plausible showing"; circuit concludes "that the blanket exclusion of such evidence seriously prejudiced Kolon’s ability to present its case to the jury," E.I. DuPont De Nemours & Co. v. Kolon Industries Inc., _ Fed.Appx _ (4th Cir. Apr. 3, 2014) (No. 12-1260) (Per Curiam) (Unpublished)

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FRE 404(b) Evidence Would Have Been Inadmissible In A Jury Trial But Was Harmless Error In A Bench Trial

The Seventh Circuit recently considered the different treatment in admitting evidence in a bench trial instead of a jury trial; the circuit applies a "presumption of conscientiousness" in reviewing evidence admitted in a bench trial; while any error was ultimately harmless, the circuit notes that "had the evidence come before a jury, we may have come to a different conclusion, but we presume that the court was not unduly influenced by this weak pattern evidence," in United States v. Reed, _ F.3d _ (7th Cir. March 10, 2014) (No. 12–3701)

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Admitting Secret Confidential Informant Recordings Under The Confrontation Clause

When the government asks a confidential informant to record conversations with a co-conspirator, under what circumstances are the secret recordings admissible under the Confrontation Clause? The Seventh Circuit explains that an objective view applies in admitting the statements under the Confrontation Clause and rejects the defense request to apply a subjective standard, in United States v. Volpendesto, _ F.3d _ (7th Cir. March 24, 2014) (Nos. 11–3022, 12–1180, 12–1656)

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Making A Sufficient Redaction

When a statement is admitted for a limited purpose, it may need editing or redacting to comport with FRE 105. Do any standards or factors exist for assessing the propriety of a redaction? The Second Circuit recently considered an aspect of this problem in a case concerning how a statement should be redacted so that its admission into evidence did not carry with it the "overwhelming probability" of inviting the jury to speculate or to otherwise ignore the court's limiting instructions, in United States v. Taylor, _ F.3d _ (2d Cir. March 4, 2014) (Nos. 11–2201 L, 11–2426(CON), 11–2639(CON))

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Reviewing Age, Oath And Capacity Requirements For Juvenile Witnesses

While FRE 601 provides that "[e]very person is competent to be a witness," are there any limitations concerning the competency of children to testify? A recent case shows that while FRE 601 provides little direction guiding the reception of a child as a witness, substantial guidance is provided by statute, in United States v. IMM, _ F.3d _ (9th Cir. March 31, 2014) (No. 11–10317)

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Caution Advised In Taking Judicial Notice

While judicial notice under FRE 201 may be appropriate where the requirements of the rule are met, Eighth Circuit decides not to consider whether the trial court erred in taking judicial notice since the case was remanded, but cautions against taking judicial notice "in contravention of the relevancy, foundation, and hearsay rules," in 1-800-411-Pain Referral Service, LLC v. Otto, _ F.3d _ (8th Cir. March 10, 2014) (No. 13-1167)

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Whether To Encourage Juror Note Taking At Trial?

While the practice varies, trial judges generally have discretion on whether jurors may take notes during the trial; recently the Seventh Circuit weighed in on this issue and encouraged that jurors be permitted to take notes as a recommended practice, in United States v. Causey, _ F.3d _ (7th Cir. March 28, 2014) (No. 13–1321); a survey of other jury instructions from around the country highlights different practices and model language

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FRE 613(b)'s "Opportunity To Explain" Prior Statement

In considering the admission of a witness's prior inconsistent statement under FRE 613(b), what process should be followed in asking the witness to confirm the prior statement? As the Eleventh Circuit recently noted, as long as "an opportunity to explain or deny the statement" was available, the rule does not required any particular time or any particular sequence in which this opportunity is made available, in United States v. Feliciano, _ F.3d _ (11th Cir. April 3, 2014) (No. 12-15341)

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