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.

Open Issue: Can Leading Questions Be Based Upon A Good Faith Basis To Ask Them When The Fifth Amendment Privilege Is Asserted?

While the general rule allows leading questions as long as there is a good faith basis to ask them, the Eleventh Circuit notes an open issue whether the same standard applies to a witness who is known will invoke the Fifth Amendment privilege against self-incrimination, or whether the questions much be based upon “other independently admissible evidence that corroborated them,” as required in the Ninth Circuit, in Coquina Investments v. TD Bank, N.A., _ F.3d _ (11th Cir. July 29, 2014) (No. 12-11161)

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Redacted Accomplice Confession Failed To Cure Confrontation Clause Error

In the trial of a single defendant, the efforts to redact the confession of an accomplice were insufficient to cure a violation of the Confrontation Clause; the trial court confused the Bruton rule, which may permit redacted statements of nontestifying codefendants, in a joint trial; nonetheless, the error was harmless beyond a reasonable doubt, in United States v. Shaw, _ F.3d _ (10th Cir. July 11, 2014) (No. 13-3050)

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Circuit Consensus: Drawing An Adverse Inference From A Nonparty Witness's Invocation Of The Fifth Amendment Privilege

Eleventh Circuit confronts an issue of first impression concerning the circumstances in which a nonparty may invoke the Fifth Amendment before a civil jury; circuit explains that the application of the Fifth Amendment is different in criminal and civil cases; circuit concludes that one party could call a nonparty witness “to the stand for the purpose of having him invoke the Fifth Amendment privilege in the jury’s presence,” in Coquina Investments v. TD Bank, N.A., _ F.3d _ (11th Cir. July 29, 2014) (No. 12-11161)

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Establishing The Non-Existence Of Public Records Under FRE 803(10)

Ninth Circuit considers the application of FRE 803(10) to establish the non-existence of a special use permit to operate a snowmobile on forest service land; the testimony of the officer was sufficient to meet the requirements of the rule, in United States v. Parker, _ F.3d _ (9th Cir. July 31, 2014) (No. 13-30157)

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The Challenges In Establishing Withdrawal From A Conspiracy

One requirement in admitting co-conspirator statements under FRE 801(d)(2)(E) is the defendant's participation in the conspiracy at the time of the statement; First Circuit concludes the defendant failed to show he withdrew from the conspiracy and therefore the challenged statements were properly admitted, in United States v. George, _ F.3d _ (1st Cir. July 30, 2014) (No. 12-2373)

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Noting The Limits To The "Open Door" Doctrine

In examining the use of the “open door” doctrine, Eighth Circuit concludes that the doctrine could not be used to admit an officer’s conclusions about a traffic accident as the testimony did not “clear up” any misimpression created by his prior testimony; circuit also notes the limitations to using the "open door" doctrine, in Valadez v. Watkins Motor Lines, Inc., _ F.3d _ (8th Cir. July 11, 2014) (No. 12–3679)

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New Judicial Survey Concerning The Use Of Social Media By Jurors And Attorneys

A new survey of federal trial judges reviews the use of social media by jurors at trial; the survey also provides sample jury instructions used by several trial judges to discourage social media use during a trial, in a recent FJC publication: Jurors’ and Attorneys’ Use of Social Media During Voir Dire, Trials, and Deliberations: A Report to the Judicial Conference Committee on Court Administration and Case Management, Federal Judicial Center (May 1, 2014)

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Proper Use Of An IRS Summary Witness In A Tax Prosecution

First Circuit considers whether the use of an IRS summary witness was improper and concludes that the testimony was proper since it was based on admissible evidence, helped “analyze facts already introduced into evidence” and did not “directly address the ultimate question” in the case, in United States v. Ulloa, _ F.3d _ (1st Cir. July 28, 2014) (No. 13-1577)

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Applying The Emergency Category of Nontestimonial Statements

In hostage taking case, Ninth Circuit affirms the admission of the mother's report to law enforcement concerning her call with the captors, who demanded money for her son's return; the statements were admitted under the "emergency category of nontestimonial statements" and the Confrontation Clause was not violated, in United States v. Liera-Morales, _ F.3d _ (9th Cir. July 21, 2014) (No. 12-10548)

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Assessing The “Prior Opportunity For Cross-Examination” Under The Confrontation Clause

Sixth Circuit explores the Confrontation Clause requirement concerning “a prior opportunity for cross-examination” of an unavailable witness from two separate preliminary hearings, in Williams v. Bauman, _ F.3d _ (6th Cir. July 21, 2014) (13–1463)

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