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.
Confrontation Clause: Continuing Uncertainty For Expert Testimony Following Williams v. Illinois
Mon, 06/17/2013
A recent survey of cases notes the ongoing confusion in the lower courts in applying the Confrontation Clause following last year's plurality decision in Williams v. Illinois, 567 U.S. _, 132 S.Ct. 2221, 183 L.Ed.2d 89 (2012); the survey highlights "four major disputes left by Williams" which warrant reconciliation; it remains to be seen when the Supreme Court provide guidance on this important, recurring issue
Read moreJudicial Standing Committee Considers Proposed Amendment To FRE 803(6), (7), (8) (Business and Public Records) (Part IV)
Fri, 06/14/2013
The Judicial Conference’s Committee on Rules of Practice and Procedure considers the recommendation of the the Advisory Committee on Evidence Rules to clarify which party holds the burden of proof to show lack of trustworthiness for the business and public records hearsay exceptions, under FRE 803(6), (7), (8)
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The Sixth Circuit notes a circuit consensus and trend against permitting motions in limine to be converted into summary judgment motions; a motion in limine should focus on narrowing evidentiary issues for trial or precluding unnecessary trial interruptions and not resolving a legal matter which is cast as an evidentiary issue, in Louzon v. Ford Motor Co., _ F.3d _ (6th Cir. June 4, 2013) (No. 11-2356)
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Using Google maps, Tenth Circuit takes judicial notice of the "general location" and approximate distances of the incident involving political protestors under FRE 201, as reported by Google Maps's “Distance Measurement Tool”; court determines the plaintiffs were located 150 yards south of the area "Presidential supporters had been placed," so that the supporters were close to and within viewing distance of the President's motorcade, in Pahls v. Thomas, _ F.3d _ (10th Cir. June 4, 2013) (Nos. 11–2055, 11–2059)
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Judicial Standing Committee Considers Proposed Amendment To FRE 801(d)(1)(B) (Prior Consistent Statement) (Part VII)
Tue, 06/11/2013
After the public comment on the proposed amendment to FRE 801(d)(1)(B), and modification of the amendment by the Advisory Committee on Evidence Rules, as the next step in the process the Judicial Conference’s Committee on Rules of Practice and Procedure reviews the proposal
Read moreApplying Perry's Five-Factor Test To In-Court Identifications And Abrogating Prior Circuit Precedent
Mon, 06/10/2013
In armed bank robbery trial, the admission of 14 in-court identifications of the defendant by bank employees did not violate the Due Process Clause as the defendant failed to show that the circumstances of the in-court identifications were “suggestive” and were the result of improper police conduct (applying Perry v. New Hampshire, 565 U.S. _, 132 S.Ct. 716, 728 (2012), in United States v. Whatley, _ F.3d _ (11th Cir. June 3, 2013) (No. 11-14151)
Read moreFourth Circuit Identifies Open Issue On Using FRE 804(b)(3) Statements Against Interest In Civil Cases
Fri, 06/07/2013
Fourth Circuit notes open issue on whether statements against interest under FRE 804(b)(3) admitted in civil cases requires "the use of the corroborating circumstances for declarations against penal interest"; in civil forfeiture action involving house purchased with proceeds of defendant doctor's alleged health care fraud, admitting statements by the doctor regarding his prescription and billing of an expensive antibody substance in a scheme to defraud health care benefit programs; while rejecting any need for corroboration of the evidence in the civil context, noting a circuit disagreement that need not be addressed in this case because even had corroboration been required, its absence in this case was harmless error, in United States v. Kivanc, _ F.3d _ (4th Cir. April 26, 2013) (No. 12-1321)
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Supreme Court Watch: No Constitutional Right To Present Extrinsic Evidence For Impeachment Purposes
Thu, 06/06/2013
What limits are there in presenting extrinsic evidence about a crime victim under the Sixth Amendment? In a per curiam decision on Monday, the Supreme Court reversed a Ninth Circuit opinion that a defendant was deprived of the right to present a defense during his Nevada rape trial by the exclusion of extrinsic evidence about the victim through extrinsic evidence; the Confrontation Clause also does not "entitle[] a criminal defendant to introduce extrinsic evidence for impeachment purposes"; the state evidence rule, which was comparable to FRE 608(b), focuses the jury on the central facts and avoids "minitrials on collateral issues, in Nevada v. Jackson, 569 U.S. _ (2013) (per curiam) (12-694)
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