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.

Addressing The Failure To Provide Written Notice To Introduce Business Records Under FRE 902(11)

In mortgage fraud prosecution, government provided oral notice of its intent to introduce self-authenticating business records but failed to provide written notice as required under FRE 902(11); Second Circuit concludes that the record supported a finding that actual notice had been provided, while "caution[ing] that parties fail to comply with the Rule 902(11)’s written notice requirements at their own risk," in United States v. Komasa, _ F.3d _ (2d Cir. Aug. 28, 2014) (Nos. 13–1534–cr(L); 13–1550–cr(Con))

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Celebrating Labor Day


The Federal Evidence Blog
returns on
Tuesday, September 2, 2014.
Enjoy the Labor Day holiday.

Labor Day is celebrated on the first Monday in September. See 5 U.S.C. § 6103 (federal holidays).

Bursting The Mailbox Rule Presumption

Third Circuit considers the operation of the mailbox rule presumption under FRE 301 and the circumstances in which the presumption may be rebutted; circuit distinguishes between strong and weak presumptions; summary judgment was vacated after the circuit concluded that the district court misapplied the presumption, in Lupyan v. Corinthian Colleges Inc., _ F.3d _ (3d Cir. Aug. 5, 2014) (No. 13–1843)

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Conviction Vacated After Trial Court Improperly Solicited A Partial Verdict

Seventh Circuit vacates conviction after the trial court "invited a partial verdict while deliberations remained ongoing and before the jury indicated that it was truly deadlocked as to any count"; circuit provides guidance into how to address these circumstances, in United States v. Moore, _ F.3d _ (7th Cir. Aug. 19, 2014) (No. 13-2905)

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Not Quite Premature Juror Deliberations Infringing The Right To A Fair Trial

Eighth Circuit reviews claim that two jurors prematurely deliberated about the case in violation of the Sixth Amendment right to a fair trial; the trial court took appropriate steps to assess the impact and context of the comments resulting in a determination that there was no infringement on the fair trial right, in United States v. Axsom, _ F.3d _ (8th Cir. Aug. 4, 2014) (No. 12-3703)

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The Trial Court's Substantial Discretion Under FRE 403

Can animals be allowed in the courtroom as a demonstrative exhibit depending on the nature of the trial issues? In an action alleging that the disability provisions of the federal and state Fair Housing Act were violated by the exclusion of a condominium association owner's dog, the trial court allowed the dog to be present during the plaintiff's trial testimony; circuit concludes that the decisions rested within the substantial discretion afforded the trial court under FRE 403, in Bhogaita v. Altamonte Heights Condominium Ass'n, Inc., _ F.3d _ (11th Cir. Aug. 27, 2014) (Nos. 13–12625, 13–13914)

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Circuit Split: Whether Denial Of A Severance Motion Preserves A Later Bruton Challenge?

When a party moves to sever a case with other criminal defendants based on concerns under Bruton v. United States, does the severance motion preserve a later Bruton challenge on appeal when the statements of a non-testifying defendant are admitted at trial? The Sixth Circuit recently noted that the circuits are divided on this issue, in United States v. Ford, _ F.3d _ (6th Cir. Aug. 5, 2014) (Nos. 11-2200, 11-1926, 11-1917, 11-2015)

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Barring Exculpatory Party Statements

Sixth Circuit reviews defense effort to admit the defendant's exculpatory statements during cross-examination of a special agent and concludes the statements were properly excluded as hearsay; while inculpatory statements were properly admitted under FRE 801(d)(2)(A), the exculpatory statements were hearsay under FRE 801(c), and were inadmissible under the Confrontation Clause and Rule of Completeness under FRE 106, in United States v. Ford, _ F.3d _ (6th Cir. Aug. 5, 2014) (Nos. 11-2200, 11-1926, 11-1917, 11-2015)

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Considering Gang Affiliation Evidence

Sixth Circuit considers the circumstances in which gang affiliation evidence may be admitted; based on the charges and facts, the circuit concludes that the evidence was admissible to "demonstrate[] the relationship amongst the co-conspirators" under FRE 401, and was not unfairly prejudicial under FRE 403, in United States v. Ford, _ F.3d _ (6th Cir. Aug. 5, 2014) (Nos. 11-2200, 11-1926, 11-1917, 11-2015)

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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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