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.
Admissibility Of Evidence Of "Sudden Unexplained Wealth"
Thu, 09/02/2010 
In trial for transportation of illegal aliens resulting in death, misconstruction of the charged crime 8 U.S.C. § 1324(a)(1)(B)(iv) as not requiring proof of proximate cause between the defendant's act of transporting illegal aliens and killing them, led to the erroneous exclusion on relevance grounds of FRE 401 and FRE 403 of defense evidence of proximate cause (that pursuing agents violated agency policy regarding deploying a spike strip across the road on which the defendant fled, breaking the chain of causation between the defendant's transport of the aliens and the accident that killed the aliens when the defendant ran over the spike strip), in United States v. Pineda-Doval, __ F.3d __ (9th Cir. August 10, 2010) (No. 08-10240)
Read moreEighth Circuit Resolves Open Issue On Jury Consideration Of Selective Prosecution Evidence
Tue, 08/31/2010
Eighth Circuit joins Third and Sixth Circuits in holding the district court could decide any vindictive prosecution issue before trial but the issue was not appropriate for the jury, in United States v. Clay, _ F.3d _ (8th Cir. Aug. 27, 2010) (No. 09-3134) (per curiam)
Read moreEighth Circuit Corrects Claim That Testifying Witness Must Be A Co-Conspirator For Statement Under FRE 801(d)(2)(E)
Mon, 08/30/2010
The focus in admitting a co-conspirator statement is on whether the declarant was a member of the conspiracy, not whether the testifying witness was a member; challenged co-conspirator statements were also non-testimonial, avoiding any Confrontation Clause issues, in United States v. Dinwiddie, _ F.3d _ (8th Cir. Aug. 25, 2010) (Nos. 09-2154, 09-2649)
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FRE 106 Rule Of Completeness Standards Of Relevance And Fairness
Fri, 08/27/2010
In drug robbery trial, excluding the defendant's proffer of a redacted exculpatory part of the defendant’s confession (describing what happened during the alleged robbery) because under FRE 106, rule of completeness, the redactions did not explain or place in context the portion of the confession that the prosecution proffered to describe only the planning for the alleged robbery, in United States v. Johnson, 507 F.3d 793 (2d Cir. Nov. 14, 2007) (No. 05-5529-cr)
Read moreConsensus On Bible As An Extraneous Influence On Jury Deliberations Under The Sixth Amendment
Thu, 08/26/2010
On habeas corpus review of capital murder trial, state jury's consultation of Bible passages during the sentencing phase violated the Sixth Amendment Fair Trial and Confrontation Clause rights (where some jurors together looked through a Bible in the jury room and one pointed out to the others to a specific part suggesting that one who strikes and kills another with an object, like the petitioner, had to be executed, and jurors probably compared applicability of the facts of the case with this biblical passage); however, the error was harmless beyond a reasonable doubt as the petitioner did not show it had a substantial and injurious effect on the jury verdict of death, in Oliver v. Quarterman, 541 F.3d 329 (5th Cir. Aug. 14, 2008)(No. 06-70006)
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Second Circuit vacates drug conspiracy conviction based on officer's testimony regarding his directions to a co-conspirator to phone his "supplier" and about the actions taken by the co-conspirator in response which was "inadmissible prejudicial hearsay testimony," that impermissibly communicated to the jury that the co-defendant had identified the defendant as his supplier; circuit rejects the "government's claim [a]s simply not credible" that the officer's testimony provided necessary background on the investigation; in United States v. Gomez, __ F.3d __ (2d Cir. Aug. 4, 2010) (No. 08-3829-cr)
Read moreVideotaped Interrogation Was Inadmissible For Impeachment Or Under The Rule Of Completeness
Tue, 08/24/2010
Defense efforts to admit post-arrest videotape of the defendant at the police station failed where (1) impeachment by contradiction did not apply since no inconsistency was established, and (2) the rule of completeness was not intended to “allow otherwise inadmissible evidence to be used to create doubt as to whether the admitted statement was ever made,” in United States v. Verdugo, _ F.3d _ (1st Cir. Aug. 19, 2010) (Nos. 08-2175, 08-2217)
Read moreWorkplace Discrimination And Retaliation Evidence Was Inadmissible To show Habit But Was Admissible On Other Grounds
Mon, 08/23/2010
In racial employment discrimination action, evidence of workplace discrimination and retaliation against other employees (“me too” evidence) was inadmissible to show routine practice under FRE 406 as it was based on only four instances involving different circumstances; however, the discrimination evidence was admissible on other grounds, in Goldsmith v. Bagby Elevator Co., Inc., 513 F.3d 1261, 1286 (11th Cir. 2008) (No. 06-14440)
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