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.
Child's Family Therapy Statement Admissible As FRE 803(4) Statement For Medical Treatment
Tue, 05/22/2012
In a homicide prosecution, admitting as statements for medical diagnosis and treatment under FRE 803(4) the answers by an eight year old victim to a social worker regarding the defendant's abuse, resulting in physical injuries; the family therapy participants' (defendant, victim and family members) "primary purpose" in consulting the social worker was to "develop a treatment plan" as part of a medical program offered by the defendant's employer, in United States v. DeLeon, __ F.3d __ (4th Cir. May 15, 2012) (No. 10–4064)
Read moreThe Confrontation Clause and Admission Of Statements Involving A Non-Testifying Interpreter
Mon, 05/21/2012
Ninth Circuit notes that the Confrontation Clause cases have not considered “the question whether, when a speaker makes a statement through an interpreter, the Sixth Amendment requires the court to attribute the statement to the interpreter”; the failure to call the interpreter to testify at trial did not violate the Confrontation Clause where nothing indicated that the interpreter served as “anything other than a language conduit” or had a motive to mistranslate, in United States v. Hieng, _ F.3d _ (9th Cir. May 11, 2012) (No. 09-10401)
Read moreUsing Federal Jury Instructions For Discerning A Crime Of Dishonesty Under FRE 609(b)
Fri, 05/18/2012
In prosecution for knowingly violating the Clean Water Act, under FRE 609(b) impeachment evidence that a prosecution witness had been convicted of larceny was properly excluded because the crime of larceny was not a crime of dishonesty, as is seen from consulting the relevant statutory language and the model circuit jury instructions regarding the charge, in United States v. Pruett, __ F.3d __ (5th Cir. May 15, 2012) (No. 11–30572)
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In reviewing dismissal of class action alleging breach of fiduciary responsibilities by trustee in stock option plan, circuit takes judicial notice of stock prices which were not alleged in the complaint under FRE 201, in Lanfear v. Home Depot, Inc., _ F.3d _ (11th Cir. May 8, 2012) (No. 10-13002)
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In recent denial of certiorari review in Robbins v. Texas, a division in the courts remains over the constitutional soundness of a guilty verdict based in large part on science later alleged to be unreliable. As framed by the petitioner, the issue is whether “federal due process requires that a criminal defendant be afforded a new trial upon the revelation that scientific evidence necessary to his conviction was or has become unreliable as a matter of law or scientific fact.”
Read moreThird Circuit Clarifies Ohio v. Roberts Is "No Longer" Appropriate For "Nontestimonial Hearsay"
Tue, 05/15/2012
Third Circuit "now expressly follow[s] the Supreme Court‘s Confrontation Clause jurisprudence" from Davis v. Washington, 547 U.S. 813 (2006), Whorton v. Bockting, 549 U.S. 406 (2007), and Michigan v. Bryant, 562 U.S. _ (2011), and clarifies that "where nontestimonial hearsay is concerned, the Confrontation Clause has no role to play in determining the admissibility of a declarant's statement. Accordingly, the indicia of reliability test of Ohio v. Roberts, 448 U.S. 56 (1980) is no longer an appropriate vehicle for challenging admission of nontestimonial hearsay," in United States v. Berrios, __ F.3d __ (3d Cir. April 10, 2012) (Nos. 07-2818, 07-2887, 07-2888 and 07-2904)
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In gang prosecution, Seventh Circuit concludes anonymous jury was appropriate, citing other recent cases which reached a similar conclusion, in United States v. Schiro, _ F.3d _ (7th Cir. May 1, 2012) (Nos. 09-1265, 09-2093, 09-1287, 09-2109, 09-1602, 09-1376).
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In conspiracy and money laundering prosecution involving transactions in life insurance policies for the terminally ill, admitting a summary chart under FRE 1006 even though the basis on which the summary was made was admissible under the residual hearsay exception (as essentially business records), in United States v. Jamieson, 427 F.3d 394 (6th Cir. Oct. 28, 2005) (Nos. 02-3403, 03-4578)
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