Judicial Conference Committee on Court Administration and Case Management issues model jury instruction “to help deter jurors from using electronic technologies to research or communicate about cases on which they serve.”

With the increasing access to information on a wide variety of portable devices, the courts have had to deal with a new phenomenon: limiting juror access to the Internet or other information during the trial. The facts of any case should be decided based on the evidence introduced at trial and not external information or research. Juror access to Internet information can result in reversal or cast doubt on the validity of the verdict based on motions filed at trial or issues raised on appeal. See, e.g., Juror Internet Research Leads To Reversal; No Reversal Despite Juror Exposure To Internet Information, Media Accounts And E-mail;Read more

Bloomberg Financial Service’s historical financial data based on its computer records was used to calculate loss and was admissible under Rule 803(17) as a market report relied upon by those involved in the financial markets, in United States v. Masferrer, 514 F.3d 1158, 1162 (11th Cir. Jan. 22, 2008) (No. 06-14223)

FRE 803(17) allows market reports and commercial publications to be admitted as an exception to the rule excluding hearsay. The rule provides: “Market quotations, tabulations, lists, directories, or other published compilations, generally used and relied upon by the public or by persons in particular occupations.” As the rule drafters noted, “The basis of trustworthiness is general reliance by the public or by a particular segment of it, and the motivation of the compiler to foster reliance by being accurate.” ACN. A fraud case demonstrated the use and admission of historical financial data under FRE 803(17) to establish the losses at trial.Read more

In civil forfeiture action, foreign judgment of conviction, the fact of the conviction and sentence were admissible under FRE 803(22) but the underlying facts could not be considered, in United States v. $125,938.62 Proceeds of Certificates of Deposit Number 1271734730, $60,851.73 Number 1271736329, et al., 537 F. 3d 1287, 1292 (11th Cir. 2008) (No. 07-10380)

FRE 803 permits the evidence of a final criminal felony judgment to be admitted as an exception to the rule excluding hearsay. The drafters took the position that a criminal felony judgment may be “admissible in evidence for what it is worth.” ACN. The rule reflects “an increasing reluctance to reject in toto the validity of the law’s factfinding processes outside the confines of res judicata and collateral estoppel.”Read more

In aggravated sexual abuse of a child trial, 40-minute DVD recording of a forensic interview with the child victim was admissible under the residual hearsay exception; because the record established that the trial court considered the requisite factors for the residual hearsay exception, explicit findings were not required, in United States v. Smith, _ F.3d _ (No. 09-1036)

The residual hearsay rule is considered the “catch-all” exception to the general rule against admitting hearsay. Before any statement may be admitted under the rule, it requires that “equivalent circumstantial guarantees of trustworthiness” are shown consistent with other hearsay exceptions under FRE 803 and FRE 804. Specific factors are identified under the rule and case law. A recent case considered whether explicit findings are necessary as a precondition to admitting a statement under the residual hearsay rule.Read more

In personal injury action, an occupational therapist report was inadmissible under FRE 106 where the adverse party failed to meet its burden to “specify the portion of the testimony that is relevant to the issue at trial and that qualifies or explains portions already admitted,” in McCoy v. Augusta Fiberglass Coatings, Inc., _ F.3d _ (No. 08-2818)

State court certified copies of computer printouts of entries reflecting the defendant’s prior criminal convictions was presumptively reliable under FRE 803(8); the mere possibility of error in the computer records was insufficient to challenge their reliability, in United States v. Carter, _ F.3d _ (D.C. Cir. Jan. 15, 2010) (No. 08-3009) (Sentelle (CCJ), Griffith, Kavanaugh)

In applying Melendez-Diaz v. Massachusetts, 557 U.S. __, 129 S. Ct. 2527 (2009), the Fifth Circuit overturns prior precedent after concluding that the CNRs are “testimonial” since they are “not routinely produced in the course of government business but instead are exclusively generated for use at trial”; case may now call into question earlier decisions in other circuits, in United States v. Martinez-Rios, _ F.3d _ (No. 08-40809) (per curiam)

The boundaries of the Confrontation Clause analysis continue to be illuminated since the landmark 2004 decision in Crawford v. Washington, which candidly recognized that key issues were yet to be resolved. See 541 U.S. 36, 68 & n.10 (2004) (“We leave for another day any effort to spell out a comprehensive definition of ‘testimonial.’”; noting “that our refusal to articulate a comprehensive definition in this case will cause interim uncertainty”). Last year, in Melendez-Diaz v. Massachusetts, 557 U.S. __, 129 S. Ct. 2527 (2009), the Supreme Court held that certificates of forensic analysis are “testimonial” and “the Sixth Amendment does not permit the prosecution to prove its case via ex parte out-of-court affidavits.” A recent decision in the Fifth Circuit shows how the circuits continue to apply the emerging Supreme Court precedent, including revisiting their own recent Confrontation Clause decisions.Read more

In drug prosecution, admitting an officer’s lay opinion testimony that a particular bedroom in the residence belonged to the defendant and his girlfriend based on observations made during execution of a search warrant; there was no requirement that the government admit all of the physical items the officer testified he saw during the search (including the defendant’s “wallet, ID, and clothes,” in United States v. Lane, _ F.3d _ (No. 09-1057)

How familiar with a subject must one be for lay testimony? The ACN explain that the requirement under FRE 701 that lay opinion testimony is “rationally based on the perception of the witness” mandates some “firsthand knowledge or observation.” A recent Seventh Circuit case considered the lay opinion testimony of a law enforcement officer connecting a bedroom in a residence with the defendant.Read more

Remand of the case two weeks after oral argument leaves unanswered several Confrontation Clause questions posed by Briscoe v. Virginia, 559 U. S. __ (2010) (per curiam).

Questions were first raised when the Supreme Court granted certiorari in Briscoe v. Virginia (07-11191). On June 25, 2009, the Supreme Court issued its five to four decision in Melendez-Diaz v. Massachusetts, 557 U.S. __, 129 S. Ct. 2527 (2009). Four days later, the Court decided to hear the Briscoe case. Some of the questions included:Read more

Eighth Circuit joins other circuits holding “that a record created by a third party and integrated into another entity’s records is admissible as the record of the custodian entity, so long as the custodian entity relied upon the accuracy of the record and the other requirements of Rule 803(6) are satisfied”, in Brawner v. Allstate Indem. Co., _ F.3d _ (8th Cir. Jan. 8, 2010)

The business records of a company may be admitted where the requirements of FRE 803 are met. What about the business records of a third party, or another entity, that are maintained by another company? Under what circumstances can business records of a third party be admitted? Must the proponent of the business records call a custodian from the third party to introduce the business records? The Eighth Circuit recently addresses this issue and noted an emerging circuit consensus.Read more