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.

Judicial Notice As A "Pretext For Dispensing With A Trial”

In a civil rights suit by plaintiff public interest group seeking to enjoin enforcement of the defendant city's ordinance banning door-to-door canvassing ("curfew") that allegedly infringed on the plaintiff's First Amendment free speech rights, Sixth Circuit declines to take judicial notice under FRE 201 that the "curfew simply reflects both the 'harsh realities' of modern existence and how different America is today compared to 1943," when canvassing door-to-door was a common practice, in Ohio Citizen Action v. City of Englewood, __F.3d __ (6th Cir. Feb. 2, 2012) (Nos. 10–3265, 10–3293)

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Recognizing The Limits Of A Scientific Methodology

In a civil rights suit alleging that defendant deputy sheriff violated the plaintiff's Fourth Amendment right to be free of unreasonable entry, search, seizure, and excessive force when the defendant performed a “family welfare check” on plaintiff (Sandra's) residence, admitting testimony regarding the results of a PBT the defendant conducted at the time, despite its otherwise insufficient reliability, in Der v. Connolly, _ F.3d _ (8th Cir. Jan. 25, 2012) (Nos. 11-1162, 11-1048)

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Admitting Pre-Indictment Communications With A Government Informant

In a public corruption case, the Fourth Circuit rejects defense claim that counsel’s assertion of the defendant’s constitutional rights before charges were filed should bar the admission of the defendant’s inculpatory statements to a government informant, in United States v. Hornsby, _ F.3d _ (4th Cir. Jan. 25, 2012) (No. 08-5267)

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Present Sense Impression Evidence As Non-Testimonial Hearsay

In methamphetamine conspiracy trial, admitting as an FRE 803(1) present sense impression, testimony by two agents about the content of other agents' contemporaneous observations before and during the charged drug transaction; the statements of the declarant agents were broadcast to other agents, including the two testifying agents; the statements were not testimonial for confrontation purposes because, under the circumstances of the case, an "objective observer could reasonably believe" that the primary purpose of the broadcast monitoring was to ensure officer safety and coordination, not prosecutorial use, in United States v. Solorio, _ F.3d _ (9th Cir. Jan. 19, 2012) (No. 10-10304)

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Compelling Access To An Encrypted Laptop (Part II)

Over the defendant's Fifth Amendment objection, a District Court grants government application under the All Writs Act to provide the government “with an unencrypted copy of” a hard drive which was seized from the defendant’s bedroom by a search warrant, in United States v. Ramona Camelia Fricosu (D.CO. Jan. 23, 2012) (No. 10-CR-00509-REB)

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A Prerequisite For Judicial Notice Of Internet-Based Evidence

In judicial calculation of statutory attorney's fees in a Title VII retaliation suit, the trial court, sua sponte, could take judicial notice of the Consumer Price Index (CPI) but must comply with the FRE 201(e) "procedural requirement" that "the parties be given notice and an opportunity to object; here judge should not have taken judicial notice of the CPI found on the web unless it allowed parties the "opportunity to contest the application of the CPI or to argue for a particular manner of applying it," in Pickett v. Sheridan Health Care Center, __ F.3d __ (7th Cir. Dec. 15, 2011)

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Admission Of Autopsy Reports Violated Confrontation Clause

Eleventh Circuit reverses health care fraud conviction based on the introduction of autopsy report prepared by non-testifying witnesses and the testimony of a medical examiner who had not performed the autopsy; the chief medical examiner could not provide surrogate testimony for non-testifying examiners who prepared autopsy reports, in United States v. Ignasiak, _ F.3d _ (11th Cir. Jan. 19, 2012) (Nos. 09-10596, 09-160)

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New Report On The Use Of Social Media By Jurors

The survey of all active and senior federal district court judges, in which more than half responded, reveals that six percent had detected the use of social media during the trial process; the use of jury instructions barring the use of electronic social media and other steps to discourage access during the trial are noted, in a new Report to the Judicial Conference Committee on Court Administration and Case Management

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Circuit Explains A "Typical" Legal Expert Testimony Case

In trial for conspiracy to engage in a “pump and dump” securities fraud scheme, admitting expert testimony of professor of securities law to explain the complex and intricate regulatory landscape and market influences on the securities trading involved in the case; although the testimony arguably stated legal conclusions, it was admissible under FRE 702 because it also helped the jury understand the federal securities registration requirements, registration exemptions, and specific regulatory practices, that they would need to apply in the case, in United States v. Offill, __ F.3d __ (4th Cir. Dec. 6, 2011) (No. 10–4490)

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Use Of Anonymous Witnesses Did Not Violate Confrontation Clause

Fourth Circuit holds that the use of pseudonyms for two El Salvadorian police officers without identifying their background information did not violate the Confrontation Clause based on a showing of actual danger to the officers and their families and the ability of the defense to effectively cross-examine the witnesses with the information provided, in United States v. Ramos-Cruz, _ F.3d _ (4th Cir. Jan. 18, 2012) (No. 08-4647)

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