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.
Judicial Notice As A "Pretext For Dispensing With A Trial”
Fri, 02/03/2012 
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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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)
Read morePresent Sense Impression Evidence As Non-Testimonial Hearsay
Tue, 01/31/2012
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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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)
Read moreA Prerequisite For Judicial Notice Of Internet-Based Evidence
Fri, 01/27/2012
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)
Read moreAdmission Of Autopsy Reports Violated Confrontation Clause
Thu, 01/26/2012
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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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
Read moreCircuit Explains A "Typical" Legal Expert Testimony Case
Tue, 01/24/2012
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)
Read moreUse Of Anonymous Witnesses Did Not Violate Confrontation Clause
Mon, 01/23/2012
