Federal Evidence Blog
In drug conspiracy trial, admitting records of the defendant's wife's bank accounts under FRE 401 as the sudden accretion of wealth in the account which suggested it could be linked to the charged offense after a cooperating co-conspirator testified that he provided $10,000 to the defendant as his share of a robbery of the co-conspirator's cocaine supplier and a like amount was deposited in the bank account around the time of the offense, in United States v. Cecil, __ F.3d __ (6th Cir. August 10, 2010) (No. 08-5080)
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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)
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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)
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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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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)
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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)
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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)
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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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In bank robbery trial, trial judge “has the prerogative, and at times the duty, of eliciting facts" under FRE 614(b) (by asking witnesses questions regarding the FDIC insurance status of the victim institutions) if it serves to "clarify 'legal and factual matters'" and if "the court 'remains impartial and does not become an advocate for either side,” in United States v. Pickar, __ F.3d __ (8th Cir. Aug. 12, 2010) (No. 09-2361)
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