In trial for bank robbery, trial court conditionally admitted under FRE 104(b) a letter by the defendant concerning his DUI conviction as rebuttal to his defense that he did not drink alcohol and therefore could not have been the perpetrator whom witness claimed had “reeked of alcohol”; the letter was properly admitted on condition that the government offer proof the conviction was alcohol-related and the government withdrew it once it learned that the DUI was methamphetamine-related, in United States v. Oliver, 278 F.3d 1035 (10th Cir. 2001) (No. 00-4191)

After concluding there was no jurisdiction to consider an interlocutory appeal under the recent Mohawk Industries decision, the circuit also rejected a request to “relax” the standard for a petition for a writ of mandamus, in In Re: Whirlpirl Corp., _ F.3d _ (7th Cir. March 3, 2010) (per curiam) (Nos. 09-3777, 09-3795) The Supreme Court recently considered whether interlocutory appellate relief may be available after a party receives an adverse attorney-client privilege ruling. In Mohawk Industries, Inc. v. Carpenter, 558 U. S. __, 130 S.Ct. 599 (2009) (No. 08-678), the Supreme Court resolved a circuit split and unanimously held that interlocutory appellate review of an attorney-client privilege ruling was unavailable under the Cohen collateral order doctrine, particularly since “[e]ffective appellate review can be had by other means.” See Supreme Court Watch: Mohawk Industries Case Limits Interlocutory Review Of Attorney-Client Privilege Rulings. The Seventh Circuit considered one of the first cases applying this new precedent, including a request to “relax” the standard for review of a petition for a writ of mandamus.

Fifth Circuit considers whether the record dismissing action contained a sufficient explanation for meaningful appellate review; in convicted felons’ suit that state violated the felons’ Equal Protection Clause and National Voter Registration Act rights by precluding felons from voting, the propriety of the district court’s order dismissing the case for failure to state a claim would not be remanded for additional explanation of the district judge’s findings because the judge’s dismissal order provided a sufficient statement of the legal basis for the court’s action and no material facts were at issue, in Young v. Hosemann, __ F.3d __ (5th Cir. Feb. 25, 2010) (Nos. 08-60941, 09-60188)

In a trial involving the production of child pornography, exclusion of the victim’s prior sexual history under FRE 412 did not violate the defendant’s right to present a meaningful defense because the proffered defense evidence was not pertinent to the charged offense nor to the victim’s bias where the defendant was allowed to cross-examine the victim on other issues relevant to his defense, in United States v. Culver, __ F.3d __ (11th Cir. March 2, 2010) (No. 07-14708)

In drug distribution conspiracy case, Fourth Circuit finds no plain error in admitting expert testimony of police officer concerning drug trafficking methods (including the use of code words) and fact testimony on his observations and the defendant’s actions (weather at time of offense and particular phone conversation intercepted at that time) as the defense was unable to show any jury confusion that affected the trial’s outcome, in United States v. Baptiste, __ F.3d __ (4th Cir. Feb. 26, 2010) (No. 07-4493)

In child pornography case, seized computer videos and images were authenticated by “detailed evidence as to the chain of custody, specifically how the images were retrieved from the defendant’s computers”, in United States v. Salcido, 506 F.3d 729 (9th Cir. 2007) (per curiam) (No. 06-10546)

When images and videos are found on computer media by law enforcement, how are they authenticated at trial? One way is by establishing a chain of custody from the seizure of the evidence through to the forensic examination, as illustrated in a child pornography case.Read more

Sixth Circuit notes the role of the details in a plea agreement to allow the jury to assess the credibility of a cooperating defendant at trial, in United States v. Thorton, _ F.3d _ (6th Cir. Feb. 10, 2010) (No. 08-3349)

While a plea agreement may not be considered as substantive evidence of another defendant’s guilt, what is the primary function of the plea agreement of a cooperating witness? This issue was recently noted by the Sixth Circuit.Read more

On review of civil contempt of a corporation for refusing to provide documents requested by the grand jury, circuit declines to consider claim that grand jury may have considered evidence obtained in violation of the Fourth Amendment, noting that “[v]irtually any source” of evidence may be considered, in In Re: Grand Jury Subpoena, _ F.3d _ (4th Cir. Feb. 24, 2010) (Nos. 06-2125, 06-2220, 07-1646)

A recent Fourth Circuit case underscored the breadth of evidence which a federal grand jury may consider and the reasons for this policy. In the case, twelve unnamed corporations were held in civil contempt after refusing to provide documents requested under a grand jury subpoena. On appeal, one of the companies argued contempt was inappropriate because the company “was the subject of unlawful National Security Agency wiretapping” in violation of the Fourth Amendment. In Re: Grand Jury Subpoena, _ F.3d at _.Read more

The defendant’s offer to “split” the disputed difference concerning unaccounted funds was offered to show “liability” and the offer to settle was barred under FRE 408 “even if no settlement negotiations follow,” in United States v. Davis, __ F.3d __ (D.C. Cir. Feb. 26, 2010) (No. 07-3100)

In the case, defendant Davis was accused of fraud and theft as the national treasurer of the Phi Beta Sigma fraternity. After the financial discrepancies were discovered, the defendant was suspended from his position, and charged with fraud and theft offenses. Before trial, the defense moved in limine to exclude a statement in which the defendant offered to split some of the missing funds. At trial, the new treasurer testified that he had asked the defendant to provide the financial records. During one conversation, the new treasurer informed the defendant that $29,000 in checks were found made payable to cash which were not deposited in the fraternity bank as the defendant had stated. The new treasurer testified:Read more

Tenth Circuit holds that the Confrontation Clause was not violated by admitting testimonial statements by a confidential informant after the defense had opened the door to the confidential informant statements on cross-examination by asking about the information the informant provided to the officer, United States v. Lopez-Medina, _ F.3d _ (10th Cir. Feb. 19, 2010) (No. 08-4055)

The Tenth Circuit recently considered the issue whether the defense may open the door to admit testimonial statements which would otherwise be barred under the Confrontation Clause.Read more