Federal Evidence Blog
Even though trial courts have considerable discretion in performing the Daubert gatekeeping role (including how to assess the reliability of an expert, what procedures to utilize, and the ultimate determination of reliability) if a court's determination on the admissibility of an expert opinion under FRE 702 reflects an “off-the-cuff decision” with no “detailed” or “specific” findings on the record, an abuse of discretion is normally a reviewing court's conclusion, in Procter & Gamble Co. v. Haugen, 427 F.3d 727 (10th Cir. Oct. 19, 2005) (No. 03-4234)
Read more
In a homicide prosecution, admitting as statements for medical diagnosis and treatment under FRE 803(4) the answers by an eight year old victim to a social worker regarding the defendant's abuse, resulting in physical injuries; the family therapy participants' (defendant, victim and family members) "primary purpose" in consulting the social worker was to "develop a treatment plan" as part of a medical program offered by the defendant's employer, in United States v. DeLeon, __ F.3d __ (4th Cir. May 15, 2012) (No. 10–4064)
Read more
Ninth Circuit notes that the Confrontation Clause cases have not considered “the question whether, when a speaker makes a statement through an interpreter, the Sixth Amendment requires the court to attribute the statement to the interpreter”; the failure to call the interpreter to testify at trial did not violate the Confrontation Clause where nothing indicated that the interpreter served as “anything other than a language conduit” or had a motive to mistranslate, in United States v. Hieng, _ F.3d _ (9th Cir. May 11, 2012) (No. 09-10401)
Read more
In prosecution for knowingly violating the Clean Water Act, under FRE 609(b) impeachment evidence that a prosecution witness had been convicted of larceny was properly excluded because the crime of larceny was not a crime of dishonesty, as is seen from consulting the relevant statutory language and the model circuit jury instructions regarding the charge, in United States v. Pruett, __ F.3d __ (5th Cir. May 15, 2012) (No. 11–30572)
Read more
In reviewing dismissal of class action alleging breach of fiduciary responsibilities by trustee in stock option plan, circuit takes judicial notice of stock prices which were not alleged in the complaint under FRE 201, in Lanfear v. Home Depot, Inc., _ F.3d _ (11th Cir. May 8, 2012) (No. 10-13002)
Read more
In recent denial of certiorari review in Robbins v. Texas, a division in the courts remains over the constitutional soundness of a guilty verdict based in large part on science later alleged to be unreliable. As framed by the petitioner, the issue is whether “federal due process requires that a criminal defendant be afforded a new trial upon the revelation that scientific evidence necessary to his conviction was or has become unreliable as a matter of law or scientific fact.”
Read more
Third Circuit "now expressly follow[s] the Supreme Court‘s Confrontation Clause jurisprudence" from Davis v. Washington, 547 U.S. 813 (2006), Whorton v. Bockting, 549 U.S. 406 (2007), and Michigan v. Bryant, 562 U.S. _ (2011), and clarifies that "where nontestimonial hearsay is concerned, the Confrontation Clause has no role to play in determining the admissibility of a declarant's statement. Accordingly, the indicia of reliability test of Ohio v. Roberts, 448 U.S. 56 (1980) is no longer an appropriate vehicle for challenging admission of nontestimonial hearsay," in United States v. Berrios, __ F.3d __ (3d Cir. April 10, 2012) (Nos. 07-2818, 07-2887, 07-2888 and 07-2904)
Read more
In gang prosecution, Seventh Circuit concludes anonymous jury was appropriate, citing other recent cases which reached a similar conclusion, in United States v. Schiro, _ F.3d _ (7th Cir. May 1, 2012) (Nos. 09-1265, 09-2093, 09-1287, 09-2109, 09-1602, 09-1376).
Read more
In conspiracy and money laundering prosecution involving transactions in life insurance policies for the terminally ill, admitting a summary chart under FRE 1006 even though the basis on which the summary was made was admissible under the residual hearsay exception (as essentially business records), in United States v. Jamieson, 427 F.3d 394 (6th Cir. Oct. 28, 2005) (Nos. 02-3403, 03-4578)
Read more
In an equity proceeding pursuant to the International Child Abduction Remedies Act (ICARA), plaintiff father sought the return of his young child (ZFK) to Canada after the mother removed the child to the U.S.; although the parties presented different views of the responsibility for, and degree of, physical and psychological abuse suffered by the child, the trial judge erred by failing to conduct an adequate evidentiary hearing; circuit vacates order to return the child to the father in Canada, instructing it make fact findings about the best interests of the child and that “the judge … appoint a child
psychologist to interview” the child and report pursuant to FRE 706 on psychological harm suffered by the child, in Khan v. Fatima, _ F.3d _ (7th Cir. May 4, 2012) (No. 12-1692)
Read more
