Federal Evidence Blog

Using Movies As Evidence

While introducing portions of a movie can raise concerns about unfair prejudice under FRE 403, the Sixth Circuit recently reviewed this issue in a fraud case and concluded that the movie The Boiler Room was properly admitted based on the facts of the case, in United States v. Smith, _ F.3d _ (6th Cir. April 15, 2014) (No. 10-6136)

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Authenticating Evidence From A Web Site

Are there any special considerations that go into authentication of material found on a web site so it can be introduced into evidence? The Seventh Circuit recently assessed an effort to authenticate postings on a web site that its proponent claimed would have shown that it had not abandoned its trademark, in Specht v. Google, Inc., __ F.3d __ (7th Cir. April 4, 2014) (No. 11-3317)

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Supreme Court Watch: Another Case Seeking Review On Expert Testimony Under The Confrontation Clause

In addition to other pending cases, a Maryland case presents the question concerning the application of the Confrontation Clause to expert testimony; the Maryland Court of Appeals originally concluded the Confrontation Clause was violated in Maryland v. Derr but on remand from the Supreme Court in applying Williams v. Illinois, 567 U.S. _, 132 S.Ct. 2221, 183 L.Ed.2d 89 (June 18, 2012), the Maryland Court now held the Confrontation Clause was not violated, in Derr v. Maryland (No. 13-637)

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Advice Of Counsel Defense Results In Attorney Client Privilege Waiver

In antitrust litigation, court concludes that the reliance on the advice of counsel resulted in waiver of the attorney client privilege after conducting an in camera review; based on the defense, court notes that it "would be patently unfair for a party to assert that they relied upon the advice of counsel, yet deprive the opponent of the opportunity to understand why the advice was given, what other alternatives were looked at, why certain advice was rejected, and how the advice was interrelated to other business decisions," in In Re: Fresh and Process Potatoes Antitrust Litigation, _ F.Supp.2d _ (D. Idaho April 11, 2014) (No. 10MD02186)

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Co-Conspirator Disagreements And Disputes "In Furtherance" Of The Conspiracy?

Can disputes among alleged co-conspirators be admitted as co-conspirator statements in furtherance of the alleged conspiracy? Like most human endeavors, participating in a conspiracy often involves disagreements and conflicts among the conspiracy's members. The Tenth Circuit recently examined how evidence of co-conspirators grappling with each other after achieving the conspiracy's criminal goal can be considered as actions in furtherance of the conspiracy, even though the conspiracy seemed to be tottering towards contention and dispute. This made little difference in admitting these statements as FRE 801(d)(2)(E) co-conspirator statements, in United States v. Morgan, __ F.3d __ (10th Cir. April 9, 2014) (Nos. 12–1408, 12–1442, 13–1032)

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Blanket Exclusion Of Trade Secret Evidence Results In Reversal Of $920 Million Jury Verdict

In reversing a $920 million trade secret jury verdict, the Fourth Circuit concludes that the trial court imposed "too stringent" of a standard in requiring the defendant to show that trade secrets from prior litigation were publicly available; the jury was entitled to consider the evidence based on a "plausible showing"; circuit concludes "that the blanket exclusion of such evidence seriously prejudiced Kolon’s ability to present its case to the jury," E.I. DuPont De Nemours & Co. v. Kolon Industries Inc., _ Fed.Appx _ (4th Cir. Apr. 3, 2014) (No. 12-1260) (Per Curiam) (Unpublished)

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Expert Forensic Testimony About Who Created And Transferred Certain Computer Images

Eleventh Circuit concludes that a computer forensic examiner may offer an expert opinion concerning about who "created" certain "illicit images that were found on" on the defendant's "cellphone and later downloaded them onto his computer"; the expert testimony on an ultimate issue of fact was permissible under FRE 704, since he did not dictate the result for the jury to reach or the legal implications, in United States v. Grzybowicz, _ F.3d _ (11th Cir. April 4, 2014) (No. 12-13749) (Carnes (CCJ), Hull, Garza (5th))

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Admitting Secret Confidential Informant Recordings Under The Confrontation Clause

When the government asks a confidential informant to record conversations with a co-conspirator, under what circumstances are the secret recordings admissible under the Confrontation Clause? The Seventh Circuit explains that an objective view applies in admitting the statements under the Confrontation Clause and rejects the defense request to apply a subjective standard, in United States v. Volpendesto, _ F.3d _ (7th Cir. March 24, 2014) (Nos. 11–3022, 12–1180, 12–1656)

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Making A Sufficient Redaction

When a statement is admitted for a limited purpose, it may need editing or redacting to comport with FRE 105. Do any standards or factors exist for assessing the propriety of a redaction? The Second Circuit recently considered an aspect of this problem in a case concerning how a statement should be redacted so that its admission into evidence did not carry with it the "overwhelming probability" of inviting the jury to speculate or to otherwise ignore the court's limiting instructions, in United States v. Taylor, _ F.3d _ (2d Cir. March 4, 2014) (Nos. 11–2201 L, 11–2426(CON), 11–2639(CON))

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Reviewing Age, Oath And Capacity Requirements For Juvenile Witnesses

While FRE 601 provides that "[e]very person is competent to be a witness," are there any limitations concerning the competency of children to testify? A recent case shows that while FRE 601 provides little direction guiding the reception of a child as a witness, substantial guidance is provided by statute, in United States v. IMM, _ F.3d _ (9th Cir. March 31, 2014) (No. 11–10317)

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