Federal Evidence Blog

Finding "Grist For The Trier Of Fact" Under FRE 702

In civil RICO case, admitting expert regression analysis in regarding whether fraudulentl marketing off-label prescription drugs to doctors because the defendant's "attacks" on the expert's methodology "were all grist for the trier of fact" to resolve, rather than exclusion by the court under FRE 702; circuit considers the admissibility of regression analysis, in In re Neurontin Marketing and Sales Practices Litigation, __ F.3d __ (1st Cir. April 3, 2013) (Nos. 11–1904, 11–2096)

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FRE 404(b) Evidence Of Mistake Or Accident

In cocaine conspiracy trial, admitting uncharged evidence of defendant's possession of cocaine "a few weeks" after the cocaine charged as part of the defendant's drug conspiracy had been recovered from the defendant's coconspirator's vehicle; the subsequent other act evidence of later cocaine possession was admissible as FRE 404(b) proof of identity, not absence of mistake, in United States v. Gomez, 712 F.3d 1146 (7th Cir. April 5, 2013) (No. 12–1104)

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Supreme Court Watch: Oral Argument Will Consider Refusal To Answer Law Enforcement Questions Before Arrest

Supreme Court argument on Wednesday considers whether the Fifth Amendment privilege against self-incrimination permits a defendant to refuse to answer a question posed by law enforcement prior to arrest or the advisement of Miranda rights, in Salinas v. Texas, _ U.S. _ (No. 12-246)

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Can Violation Of The Evidence Rules Also Violate Due Process?

In reversing a federal court's grant of a writ of habeas corpus to a state prisoner, Second Circuit notes an open issue on whether reliance on hearsay testimony to support a state criminal conviction violates a defendant's Fifth and Sixth Amendments due process rights, in Evans v. Fischer, __ F.3d __ (2d Cir. April 3, 2013) (No. 11-4418-pr))

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Vehicle Identification Number From National Insurance Crime Bureau Admitted To Establish Interstate Commerce Under FRE 803(17)

In federal carjacking prosecution, agent's testimony about tracing the vehicle identification number of the stolen minivan was admissible under FRE 803(17) (Market Reports and Similar Commercial Publications) to establish the interstate commerce element for the offense, in United States v. Woods, 321 F.3d 361 (3d Cir. 2003)

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Forgetfulness And FRE 613(b) Prior Inconsistent Statements

In tax and wire fraud prosecution, excluding testimony by the defendant’s attorney about contacting the defendant’s accountant to inquire whether a settlement payment should be made; this testimony was inadmissible as a prior inconsistent statement under FRE 613(b) because the accountant did not deny a conversation took place, and could not recall the conversation, in United States v. DeSimone, 488 F.3d 561 (1st Cir. June 7, 2007) (No. 05-2314)

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Considering the Presence Of Alternate Jurors During Jury Deliberations

Seventh Circuit concludes that absent any showing that an "alternate juror participated in deliberations," no indication that the substantial rights of the defendant had been made; case underscores a pending open issue on how to establish the record of participation of an alternate juror without violating FRE 606(b) generally bars any inquiry concerning the validity of the verdict, in United States v. Dill, _ F.3d _ (7th Cir. April 4, 2012) (No. 12-1733)

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Circuit Consensus In Determining Attorney's Fees Under FRE 408

In determining attorney fees award for the plaintiffs (victim's children) in their civil rights action for the use of deadly force resulting in the death of their mother after a car-chase, the district court may consider under FRE 408 evidence of settlement negotiations to the extent it was relevant to the fee applicant having achieved "a level of success that makes the hours reasonably expended a satisfactory basis for making a fee award,” in A.D. v. California Highway Patrol, _ F.3d _ (9th Cir. April 3, 2013) (Nos. 09–16460, 09–17635)

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Second Circuit Reviews Evidence Standard For Forfeiture Proceedings

In considering whether probable cause exists to find that certain resources of the defendant were “traceable” to the charged fraud and could be forfeited, the trial court may "receive and consider ... evidence and information that would be inadmissible under the Federal Rules of Evidence,” including under the hearsay rules, in United States v. Walsh, _ F.3d _ (2d Cir. April 2, 2013) (No. 12-2383-CR)

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Preserving Appellate Review Of Fifth Amendment Privilege Claim

Tenth Circuit lacks jurisdiction to consider interlocutory appeal of Fifth Amendment privilege claim to documents subpoenaed by the grand jury; circuit notes limited avenues to seek interlocutory appellate review; potential circuit split under the Perlman doctrine and tension between two key Supreme Court cases involving interlocutory review are also noted, in In re Grand Jury Subpoena, 709 F.3d 1027 (10th Cir. March 1, 2013) (No. 12-1330)

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