Federal Evidence Blog

Admission Of Unauthenticated Certificate Results In Reversal

Ninth Circuit reverses conviction based on the admission of an unauthenticated certificate which was used to establish an essential element of the offense; the certificate could not meet the self-authentication requirements of either FRE 902(1) or FRE 902(2) since an Indian tribe was not included among the political subdivisions or public agencies which could issue domestic public documents, in United States v. Alvirez, _ F.3d _ (9th Cir. March 14, 2013) (No. 11-10244)

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Supreme Court Watch: Justices Note Continued Reservations Over Cameras In the Supreme Court

During House Appropriations Subcommittee hearings on the Supreme Court Budget, questions about cameras in the Supreme Court were raised; appearing for the Court, Justice Anthony M. Kennedy and Justice Stephen G. Breyer noted continued reluctance to allow cameras but suggested some willingness to consider further examination of the possible impact

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Considering Statement Was Made, Not What Was Said, As Non-Hearsay

During cross-examination, testimony that a witness had obtained information from others, without revealing the content of the information, did not violate the Confrontation Clause or rule against hearsay under FRE 801(c); the statement was offered to show that it had been made or had an effect on the hearer, in United States v. Macias-Farias, _ F.3d _ (6th Cir. Feb. 8, 2013) (No. 11-6241)

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Admitting Lay Opinion On "Intellectual Development And Psychological Maturity"

Can lay testimony be used for mental health issues? On a motion to transfer a juvenile to be prosecuted as an adult based, in part, on assessing whether it would serve the interests of justice given the juvenile's “intellectual development and psychological maturity,” admitting under FRE 701 testimony by lay witnesses “who spent limited time with Defendant” and had no “mental health training and did not use psychological assessment tools” because these witnesses “directly observed and interacted with Defendant,” in United States v. J.J., 704 F.3d 1219 (9th Cir. Jan. 9, 2013) (No. 12-30206)

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"Unavailability" When A Witness Does Not Remember Making A Statement Under FRE 804(a)(3)

Eleventh Circuit concludes party failed to meet its burden to show a lack of memory under FRE 804(a)(3) after it's witness claimed not to remember making a particular statement; the proponent failed to show an inability to "remember the ‘subject matter,’" in Lamonica v. Safe Hurricane Shutters, Inc., _ F.3d _ (11th Cir. March 6, 2013) (No. 11-15743)

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Test Considered To Overcome The Qualified Journalist Privilege

In drug conspiracy prosecution, affirming grant of news organization's motion to quash defendant's subpoena for "a copy of the recording of [defendant's] police interview" regarding the death of a confidential informant who had dealings with the defendant; defendant failed to overcome journalist's claim that the recording was protected by the qualified journalist's privilege, in United States v. Capers, _ F.3d _ (11th Cir. Feb. 14, 2013) (Nos. 10-14332, 10-15074, 10-14521))

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Confrontation And Passing The "Threshold" To Show Witness Bias

In kidnapping and extortion trial, excluding the defendant's cross-examination of a cooperating witness regarding “any details" of her past theft and forgery convictions since the defendant had the chance to cross-examine the cooperating witness as to the conviction's “type ... date, and sentence” as was sufficient "to establish” the witness's bias under the Confrontation Clause, in United States v. Sanders, 708 F.3d 976 (7th Cir. Feb. 28, 2013) (No. 11-3298)

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Seventh Circuit Applies The Divided Williams v. Illinois Opinion To Expert Testimony

After Supreme Court remand following Williams v. Illinois, Seventh Circuit affirms admission of lab supervisor's testimony describing the lab procedures, safeguards, and review of the unavailable lab analyst's work under the Confrontation Clause; circuit notes that Williams "casts doubt on using expert testimony" to the extent that "the expert is asked about matters which lie solely within the testing analyst’s knowledge" who does not testify; while "the bulk of [the expert] ... testimony was permissible," any error in admitting the expert testimony that the non-testifying expert "followed standard procedures in testing the substances" and that the testifying expert "reached the same conclusion about the nature of the substances" as did the non-testifying expert, was harmless beyond a reasonable doubt, in United States v. Turner, 709 F.3d 1187 (7th Cir. March 4, 2013) (No. 08–3109)

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Supreme Court Watch: Summary Of Oral Argument In Maryland v. King

Argument focused on what Fourth Amendment analysis should apply (such as a requirement of probable cause or individualized suspicion, a balancing test under the totality of the circumstances, or an extension of the "special needs" doctrine), whether obtaining a DNA sample is similar or dissimilar to obtaining booking fingerprints from arrestees, the extent it should matter that rapid DNA testing and analysis may soon provide results comparable to fingerprinting, among other points, in Maryland v. King (No. 12-207) (Nov. 9, 2012)

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First Amendment As Part Of The FRE 403 Balance

In public corruption trial, admitting evidence of the defendant's legal political campaign contributions which "had significant probative value" to show the lobbyist defendant's modus operandi, and which was not unfairly prejudicial, although it "posed a close question;" the circuit declined to "decide whether and precisely how the First Amendment alters the FRE 403 analysis because, even assuming First Amendment concerns justify placing a thumb on the prejudice and confusion side of the scale, that added weight fails to change the outcome of the balance" in support of admitting the challenged evidence, in United States v. Ring, _ F.3d _ (D.C. Cir. Jan. 25, 2013) (No. 11–3100)

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