Federal Evidence Blog

Evidentiary Effect Of Patent Mismarking

In patent licensing dispute, placement of the plaintiff's patent number on the defendant's product was an admission by the marking party that the product fell within the scope of the plaintiff's golf club patent claims and was, as with other admissions under FRE 801(d)(2), subject to challenge or explanation but was not an estoppel precluding its application to the license under dispute, in Frolow v. Wilson Sporting Goods Co., _ F.3d _ (Fed. Cir. March 15, 2013) (No. 2012-1185)

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FRE 611(a) "Reasonable Control" Standard, Evidentiary Rulings And The Constitution

In tax fraud prosecution, limitations on the pro se defendant's testimony did not violate defendant's Fifth Amendment Due Process or Right Against Self-Incrimination or Sixth Amendment Right To Compulsory Process; the trial judge reasonably limited the defendant's direct testimony under FRE 611(a) to “just ... the facts,” and not argument, sustained evidentiary objections, and permitted the pro se defendant "some leeway" in presenting substantial exculpatory testimony that assisted his defense, in United States v. Woods, 710 F.3d 195 (4th Cir. March 18, 2013) (No. 11-4817)

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Drawing The Line On FRE 704(b) Expert Opinion Testimony

In a terrorism-related trial, admitting a qualified Islamic studies expert's testimony translating and interpreting defendant's "Arabic note" as one carried by a “person ... completely ready” to commit “an act of warfare against a perceived enemy”; consistent with FRE 704(b) the opinion testimony was not plain error because the expert did not "draw the ultimate inference or conclusion for the jury" as to the defendant's mental state, nor did "the ultimate inference or conclusion ... necessarily follow" from the expert's testimony, in United States v. Hayat, 710 F.3d 875 (9th Cir. March 13, 2013) (No. 07-10457)

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Circuit Split: Ensuring Racial Bias Is Not A Basis For The Jury's Deliberations

Ninth Circuit notes circuit split regarding inquiry into a jury's deliberations under FRE 606(b) but resolves allegations of a juror's racial bias through assessment of the juror's actions in light of the juror's truthful response to race bias inquiries during voir dire, in United States v. Hayat, 710 F.3d 875 (9th Cir. March 13, 2013) (No. 07-10457)

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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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