Federal Evidence Blog

4-2-3 Circuit Split On Crime-Fraud Exception

In appeal to forestall enforcement of grand jury subpoenas for delivery of documents and testimony claimed by target of a criminal tax-scheme investigation to be covered by its attorney-client privilege, Third Circuit joins majority of circuits in applying a "reasonable basis" foundation for successfully interposing the crime-fraud exception to the privilege, in In re Grand Jury, 705 F.3d 133 (3d Cir. Dec. 11, 2012) (Nos. 12-1697, 12-2878)

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FRE 406 Standard Practice Evidence And FRE 602 Personal Observation Limitations

In consumer class action against defendant telecommunication service bundlers, alleging RICO and various state law claims, admitting declarations by employees about the defendant's routine business practice in signing up the plaintiffs for services under FRE 406, providing an inference that the standard practice had actually been carried out for summary judgment purposes; plaintiffs' objection to the declarations was sufficient and plaintiff did not need to formally ask that the declarations be struck in order to adequately preserve the matter for review, in Hancock v. American Tel. and Tel. Co., Inc., __ F.3d __ (10th Cir. Dec. 11, 2012) (No. 11-6233)

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Email Spousal Communications Were Not Covered By The Marital Communications Privilege

Fourth Circuit concludes the defendant's email communications using his "public school workplace computer, through his work email account" to and from his wife were not protected by the marital communications privilege; waiver of the privilege resulted from “voluntary disclosure” based on the subsequent computer usage policy adopted by his employer, in United States v. Hamilton, _ F.3d _ (4th Cir. Dec. 13, 2012) (No. 11-4847)

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"Oblique" Relevance Of Stale Prior Convictions Insufficient To Overcome FRE 609(b) Witness Impeachment Limitation

In drug distribution conspiracy trial, court rejects defense claim that cooperating witness's prior convictions for assault and theft in the 1970s were relevant to show bias under FRE 609(b) notwithstanding the presumption against admitting convictions over ten years old; exclusion of cross-examination about the stale convictions did not violate the defendant's Sixth Amendment right to confrontation because "any inference of [the witness's] bias" that the defendant presented based on the old convictions was "highly attenuated" and the defendant had "other opportunities to develop evidence" of the potential bias during the trial, in United States v. Jasso, __ F.3d __ (8th Cir. Dec. 10, 2012) (No. 12-1158)

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Admissibility Of "Other Weapons" Evidence

In bombing and weapons offenses trial, admitting evidence that the defendant possessed 98 launch grenades which were of "a different type than" the hand grenade used in the charged bombing under FRE 404(b) to show the defendant's "working knowledge of grenades" which was probative of the charge that he conspired to bomb the victim with a hand grenade, in United States v. Mann, _ F.3d _ (8th Cir. Dec. 6, 2012) (Nos. 11–1500, 11–2187)

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Court-Imposed "Clawback" Agreements To Protect Privileged Communications

Where the parties are unable to reach agreement, some courts have determined that the court has the authority to impose a "clawback agreement" to protect privileged materials under FRE 502(d), including in Rajala v. McGuire Woods, No. 08-2638 (D. Kan. July 22, 2010), and in Radian Asset Assur., Inc. v. College of the Christian Bros. of New Mexico, No. CIV 09-0885 (D.N.M. Oct. 22, 2010)

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Updated Federal And Other Jury Instructions in 2012

As part of our continuing review of Jury Instructions, some significant Circuit Jury Instructions and Other updates have occurred in 2012

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Restyling FRE: Looking Back One Year Later (Part XV)

Last December 2011, the Federal Rules of Evidence were "restyled"; since then, the courts have recognized and applied the amended rules noting that substantive changes were not intended by the amendments; one year later, the primary goals for the restyling largely appear to have been accomplished

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Applying The "Helpfulness" Expert Witness Requirement For Complex Cases

In copyright infringement case, defense expert opinion on whether defendant copied plaintiff’s copyrighted architectural design was properly excluded as not helpful to the jury; while the expert presented a technical analysis of the issue of copying, this testimony was not relevant to whether an ordinary, reasonable person would consider the plaintiff’s and defendant’s designs sufficiently similar, allowing an inference of copying, which was the matter to be decided by the jury, in Rottlund Co. v. Pinnacle Corp., 452 F.3d 726 (8th Cir. June 20, 2006) (Nos. 05-1296, 05-1501, 05-1398)

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A Factor Suggesting Lack Of "Trustworthiness" In Applying The FRE 807 Residual Hearsay Exception

Defendant's excupatory statements recorded by investigators during a phone call were not sufficiently trustworthy for admission under the FRE 807 residual hearsay exception in an embezzlement prosecution, in United States v. Pagán Santini, 451 F.3d 258 (1st Cir. June 14, 2006) (No. 03-2574))

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