Federal Evidence Blog

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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Distinguishing Relevance And Materiality

In the perjury and obstruction of an official proceeding trial of a former city police commander based on false interrogatory responses in an earlier civil action by alleged torture victims against the city, admitting the defendant's false interrogatory responses (denying knowledge and participation in the alleged torture) made during the prior civil action because it was both relevant as well as material to the perjury charges, in United States v. Burge, _ F.3d _ (7th Cir. April 1, 2013) (No. 11–1277)

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Using Lay Testimony To Establish Lost Profits

Tenth Circuit notes that lay testimony may be used to show lost profits under FRE 701, and expert testimony may not be required under FRE 702; in diversity insurance contract dispute involving fire coverage payments, admitting the plaintiff accountants' lay testimony about the covered losses that the defendant failed to pay as the testimony was based on the personal perception of the facts and well as on their “specialized knowledge of accountancy,” in Ryan Development Company v. Indiana Lumbermens Mutual Insurance Company, 711 F.3d 1165 (10th Cir. March 27, 2013) (No. 11-3356)

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First Circuit Considers Limits Of Confrontation Clause Outside Of Trial

Trial court could consider vessel certificate to determine jurisdiction under the Maritime Drug Law Enforcement Act without violating the Confrontation Clause, in United States v. Nueci-Pena, 711 F.3d 191 (1st Cir. March 19, 2013) (No. 10-2281)

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Second Circuit Highlights Breadth Of Uncertainty In Applying The Confrontation Clause In The Wake Of Williams v. United States

In considering admission of an autopsy report under the Confrontation Clause, Second Circuit notes that the latest Supreme Court guidance is "intractable" and "fragmented" since "[n]o single rationale disposing of the Williams case enjoys the support of a majority of the Justices"; in upholding the admission of the autopsy reports authored by non-testifying witnesses and surrogate testimony about the conclusions in the report, the circuit notes a division in the courts on the admissibility of autopsy reports under the Confrontation Clause, in United States v. James, 712 F.3d 79 (2d Cir. March 28, 2013) (Nos. 09-2732-cr, 09-2804-cr)

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Supreme Court Watch: Comcast v. Behrend: Clarifying The Preliminary Evidentiary Showing For Class Certification

Supreme Court Comcast case considers whether class certification should be denied where the plaintiff is unable "to establish that damages could be measured on a classwide basis"; Court underscores the role of “rigorous analysis” by the trial court to ensure admissible evidence supports "that damages are susceptible of measurement across the entire class"; the case has implications for the type and quality of evidence necessary in the early stages of a class action, in Comcast v. Behrend, 569 U.S. _, 133 S.Ct. 1426 (March 27, 2013) (No. 11-864)

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FRE 401 Relevance And "Knowingly" Culpable Conduct

Seventh Circuit considers whether defense evidence about the defendant's "knowledge of his legal status" was relevant on the issue of intent, in trial for knowingly possessing a firearm despite having suffered a misdemeanor conviction for domestic violence; trial judge properly excluded evidence that the defendant believed at the time of the charged crime that his earlier misdemeanor conviction did not disqualify him from possessing the charged firearms, which was irrelevant under FRE 401 to the current offense which only required proof that the defendant "knowingly" possessed a firearm, not that he knew he was barred from possessing a firearm, in United States v. Stein, __ F.3d __ (7th Cir. March 19, 2013) (No. 12-2182)

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Admission Of Court Minute Entry Violated Confrontation Clause

Eighth Circuit reverses conviction for being an accessory after the fact by assisting another (Clark) in avoiding apprehension for committing a murder based on Confrontation Clause violation resulting from the introduction of a Court Minute Entry (of “Clark’s guilty plea as conclusive proof that” he had committed the offense) and without an opportunity to cross-examine the declarants about the statements, in United States v. Head, _ F.3d _ (8th Cir. March 1, 2013) (No. 12-2625)

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To What Extent Are Daubert "Safeguards" Applicable To Bench Trials?

On appeal of a Chapter 11 bankruptcy plan's confirmation, Fifth Circuit notes that "most of the safeguards provided for in Daubert are not as essential in a case ... where a district judge sits as the trier of fact...," in In re: Texas Grand Prairie Hotel Realty, L.L.C.,__ F.3d __ (5th Cir. March 1, 2013) (No 11-11109)

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Supreme Court Watch: Announcing Same-Day Audio Release Of DOMA And Proposition 8 Arguments

The Supreme Court will release the audio recordings and transcripts of the oral argument for the Defense of Marriage Act and California’s Proposition 8 cases within hours of the argument on Tuesday and Wednesday this week; does expedited audio coverage suggests a possible trend toward televised coverage one day?; ironically, in one of the cases subject to this expedited procedure this week, the Supreme Court stayed the broadcasting of the federal trial without addressing the merits of televised federal proceedings

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