Federal Evidence Blog
Admitting Computer Bills Of Lading As Business Records And Internal Company E-mail As Admission Of Party OpponentFri, 02/26/2010
In prosecution for acting as an agent of a foreign government, in admitting evidence of other “kickback” schemes, the requirement under FRE 404(b) to show sufficient evidence “that the prior act occurred and that the defendant was the actor” was met by the uncorroborated testimony of the cooperating co-conspirator concerning the kickbacks, in United States v. Duran, 596 F.3d 1283 (11th Cir. Feb. 16, 2010) (No. 09-11446)Read more
First Circuit notes that booking information and photograph, as a “routine observations that are inherently non-adversarial,” was not excludable under the law enforcement exception, in United States v. Dowdell, 595 F.3 50 (1st Cir. Feb. 12, 2010) (No. 08-1855)
FRE 803(8) admits public reports of “matters observed pursuant to duty imposed by law as to which matters there was a duty to report.” However, the rule contains a law enforcement exception which excludes “in criminal cases matters observed by police officers and other law enforcement personnel.” The First Circuit recently considered whether this exception barred booking information and a photograph.Read more
While union sought to obtain presumption under “mailbox rule” that a properly stamped, addressed and mailed letter was received, on the facts of the case the presumption was rebutted and did not apply, in Laborers’ International Union Of North America, Local 578 v. NLRB, 594 F.3d 732 (10th Cir. Feb. 2, 2010) (Nos. 08-9564, 08-9569)Read more
Allowing The Jury To Review English-Language Transcripts Of Foreign Language Recordings During DeliberationsMon, 02/22/2010
In fraud action against a publisher concerning false circulation numbers used to increase advertising fees, circuit took judicial notice of the price of the company’s stock before and after the disclosure of the overstated circulation numbers, in Pugh v. Tribune Co., 521 F.3d 686 (7th Cir. April 2, 2008) (Nos. 06-3898, 06-3909)Read more
Corporation Contempt Upheld Based On Unavailability Of Fifth Amendment “Act Of Production” PrivilegeWed, 02/17/2010
Second Circuit holds that subsequent Supreme Court case law did not affect the circuit’s prior precedent that the Fifth Amendment bars a corporation from refusing to produce subpoenaed records, in In re Grand Jury Subpoena Issued June 18, 2009, 593 F.3d 155 (2d Cir. Feb. 1, 2010) (No. 09-3561-CV) (per curiam)Read more
“Wholesale Exclusion” Of Evidence Supporting One Count Under FRE 403 Raised Separation Of Powers IssuesTue, 02/16/2010
Tenth Circuit concludes that the “wholesale exclusion of all evidence relating to seventeen of the eighteen allegations” in one count interfered with prosecutorial discretion and required reversal, in United States v. Schneider, 594 F.3d 1219 (10th Cir. Feb. 8, 2010) (Nos. 09-3028, 09-3045)
Generally, the trial court has a fair amount of discretion in excluding evidence as unfairly prejudicial under FRE 403. However, a recent Tenth Circuit case noted that there are constitutional limits to excluding evidence under FRE 403 in a criminal case.Read more
The Federal Evidence Blog returns on Tuesday, February 16, 2010
Enjoy the holiday. George Washington’s birthday is celebrated on the third Monday in February. See 5 U.S.C. § 6103 (federal holidays).
In commemorating our First President, for interested visitors we offer George Washington’s Farewell Address.