Federal Evidence Blog

Reversal Based On Failure To Use Certified Interpreter For Jury Waiver Form

A divided panel, reversed conviction based on invalid jury trial waiver form which was printed only in English, signed by a non-English-speaking drug conspiracy defendant, and translated by his defense attorney; the attorney was not certified as an interpreter under applicable law and FRE 604 “provides a means for the court to qualify an individual as an interpreter, employing the methodology used for qualifying expert witnesses” under FRE 702, in United States v. Bailon-Santana, 429 F.3d 1258 (9th Cir. Dec. 6, 2005) (No. 04-50079)

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Computer-Generated Summaries As Business Records Authenticated Under FRE 901(b)(9)

Computer-generated summaries reflecting the insurance company’s indemnity payments and loss adjustment expense payments for insurance claims were admissible as a business record and authenticated under FRE 901(b)(9) by the claims manager who “was familiar with the recordkeeping practices of the company, testified regarding the computer system used to compile and search the insurance claim records, and testified regarding the process of querying the computer system to create the summaries”, U-Haul Intern., Inc. v. Lumbermens Mut. Cas. Co., 576 F.3d 1040 (9th Cir. Aug. 12, 2009) (No. 07-16187)

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Admitting Defendant’s Good Character Under FRE 404(a)(1)

In obstruction of justice trial of a police officer, in which the defendant’s mens rea was highly contested, the trial court improperly excluded the defendant’s proffer of good character evidence as a “law-abiding, trusted police officer” requiring reversal of the jury conviction, in United States v. Yarbrough, 527 F.3d 1092 (10th Cir. June 3, 2008) (No. 06-5229)

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FRE 301 Presumptions – An FRE Often Used But Not Often Cited

In trademark infringement litigation, a presumption of trademark abandonment applied under FRE 301 when a party showed nonuse of the trademark “for 3 consecutive years” and the trademark owner did not produce any evidence that could support a reasonable jury finding “the nonexistence” of the presumed fact of abandonment, in ITC Ltd. v. Punchgini, Inc., 482 F.3d 135 (2d Cir. Mar. 28, 2007) (No. 05-0933-cv), cert. denied 552 U.S. 827 (2007)

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Judicial Conference Encourages Preservation Of Internet Materials Cited In Opinions

Judicial policy-making body approves initial measures concerning the use of Internet materials in opinions, in Report Of The Proceedings Of The Judicial Conference Of The United States, at 10-11 (March 17, 2009)

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Fifth Circuit Applies Joint Crime Exception To Confidential Marital Communications

In tax evasion trial, defendant's ex-wife testified about conversations while married to the defendant on whether to file tax returns; the testimony was admissible under the joint crime exception to the confidential marital communications privilege, in United States v. Miller, 588 F.3d 897 (5th Cir. Nov. 20, 2009) (No. 08-31168)

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Thanksgiving Holiday 2009

The Federal Evidence Review sends its best wishes to our subscribers and visitors for the Thanksgiving Holiday. The Federal Evidence Blog returns tomorrow.

Image: George Washington, Manuscript Proclamation setting Thursday, November 26, 1789 as "a day of public thanks-giving" - the first national Thanksgiving Day proclamation under the Constitution.

Text Of President Washington's Proclamation

City of New York, October 3, 1789.

Whereas it is the duty of all Nations to acknowledge the providence of Almighty God, to obey his will, to be grateful for his benefits, and humbly to implore his protection and favor, and Whereas both Houses of Congress have by their joint Committee requested me "to recommend to the People of the United States a day of public thanks-giving and prayer to be observed by acknowledging with grateful hearts the many signal favors of Almighty God, especially by affording them an opportunity peaceably to establish a form of government for their safety and happiness."Read more

Voice Identification Under FRE 901(b)(5); DOJ Manual Inadmissible As A Learned Treatise Under FRE 803(18)

Sufficient familiarity was shown for agent to identify the defendant’s voice on a recorded conversation based on prior interview; prosecution eyewitness identification manual was hearsay and could not be admitted as a learned treatise, in United States v. Norman, 415 F.3d 466 (5th Cir. 2005) (per curiam) (No. 04-20177)

Identification issues can present unique challenges and can arise in different manners at trial. One case highlighted two separate identification issues. The first involved the identification of the voice of one of the defendants in a recording made during a drug transaction. The second issue involved a hearsay question concerning a manual on eyewitness identification. Read more

Full Daubert Hearing Is Not Always Required To Admit Expert Testimony (Part V)

In illegal weapons possession case, defendant who objected to admitting fingerprint expert evidence that was “used ... in matching the partial latent fingerprint recovered from the [charged] firearm” to the defendant's left thumb print, had to “produce data and experts to demonstrate why” the expert evidence should not be admitted; the trial court did not improperly shift the burden of showing admissibility to the objector because case law overwhelmingly admitted such evidence and the objector provided “no novel challenge” and showed “no new favorable case law or expert testimony to challenge” the proffered expert fingerprint evidence, in United States v. Pena, 586 F.3d 105 (1st Cir. Nov. 17, 2009) (No. 08-1407)

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Leading Ruling Highlights Three Types Of Metadata

After initial requests for metadata were not made by the plaintiffs, and the parties were unable to resolve their differences in “meet and confer” meetings, the court compels the production of metadata if the plaintiffs paid the costs since discovery production had been nearly completed, in Aguilar v. Immigration and Customs Enforcement Div. of U.S. Dept. of Homeland Sec., 255 F.R.D. 350 (S.D.N.Y. 2008) (No. 07 Civ. 8224 (JGK)(FM))

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