Federal Evidence Blog

Surveying Recent FRE 404(b) Cases In March 2010

The Cases

During the seven days between March 2nd and 9th, the circuits issued six reported cases involving FRE 404(b). The week provides a snapshot on this common form of evidence. Of these, five were criminal appeals and one a civil one.Read more

Considering Pretrial Notice On “Surprise” FRE 404(b) Evidence

In drug distribution trial, the government did not commit plain error by failing to provide pretrial notice under FRE 404(b) when the government was unaware that the witness would respond at trial that she paid for methamphetamine from the defendant with “Money; sometimes sex”, in United States v. Lopez-Medina, 596 F.3d 716 (10th Cir. Feb. 19, 2010) (No. 08-4055)

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“Pushing Against The Current”: Medical Expert Testimony Need Not Be “Conclusive” To Admit Under Daubert Standard

Extensive experience can be an appropriate Daubert, foundation for admission of medical expert testimony and the expert’s opinion “need not be conclusive”; trial court’s exclusion of medical expert who “didn’t see … didn’t examine … didn’t talk to” patient and with “no peer review … no publication” was reversed as “pushing against the current” of FRE 702 interpretation in the Ninth (and other) Circuits, in Primiano v. Cook, 598 F.3d 558 (9th Cir. March 10, 2010) (No. 06-15563)

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Refreshing Witness’s Recollection With Letter Containing “Possibly Prejudicial Language” Was Ultimately Harmless

In engineer’s injury action based on railroad’s locomotive controls, even if the trial court erred in admitting a letter used to refresh a plaintiff witness’s recollection of the context for a study on the hazardous conditions in defendant’s locomotives, the error was harmless because the jury never received the letter and defense counsel adequately showed the letter’s irrelevance, in Granfield v. CSX Transportation, Inc., 597 F.3d 474 (1st Cir. March 12, 2010) (No. 09-1302)

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Defendant’s DUI Conviction Conditionally Admitted And Later Struck For Failure Of The Condition Under FRE 104

In trial for bank robbery, trial court conditionally admitted under FRE 104(b) a letter by the defendant concerning his DUI conviction as rebuttal to his defense that he did not drink alcohol and therefore could not have been the perpetrator whom witness claimed had “reeked of alcohol”; the letter was properly admitted on condition that the government offer proof the conviction was alcohol-related and the government withdrew it once it learned that the DUI was methamphetamine-related, in United States v. Oliver, 278 F.3d 1035 (10th Cir. 2001) (No. 00-4191)

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Seventh Circuit Applies Mohawk Industries To Adverse Attorney-Client Privilege Ruling

After concluding there was no jurisdiction to consider an interlocutory appeal under the recent Mohawk Industries decision, the circuit also rejected a request to “relax” the standard for a petition for a writ of mandamus, in In Re: Whirlpirl Corp., 597 F.3d 858 (7th Cir. March 3, 2010) (per curiam) (Nos. 09-3777, 09-3795)

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Fifth Circuit Explains Application Of Sprint/United Management Co. v. Mendelsohn

5th Circuit Court sealFifth Circuit considers whether the record dismissing action contained a sufficient explanation for meaningful appellate review; in convicted felons’ suit that state violated the felons’ Equal Protection Clause and National Voter Registration Act rights by precluding felons from voting, the propriety of the district court’s order dismissing the case for failure to state a claim would not be remanded for additional explanation of the district judge’s findings because the judge’s dismissal order provided a sufficient statement of the legal basis for the court’s action and no material facts were at issue, in Young v. Hosemann, 598 F.3d 184 (5th Cir. Feb. 25, 2010) (Nos. 08-60941, 09-60188)

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Excluding Evidence Of Sex-Crime Victim’s Sexual History Under FRE 412 Did Not Deny Right To Present Defense

In a trial involving the production of child pornography, exclusion of the victim’s prior sexual history under FRE 412 did not violate the defendant’s right to present a meaningful defense because the proffered defense evidence was not pertinent to the charged offense nor to the victim’s bias where the defendant was allowed to cross-examine the victim on other issues relevant to his defense, in United States v. Culver, 598 F.3d 740 (11th Cir. March 2, 2010) (No. 07-14708)

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Circuit Consensus: Safeguards To Admit Dual Fact And Expert Law Enforcement Witness Testimony

In drug distribution conspiracy case, Fourth Circuit finds no plain error in admitting expert testimony of police officer concerning drug trafficking methods (including the use of code words) and fact testimony on his observations and the defendant’s actions (weather at time of offense and particular phone conversation intercepted at that time) as the defense was unable to show any jury confusion that affected the trial’s outcome, in United States v. Baptiste, 596 F.3d 214 (4th Cir. Feb. 26, 2010) (No. 07-4493)

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Authenticating Videos And Images From Seized Computer Media

In child pornography case, seized computer videos and images were authenticated by “detailed evidence as to the chain of custody, specifically how the images were retrieved from the defendant’s computers”, in United States v. Salcido, 506 F.3d 729 (9th Cir. 2007) (per curiam) (No. 06-10546)

When images and videos are found on computer media by law enforcement, how are they authenticated at trial? One way is by establishing a chain of custody from the seizure of the evidence through to the forensic examination, as illustrated in a child pornography case.Read more

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