Federal Evidence Blog

Admitting Computer Bills Of Lading As Business Records And Internal Company E-mail As Admission Of Party Opponent

In contract dispute, bills of lading “produced from the same electronic information that was generated contemporaneously” were properly admitted as business records; the copying and inclusion of another e-mail which was forwarded to the defendant was admissible as a statement by a party opponent by manifesting an adoption of the information in the original e-mail, in Sea-Land Service, Inc. v. Lozen Intern., LLC, 285 F.3d 808 (9th Cir. April 3, 2002) (No. 00-57058)

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Uncorroborated Co-Conspirator Testimony Was Sufficient Evidence To Admit Under FRE 404(b)

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)

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Booking Information Was Not Barred Under FRE 803(8)(B) Law Enforcement Exception

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

“Mailbox Rule” Established Evidentiary Presumption Which Could Be Rebutted

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)

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Allowing The Jury To Review English-Language Transcripts Of Foreign Language Recordings During Deliberations

Eighth Circuit rejects challenge to the jury’s use of English-language transcripts of recorded telephone communications in Spanish during deliberations, in United States v. Chavez-Alvarez, 594 F.3d 1062 (8th Cir. Feb. 18, 2010) (Nos. 09-1308, 09-1533)

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Taking Judicial Notice Of Stock Prices (Part I)

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)

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

Fifth Circuit holds that “absent novel challenges, fingerprint evidence is sufficiently reliable to satisfy Rule 702 and Daubert,” and a Daubert hearing is not necessarily required, in United States v. John, 597 F.3d 263 (5th Cir. Feb. 9, 2010) (No. 08-10459)

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Corporation Contempt Upheld Based On Unavailability Of Fifth Amendment “Act Of Production” Privilege

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)

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“Wholesale Exclusion” Of Evidence Supporting One Count Under FRE 403 Raised Separation Of Powers Issues

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

Celebrating George Washington's Birthday

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.

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