Federal Evidence Blog

Considering The Details Of A Cooperator’s Plea Agreement At Trial

Sixth Circuit notes the role of the details in a plea agreement to allow the jury to assess the credibility of a cooperating defendant at trial, in United States v. Thorton, _ F.3d _ (6th Cir. Feb. 10, 2010) (No. 08-3349)

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Fourth Circuit Notes Breadth Of Evidence Which A Grand Jury May Consider

On review of civil contempt of a corporation for refusing to provide documents requested by the grand jury, circuit declines to consider claim that grand jury may have considered evidence obtained in violation of the Fourth Amendment, noting that “[v]irtually any source” of evidence may be considered, in In Re: Grand Jury Subpoena, 597 F.3d 189 (4th Cir. Feb. 24, 2010) (Nos. 06-2125, 06-2220, 07-1646)

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Reversing Conviction Based On Erroneous Admission Of Settlement Offer Under FRE 408

The defendant’s offer to “split” the disputed difference concerning unaccounted funds was offered to show “liability” and the offer to settle was barred under FRE 408 “even if no settlement negotiations follow,” in United States v. Davis, 596 F.3d 852 (D.C. Cir. Feb. 26, 2010) (No. 07-3100)

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Opening The Door To Statements Otherwise Barred Under The Confrontation Clause

Tenth Circuit holds that the Confrontation Clause was not violated by admitting testimonial statements by a confidential informant after the defense had opened the door to the confidential informant statements on cross-examination by asking about the information the informant provided to the officer, United States v. Lopez-Medina, 596 F.3d 716 (10th Cir. Feb. 19, 2010) (No. 08-4055)

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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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