Federal Evidence Blog

Precluding Evidence Of Another Perpetrator When Unfairly Prejudicial

Exclusion of evidence that another person committed the offense did not violate the defendant’s constitutional due process rights where its probative value was substantially outweighed by the danger of jury confusion, on state habeas review, in Miller v. Brunsman, 599 F.3d 517 (6th Cir. March 24, 2010) (No. 09-3151)

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Trial Court Erred In Excluding Otherwise Admissible Evidence Under FRE 611(a)

FRE 611(a) did not authorize the exclusion of sixteen government witnesses discovered after the initial trial date; opinion also notes the interaction between FRE 611(a) and FRE 403, in United States v. Colomb, 419 F.3d 292, 298 (5th Cir. 2005)

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Taking Judicial Notice Of Copyright Registration

Where certified copies of the copyright registration were not provided, district court could take judicial notice of the federal copyright registrations in the Copyright Office’s registry, in Island Software and Computer Service, Inc. v. Microsoft Corp., 413 F.3d 257, 261 (2d Cir. 2005) (No. 04-0744-CV)

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Non-Translator’s Testimony As To Defendant’s Incriminating Foreign-Language Statements Admitted

In cocaine conspiracy trial, admitting witness’s testimony about the defendant’s incriminating statements without regard to FRE 604 and even though the witness lacked formal training for translating English and Spanish, because the defendant was allowed to cross-examine the witness about his translating experience and ability, in United States v. Mejia, 600 F.3d __ (1st Cir. March 12, 2010) (No. 08-2505)

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Evaluating Statements By An Authorized Party In Context Under FRE 801(d)(2)(C), (D)

In an excessive force civil rights suit, defendant could not proffer statement made by the civil plaintiff’s attorney in a related criminal trial that “we still don’t know” who injured the plaintiff as a statement by a party agent under FRE 801(d)(2)(C); in context, the statement was “calling attention to” the defendant’s “inexplicable absence” and not confessing that the plaintiff in fact “did not know who caused his injuries,” in Gill v. Maciejewski, 546 F.3d 557 (8th Cir. Nov. 4, 2008) (Nos. 07-3451, 07-3482, 07-3630)

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Excluding Standard Of Care Accountant Expert Testimony Under FRE 403

In tax evasion trial, defense expert testimony about accountants’ professional standard of care was excluded as likely to mislead and prejudice the jury under FRE 403; probative value of this expert evidence on the duty of care owed to the defendant by her accountants (failure to probe if income from defendant’s solely-owned company was deposited in company accounts) was outweighed by the potential of the evidence to mislead the jury and shift its focus from defendant’s alleged criminal intent (in keeping undisclosed multiple accounts) to her accountants’ job performance, in United States v. St. Pierre, 599 F.3d 19 (1st Cir. March 17, 2010) (No. 09-1237)

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Distinguishing Summaries And Pedagogical Devices (Part II)

Sixth Circuit case identifies three kinds of summaries that may be introduced at trial, including (1) “primary-evidence summaries”; (2) “pedagogical-device summaries or illustrations”; and (3) “secondary-evidence summaries” based on the first two types; case continues to support model circuit instruction on summary evidence, in United States v. Bray, 139 F.3d 1104, 1111-12 (6th Cir. 1998) (No. 96-2261)

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Firearm Transaction Record Admissible Under Residual Hearsay Exception (FRE 807)

In felon in possession of a firearm prosecution, ATF Form 4473 firearm transaction record, indicating purchaser, was admissible under FRE 807 since it had circumstantial guarantees of trustworthiness as federal regulations require sellers to provide the information on the form; while record may have been admissible as a business record, government did not present a witness familiar with the seller’s record-keeping practices, in United States v. Banks, 514 F.3d 769, 777-78 (8th Cir. 2008) (No. 06-3593)

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Authenticating A Duplicate Hearing Transcript From Another Proceeding Under FRE 902(4) and FRE 1003

Transcript of evidentiary hearing before another court which was certified by the court reporter was self-authenticated under FRE 902(4); the duplicate of the hearing transcript was under FRE 1003 in the absence of a “genuine question” concerning the authenticity or unfair circumstances, in Ball v. A.O. Smith Corp., 451 F.3d 66 (2d Cir. June 9, 2006) (No. 05-1152) Read more

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

Federal Rules of Evidence