Prospective: Ten Key Evidence Issues For 2009

2009 Calendar

A variety of evidence issues are anticipated this year. Some of these issues involve the Confrontation Clause, key legislative issues, pending rule amendments or revisions, and more.

Last week, we reviewed ten significant evidence issues from 2008. See Retrospective: Ten Key Evidence Issues In 2008 At the beginning of the new year, there are a number of potential evidence issues worth watching on the horizon. Of course, unforeseen developments could occur during the course of the year. At this juncture, here is the Federal Evidence Review’s Ten Key Evidence Issues for 2009, which are not necessarily ranked in any order, and are discussed further below:



Federal Evidence Review’s
Ten Key 2009 Key Evidence Issues


  1. Attorney General Confirmation Hearings
  2. Supreme Court: Pending Melendez-Diaz Confrontation Clause Decision
  3. New Rule: FRE 502 (Attorney-Client Privilege And Work-Product Doctrine)
  4. The Selective Waiver Doctrine
  5. Pending Rule Amendment: FRE 804(b)(3) (Declarations Against Interest)
  6. Future Rule Amendment: "Restyling" The Federal Rules of Evidence
  7. Expert Evidence: Tenth Circuit En Banc Ruling Pending In United States v. Nacchio
  8. Legislation: Attorney-Client Privilege Protection Act and Reporter Shield Law
  9. Legislation: Reporter Shield Law
  10. Pending Circuit Split: Resolving FRE 404(b) Elements Conflict


Ten Key Evidence Issues for 2009



1. Attorney General Confirmation Hearings

The new year commences with the Senate Judiciary Committee confirmation hearings on the nomination of Eric H. Holder Jr., to be Attorney General of the United States. The hearings are presently set to begin on Thursday, January 15, 2009 at 9:30 a.m. See Senate Judiciary Committee Schedule.

While the nominee will be questioned on a variety of constitutional, legal and policy issues, some of the subject areas will touch upon evidence matters. For example, then-Deputy Attorney General Eric Holder issued the first Department of Justice memorandum concerning the prosecution of business organizations and the waiver of the corporate attorney-client privilege and work-product protection, which was known as the Holder Memo. See Memorandum from Deputy Attorney General Eric H. Holder, Jr. to Heads of Department Components and U.S. Attorneys, Bringing Criminal Charges Against Corporations (June 16, 1999) ("Holder Memo"). The Holder Memo was followed by several others, including the

  1. Thompson Memo in 2003,
  2. McCallum Memo in 2005,
  3. McNulty Memo in 2008, and
  4. new DOJ Guidelines in 2008.

On related issues, what position would Attorney General Holder have on two significant privilege issues including the Attorney Client Privilege Protection Act and a Reporter Shield Law (noted in number 8, below). Other issues having an evidence impact may be aired during the hearings.

2. Supreme Court: Pending Melendez-Diaz Confrontation Clause Decision

On November 10, 2008, the Supreme Court heard oral argument in Melendez-Diaz. The case provides the Court with the latest opportunity to clarify the contours of the Confrontation Clause after the landmark decision in Crawford v. Washington, 541 U.S. 36 (2004). The case concerns a forensic expert who testified about the results prepared by another analyst who did not testify. The specific issue presented in the case is:

"Whether a state forensic analyst’s laboratory report prepared for use in a criminal prosecution is ‘testimonial’ evidence subject to the demands of the Confrontation Clause as set forth in Crawford v. Washington, 541 U.S. 36 (2004)."

Luis E. Melendez-Diaz v. Massachusetts, (No. 07-591).

The Federal Evidence Review will monitor continuing developments on this case and has launched a Melendez-Diaz Resource Page, which includes links to many of the key briefs and cases. While the decision is pending, for more information on the case, see The Supreme Court's Oral Argument In Melendez-Diaz and Melendez-Diaz Prior Blog Posts.

3. New Rule: FRE 502 (Attorney-Client Privilege And Work-Product Doctrine)

On September 19, 2008, FRE 502, a new evidence rule concerning the attorney-client privilege and work-product doctrine, was enacted. See Pub. L. No. 110-322, 122 Stat. 3537. In 2008, there were few cases applying the new rule. However, the new year presents an opportunity for the new rule to be applied, including its distinct subdivisions.

The Federal Evidence Review has launched a FRE 502 Resource Page, which provides background and links to key documents and will track future cases and developments concerning the new rule. For more information on the rule, see Lead Story: "Understanding New FRE 502 (Attorney-Client Privilege And Work-Product Doctrine)," 5 Fed. Evid. Rev. 1454 (Oct. 2008); President Signs New Attorney-Client Privilege Rule (FRE 502); Congress Passes Attorney-Client Privilege Rule (FRE 502); Other FRE 502 Blog Posts.

4. The Selective Waiver Doctrine

One issue that was avoided in the enactment of FRE 502, was the adoption of a selective waiver provision, which the Judicial Conference dropped after concluding it was too controversial. Under the selective waiver doctrine, a corporation may provide the government with otherwise privileged material without waiving the attorney client privilege or work product doctrine to subsequent third parties. The circuits are split on the application of the selective waiver doctrine. See, e.g., In re: Qwest Communications International Inc., Securities Litigation, 450 F.3d 1179 (10th Cir. 2006) (discussing circuit split). The issue recurs during corporate investigations by the government. Some corporations want to demonstrate their willingness to cooperate but fear risking a later claim that in providing information to the government they waived the privilege. The courts largely have looked to Congress to strike the balance on the application of any selective waiver provision.

For more information, see Lead Story: "Understanding New FRE 502 (Attorney-Client Privilege And Work-Product DoctrineM)," 5 Fed. Evid. Rev. 1454, 1462-64 (Oct. 2008); Selective Waiver Absent From New FRE 502 ; Peter K. Vigeland, Robert W. Trenchard, Daniel C. Richenthal, and Michelle E. Kanter, "Litigation -- Selective Waiver: Changes In Policy And The Law Alter The Calculus In Weighing A Client's Cooperation," New York Law Journal (Dec. 1, 2008).

5. Pending Rule Amendment: FRE 804(b)(3) (Declarations Against Interest)

The amendment process for a potential new rule is already underway. On August 8, 2008, the U.S. Judicial Conference Committee on Rules of Practice and Procedure issued a draft amendment to FRE 804(b)(3) for public comment. The public comment period ends by February 17, 2009.

The proposed amendment would clarify that the corroborating circumstances requirement under the rule applies to statements against penal interest introduced by the government. This requirement already applies to statements admitted by the defendant.

In January, two public hearings were originally scheduled by the Advisory Committee on Evidence. However, both hearings have been cancelled. The first hearing was to be held in San Antonio, Texas, on January 13, 2009, and the second in Atlanta, Georgia, on January 26, 2009.

For more information on the proposed rule, see Public Comment Period Opens On FRE 804(b)(3) Amendment; Public Comments Pending On Proposed FRE 804(b)(3) (Declarations Against Interest) Amendments (Part IV).

6. Future Rule Amendment: "Restyling"The Federal Rules of Evidence

Another evidence rule revision underway involves the restyling of the Federal Rules of Evidence. The Judicial Conference Advisory Committee on Evidence Rules has been making progress on restyling the FRE. Non-substantive modifications are being proposed to the rules. In 2008, the committee reviewed draft restyled rules up to FRE 706. Once drafts for all the restyled rules are completed, the committee hopes to release all of the proposed restyled rules for public comment in August 2009.

For more information, see Restyling The Federal Rules Of Evidence<(Part I) Restyling The Federal Rules Of Evidence (Part II).

7. Expert Evidence: Tenth Circuit En Banc Ruling Pending In United States v. Nacchio

On September 25, 2008, the Tenth Circuit, sitting en banc, heard argument on the insider trading convictions of defendant Nacchio, former CEO of Qwest Communications International, Inc. In March 2008, a divided panel of the Tenth Circuit previously reversed his convictions based on the exclusion of defense expert Professor Daniel Fischel, who would have testified that the pattern of the defendant’s stock trades was explained by factors other than insider information. See United States v. Nacchio, 519 F.3d 1140 (10th Cir. 2008). The en banc panel had previously ordered supplemental briefing on expert evidence issues. The case involves the application of the expert evidence rule, FRE 702, including the burden the proponent of expert testimony must establish, the role of the trial court in ruling on expert testimony, and whether the trial court abused its discretion in excluding the defense expert opinions concerning the defendant’s stock trading patterns.

For more information on the case, see Tenth Circuit Grants Rehearing On Expert Evidence Issues and Tenth Circuit En Banc Hears Argument In Nacchio Insider Trading Case on Expert Testimony Issues. .

8. Legislation: Attorney-Client Privilege Protection Act and Reporter Shield Law

As noted last week, Congress came close to passing two separate measures involving evidence privileges. The first was the Attorney Client Privilege Protection Act, which would generally bar federal attorneys in criminal and civil enforcement actions from requesting or using communications protected by the Attorney-Client privilege or materials covered by the work product doctrine. On November 13, 2007, the U.S. House of Representatives passed , the Attorney-Client Privilege Protection Act. See 153 Cong. Rec. H13562-13564 (Nov. 13, 2007)). The measure died in the Senate after the U.S. Department of Justice adopted new guidelines. See U.S. Attorney’s Manual §§ 9-28.000 to 9-28.1300; see also Revised DOJ Corporate Prosecution Guidelines Issued. Will the new Congress revisit this issue?

Second, will the new Congress consider a Reporter Shield law? In the last Congress, on October16, 2007, the House of Representatives overwhelmingly passed "The Free Flow of Information Act of 2007," by a vote of 398-21. See H.R. 2102. On October 4, 2007, the Senate Judiciary Committee approved a similar measure by a 15-2 vote and the matter has been pending debate on the Senate floor ever since. See S. 2035.

9. Electronic And Internet Evidence Issues

Electronic and internet evidence has become a common feature of modern litigation. Given the importance of this type of evidence, surprisingly there are not as many published cases as one would expect. There are a host of issues that the cases have noted and over which questions remain. For example:

  • What are the boundaries of lay and expert opinion testimony concerning a forensic examination? See, e.g., Drawing The Line On Computer Forensic Expert And Lay Testimony.
  • Under what circumstances can an expert rely on web postings which are unauthenticated or contain hearsay? See, e.g., Limits To Relying On Internet Materials And Information In Court (Part IV(b)).
  • Under what circumstances can a court consider information on the Internet? See, e.g., Limits To Relying On Internet Materials And Information In Court (Part I) and (Part II)
  • Authenticating information found on the Internet. See, e.g., Limits To Relying On Internet Materials And Information In Court (Part III)
  • Given business reliance on electronic evidence, when can the contents of the records be admitted under the business records hearsay exception? See, e.g., Computer Transaction Records Concerning Drug Purchases Admitted As Business Records
  • Since electronic evidence may be subject to alteration (as with other forms of evidence), what sanctions may be warranted if a party destroys or alters electronic evidence? See, e.g., Default Judgment For Destroying And Falsifying Electronic Records Upheld By District Court
Will 2009 bring new cases addressing and clarifying these issues? For more information, see Electronic Evidence; Internet Evidence.

10. Pending Circuit Split: Resolving FRE 404(b) Elements Conflict

In a little noticed issue, a circuit split exists concerning the elements to introduce other act evidence under FRE 404(b). Given the importance of this evidence in civil and criminal cases, will there be an appropriate case in 2009 to present the issue for the Supreme Court to decide? For more information, see An Unaddressed Issue, Resolving FRE 404(B) Circuit Conflict



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