Federal Evidence Blog

Making A Sufficient Redaction

When a statement is admitted for a limited purpose, it may need editing or redacting to comport with FRE 105. Do any standards or factors exist for assessing the propriety of a redaction? The Second Circuit recently considered an aspect of this problem in a case concerning how a statement should be redacted so that its admission into evidence did not carry with it the "overwhelming probability" of inviting the jury to speculate or to otherwise ignore the court's limiting instructions, in United States v. Taylor, _ F.3d _ (2d Cir. March 4, 2014) (Nos. 11–2201 L, 11–2426(CON), 11–2639(CON))

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Evidence Rules Advisory Committee's April 2014 Agenda

On April 4, 2014 the Advisory Committee on Evidence Rules is scheduled to conduct its Spring 2014 meeting, which is open to the public. The Committee will be meeting in Portland, Maine. Recently, the agenda for the meeting was released; the committee will consider proposed amendments to FRE 803(16) (Statements in Ancient Documents), FRE 609(a) (Impeachment by Evidence of a Criminal Conviction), FRE 803(1) (Present Sense Impression) and FRE 803(2) (Excited Utterance), and other matters.

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Reviewing "Subtle" Implication Of An Impermissible Comment On The Defendant's Right To Silence

When does the introduction of evidence constitute an indirect comment on a defendant's silence violating the defendant's Fifth Amendment right against self incrimination? In a tax fraud case, the Seventh Circuit was recently asked to consider whether the government had "subtly implied that" the defendant "had refused to speak"; given the context, the circuit ultimately concluded that there was no violation, in United States v. Phillips, __ F.3d __ (7th Cir. March 14, 2014) (No. 12-2532)

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Tenth Circuit Search For A "Unifying Theory" Of The Daubert Gatekeeping Role

Once a Daubert inquiry is made, what should the trial court include in the record? The Tenth Circuit recently identified at least three factors that it employs in assessing the adequacy of a trial judge's Daubert gatekeeping in the trade secret misappropriation trial in StorageCraft Technology Corp. v. Kirby, _ F.3d _ (10th Cir. March 11, 2014) (No. 12-4182)

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Excluding FRE 702 Expert Opinion But Including FRE 706 Expert Opinion

In an Administrative Procedures Act review of whether an agency's actions had been arbitrary and capricious, the Ninth Circuit concludes that the district court should not have expanded the agency record to include affidavits submitted by the parties' experts regarding the agency's Biological Opinion (“BiOp”) concerning the preservation of the endangered delta smelt species by reducing the diversion of water from north to south California, in San Luis & Delta-Mendota Water Authority v. Jewell, __ F.3d __ (9th Cir. March 13, 2014) (Nos. 11-16623, 11-16662, 11-15871, 11-16617, 11-16624, 11-16621, 11-16660)

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Circuit Consensus: Using Expert Testimony To Establish Interstate Commerce Element For Firearm Offense

In reviewing the evidence offered to establish the interstate commerce element for the felon in possession of a firearm statute, the Seventh Circuit notes that expert testimony “is the standard method of proof,” in United States v. Brownlee, _ F.3d _ (7th Cir. March 4, 2014) (No. 13‐2745)

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Business Record Certificate Should Not Have Been Admitted

When a business record certificate or affidavit is used to admit a business record under FRE 902(11) and FRE 803(6), does the jury receive both the business record and certificate? Seventh Circuit notes that the trial court should not have allowed the business record certification under FRE 902(11) to be admitted before the jury, in United States v. Brown, _ F.3d _ (7th Cir. March 4, 2014) (No. 11–1565)

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Circuit Consensus On Jurors' Disregard For Limiting Instructions On Defendant's Exercise Of Right Not To Testify

When a court learns that a jurors may not have followed its instructions not to draw an adverse inference from a defendant's election not to testify at trial, can their deliberations be reviewed and questioned and the verdict challenged? The Seventh Circuit recently considered a motion for a new trial based on juror statements that the jurors had disregarded the trial judge's instruction not to consider the defendant's exercise of his right not to testify; the circuit concluded under FRE 606(b), that the verdict could not be impeached so that the motion for a new trial was correctly denied, in United States v. Torres-Chavez, __ F.3d __ (7th Cir. March 6, 2014) (No. 13–1340)

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FRE 701 And The "Quintessential Kind Of Evidence"

Seventh Circuit considers whether an officer's observations about "the speed of a vehicle or a distance between two vehicles" that he was following is admissible as lay opinion testimony and concludes that it is "the quintessential kind of evidence contemplated by Rule 701," in United States v. Peters, __ F.3d __ (7th Cir. Feb. 27, 2014) (No. 12–3830)

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Admitting But Questioning Present Sense and Excited Utterance 911 Call Statements

While the Seventh Circuit questions the basis for the FRE 803(1) (present sense impression) and FRE 803(2) (excited utterance) hearsay exceptions, the circuit ultimately concludes that the 911 telephone call was admissible under the "broader" excited utterance exception; Circuit Judge Richard Posner proposes an alternative to consider hearsay evidence, in United States v. Boyce, _ F.3d _ (7th Cir. Feb. 13, 2014) (No. 13-1087)

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