Federal Evidence Blog

Alternate Jurors And A Limited Inquiry Under FRE 606(b)

In appeal of conviction for conspiracy to possess with intent to distribute methamphetamine, circuit retains jurisdiction but makes a limited remand to the trial court to conduct an inquiry under FRE 606(b) concerning whether an alternate juror actually participated in, rather than was merely present for, deliberations, in United States v. Aguilar, __ F.3d __ (8th Cir. Feb. 26, 2014) (No. 13–2845)

Read more

Supreme Court Watch: Court Agrees To Hear Juror Dishonesty Issue Dividing Lower Courts

Yesterday, the Supreme Court decided to hear a case which concerns the extent that juror testimony about statements made during the jury deliberations may be considered after a moving party files a motion for a new trial on grounds of juror dishonesty during voir dire, in Warger v. Shauers (No. 13-517)

Read more

Third Circuit Assesses Unmemorialized Verbal Communications Claimed To Be Privileged

In an action for enforcement of a grand jury subpoena of an attorney for the Intervenors, affirming trial court's in camera "interview" of the subpoenaed attorney regarding invocation of the attorney-client privilege to "unmemorialized verbal communications" between the attorney and the intervenor target of the grand jury probe, which the government contended were exempt from the privilege because of the crime-fraud exception, in In re Grand Jury Subpoena, _ F.3d _ (3d Cir. Feb. 12, 2014) (No. 13–1237)

Read more

Eleventh Circuit Notes Confrontation Clause Is A "Trial Right" And Inapplicable To Pretrial Jurisdiction Determinations

To what extent does the Confrontation Clause apply to pretrial determinations concerning jurisdiction? The Eleventh Circuit considered whether “a certification of the Secretary of State to establish extraterritorial jurisdiction for a prosecution of drug trafficking on the high seas” violates the Confrontation Clause, in United States v. Campbell, _ F.3d _ (11th Cir. Feb. 20, 2014) (No. 12-13647)

Read more

Highlighting The Limits To Fingerprint Evidence

Fourth Circuit reverses robbery conviction in the absence of evidence that the recovered fingerprint of the defendant was impressed during the offense; circuit notes that "challenges to convictions involving fingerprints on movable objects, in the absence of evidence regarding when the fingerprints were made" requires "sufficient additional incriminating evidence so as to allow a rational juror to find guilt beyond a reasonable doubt," in United States v. Strayhorn, _ F.3d _ (4th Cir. Feb. 26, 2014) (Nos. 12–4487, 12–4495)

Read more

Supreme Court Declines To Hear Confrontation Clause Case Concerning Admissibility Of Autopsy Reports

Yesterday the Supreme Court declined to hear a capital case raising the issue of whether autopsy reports are "testimonial" under the Confrontation Clause, in Medina v. Arizona (No. 13-735); the division on this issue remains in the lower courts; from a broader view, uncertainty continues concerning the application of the Confrontation Clause following the decision in Williams v. Illinois, 567 U.S. _, 132 S.Ct. 2221, 183 L.Ed.2d 89 (2012), and what constitutes "testimonial" statements

Read more

Admitting Criminal Insider Trading Convictions in SEC Civil Enforcement Action

Third Circuit affirms the admission of criminal insider trading convictions under FRE 404(b) in a related civil enforcement action; the plea allocution was probative of the defendant's intent and absence of mistake in the civil case; the circuit also rejected the defense claim that the criminal conduct occurred after the civil conduct, in S.E.C. v. Teo, _ F.3d _ (3d Cir. Feb. 10, 2014) (No. 12-1168)

Read more

Caution Noted In Considering Gang Evidence

Seventh Circuit notes that "[e]vidence of gang affiliation must be handled with care", and affirms the admission of gang evidence as not unfairly prejudicial under FRE 403 ; the gang evidence tended to show the motive for the defendant's possession of a firearm, in United States v. Molton, _ F.3d _ (7th Cir. Feb. 18, 2014) (No. 13-2525)

Read more

Noting The Limits To The Rule Of Completeness In Introducing Party's Statement

When a statement of a party is introduced at trial, to what extent can the rule of completeness under FRE 106 allow other statements to be admitted? Ninth Circuit notes that the trial court correctly concluded that "the Rule of Completeness is not so broad as to require the admission of all redacted portions of a statement, without regard to content," in United States v. Vallejos, 742 F.3d 902 (9th Cir. Feb. 10, 2014) (No. 13-10025)

Read more

Sexual Orientation Evidence Under The FRE 403 Balance

Evidence of a criminal defendant's sexual preference can be highly prejudicial particularly if it is irrelevant to the charged crime. Of course, under FRE 403 this evidence is inadmissible when it is unfairly prejudicial. Courts are examining sexual orientation evidence with a careful eye to its impact on the possible emotions and prejudices of the jury. A recent First Circuit case suggests the importance of this issue, in United States v. Delgado-Marrero, _ F.3d _ (1st Cir. Feb. 11, 2014) (Nos. 11-1660, 11-1742)

Read more
Federal Rules of Evidence
PDF