Federal Evidence Blog

Supreme Court Watch: Are Autopsy Reports Admissible Under The Confrontation Clause?

The Supreme Court may soon decide whether to consider a Confrontation Clause issue on which the lower courts are split: "Whether an autopsy report created as part of a homicide investigation, and asserting that the death was indeed caused by homicide, is 'testimonial' under the Confrontation Clause framework established in Crawford v. Washington, 541 U.S. 36 (2004)," in Medina v. Arizona (No. 13-735)

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Recognizing The First President’s Birthday

The Federal Evidence Blog returns

Tuesday, February 18th, 2014

after the federal holiday celebrating

George Washington’s birthday.

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Supreme Court Watch: Will The Court Decide To Hear Juror Dishonesty Issue?

The Supreme Court is considering whether to clarify an issue dividing the lower courts: "Whether FRE 606(b)permits a party moving for a new trial based on juror dishonesty during voir dire to introduce juror testimony about statements made during deliberations that tend to show the alleged dishonesty," in Warger v. Shauers (No. 13-517)

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Dealing With The Unexpected Witness Called By The Court Under FRE 614

What are the consequences when the trial court calls its own percipient witness under FRE 614 that none of the parties planned to call? In a sentencing proceeding pursuant to the defendant's plea of guilt to failing to register as a sex offender, although the parties declined to call the allegedly precipient witness to the defendant's uncharged actions, the court called the witness under its own authority under FRE 614(a) after she had unexpectedly made an appearance, in United States v. Johnson, _ F.3d _ (7th Cir. Feb. 12, 2014) (13-1531)

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Admitting Summary Medical Charts And Expert Evidence

When a party offers a chart summarizing voluminous evidence under FRE 1006, will the decision to admit it involve the court's assessment of its use, or is the FRE 1006 admission question completely independent? The Seventh Circuit demonstrated that the decision to admit summary evidence, while it may facilitate a qualified expert's presentation, is independent of whether or not the expert is actually qualified to testify, in United States v. Chhibber, 741 F.3d 852 (7th Cir. Feb. 3, 2014) (No. 12-2728)

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How Much To Strike Of A Fifth Amendment Claimant's Examination?

When a witness claims a privilege in the middle of direct examination, what happens to the rest of the testimony? Can the balance of a privilege claimant's direct examination be stricken if that claimant invokes the privilege during the course of a direct examination? Does that witness's testimony, up to the claim of privilege, remain on the record? In examining these issues, the Eighth Circuit explained that the entire direct examination of the privilege claimant can be stricken, in United States v. Wilkens, __ F.3d __ (8th Cir. Feb. 6, 2014) (No. 12-3990)

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Flexibility Guides FRE 901 Voice Recording Authentication

What are some of the factors to consider in authenticating a voice on recorded conversations at trial? The Eleventh Circuit reviewed the admission of recorded phone conversations between the defendant and her co-conspirator husband; the circuit concluded that the government presented sufficient evidence to authenticate the seven recordings under FRE 901, including (1) testimony by one cooperating co-conspirator identifying the defendant's voice along with the defendant's admission that she had met with the co-conspirator before; (2) a government agent's identification of the defendant's voice; and (3) testimony by the defendant explaining her allegedly "wholly innocent conversations" with her husband which reflected the recording to be authenticated, in United States v. Reeves, _ F.3d at _ (11th Cir. Feb. 6, 2014) (No. 12–13110)

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Seventh Circuit Joins Others On “Balancing Of Interests” For Hearsay Admissibility In Revocation Proceedings

In review of a supervised release revocation proceeding, Seventh Circuit "join[s] the other circuits that . . . hold that [Fed. R.Crim. P.] Rule 32.1(b)(2)(C) requires [that] a district court in a revocation hearing explicitly ... balance the defendant's constitutional interest in confrontation and cross-examination against the government's stated reasons for denying them," in United States v. Jordan, _ F.3d _ (7th Cir. Jan. 28, 2014) (No. 13–1488)

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Authenticating Screenshots Of Facebook, Youtube Videos and Internet Records

Fourth Circuit demonstrates the manner to authenticate screenshots of Facebook and Youtube evidence (including Facebook pages and YouTube videos) as business records under FRE 803(6) and FRE 902(11) by establishing a sufficient showing connecting the Internet evidence to the defendants, in United States v. Hassan, 742 F.3d 104 (4th Cir. Feb. 4, 2014) (Nos. 12–4067, 12–4063, 12–4061)

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Reversal Based On "Abdication" Of Gatekeeping Role On Expert Testimony

Ninth Circuit en banc reverses jury verdict based on the trial court's failure to make findings concerning the reliability and relevance of expert testimony under Daubert and FRE 702; majority vacates the judgment and orders a new trial; dissent would remand to the trial court to determine the admissibility of the expert testimony before completing the harmless error analysis, in Estate of Barabin v. AstenJohnson, Inc., 740 F.3d 457 (9th Cir. Jan. 15, 2014) (Nos. 10-36142, 11-35020) (en banc)

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