Federal Evidence Blog

Evidence That Grand Jury "Did Not Indict" Is Unfairly Prejudicial In A Civil Action

In Munoz v. State Farm Lloyds, 522 F.3d 568 (5th Cir. 2008) the Fifth Circuit joined four other circuits that consider evidence that a grand jury did not file criminal charges to be unfairly prejudicial under FRE 403 in a related civil action.

In Munoz, the Fifth Circuit considered whether evidence of a decision not to bring criminal charges against a civil plaintiff was unfairly prejudicial when offered against the plaintiff in a subsequent civil action concerning the same conduct.Read more

Competing Fifth And Sixth Amendment Rights

Two defense witnesses refusing to testify under their Fifth Amendment rights did not deprive the defendant of his constitutional right to present a defense in United States v. Hunt, 521 F.3d 636 (6th Cir. 2008).

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A Party Wishing To Offer Its Own Exculpatory Statements Must Testify

The bar against party admission of its own exculpatory statements through other witnesses is noted in United States v. Ortega, 203 F.3d 675, 682 (9th Cir. 2000)

A recurring evidence issue concerns efforts by a party to introduce their own statements at trial through other witnesses. The rules provide that unless the opposing party seeks to introduce a party’s statement against the party, then the introduction of a party’s statement by the party is hearsay. Read more

Supreme Court Watch: Trial Court's Essential Role In FRE 401/403 Relevance Determinations

Recent Supreme Court decision underscores district court’s essential role in determining FRE 401/403 issues, in Sprint/United Management Co. v. Mendelsohn, 552 U.S. 379, 128 S.Ct. 1140 (2008).

During the last Term, one Supreme Court decision emphasized the central role of the district court in determining relevancy and unfair prejudice issues in particular, and evidence issues in general. Read more

Can Self-Authenticated, Certified Business Records Violate The Confrontation Clause?

D.C. Circuit notes open issue whether admission of self-authenticated, certified business records may violate the confrontation clause, in United States v. Hemphill, 514 F.3d 1350 (D.C. Cir. 2008).

Traditionally, the introduction of business records required a custodian of records, or other qualified witness, to testify at trial to establish the foundation to admit the records. For example, a bank custodian could provide a foundation for authentication by testifying concerning banking records under the business records hearsay exception.Read more

Access To Evidence For DNA Testing

A district court rules that the First Amendment Petition and Due Process Clauses entitle prisoner to access evidence for DNA testing, in McKithen v. Brown, 565 F.Supp.2d 440 (E.D. N.Y. July 21, 2008) (No. 02cv1670).

Does the Due Process Clause of the Fourteenth Amendment allow a state court prisoner access to evidence for DNA testing? A recent Eastern District of New York ruling answers this question in the affirmative.

Defendant McKithen was convicted in state court for committing attempted murder by stabbing his estranged wife with a knife, intimidating a victim or witness, reckless endangerment, criminal possession of a weapon, assault, and resisting arrest. After his request for DNA testing was denied under a state law, he filed a civil rights action claiming DNA testing may exonerate him since he asserted his wife had tried to frame him. The district court initially dismissed the complaint for failing to state a claim on which relief could be granted and other related grounds.Read more

Former U.S. Attorney General On The McNulty Attorney-Client Waiver Memo

Former U.S. Attorney General Richard Thornburgh told the Senate Judiciary Committee in 2007 hearings that "[i]n all the years" of his service in law enforement "requests to organizations ... to hand over privileged information never came to my attention—and I would have rejected such a request if it had."

Video Of Former Attorney
General Thornburgh’s Testimony

On June 25, the Federal Evidence Blog reported on a letter by 33 former U.S. Attorneys in support of S. 186. The article, New Development On Attorney-Client Front described growing support for legislative measures that would codify a new statute: 18 U.S.C. § 3014 concerning the attorney-client privilege.Read more

Second Circuit's "Extreme Reluctance" To Reopen Case After Jury Begins Deliberations

Few federal cases have addressed the case reopening issue notes the Second Circuit in United States v. Crawford, 533 F.3d 133 (2d Cir. July 17, 2008) (No. 06-5059-cr)

After three weeks of trial, your case is finally in the jury’s hands. You have been waiting for their verdict. The judge’s chambers calls and tells you to come to court as the jury has a note. The jury raises a specific question about the evidence. Suddenly, it is clear that evidence was not introduced to answer the jury’s question. However, evidence can readily be provided to resolve the issue by calling one witness. Can the case be reopened at this late juncture? A recent Second Circuit case highlights the perils of reopening a case that has been submitted to the jury. Case reopening, the circuit suggested, should be allowed only with "extreme reluctance."

In United States v. Crawford, the defendant was prosecuted for possessing a firearm after being convicted as a felon. At trial, the government called an expert to establish the firearm (a .45 caliber semi-automatic pistol and ammunition) had moved in interstate commerce since it was manufactured in Spain. On cross-examination, the expert answered that he had not completed a trace on the firearm but perhaps the case agent had. The defendant testified and denied possessing the firearm. During closing argument, defense counsel noted that no testimony was admitted concerning a trace report.

During deliberations, the jury sent a note asking: “why wasn’t the gun traced to the original owner?” In discussing the issue with counsel, the court learned that a trace report had been provided to the defense. The trial court sua sponte decided to reopen the case. The agent testified about the trace report and the history of legal change in ownership which indicated a “Calvin Smith” was the last listed owner of the firearm. The prosecutor then asked whether the trace report had been provided to the defense, and the agent responded in the affirmative. The jury convicted the defendant.

The Second Circuit resolved an open issue concerning the proper standard to apply when deciding whether to reopen a case. It adopted the Fourth Circuit approach:

“The court must consider the timeliness of the motion, the character of the testimony, and the effect of granting the motion. The party moving to reopen should provide a reasonable explanation for failure to present the evidence in its case-in-chief. The evidence proffered should be relevant, admissible, technically adequate, and helpful to the jury in ascertaining the guilt or innocence of the accused. The belated receipt of such testimony should not imbue the evidence with distorted importance, prejudice the opposing party’s case, or preclude an adversary from having an adequate opportunity to meet the additional evidence offered."
United States v. Nunez, 432 F.3d 573, 579 (4th Cir. 2005) (alterations omitted; other citation omitted).

The Second Circuit reversed the conviction and remanded the case for a new trial after concluding that the “government provided no reasonable explanation for its failure to introduce the evidence during its case-in-chief, and [extraneous questions and] … evidence that Crawford’s counsel knew about the trace report prior to trial was not relevant and was highly prejudicial.” Crawford, 533 F.3d at 143. The Second Circuit noted that case reopening should be allowed only with “extreme reluctance.”

The lesson is that the failure to introduce relevant evidence at trial, at least in the Second and Fourth Circuits, comes at a high price. Only rarely will a reopening be permitted or withstand appellate review. Read more

Congress Watch: Recent Senate Testimony On Creating A Reporter's Privilege

During Oversight hearings before the Senate Judiciary Committee on July 9, 2008, Attorney General Michael Mukasey responded to questions and argument by Senator Arlen Specter (R-Pa) about the need for legislation creating a federal evidentiary privilege for journalists. Specter is the sponsor of S. 2035, "The Free Flow of Information Act of 2007," which would create such a privilege.

Video Of The Attorney General’s Testimony
On The Need For A Federal Journalist Privilege

Excerpt From Transcript of The Attorney General’s July 9 Testimony

Sen. Specter:
Attorney General Mukasey, what was the justification for keeping reporter Judith [Miller] in jail for 85 days when the source of the leak was known to be Deputy [Secretary of State] Richard Armitage?
Attorney General Mukasey:
As you know, I was not on duty when that case was - came to the fore and it is my own view that the case may very well be a better argument against the special counsel than it is in favor of legislation of the sort that’s been proposed. I think …
Sen. Specter:
I’m not – I’m not prepared to deal with special counsel because he’s not here. I … If I had Senator Leahy’s gavel I would have brought him in here a while ago once the case was finished. But its very germane in evaluating public policy on whether the Department of Justice ought to have the authority to issue a subpoena in the context and move for a contempt citation and hold a reporter in jail for 85 days under very unpleasant circumstances. I can attest to that first hand, I went to visit her.
Attorney General Mukasey:
There’s no such thing as jail under pleasant circumstances – it is an inherent contradiction and is something, that therefore, we use as a last resort and will continue to use as a last resort...
Sen. Specter:
Well, why did you need a resort when you know the leak? When you know who the leaker is – why go after a reporter and keep her in jail?
Attorney General Mukasey:
As I said...
Sen. Specter:
I…I know that would be better addressed to the special counsel...
Attorney General Mukasey:
It would
Sen. Specter:
Someday we may have an opportunity to do that. But right now you’re all we’ve got Attorney General Mukasey. And you’re the guy whose pushing the policy. So, I think its fair question to say to you: why maintain a policy which gives, whoever the prosecutor is, the power to do that when you know who the leaker is?
Attorney General Mukasey:
We don’t give that power to a prosecutor for precisely that reason. We require a clearance up through and including the Attorney General of the United States.
Sen. Specter:
The Attorney General of the United States is a prosecutor. My time is up and I will desist. We will revisit these issues doubtless.

New Action On Journalist's Privilege?

After a flurry of action to create a journalist's privilege in the Fall of 2007, Congress has been quiescent. On October16, 2007 the House of Representatives passed "The Free Flow of Information Act of 2007" (H.R. 2102) by a vote of 398-21. That bill would create a shield to protect a reporter from legal processes that would compel the reporter to produce documents and to provide testimony or identify confidential informants. On October 4, 2007 the Senate Judiciary Committee approved a similar measure (S. 2035) by a 15-2 vote and the matter has been pending debate on the Senate floor ever since.

These congressional measures are designed to create a new protection for journalists - one that would replace rather than supplement the current doctrine of the journalist privilege in the federal courts. As in indicated by the Attorney General in a letter to the Senate leadership on S. 2035, the Bush Administration opposes the measure, fearing that it would frustrate the investigation of terrorism.

The background and developments of these actions are addressed in the Lead Story of the January 2008 issue of the Federal Evidence Review. The article reviews the traditional scope of the journalist privilege and considers recent developments that have reformed that privilege in the federal courts as well as the recent Congressional response to the latest developments in the evolution of the journalist privilege in the federal courts.Read more

Key Supreme Court Evidence Cases

Nominate the Supreme Court cases that have impacted evidence law

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Federal Rules of Evidence