Federal Evidence Blog

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The Federal Evidence Blog returns December 29th.

Photo: 2006 Christmas Pageant of Peace on the Ellipse in Washington D.C. White House photo by Paul Morse of the lighting of the National Christmas Tree.

State Law Violation In Failing To Record Entire Interrogation Was Irrelevant In Federal Trial

Seal of the Seventh Circuit Court of Appeals

Seventh Circuit rejects defense proposed jury instruction and cross-examination of detective concerning possible violation of state law requiring interrogations be recorded, since any violation of state law was irrelevant, in United States v. Bruce, _ F.3d _ (7th Cir. Dec. 18, 2008) (No. 07-3675)

In federal court, if a state officer violates state law or policies during an interrogation, can the jury learn of the violation? The Seventh Circuit denied an instruction and cross-examination on this issue as irrelevant.Read more

Inquiry About Possible Murder Admitted As Verbal Act

In murder for hire trial, testimony that another person asked if declarant knew anyone who could complete the murder was admissible as a verbal act; any error in admitting the statement was harmless based on other evidence of guilt, in United States v. Childs, __ F.3d __ (6th Cir. Aug. 29, 2008) (Nos. 07-1495, 07-1597)

The Sixth Circuit addressed whether a statement may be admissible on non-hearsay grounds as a verbal act. A verbal act is a statement offered to establish something of independent legal significance or effect, rather than the truth of the matter asserted in the statement. Such statements are admissible as non-hearsay. The issue arose in a murder for hire casewhere the shooting of a sixteen-year-old while she showered at her grandmother’s house remained unsolved for several years. Eventually, an individual reported that she heard the victim's nephew, defendant Childs, talking with defendant Sims about the murder. With this new lead, investigators identified a fingerprint match with defendant Childs from prints found at the murder scene. Charged with conspiring to commit murder for hire, Defendants Childs and Sims' trials were severed Read more

Handwriting Expert Testimony Satisfied Five Daubert Reliability Factors

Case demonstrates acceptance of handwriting expert testimony and application of Daubert factors to assess the reliability of expert testimony, in United States v. Prime, 431 F.3d 1147 (9th Cir. 2005)

How does expert handwriting testimony satisfy each of the Daubert factors for expert testimony? A Ninth Circuit case demonstrates how this standard was satisfied.

Defendant Prime and three co-conspirators engaged in a fraud scheme by selling pirated computer software and items that did not exist on the internet and purchasing items with counterfeit money orders. They also stole credit card numbers from some of the purchasers of software. At trial, the government planned to call a forensic document examiner with the Secret Service who testified that defendant Prime was the author of “as many as thirty-eight incriminating exhibits, including envelopes, postal forms, money orders, Post-it notes, express mail labels and postal box applications.” Prime, 431 F.3d at 1151. Read more

Questions Raised After Enactment Of FRE 502

Whether selective waiver applies after adoption of the new rule is unclear; recent article notes arguments and suggests it may apply under certain constructions of FRE 502

Time will tell whether FRE 502, concerning the attorney-client privilege and work product doctrine, will attain its objectives to reduce costs associated with protecting against the waiver of the privilege and work product doctrine, and to clarify and provide consistent standards for application of the privilege and doctrine. Presently, there is only one reported case (previously noted here). Read more

Machine-Generated Data Was Not A Statement And Raised No Hearsay Or Confrontation Clause Issues

In DUI case, majority concludes that machine-generated data concerning positive test in a blood sample was not a statement of the lab technicians and therefore was not a hearsay statement, since it was not made by a person but a machine analyzing the sample; no Confrontation Clause issues were raised, in United States v. Washington, 498 F.3d 225 (4th Cir. 2007)

Is machine-generated information subject to a hearsay challenge? This issue arose in the context of machine-generated data concerning a positive test in a blood sample used in a driving under the influence case. Read more

Federal Rule of Evidence 502 Resource Page Launched And Article Available On FederalEvidence.com

Resource Page and Article summarize key provisions in new attorney-client privilege and work product doctrine rule; case and other developments will continue to be monitored on the Resource Page at: http://Federal Evidence.com/resources502

Given the importance of new FRE 502 concerning the attorney-client privilege and work product doctrine, a new Resource Page has been launched by the Federal Evidence Review to provide key information about the rule and monitor continuing developments. The new rule was signed into law and became effective on September 19, 2008. See Pub. L. No. 110-322. Read more

Conviction Reversed Based On Exclusion Of Defense Expert Testimony On Meaning Of Word "Business"

Expert testimony on whether lobbyist had pending “business” with a government agency at the time government official accepted travel for a golfing trip to Scotland was not harmless requiring reversal, in United States v. Safavian,528 F.3d 957 (D.C. Cir. 2008)

A D.C. Circuit case shows how an expert may be used to explain the meaning of words in a particular context. The term “business” had a unique meaning in the government contracts setting. Read more

Exclusion Of Cross-Examination On Witness’s Swastika Tattoos Violated Confrontation Clause

Second Circuit notes that “[t]he fact that a witness customarily carries or displays a swastika, as a tattoo or otherwise, therefore would tend to suggest that he or she holds racial, religious or ethnic prejudices”; error was harmless beyond a reasonable doubt based on other evidence of guilt, in United States v. Figueroa, _ F.3d _ (2d Cir. Nov. 18, 2008) (No. 06-1595)

The Second Circuit recently considered whether evidence that a witness had swastika tattoos may be used to show bias where the defendant was a member of a minority group. Read more

FRE 702 Does Not Require That Medical Expert Testimony Be Based On “A Reasonable Medical Certainty”

State tort law standard was not required under FRE 702, as noted in United States v. Two Elk, 536 F.3d 890 (8th Cir. 2008)

Is medical expert testimony required to be “based upon a reasonable medical certainty” under FRE 702? This issue was presented in a recent sexual abuse case. The Eighth Circuit answered in the negative as a result of defendant Two Elk's prosecution for aggravated sexual abuse of a child under the age of twelve. At his trial, a medical expert testified concerning the injuries of the minor, including that her injuries were “not acute in the sense that [they] happened say within a few hours of the time that she arrived” with the qualification that it was “hard to determine actually what period of time it could have taken place.” United States v. Two Elk, 536 F.3d 890, 904 n.14.Read more

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