Federal Evidence Blog

Making Trial Exhibits Available Online

The U.S. Department of Justice makes the trial exhibits for United States v. Theodore F. Stevens available online

The availability of court records online continues to increase. Only a few years ago, a visit to the clerk’s office was necessary to obtain copies of court filings. Federal court filings and docket information are now accessible via the Public Access to Court Electronic Records (PACER) service for a modest fee. While access to the courts has been enhanced as a result of the Internet, there are still some documents filed during a trial which remain unavailable.Read more

Authenticating Public Computer Records

In firearms prosecution, state firearm record computer printouts were authenticated as public records, in United States v. Meienberg, 263 F.3d 1177, 1180-81 (10th Cir. 2001)

As with other evidence, authentication is a precondition to admitting computer records. Unless the proponent can show under FRE 901(a) “that the matter in question is what its proponent claims,” the evidence is inadmissible. A Tenth Circuit case demonstrated the authentication of computer records maintained by a government agency in a firearms case. Read more

Default Judgment Recommended For Destroying And Falsifying Electronic Records

Court-appointed expert assisted in reviewing electronic evidence for the court, in Gutman v. Klein, _ F. Supp. 2d _, No. 03 CV 1570 (E.D.N.Y. Oct. 15, 2008).

The consequences of failing to preserve and tampering with electronic evidence during the discovery phase of a case can result in sanctions. A recent case, decided in the Eastern District of New York, has resulted in a recommendation for the ultimate sanction: entry of default judgment. The case also highlights the court’s use of a court-appointed expert to assist in addressing the tampering evidence claim. Read more

FRE 502 Adopted “Middle Ground” On Inadvertent Disclosure Issue

Drafters of FRE 502 highlighted specific factors that may be considered in deciding whether inadvertent disclosure results in waiver of the attorney client privilege and work product doctrine

Since FRE 502 was enacted on September 19, 2008, focus now turns to the application of its provisions, including case law development of the rule. No cases have yet been decided applying the new rule. One key area addressed by FRE 502 concerns the treatment of inadvertent disclosure. FRE 502(b) clarifies that inadvertent disclosure does not result in waiver when the holder of the privilege “took reasonable steps to prevent disclosure” and “promptly took reasonable steps to rectify the error.” Read more

Twenty-Year Old Prior Conviction Admitted When Defendant’s Testimony “Opened The Door”

Trial court initially showed concern in admitting the prior conviction for indecent contact with a child as “extremely prejudicial,” but the defendant’s denial on direct and cross examination that he would not carry out his desire to engage in sexual relations with a minor “opened the door,” in United States v. Pierson, __ F.3d __ (8th Cir. Oct. 20, 2008) (No. 08-1335)

There are few cases allowing the admission of a prior conviction under FRE 404(b) that are about twenty years old. The Eighth Circuit recently considered one of them. Read more

Limits To Relying On Internet Materials and Information In Court (Part VII) (Gagliardi)

Cut and pasted chat and e-mail communications authenticated by an informant and agent, in United States v. Gagliardi, 506 F.3d 140 (2nd Cir. 2007)

As part of a continuing series concerning Internet and Electronic Evidence, we noted on October 9 a case (Jackson) in which Internet chat conversations, which were cut and pasted, were excluded because the government was unable to authenticate the chat conversations. Another similar case, in which cut and pasted chat conversations were authenticated, highlights the contours of this issue. Both cases involved nearly identical investigations. Read more

Limits To Relying On Internet Materials and Information In Court (Part VI) (Bell)

Discrimination action raises issues about authenticating a printout of an e-mail message, in Bell v. Rochester Gas & Elec. Corp., 540 F.Supp.2d 421 (W.D.N.Y. 2008).

A discrimination case highlighted some of the hurdles in authenticating a printout of an e-mail under FRE 901(a). The plaintiff offering the e-mail could authenticate how the printout was found but not that it was actually transmitted or received as he claimed. Read more

“Bait Money” List Admissible As Business Record

Seventh Circuit notes verification of a "bait money" list three times a year was not a deficiency under FRE 803(6)'s "course of a regularly conducted business activity" requirement, in United States v. LeShore, _ F.3d _ (7th Cir. Sept. 11, 2008) (No. 07-1555).

Le Shore involved two bank robbers wearing masks who walked out of the bank with $5,600 in money and drove away. Included in the loot was “bait money.” This money was pre-selected for surrender to any robber. The serial numbers of the bait money were pre-recorded on a list, so that authorities could identify the cash taken by the robbers. After LeShore was apprehended as a suspect, could some of the money in his possession be matched to the “bait money” list? Was the bank’s “bait money” list hearsay or admissible as a business record?Read more

New: Updated Federal Rules Of Evidence, Including The New Attorney-Client Privilege Rule (FRE 502)

Updated rules available now in PDF or Online formats. The Federal Rules of Evidence (FRE) were amended on September 19, 2008 by the enactment of FRE 502. The new rule of evidence is entitled: “Attorney-client privilege and work-product doctrine; limitations on waiver.”

The Federal Evidence Review offers two complimentary ways to use and search the updated FRE for free:

  • The Federal Evidence Review's Federal Rules of Evidence 2008
    • A free booklet in PDF Format: Download, Save and Print It from the link in the box on the right column or here.
    • Fully searchable using the Adobe Reader “Search” tool
    • Find and link to the page for a specific rule by scrolling over and clicking on the hyperlinks (“jump links”) on the Index Page (p. 3)
  • Online At FederalEvidence.com: Search and use the rules online.

SEC Releases “Red Book” Providing Guidance On Investigations

SEC Enforcement Manual (“Redbook”) includes guidance on the waiver of the attorney-client privilege.

There have been a number of recent developments concerning the attorney-client privilege. First, last month, we provided an update concerning the U.S. Department of Justice’s new policy concerning the waiver of the attorney client privilege. Second, as we earlier noted, on September 19, 2008, the President signed legislation establishing FRE 502, a new rule of evidence entitled: “Attorney-client privilege and work-product doctrine; limitations on waiver.” On October 6, 2008, the Securities and Exchange Commission released its Enforcement Manual, sometimes called the“Red Book.” The manual is used by SEC staff as a reference for the investigation of violations of the securities laws. Among other topics, Section 4.3 of the manual addresses the waiver of the attorney-client privilege. The manual prohibits requests for waiver of the attorney-client privilege and imposes a review process for “[a]ll decisions regarding a potential waiver of privilege.” The manual lists the following factors in considering issues involving the waiver of the attorney-client privilege: Read more

Federal Rules of Evidence
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