Federal Evidence Blog

Crossing The Credibility Line

First Circuit highlights a fine line in asking the defendant (or a witness) whether another witness lied during trial, which is improper, and whether another witness was “wrong” or “mistaken,” which may be permitted; as circuit noted, "There is no error in simply asking a witness if he agreed with or disputed another witness's testimony," in United States v. DeSimone, 699 F.3d 113 (1st Cir. Nov. 9, 2012) (No. 11-1996)

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Considering False Statements And The Hearsay Rule

In bribery prosecution, Seventh Circuit considered the admissibility of false statements made by one of the participants to the FBI and concludes that the statements were not inadmissible hearsay under FRE 801(c); the statements were also probative whether the declarant was "a knowledgeable and culpable participant in the bribery conspiracy and was attempting to cover up his involvement," in United States v. Whiteagle, _ F.3d _ (7th Cir. July 21, 2014) (No. 12-3554)

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Using Circumstantial Evidence For FRE 804(b)(6) Forfeiture By Wrongdoing

In kidnapping trial, admitting victim's prior statements to police about what the defendant did to her, after she declined to testify about the statements contending that she could not remember, under the FRE 804(b)(6) (Forfeiture by Wrongdoing hearsay exception) because the defendant "successfully procured" the witness's "unavailability by incessant pretrial manipulation" in which he "worked tirelessly for seven months to persuade" the victim "to recant," in United States v. Jonassen, _ F.3d _ (7th Cir. July 16, 2014) (No. 13-1410)

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Considering the "Remoteness" Of The Prior Act Under FRE 404(b)

What role does the "remoteness" of a prior act serve in considering its admissibility FRE 404(b)? The Fifth Circuit noted this issue concerning a seven year old prior conviction and observed that no "per se" rules apply, in United States v. Wallace, _ F.3d _ (5th Cir. July 18, 2014) (No. 12–51192)

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Updated Federal And Other Jury Instructions (2014)

As part of our periodic review, the Federal Evidence Review highlights updates to model jury instructions for four circuits including the First, Fifth, Sixth and Eighth Circuits; all updates are included on the Federal Jury Instruction Resource Page

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Using English Transcripts To Follow Foreign Language Recordings Played At Trial

While trial court employed an "unorthodox" practice in admitting the foreign language recordings instead of the transcript, the circuit found the transcripts were sufficiently reliable notwithstanding corrections that had been made; while the expert who prepared the transcripts based on the foreign language lacked formal certifications, they were not required in light of his other interpreter experience, in United States v. Gutierrez, _ F.3d _ (8th Cir. July 8, 2014) (Nos. 13-1327, 12-4019)

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Comparing Physical And Circumstantial Evidence

Is physical evidence better than circumstantial evidence? The Seventh Circuit recently considered whether the admission of the actual cell phone was error and whether physical evidence is better than circumstantial evidence, in United States v. Arrellano, _ F.3d _ (7th Cir. July 2, 2014) (No. 13-1474)

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Taking The Conspiracy As He Finds It

When an individual joins a conspiracy, are statements of other co-conspirators made before he joined admissible against him? Seventh Circuit confirms that they are so long as the requirements of FRE 801(d)(2)(E) are met, in United States v. Arrellano, _ F.3d _ (7th Cir. July 2, 2014) (No. 13-1474)

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Indemnification Agreement Was Inadmissible To Show Liability Under FRE 411

In a civil rights action involving a tragic death, the plaintiff sought to admit an indemnification agreement to show which entity had decision making responsibility over medical matters. Seventh Circuit affirmed the exclusion of the agreement under since the primary issue concerned "questions of liability" which is an impermissible purpose under FRE 411, in King v. Kramer, _ F.3d _ (7th Cir. July 10, 2014) (No. 13–2379)

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Taking Judicial Notice Of The Government’s Prior Statements

In a Freedom of Information Act action seeking disclosure of documents and information concerning the government drone program, Second Circuit takes judicial notice under FRE 201 of statements made by the government following the ruling by the district court, in New York Times Co. v. U.S. Dept. of Justice, _ F.3d _ (2d Cir. June 23, 2014) (Nos. 13–422 (L), 13–445(CON))

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