Federal Evidence Blog

Considering Trial Transcripts From A Related Case At Sentencing

Since the FRE do not apply at sentencing under FRE 1101, can a district court consider the trial transcripts from related proceedings as part of its sentencing determination? The Eighth Circuit affirms this practice, in United States v. Mohamed, _ F.3d _ (8th Cir. July 2, 2014) (No. 13-2188)

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Playing An Audio Tape During Closing Argument That Was Not Admitted At Trial

The jury is supposed to consider only admissible evidence. How does a court address the situation where one party plays a recording during closing argument that was not admitted at trial? The First Circuit considered the impact of the recording and curative instruction given by the trial court, in United States v. Rojas, _ F.3d _ (1st Cir. July 7, 2014) (No. 13-1352)

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Rejecting "But For" Test For Application Of The Attorney-Client Privilege In Corporate Internal Investigations

In a case involving discovery of documents from the defendant's "prior internal investigation into ... alleged fraud," D.C. Circuit explains that defendant's investigation documents were protected by the attorney-client privilege even though the "sole purpose" of the investigation was not to obtain legal advice, but rather receiving legal advice was just one of the "significant purposes" of the investigation, in In Re Kellogg Brown & Root, Inc., _ F.3d _ (D.C. Cir. June 27, 2014) (No. 14-5055)

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Celebrating the Fourth of July

The Federal Evidence Blog

returns Monday, July 7th,

after the

Fourth of July

Federal Holiday

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Circuit Split: First Circuit Highlights Division On Whether Autopsy Reports Are Testimonial Under The Confrontation Clause

On federal habeas review, First Circuit finds there was no error in admitting the testimony of a chief medical examiner concerning the autopsy results of a non-testifying medical examiner, who was unavailable to testify at trial, under the Confrontation Clause, since the challenged state court ruling was not "contrary to ... clearly established Federal law, as determined by the Supreme Court of the United States"; the opinion notes diverging case law on the issue whether an autopsy report is "testimonial" under the Sixth Amendment, in Hensley v. Roden, _ F.3d _ (1st Cir. June 20, 2014) (No. 13-1147)

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Conditional Remedial Evidence In Tax Fraud Case Did Not Burden The Right Against Self-Incrimination

In a tax fraud trial of a public official, the Fifth Circuit concludes that there was no violation of the Fifth Amendment when the trial court conditionally admitted evidence that the defendant took remedial steps to amend his tax returns and reimburse his campaign committees after the defendant heard from agents about the pending tax investigation; the trial court decided to provisionally admit this evidence if the defendant could show “each remedial action was relevant to his state of mind at the time he filed the original tax returns”; since the defendant failed to satisfy the court's conditional requirement, "the jury would be confused by ... evidence of remedial actions" and the evidence was ultimately excluded, in United States v. Beavers, _ F.3d _ (7th Cir. June 30, 2014) (No. 13–3198)

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Construing Ambiguity Under FRE 410 Plea Agreement Terms Against The Government

Fifth Circuit reverses jury trial conviction as the plea agreement and related statements were admitted at trial after the defendant had elected to withdraw his plea before it was accepted by the trial court under FRE 410; because the plea terms were found to be ambiguous, the plea evidence was inadmissible, in United States v. Escobedo, _ F.3d _ (5th Cir. June 27, 2014) (No. 12-40205)

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Supreme Court Watch: Ten Key Issues From The Riley Opinion Protecting Cell Phone Data Seized During An Arrest

In a unanimous opinion, the Supreme Court established a new categorical rule for a search of a cell phone seized during an arrest, holding that a search warrant should normally be obtained absent application of another Fourth Amendment exception such as exigent circumstances; the Court concludes that cell phones are “quantitative[ly] and a qualitative[ly]”different than “other objects that might be kept on an arrestee’s person”; ten initial observations and questions are noted from the recent ruling, in Riley v. California (No. 13-132) and United States v. Wurie (No. 13-212)

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Sanctions Were Not Required Based On The Failure To Preserve Irrelevant Data

When a party clearly failed to preserve data during litigation, Sixth Circuit reviews whether sanctions were warranted; the case reviews the burden on the party seeking sanctions including to show that that evidence was relevant to issues in the case, in Automated Solutions Corp. v. Paragon Data Systems, Inc., _ F.3d _ (6th Cir. June 25, 2014) (Nos. 13-3058, 13-3025)

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D.C. Circuit Concludes Deliberative Process Privilege Applies To Agency History Of 50-Year Old Incident

In a Freedom Of Information Act suit by plaintiff public interest group against the CIA to compel disclosure of volume V of the agency "history" of 1961 "Bay Of Pigs" operation, D.C. Circuit finds the agency history of the half-century old operation still protected from disclosure under the deliberative process privilege as a "pre-decisional and deliberative" report, in National Security Archive v. C.I.A., _ F.3d _ (D.C. Cir. May 20, 2014) (No. 12-5201)

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