Federal Evidence Blog

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Prior Bank Robbery Was Not Habit Evidence Under FRE 406

Fifth Circuit rejects defense claim that evidence of an accomplice's prior bank robbery could be admitted as habit evidence under FRE 406; the defense failed to show the sole bank robbery was part of a "regular practice"; alternatively, the prior incident could not support the defense theory of the defendant's good faith and lack of intent without a showing that it supported "his state of mind at the time of the offense," in United States v. Anderson, _ F.3d _ (5th Cir. June 20, 2014) (No. 12-10979)

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Circuit Split: Eleventh Circuit Creates Division on Standard To Obtain Cell Site Location Information

In considering an open issue, the Eleventh Circuit concludes that the Fourth Amendment requires the government to demonstrate probable cause to obtain cell site location information; the opinion creates division with the Third and Fifth Circuits; whether this new holding be extended to other forms of digital data remains to be seen, in United States v. Davis, _ F.3d _ (11th Cir. June 11, 2014) (No. 12-12928)

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Open Issue: Whether To Recognize A Parent-Child Privilege?

Fourth Circuit joins other circuits in declining to recognize a parent-child privilege under FRE 501; circuit holds that “the district court erred in adopting the parent-child privilege and excusing” a nineteen year old son “from testifying before the grand jury” in a firearm investigation involving his father; circuit notes the unanimity of the other circuits that have addressed the privilege, in Under Seal v. United States, _ F.3d _ (4th Cir. June 16, 2014) (No. 13–4933)

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No Right To Present A Defense Based On Uncorroborated Or Ambiguous Evidence

Ninth Circuit reviews the admissibility of statement offered in support of the theory of self-defense in a state murder trial under the constitutional right to present a defense; a statement made after the shooting was excluded based on the lack of corroboration and ambiguous nature of the statement, in Trillo v. Biter, _ F.3d _ (9th Cir. June 16, 2014)

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Admitting Voluminous Business Records And A Related Summary

In fraud prosecution, D.C. Circuit approves of the admission of more than 10,000 records as business records and a summary exhibit of the records; circuit rejects claim that the Chief Financial Officer, used to admit the exhibits at trial, “have personal knowledge of the actual creation of the” business records as long as the requirements of FRE 803(6) were met; on the summary, there was no requirement that the same witness have created the summary as long as he had supervised it, in United States v. Fahnbulleh, _ F.3d _ (D.C. Cir. June 13, 2014) (Nos. 11–3045, 11–3047)

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Second Circuit Permits Opinion Testimony About The "Illegality" Of The Defendant's Conduct

Under what circumstances can a witnesses provide an opinion that the conduct of the defendant was "illegal"? The Second Circuit recently reviewed this issue in a securities fraud prosecution and concluded that the testimony was permissible, in United States v. Mandell, _ F.3d _ (2d Cir. May 16, 2014) (Nos. 12-2090, 12-1967) (per curiam)

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Using Surrounding Circumstances To Authenticate Evidence

In a murder for hire conspiracy, Eighth Circuit concludes that a note found in a co-defendant's purse (suggesting another co-defendant would be set up as the "fall guy" for the successful murder) was authenticated by the surrounding circumstances under FRE 901(b)(4); after the "low threshold" for authentication was satisfied, the jury could determine any weight given to the evidence, in United States v. Young, _ F.3d _ (8th Cir. May 23, 2014) (Nos. 12-2527, 12-2593)

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The Non-Hearsay Of False Statements

When a fraudulent or false statement is made, how does the rule against hearsay consider the admissibility of the statement? A line of cases holds that when a statement is offered to show the falsity, the hearsay rule is not implicated, including by the Supreme Court in Anderson v. United States, 417 U.S. 211, 220-21 (1974)

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Noting The Burden To Preserve Evidence Challenge For Review On Appeal

Eighth Circuit reviews whether a challenged evidence ruling by the trial court was properly preserved for appeal under FRE 103(b); the issue turned on whether the trial court's ruling was "tentative" or "definitive"; the objecting party holds the burden to clarify the nature of the ruling, in United States v. Young, _ F.3d _ (8th Cir. May 23, 2014) (Nos. 12-2527, 12-2593)

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Taking Judicial Notice Of Internet Hypertext Transfer Protocol (HTTP) Specification

In considering two cases alleging privacy violations involving two popular Internet sites, Ninth Circuit takes judicial notice of a particular Hypertext Transfer Protocol (HTTP) specification, which provides a protocol used to establish how messages or communications are formatted and transmitted, under FRE 201; the case provides another example of judicial notice of Internet information, in In Re: Zynga Privacy Litigation, _ F.3d _ (9th Cir. May 2, 2014) (Nos. 11-18044, 12-15619)

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