Federal Evidence Blog

Investigating A Claim Of Jury Bias

Eighth Circuit reviews claim of jury bias that “the jurors reported that ‘words were exchanged’ with members of” the defendant’s “family as jurors left the courthouse after the first day of their deliberations” and rejects argument that the jury was not impartial under the Sixth Amendment; circuit approves of the trial court's role in acting promptly to determine the impact of any "impermissible contacts" and determining that the "incident would not affect their duty to remain impartial," in United States v. Harris-Thompson, _ F.3d _ (8th Cir. May 2, 2014) (Nos. 12-3816, 13-1021)

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Reversible Error In Excluding Evidence Of Good Faith Belief

Evidence of good faith may be offered to undermine the intent to violate the law. The Second Circuit concluded that the trial court erred in excluding defense evidence that they “acted in the good‐faith belief that they were conducting air monitoring in compliance with” state law, in United States v. Certified Environmental Services, Inc., _ F.3d _ (2d Cir. May 28, 2014) (Nos. 11‐4872(Lead), 11‐4875(Con), 11‐4877(Con), 11‐4974(Con), 11‐4976(Con), 11‐4968(XAP), 11‐4969(XAP), 11‐4972(XAP))

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Evidence Establishing The "Ownership Of And Access To The Computers"

Eleventh Circuit affirms the admission of Internet search evidence and evidence concerning "the ownership of and access to the computers"; the jury was allowed to considered competing theories on "the ownership of and access to the computers" which went to the weight of evidence, in United States v. Flanders, _ F.3d _ (11th Cir. May 27, 2014) (Nos. 12–10995, 12–15027, 12–15248)

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Supreme Court Watch: Court Declines To Hear Significant Reporter's Privilege Case

Supreme Court declines to hear the divided Fourth Circuit opinion on whether the First Amendment provides a privilege protecting a reporter from being compelled to testify in a criminal case involved alleged disclosure of classified information; proceedings, in Risen v. United States (No. 13-1009); Will the reporter testify if called at trial or will he risk contempt by declining to testify? Does the denial of certiorari review shift the debate on the recognition of any reporter's privilege definitively to Congress and away from the Courts?

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New Legislative Path For A Federal Media Shield Law?

Last week, the House of Representatives approved an amendment to the 2015 appropriations bill to provide for a basic media shield law. The amendment was H. Amdt. 763, proposed by Representative Alan Grayson (D-Florida). The amendment prohibits the federal government from using funds to force journalists to testify about certain confidential information or sources. The vote for the amendment was 225 to 183 (Roll no. 263) (05/30/2014).

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Partial Courtroom Closure During Closing Argument Did Not Violate The Sixth Amendment Right To A Public Trial

Eleventh Circuit concludes that a partial courtroom closure during parties' final argument presentation did not violate the Sixth Amendment right to a public trial; circuit concluded that the Sixth Amendment right to a public trial applied to closing arguments, but that a limited closure was justified when sufficient safeguards were taken, in United States v. Flanders, _ F.3d _ (11th Cir. May 27, 2014) (Nos. 12–10995, 12–15027, 12–15248)

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Thumb Drive Inscription Admitted Under Residual Hearsay Rule (FRE 807)

First Circuit concludes that a thumb drive inscription ("Made in China") was admissible under the residual hearsay exception under FRE 807; the inscription had "circumstantial guarantees of trustworthiness" based on legal requirements and may be self-authenticating under FRE 902(7), United States v. Burdulis, _ F.3d _ (1st Cir. May 23, 2014) (No. 12-1896)

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Supreme Court Watch: Denying Certiorari Review In Eleven Recent Confrontation Clause Cases

In denying certiorari review in eleven cases raising Confrontation Clause and expert testimony issues, for the foreseeable future the Supreme Court will not resolve a significant issue that has been dividing the lower court; it remains to be seen when the guidance urged by the lower courts will be provided

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Reversible Error Resulting From "Cloaking" Lay Law Enforcement Testimony "In The Guise Of Expert Testimony"

Challenges arise in presenting dual FRE 701 lay and FRE 702 expert testimony by the same law enforcement witness. Generally, the concerns in in presenting a witnesses' dual testimony may be addressed through the use of “proper precautions to minimize potential prejudice” inherent in this type of testimony. A recent Fourth Circuit case, resulting in the reversal of jury trial convictions, shows that even the typical precautions can still miss the mark of avoiding juror confusion inherent in the use of dual-testimony law enforcement witness, in United States v. Garcia, _ F.3d _ (4th Cir. May 15, 2014) (No. 13-4136)

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In Memory Of Those Who Served (2014)

The Federal Evidence Blog returns

Tuesday, May 27, 2014

after Memorial Day

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Federal Rules of Evidence