Federal Evidence Blog

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Circuit Consensus: Excluding Expert Opinion Testimony On Witness Credibility

With expert testimony admitted on a wide range of issues under FRE 702, what limits are there to expert testimony on the credibility of the defendant? As noted by the Tenth Circuit, a consensus in disallowing this expert testimony has emerged among the circuits; plain error resulted from the admission of this expert testimony requiring reversal of the conviction, in United States v. Hill, _ F.3d _ (10th Cir. April 28, 2014) (No. 12-5154)

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Considering The Inadmissibility Of Other "Good Acts" Evidence

While uncharged other "bad acts" evidence may be admitted where the requirements of FRE 404(b) are satisfied, what about other "good acts"? What propensity concerns are raised by this evidence? The Sixth Circuit recently considered a defense request to admit other "good acts" in a public corruption case, in United States v. Dimora, _ F.3d _ (6th Cir. April 30 2014) (Nos. 12-4004, 12-4051)

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Prejudicial Evidence Did Not Require A Mistrial Based On Curative Steps

How should the trial court respond when a prejudicial portion of a recording is played for the jury which was intended to be redacted? Will a curative instruction be sufficient or will it over emphasize the error? A Seventh Circuit case highlighted the relevant factors to consider and concluded that a mistrial was not warranted, in United States v. Long, _ F.3d _ (7th Cir. April 1, 2014) (Nos. 11-3888, 12-1048, 12-1267, 12-1538, 12-2665)

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Supreme Court Approves Amendment To FRE 803(6), FRE 803(7), FRE 803(8) (Part VIII)

In a second set of amendments, the Supreme Court approved amendments to FRE 803(6), FRE 803(7), FRE 803(8) which would clarify that the burden of establishing the untrustworthiness of the business or public records is held by the opponent to the evidence; the amendment will become effective on December 1, 2014, unless Congress takes other action

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Supreme Court Approves Amendment To FRE 801(d)(1)(B) (Prior Consistent Statement) (Part XI)

The Supreme Court has approved an amendment to FRE 801(d)(1)(B) which would allow for the use of a prior consistent statement to “to rehabilitate the declarant’s credibility as a witness when attacked on another ground"; the amendment will become effective on December 1, 2014, unless Congress takes other action

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Supreme Court Watch: Cell Phone Argument To Consider Scope Of Fourth Amendment On Electronic Devices

The Supreme Court arguments on Tuesday will focus on two separate cases concerning whether cell phone evidence may be obtained incident to arrest under Fourth Amendment; in addition to addressing important issues concerning the manner and scope of any search of cell phone data, will the case clarify recent questions on whether the analysis under the Fourth Amendment is being reconsidered for electronic and technology issues?; while both cases involve the arrest of individuals, the seizure of cell phones during the arrest, and search of the cell phones incident to the arrest, one case involves a flip phone and the other a touch screen phone, in United States v. Wurie (No. 13-212) and Riley v. California (No. 13-132)

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Reversing Exclusion Of Medical Expert Differential Causation Testimony

Ninth Circuit notes that while medical expert testimony may lack certainty it may aid the jury in determining material issues of fact; a consensus has emerged among the circuits on the use of differential diagnosis; the district court erred in concluding the expert testimony was irrelevant and unreliable, in Messick v. Novartis Pharmaceuticals Corp., _ F.3d _ (9th Cir. April 4, 2013) (No. 13-15433)

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Supreme Court To Decide Pending Amendment To FRE 801(d)(1)(B) (Prior Consistent Statement) By Next Week (Part X)

The Supreme Court is considering whether to approve a pending amendment to FRE 801(d)(1)(B); the proposed amendment, which received some critical comments during the public comment period, was modified and recommended by the Judicial Conference to the United States last fall; the Supreme Court must act by May 1, 2014, under the Rules Enabling Act

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Using Movies As Evidence

While introducing portions of a movie can raise concerns about unfair prejudice under FRE 403, the Sixth Circuit recently reviewed this issue in a fraud case and concluded that the movie The Boiler Room was properly admitted based on the facts of the case, in United States v. Smith, _ F.3d _ (6th Cir. April 15, 2014) (No. 10-6136)

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Supreme Court Deciding Amendments On Trustworthiness Burden For FRE 803(6), FRE 803(7), FRE 803(8) By Next Week (Part VII)

The Supreme Court is considering whether to approve pending amendments to FRE 803(6), FRE 803(7) and FRE 803(8); the amendments would clarify that the opposing party would hold the burden to establish a lack of trustworthiness in the records; the Supreme Court must act by May 1, 2014, under the Rules Enabling Act

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