Federal Evidence Blog

Whether To Encourage Juror Note Taking At Trial?

While the practice varies, trial judges generally have discretion on whether jurors may take notes during the trial; recently the Seventh Circuit weighed in on this issue and encouraged that jurors be permitted to take notes as a recommended practice, in United States v. Causey, _ F.3d _ (7th Cir. March 28, 2014) (No. 13–1321); a survey of other jury instructions from around the country highlights different practices and model language

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FRE 404(b) Evidence Would Have Been Inadmissible In A Jury Trial But Was Harmless Error In A Bench Trial

The Seventh Circuit recently considered the different treatment in admitting evidence in a bench trial instead of a jury trial; the circuit applies a "presumption of conscientiousness" in reviewing evidence admitted in a bench trial; while any error was ultimately harmless, the circuit notes that "had the evidence come before a jury, we may have come to a different conclusion, but we presume that the court was not unduly influenced by this weak pattern evidence," in United States v. Reed, _ F.3d _ (7th Cir. March 10, 2014) (No. 12–3701)

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FRE 613(b)'s "Opportunity To Explain" Prior Statement

In considering the admission of a witness's prior inconsistent statement under FRE 613(b), what process should be followed in asking the witness to confirm the prior statement? As the Eleventh Circuit recently noted, as long as "an opportunity to explain or deny the statement" was available, the rule does not required any particular time or any particular sequence in which this opportunity is made available, in United States v. Feliciano, _ F.3d _ (11th Cir. April 3, 2014) (No. 12-15341)

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Trial Court's Co-Conspirator Admissibility Rulings Should Be Made Outside The Presence Of The Jury

Eighth Circuit reminds that rulings on the admission of co-conspirator statements should be made outside the presence of the jury consistent with the requirements of FRE 104(c); while the trial court erred in explaining its ruling before the jury, two curative instructions mitigated any prejudice, in United States v. Sevilla-Acosta, _ F.3d _ (8th Cir. March 27, 2014) (No. 13–1887)




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The Need To Make A Record To Justify Inquiry Into Juror Exposure To External Matters

What record should be made concerning a potential violation of the Sixth Amendment right to a fair and impartial jury trial? After a question arose about juror exposure to defense counsel's conversation with the defendant's family, the trial court inquired about what the juror may have overheard; the Eighth Circuit reviewed the defense claim concerning whether the trial court should have held a fuller hearing, in United States v. Horton, _ F.3d _ (8th Cir. March 24, 2014) (Nos. 12–3627, 12–3628)

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Circuit Consensus: Do Warrants Of Deportation Violate The Confrontation Clause?

Second Circuit notes but does not decide whether a warrant of deportation is admissible under the Confrontation Clause; however, the circuit observes that despite the Supreme Court’s decision in Crawford, "numerous courts have held that warrants of deportation are nontestimonial and therefore admissible in United States v. Harvey, _ F.3d _ (2d Cir. March 26, 2014) (Per Curiam) (No. 12–1490–cr)

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New Federal Court Interpreter Orientation Manual

A new manual from the Administrative Office Of The United States Courts, Court Services Office provides an overview of interpreter services in Federal Court Interpreter Orientation Manual and Glossary; given the host of issues that can arise in using a court interpreter, the manual provides a useful overview and reference resource and supplements the Guide to Judiciary Policy Chapter 5: Special Interpretation Services

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FRE 608(b) & Argumentative Cross-Examination

Seventh Circuit concludes prosecuton lacked necessary “good faith” basis for its FRE 608(b) cross-examination of the defendant regarding alleged lies on the defendant's tax and financial aid forms (which were otherwise unrelated to the charged crime of structuring currency transactions to evade federal reporting requirements); the error was not harmless as the government's repetitive and argumentative questioning on the defendant's credibility went far beyond simply suggesting a lack of veracity and as the trial court failed to effectively constrain the questioning or direct the jury to disregard the improperly accusatory questions, in United States v. Abair, __ F.3d __ (7th Cir. Mar. 19, 2014) (No. 13-2498)

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Seventh Circuit Maintains Critical Review Of FRE 404(b) Evidence

Recent Seventh Circuit cases continue the circuit's critical assessment of the application and admission of evidence under FRE 404(b) and the circuit has cautioned trial courts to "carefully consider how the particular Rule 404(b) evidence," in the case of uncharged acts, satisfy the balance of probative value with considerations of unfair prejudice; in the meantime, new circuit guidance may come from pending en banc review in United States v. Gomez, No. 12‐1104 (7th Cir. June 14, 2013) (order granting rehearing en banc and requesting new briefs)

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Failing To Object At Trial After Prevailing On A Motion In Limine To Exclude Evidence

After a trial court grants a motion in limine to exclude certain evidence, what obligation does the prevailing party hold to object at trial again if the evidence is offered in order to preserve the issue on appeal? The Tenth Circuit held that the defendant "was required to raise a contemporaneous objection at the time the alleged error occurred—when the government introduced evidence that allegedly should have been excluded pursuant to the district court’s pretrial ruling"; the failure to object at trial resulted in the more stringent plain error review, in United States v. Fonseca, _ F.3d _ (10th Cir. March 10, 2014) (No. 12–3325)

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