Federal Evidence Blog
Highlighting recent cases and issues involving the Federal Rules of Evidence and other topical evidence matters. Topics range from
the new Attorney-Client Privilege Rule (FRE 502), electronic, Internet and expert evidence issues, Confrontation Clause, pending rule amendments, legislation,
privilege issues, recent noteworthy cases and other issues, practical tips, "Supreme Court Watch" entries and more.
Consensus On Bible As An Extraneous Influence On Jury Deliberations Under The Sixth Amendment
Thu, 08/26/2010 
Second Circuit vacates drug conspiracy conviction based on officer's testimony regarding his directions to a co-conspirator to phone his "supplier" and about the actions taken by the co-conspirator in response which was "inadmissible prejudicial hearsay testimony," that impermissibly communicated to the jury that the co-defendant had identified the defendant as his supplier; circuit rejects the "government's claim [a]s simply not credible" that the officer's testimony provided necessary background on the investigation; in United States v. Gomez, __ F.3d __ (2d Cir. Aug. 4, 2010) (No. 08-3829-cr)
Read moreVideotaped Interrogation Was Inadmissible For Impeachment Or Under The Rule Of Completeness
Tue, 08/24/2010
Defense efforts to admit post-arrest videotape of the defendant at the police station failed where (1) impeachment by contradiction did not apply since no inconsistency was established, and (2) the rule of completeness was not intended to “allow otherwise inadmissible evidence to be used to create doubt as to whether the admitted statement was ever made,” in United States v. Verdugo, _ F.3d _ (1st Cir. Aug. 19, 2010) (Nos. 08-2175, 08-2217)
Read moreWorkplace Discrimination And Retaliation Evidence Was Inadmissible To show Habit But Was Admissible On Other Grounds
Mon, 08/23/2010
In racial employment discrimination action, evidence of workplace discrimination and retaliation against other employees (“me too” evidence) was inadmissible to show routine practice under FRE 406 as it was based on only four instances involving different circumstances; however, the discrimination evidence was admissible on other grounds, in Goldsmith v. Bagby Elevator Co., Inc., 513 F.3d 1261, 1286 (11th Cir. 2008) (No. 06-14440)
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In bank robbery trial, trial judge “has the prerogative, and at times the duty, of eliciting facts" under FRE 614(b) (by asking witnesses questions regarding the FDIC insurance status of the victim institutions) if it serves to "clarify 'legal and factual matters'" and if "the court 'remains impartial and does not become an advocate for either side,” in United States v. Pickar, __ F.3d __ (8th Cir. Aug. 12, 2010) (No. 09-2361)
Read moreEighth Circuit: Contrasting Gang Affiliation Evidence - When Properly And When Erroneously Admitted
Thu, 08/19/2010
In a bank robbery case United States v. Ellison, __ F,3d __ (8th Cir. Aug. 13, 2010) (No. 09-3196), the Eighth Circuit notes that evidence of the defendant's alleged gang affiliation was admissible because its probative value outweighed the danger of unfair prejudice (as it was admitted as proof that the defendant was the gunman in the charged bank robberies); a day earlier in Lee v. Anderson, __ F.3d __ (8th Cir. Aug. 12, 2010) (No. 09-2771), the Eighth Circuit found gang affiliation evidence "should have been" excluded as it had minimal probative value in rebutting plaintiff's claim that the decedent fled from defendant officers because of fear, and this value was outweighed by the danger of unfair prejudice; however its admission was harmless in light of its slight influence on the verdict
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After several years in drafting and review, the final proposal to restyle the FRE has now advanced for consideration and approval by the U.S. Judicial Conference in September 2010 (the fourth of seven key steps on the path towards enactment); the Judicial Conference will consider the Report approved by the Standing Committee in June 2010
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In bank fraud prosecution, DC Circuit concludes that the FRE 902(11) procedural certification of loan documents as business records in lieu of trial testimony did not violate the Confrontation Clause, in United States v. Adefehinti, 510 F.3d 319, 325-26 (D.C. Cir. Dec. 18, 2007) (Nos. 04-3080, 05-3046, 05-3055)
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In civil rights action based on fatal shooting, expert testimony on whether the plaintiff possessed a firearm based on review of surveillance tape “would not have assisted the jury but rather would have told it what result to reach,” in Lee v. Anderson, _ F.3d _ (8th Cir. Aug. 12, 2010) (No. 09-2771)
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