Federal Evidence Blog

FEDERAL EVIDENCE BLOGHighlighting 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.

Testimonial Hearsay & Forfeiture By Wrongdoing Under The Federal Rules of Evidence

Circuit declines to consider application of forfeiture by wrongdoing exception under FRE 804(b)(6) In United States v. Wright, 536 F.3d 819 (8th Cir. Aug. 4, 2008) (No. 07-1439), deciding that a deceased witness statement concerning murder participants did not violate the confrontation clause since the statement was not “testimonial.”

On Confrontation Clause questions, the Eighth Circuit emphasized the importance of the threshold inquiry in determining whether the statement of a non-testifying witness is “testimonial” or not. The Confrontation Clause applies to “testimonial” statements. Read more

Reversible Error In Excluding Defense Psychologist Testimony

Defense psychologist expert “could have testified that it was unlikely, given the defendant’s psychology, that he would act on his intent,” in United States v. Gladish, 536 F.3d 646 (7th Cir. July 31, 2008) (No. 07-2718)

FRE 704, concerning expert opinions on ultimate issues, can present some challenges in application. Misapplication can result in reversal. There are two parts to the rule. The first part, under FRE 704(a), clarifies that an expert opinion can “embrace[] an ultimate issue to be decided by the trier of fact.” The second part of the rule contains an exception to the first part, and applies in criminal cases concerning the defendant’s mental state or condition. Under FRE 704(b), an expert is barred from testifying “whether the defendant did or did not have the mental state or condition constituting an element of the crime charged or of a defense thereto.” These issues are reserved for the fact finder.Read more

Taxing Use Of Non-Hearsay Background Testimony

IRS investigative analyst's non-hearsay background testimony (explaining how the defendant tax preparer was identified and referred for investigation) did not violate the Confrontation Clause, FRE 801(c), FRE 404(b), or FRE 403 in United States v. Goosby, 523 F.3d 632 (6th Cir. 2008)

Defendant Goosby, who had a tax preparation business, was prosecuted for preparing fraudulent tax returns. At trial, an IRS investigative analyst provided background on the case, including how the defendant was identified based on “a computer program that allows [the analyst] to review all the returns by a given tax preparer and rank the returns by amount of refund.” In reviewing the returns, the defendant was identified based on “a high ratio for returns prepared by Goosby’s business.” Goosby, 523 F.3d at 635. An investigation commenced and the defendant was charged. After his conviction, the court sentenced him to 46 months in prison.Read more

Tenth Circuit Grants Rehearing On Expert Evidence Issues

Tenth Circuit orders further briefing on expert evidence questions for en banc rehearing of United States v. Nacchio, 533 F.3d 1165 (10th Cir. July 30, 2008) (No. 07-1311).

On March 17, 2008, a divided Tenth Circuit panel vacated the conviction on nineteen counts of insider trading of Joseph Nacchio, former CEO of Qwest Communications International, Inc. The majority concluded that the trial court erred by excluding the defendant’s expert witness who would have testified about whether economic diversification better explained the pattern of defendant’s stock trades than his insider information. See United States v. Nacchio, 519 F.3d 1140 (10th Cir. 2008).Read more

Crime Victims May Be Excepted From FRE 615 Witness Exclusion Rule

Eleventh Circuit notes exception to FRE 615 general witness exclusion rule, in United States v. Edwards, 526 F.3d 747 (11th Cir. 2008)

Most of the time, a party can ask or the court can order that witnesses be excluded during a trial to prevent them from hearing testimony and evidence, under FRE 615 . According to the drafters, FRE 615 promotes the well-established principle that sequestering witnesses “discourage[es] and expos[es] fabrication, inaccuracy, and collusion.” Advisory Committee Notes (1972) (citation omitted). The Eleventh Circuit recently highlighted one of four exceptions under FRE 615. Read more

More On The Attorney General’s Testimony Regarding Likely Revision Of The McNulty Memo

During Oversight hearings before the Senate Judiciary Committee on July 9, 2008, Attorney General Michael Mukasey responded to questions by Senator Arlen Specter (R-Pa) about possible changes in Justice Department policy concerning the waiver of attorney client privilege, as reflected in the McNulty Memo

Video Of The Attorney General’s Testimony



Excerpt From Transcript of The Attorney General’s July 9 Testimony

Sen. Specter:
Let me move on to the question of the attorney-client privilege. Where you have the constitutional right to counsel which we all agree involves confidentiality. And where you have the clear-cut historic obligation of the government to prove its case, what is the justification for coercing a waiver of the attorney-client privilege? That is what happens in real life. In the KMG case, where the federal court in the Southern District of New York has found excesses by the government - where you have a clear-cut conflict of interest between the corporation, which is being asked for a waiver, and the individual employee who may have contractual rights to counsel, what is the justification? Can you sparse it, as the Thompson Memo does and the McNulty Memo -- that if it’s a fact question its decided by the Assistant Attorney General; if it’s an opinion or judgment question, its decided by the Deputy Attorney General? Isn't the attorney-client privilege so valuable that we shouldn't tamper with it by what has worked out to be coercive waivers of privilege?
Attorney General Mukasey:
Well, I think we share the belief as former prosecutors, and me as a former judge, that the attorney-client privilege is vital to clients getting advice from their lawyers. I think also we share the view that it should not be tampered with or coerced out of existence. And I understand that you visited with the [deputy] Attorney General and that he is going to be sending you a letter that will include real, significant proposed changes.
Sen. Specter:
How Soon?
Attorney General Mukasey:
Ah - Within a day or so.
Sen. Specter:
Will we have a memo that we can work from to get your position? Because I know ...
Attorney General Mukasey:
Yes.
Sen. Specter:
Your public statement is that you are satisfied with the McNulty Memo. Are you satisfied with the McNulty Memo?
Attorney General Mukasey:
I think my public statement was that the McNulty Memo could be used in a proper way. There is no such thing as a memo that achieves perfection and there are adjustments in the McNulty Memo that can and will be made and the Deputy proposes to make them. In particular it will no longer measure cooperation by waiver of the attorney-client privilege.
Sen. Specter:
Well, will we get more than a letter? Are we going to get a memo that we can work from to try to see if we can resolve this -- while a compromise or accommodation -- or are we going to have to move to legislative?
Attorney General Mukasey:
I think what's going to happen is a mem - a letter that's going to be - that can be - used to prepare a memorandum. That a -
Sen. Specter:
Well, when will we get the memorandum?
Attorney General Mukasey:
You'll get the letter in a couple of days. The memorandum will be the subject of discussions that may well produce a memorandum in short order.
Sen. Specter:
Well, the shorter the order the better because it - a matter percolating - affecting a lot of people.
Attorney General Mukasey:
It does - And I don't minimize it. I think that we tried to strike a balance with the McNulty Memo - if we haven't and there are ways to improve it, then we are bound and determined to improve it, and I think that letter will show that we are.


Aftermath Of The Testimony

Hours after the Attorney General’s testimony on July 9, Deputy Attorney General Mark Filip sent Senate Judiciary Committee Chairman Patrick Leahy and Ranking Minority Member Arlen Specter a letter summarizing his review of DOJ policy, as the Attorney General has promised in his testimony. This letter requested time to implement department changes before any legislation is considered. This letter and the response to it, was the subject of an earlier blog post, DOJ Reevaluating McNulty Attorney-Client Privilege Memo. Read more

The Case Of The Missing Rule Amendment?

As the Standing Committee on Rules of Practice and Procedure went into its June 9-10, 2008, meeting, it was to consider a recommendation from the Advisory Committee on Evidence Rules to amend FRE 804(b)(3).

Under the proposal, the corroborating circumstances requirement of FRE 804(b)(3) would apply to statements against penal interest offered by the prosecution - a change from the current requirement that only the "accused" need to show corroborating circumstances. But the latest report of the results of the Standing Committee meeting is silent about the fate of the proposed FRE 804(b)(3) amendment.

The only reported action by the Standing Committee was to approve publishing for public comment "restyled evidence Rules 101-415" with the actual publication to occur when the entire Federal Rules of Evidence has been restyled. It is not clear what, if anything, happened to the proposed amendment to FRE 804(b)(3).Read more

Federal Rules of Evidence
PDF