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.
New Model Ninth Circuit Admonition To Jurors On Use Of High-Tech Communications Resources
Wed, 08/11/2010 Melendez-Diaz Does Not Apply To Business Records Certified By A Custodian Of Records Under FRE 803(6) and FRE 902(11)
Tue, 08/10/2010
Eighth Circuit considers the scope of Melendez-Diaz v. Massachusetts, 557 U.S. __, 129 S. Ct. 2527 (2009) and concludes it does not apply to business records that have been certified by a custodian of records under FRE 803 and FRE 902, in United States v. Ali, _ F.3d _ (8th Cir. Aug. 5, 2010) (No. 09-3284)
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Circuit Consensus Of No “Anticipation Of Litigation” Requirement To Attorney-Client Privilege Common Interest Doctrine
Mon, 08/09/2010
In administrative summonses enforcement case, defendant accounting firm (which allegedly failed to properly disclose the potentially abusive tax shelters that it promoted) could assert protection of the attorney-client privilege so that it need not disclose a legal memorandum (written by its inside counsel and forwarded by the firm’s partner to outside counsel requesting legal advice on pending IRS regulations); the operation of the common interest doctrine applied even though their common interests were not shared under a threat of litigation, in United States v. BDO Seidman, LLP, 492 F.3d 806 (7th Cir. July 2, 2007) (Nos. 05-3260, 05-3518)
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D.C. Circuit case confronted the issue whether the introduction of an alias at trial, which was connected to the defendant, is hearsay, in United States v. Maxwell Allen, 960 F.2d 1055 (D.C. Cir. 1992) (Per Curiam) (Nos. 91-3206, 91-3207)
Read moreAccountant-Client Communications Could Be Privileged Depending On Application Of Attorney-Client Privilege
Thu, 08/05/2010
In grand jury tax fraud inquiry, because federal courts did not recognize an "accountant-client" privilege, the order for production and withholding of certain client documents in the possession of accountants hired by client's attorneys was remanded for entry of "specific findings regarding the purpose and history of each document" as well as "more extensive findings on whether, in light of the purpose, use, or transmission of these documents," the attorney-client privilege still applied, in In re Grand Jury Proceedings: Osman, 220 F.3d 568, 571 (7th Cir. 2000) (Nos. 99-3131, 99-3317)
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In drug distribution and illegal possession of a fire arm trial, failure to provide sufficient notice to defendant pursuant to Fed. R. Crim. P. 16(a)(1)(G) (summary of any testimony that the government intends to use under FRE 702, 703, or 705) is not reversible error unless the defendant demonstrates that he was prejudiced by admission of the challenged evidence, in United States v. Tenerelli, __ F.3d __ (8th Cir. August 2, 2010) (No. 09-2948)
Read moreExculpatory Motive For Statement Precludes Admission Under Residual Hearsay Exception
Tue, 08/03/2010 In cocaine possession and Hobbs Act robbery case, excluding defendant's post-arrest statement that he had been forced to help rob a drug dealer, as charged; the statement lacked sufficient guarantees of trustworthiness in light of defendant's post-arrest conduct and motive to make an exculpatory statement, so that it did not qualify for admission under FRE 807, the residual hearsay exception, in United States v. McCraney, __ F.3d __ (8th Cir. July 22, 2010) (Nos. 09-1943, 09-2330)
Read moreSeventh Circuit Overturns “Inextricable Intertwinement Doctrine” And Creates Conflict With Other Circuits
Mon, 08/02/2010
In grand jury perjury trial, admitting evidence that the defendant stole a Bentley car from a garage on a flatbed truck and removed cash from the car; circuit criticizes and overrules prior cases relying on the “inextricable intertwinement doctrine”; the evidence was nonetheless admissible as “direct evidence of his false testimony,” in United States v. Gorman, _ F.3d _ (7th Cir. July 28, 2010) (No. 09-3010)
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Summary Evidence And Expert Evidence - No Indelible Link
Fri, 07/30/2010
In securities fraud prosecution, admitting summary evidence regarding the compensation and advances paid to defendants and investor principals when the summary evidence reflected facts and conclusions obtained by use of "only everyday reasoning rather than specialized knowledge" and where the lay witness presenting it "did not go on to offer any conclusions as to what the [summary] data meant," in United States v. Faulkenberry, __ F.3d __ (6th Cir. July 28, 2010) (Nos. 08-4233, 08-4404)
Read moreThin Authority On A Federal Clergy-Communicant Privilege
Thu, 07/29/2010
