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.
Summary Evidence And Expert Evidence - No Indelible Link
Fri, 07/30/2010 Thin Authority On A Federal Clergy-Communicant Privilege
Thu, 07/29/2010
In denial of motion to compel clergy member to give testimony before a federal grand jury about matters discussed in family counseling sessions, Third Circuit recognizes under FRE 501 the existence of a federal clergy-communicant privilege, but remands to trial court to make findings concerning whether privilege claimants communicated with the clergy member in a spiritual or professional capacity and whether they had a reasonable expectation of confidentiality, in In re Grand Jury Investigation, 918 F.2d 374 (3d Cir. 1990)(No. 89-3817)
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In considering the application of the attorney-client privilege in corporate context, the Ninth Circuit concludes that the defendant, who was a company founder, outside director and consultant, was a “functional employee” of the corporation, and failed to meet his burden to show he held a joint privilege concerning communications with corporate counsel (adopting and applying Third Circuit test), in United States v. Graf, _ F.3d _ (9th Cir. July 7, 2010)- (No. 07-50100)
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First Circuit Notes That "Additional Layer" Of Confrontation Analysis "May Be Necessary" In Multi-Defendant Trials
Tue, 07/27/2010
In defendant’s trial for carjacking and conspiracy to carjack with two co-defendants, admission of recording of co-defendant’s phone call with his mother indicating that the defendant was part of the charged conspiracy did not violate the Confrontation Clause because the statements were non-testimonial, in United States v. Figueroa-Cartagena, _ F.3d _ (1st Cir. July 16, 2010) (No. 08-2110)
Read moreAdmitting Reputation Testimony Concerning Events Of General History Under FRE 803(20)
Mon, 07/26/2010
Eleventh Circuit affirms admission of Department of State testimony concerning “historical background about Liberia and its political structure, as necessary to educate the jury” under FRE 803(20), in United States v. Belfast, _ F.3d _ (11th Cir. July 15, 2010) (No. 09-10461)
Read moreSeventh Circuit Criticizes The Government’s Use Of Narrative Hearsay On Wiretap Evidence
Fri, 07/23/2010
In political corruption trial, an agent’s trial narrative, which was not based on any personal knowledge, concerning the investigation and how wiretap approval was provided by high ranking officials and the court was inadmissible hearsay and contrary to the Confrontation Clause; reversal was not mandated since the error did not rise to the level of plain error, in United States v. McGee, _ F.3d _ (7th Cir. July 20, 2010) (No. 08-3816)
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FRE 610 Does Not Bar Evidence Of Religious Belief When Relevant To Criminal Modus Operandi
Thu, 07/22/2010
In criminal RICO action against members of religious cult, FRE 610 did not bar admission of evidence of the cult's religious teachings when this evidence was relevant to the defendant's methods for exhorting cult members to commit murders and other racketeering acts, in United States v. Beasley, 72 F.3d 1518, 1527 (11th Cir. January 5, 1996) (No. 92-4773) (per curiam)
Read moreFailure To Show Link Between Defendant And FRE 404(b) Other Act Evidence Was Harmless
Wed, 07/21/2010
In conspiracy and mail fraud trial concerning the defendant's alleged Ponzi scheme, evidence that before the alleged scheme the defendant had worked for four different enterprises that state and federal regulators had closed for "fraudulent practices" was not admissible absent FRE 404(b) evidence linking the defendant to the fraudulent schemes that triggered the closure of the four companies by regulators; however the evidence could have been conditionally admitted subject to proof of sufficient linkage between the other acts and the defendant, in United States v. Midkiff, __ F.3d __ (8th Cir. July 16, 2010) (No. 08-3493)
Read moreExcluding Evidence That The Defendant Rejected A Pre-Indictment Deferred Prosecution Agreement
Tue, 07/20/2010
In trial for concealing a material fact and making a false statements to the Nuclear Regulatory Commission, a divided Sixth Circuit panel affirms the trial court’s denial of the defense motion to admit evidence of the defendant’s rejection of a pre-indictment deferred prosecution agreement to show his state of mind, in United States v. Geisen, _ F.3d _ (6th Cir. July 15, 2010) (No. 08-3655)
Read moreExcluding Statement Against Interest Upon Proponent's Failure To Show Reasonable Effort To Get Witness
Mon, 07/19/2010
