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.

Supreme Court Watch: Twelve Cases Seeking Review Of Confrontation Clause and Expert Testimony Issues

Pending before the Supreme Court are at least one dozen cases that seek to clarify the application of the Confrontation Clause to expert testimony involving the statements of non-testifying witnesses; while it remains to be seen whether the Court will grant review on one or more of these cases in the near term, a strong need remains for guidance following the confusion sown by plurality decision in Williams v. Illinois, 567 U.S. _, 132 S.Ct. 2221, 183 L.Ed.2d 89 (June 18, 2012) (No. 10-8505)

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Basic Math Did Not Require Expert Testimony

First Circuit affirms the admission of “basic multiplication” testimony of an expert forensic chemist concerning “the average per-bag weights of marijuana” which was offered to show “how much marijuana had been sold over the life of the conspiracy”; the testimony qualified as lay testimony under FRE 701 and was not expert testimony under FRE 702 or unfairly prejudicial under FRE 403, in United States v. Sepúlveda-Hernández, _ F.3d _ (1st Cir. May 2, 2014) (No. 13-1339, 12-2301)

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Playing Video Tape Without Audio Did Not Violate Confrontation Clause

Seventh Considers whether the visuals from a video tape (with no sound) may implicate the Confrontation Clause and concludes the playing of the video did not provide a witness and was not a statement, in United States v. Wallace, _ F.3d _ (7th Cir. May 16, 2014) (No. 13-2160)

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Open Issue: Whether Expert Or Lay Testimony Is Required On The Relationship Of Cell Phones and Cell Towers

Eleventh Circuit notes an open issue concerning "whether a witness who is going to testify" regarding the information obtained and relationship between cell phones, towers "must qualify as an expert"; the trial court erred in allowing the testimony as expert testimony “regarding cell phones, cell phone towers, and the information that can be obtained from their interaction” without qualification of the witness as an expert under FRE 702, in United States v. Harrell, _ F.3d _ (11th Cir. May 14, 2014) (No. 11-15680)

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Open Issue: Taking Judicial Notice Of A Website

Under what circumstances can “contents of a website … ever be judicially noticed under Rule 201”? The Eleventh Circuit noted this open issue which it did not need to decide because the proponent failed to “provide the necessary information,” which was required under FRE 201(c), in Lodge v. Kondaur Capital Corp., _ F.3d _ (11th Cir. May 8, 2014) (No. 13–10919)

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Reversal Based On Error Excluding Expert Psychology Testimony Concerning Diminished Capacity Defense

Ninth Circuit holds that the exclusion of expert psychological testimony on diminished capacity resulted in reversible error; while there are limits to this testimony, the trial court failed to consider the context of the proffered testimony requiring the conviction to be vacated and the case remanded for a new trial, in United States v. Christian, _ F.3d _ (9th Cir. April 17, 2014) (No. 12-10202)

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Fraudulent Check Endorsements Were Not Hearsay

First Circuit concludes that the hearsay rule did not apply to check signature endorsements which were forged and therefore not offered for the truth of the matter asserted, in United States v. Bowles, _ F.3d _ (1st Cir. May 7, 2014) (No. 13–1575)

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Untimely Expert Report Results In Expert Testimony Exclusion

Fourth Circuit reviews whether the exclusion of medical expert testimony was appropriate after the plaintiff failed to provide a written expert report as required under Fed. R. Civ. P. 26(a)(2) and the district court's pretrial order; circuit notes the "broad discretion" that the district court has in imposing this sanction and affirms the exclusion of the expert testimony, in Wilkins v. Montgomery, _ F.3d _ (4th Cir. May 5, 2014) (No. 13-1579)

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The "Evidentiary Use" Of Speech Under The First Amendment

Can the First Amendment provide protection to certain speech that bars its admission at trial? The Fifth Circuit recently examined a case raising this issue and concluded that a defendant's statement regarding his criminal activities (that there "ain't a jury in the state" that would convict him of the charged embezzlement of government funds) was not protected by the First Amendment and the statement was probative of his intent of the charged embezzlement, in United States v. Jefferson, _ F.3d _ (5th Cir. May 1, 2014) (No. 12–60661)

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On Trial Court Questions At Trial, First Circuit Reminds Judges To Remain "Unbiased Neutral Arbiters"

What are the boundaries to a judge questioning a witness under FRE 614? The First Circuit examined 23 points in a drug trial which raised questions by the defendant about whether the trial court improperly questioned witnesses. The First Circuit disagreed and found the court's questions comfortably fit within its FRE 614 authority to clarify evidence of the alleged 63-person drug trafficking organization at issue, in United States v. Ayala-Vazquez, _ F.3d _ (1st Cir. May 2, 2014) (Nos. 12-1540, 11-2347)

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