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.
"Rigid Definition" Of "Claim" Not Proper Limit On Exclusion Of Settlement Evidence Under FRE 408
Thu, 06/17/2010
Under FRE 408, proof of the validity or invalidity of a “claim” cannot be made through use of evidence of the parties’ attempts to compromise the matter, however, the trial court erred in using a “rigid definition” of a “claim” when it admitted statements “in nature of” those “made during settlement negotiations” during the parties’ earlier discussions; the earlier discussions involved the same “claim” as that in the dispute currently at issue, so that materials produced in the earlier disputes’ settlement negotiations between the parties were not admissible; the error in admitting this settlement evidence was harmful, in Lyondell Chemical Co. v. Occidental Chemical Corp., __ F.3d __ (5th Cir. June 8, 2010) (No. 08-40060)
Read moreAbused Animal's Photo Not Unfairly Prejudicial Under FRE 403
Wed, 06/16/2010
In civil rights suit against town police officers who arrested the plaintiff for cruelty to animals, no error in admitting photo of the dog allegedly abused because it was not unfairly prejudicial under FRE 403 in light of the trial judge's jury instruction that sympathy not be a basis for the verdict and that the photo was pertinent to their determination of whether a reasonable police officer would have probable cause to believe the plaintiff committed a crime, in Grossmith v. Noonan, __ F.3d __ (1st Cir. June 9, 2010) (No. 09-1900)
Read moreNinth Circuit Holds That The Forfeiture By Wrongdoing” Giles Ruling Under The Confrontation Clause Is Not Retroactive
Tue, 06/15/2010
On habeas review of state murder and burglary conviction, in admitting the murder victim’s hearsay statements about her fear of the petitioner, holding that the “forfeiture by wrongdoing” exception, as recognized under the Confrontation Clause in Giles v. California, 554 U.S. _, 128 S.Ct. 2678, 2693 (2008), was a “new rule” which did not apply retroactively on collateral review, in Ponce v. Felker, 606 F.3d 596 (9th Cir. May 24, 2010) (No. 08-56218)
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Statements and log records concerning positive test results from samples obtained by trainer contained inadmissible hearsay and were properly excluded for the trial; the government failed to meet its burden to show the statements of the trainer who obtained the test samples were made as an authorized agent of Bonds, under FRE 801(d)(2)(C), or that his statements were within the scope of his employment or agency, under FRE 801(d)(2)(D); the fact that the statements “almost” satisfied the residual hearsay exception, under FRE 807, was insufficient, in United States v. Bonds, _ F.3d _ (9th Cir. June 11, 2010) (No. 09-10079)
Read moreAnother Recent Examination Of The Occasional “Fine” Distinction Between Lay & Expert Testimony
Fri, 06/11/2010
In trial for impersonating a federal officer, admitting lay testimony by a state police sergeant witness about the legal authority of those who have private detective and handgun permits, based on the witness’s personal experience as head of the state agency that issued these permits, in United States v. Roe, 606 F.3d 180 (4th Cir. May 27, 2010) (No. 08-5203)
Read moreConfrontation Clause Inapplicable At Preliminary Hearings
Thu, 06/10/2010
Ninth Circuit resolves an open issue holding that “the admission of hearsay statements at a preliminary hearing does not violate the Confrontation Clause”; the challenged statements were admitted at a preliminary hearing under California “Proposition 115”; the Ninth Circuit joins the Fifth and Seventh Circuit in concluding that “there is no right to confront witnesses at a preliminary hearing before being required to stand trial”, in Peterson v. California, 604 F.3d 1166 (9th Cir. May 17, 2010) (No. 09-15633)
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Ninth Circuit Concludes Admission Of A Certificate Of The Nonexistence Of Record Violates The Confrontation Clause
Wed, 06/09/2010
In illegal reentry after deportation trial, where it was conceded that the defendant’s Confrontation Clause rights were violated by the introduction of the certificate of non-existence of record under Melendez-Diaz v. Massachusetts, 557 U.S. __, 129 S. Ct. 2527, 2539 (2009), the error was harmless beyond a reasonable doubt; the admission of a warrant of removal did not violate the Confrontation Clause since it was not testimonial, in United States v. Orozco-Acosta, 607 F.3d 1156 (9th Cir. May 26, 2010) (No. 09-50192)
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In trial for engaging in a sexual act with a consent-incapable person, admitting the victim's statement “help me, help me, he raped me” as an excited utterance under the FRE 803(2) hearsay exception where the statement was made less than two hours after the alleged rape and immediately upon the victim escaping the defendant; admission of the excited utterance did not violate Crawford because the victim also testified at trial, in United States v. Smith, 606 F.3d 1270 (10th Cir. June 3, 2010) (No. 09-2040)
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FRE 803(6) Business Records Neither Testimonial Nor Hearsay Under Melendez-Diaz Confrontation Clause Analysis
Mon, 06/07/2010
