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.
No Federal Physician-Patient Privilege Recognized Under FRE 501
Wed, 05/19/2010
In conspiracy to distribute controlled substances prosecution, physician-defendant could not assert that the medical records of his patients were subject to a doctor-patient privilege because the federal courts do not recognize this privilege under FRE 501, in United States v. Bek, 493 F.3d 790 (7th Cir. July 6, 2007) (No. 05-4198)
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In drug distribution conspiracy case, government agent's testimony did not provide improper overview to jury because he testified from personal knowledge and explained drug activity and coded language to the jury, based on his experience in the investigation of the defendants, in United States v. Rosado-Perez, 605 F.3d 48 (1st Cir. May 14, 2010) (Nos. 08-1900, 08-2181, 08-2164, 08-2183, 08-2166)
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In armed bank robbery and unlawful firearm violations trial, trial court erred in admitting the defendant’s MySpace.com account profile page, subscriber report, and two photographs from his to show identity under FRE 404(b), which was “classic evidence of bad character”; nonetheless the error was harmless based on overwhelming evidence of guilt. United States v. Phaknikone, 605 F.3d _ (11th Cir. May 10, 2010) (No. 09-10084)
Read moreAnother Circuit Implements Mohawk Industries' Limitation Of the Collateral Order Doctrine
Fri, 05/14/2010
Ninth Circuit applies Mohawk Industries' restriction of collateral order jurisdiction on appeals of disclosure orders adverse to the attorney-client privilege; however circuit grants petition for writ of mandamus, directing district court to reconsider trial judge's order granting defense motion to compel 35 documents in plaintiff's privilege log, in Hernandez v. Tanninen, 604 F.3d 1095 (9th Cir. May 12, 2010) (No. 09-35085)
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In appeal of carjacking conviction, although defendant failed to preserve an objection to the voice identification testimony at trial as violating FRE 901(b)(5) and on appeal forfeited review of the identification for plain error under FRE 103(d), defendant's challenge to the voice identification could be assessed under the constitutional standard of due process; witness's identification of the defendant's voice as that of the perpetrator of the charged carjacking was not “so impermissibly suggestive” as to violate the defendant's constitutional due process rights, in United States v. Rice, 607 F.3d 133 (5th Cir. May 12, 2010) (No. 09-40116)
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In arson trial, excluding as not sufficiently inculpatory to be statement against interest under FRE 804(b)(3): (1) a recorded conversation in which the coconspirator told the confidential informant that while he was not involved in the charged fire, someone had “wanted him to do it”; and (2) testimony that a witness heard the coconspirator tell another person that he (the coconspirator) had started the charged fire (but even if this was erroneous, it was harmless in light of the considerable evidence of the coconspirator's participation in the arson), in United States v. Guzman, 603 F.3d 99 (1st Cir. May 3, 2010) (No. 08-1693)
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Fourth Circuit Joins Circuit Consensus On Admission Of Expert Testimony Regarding Age Of Child Pornography Victims
Tue, 05/11/2010
In a transporting and possessing child pornography prosecution, admitting expert testimony regarding th authenticity of child pornography; noting that the First, Eighth, and Eleventh Circuits “have assumed that the testimony of experienced forensic or medical professionals establishing the authenticity of alleged child pornography constitutes appropriate expert testimony,” in United States v. Bynum, __ F.3d __ (4th Cir. May 5, 2010) (No. 08-4207)
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Divided Tenth Circuit Reviews Requirements For Statements Against Interest Under FRE 804(b)(3) and the Confrontation Clause
Mon, 05/10/2010 In prosecution for retaliating against an informant, reversing the exclusion of “an accomplice’s nontestimonial statement to a fellow inmate implicating the accomplice and” the defendant in the murder of an inmate cooperating with federal officials; remanding case for determination on which portions of the statement were admissible under FRE 804(b)(3) and which were not, in United States v. Smalls, _ F.3d _ (10th Cir. May 3, 2010) (No. 09-2126)
Read moreBest Evidence Rule Inapplicable To Number Inscribed In A Safe
Fri, 05/07/2010
