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.
Attorney's Statement For One Client Not Admission By Attorney's Other Client In The Same Proceeding
Thu, 09/09/2010 
In cocaine conspiracy trial, limitation of defendant’s ability to cross-examine a cooperating witness regarding expected benefits from testifying in defendant’s case closed off the defendant’s ability to probe the witness’s bias and violated the defendant’s Sixth Amendment Right to Confrontation; as the witness’s testimony was proffered as evidence of the defendant’s link to the charged cocaine conspiracy but provided no new information on this other than what had already been properly admitted, the error was harmless beyond a reasonable doubt, in United States v. Martin, __ F.3d __ (7th Cir. Aug. 24, 2010) (Nos. 07-2272, 07-3893, 07-3940, 07-4010, 08-3265)
Read moreDe Novo Review Of Conclusory Daubert Findings At Bench Trial
Tue, 09/07/2010
In a bench trial of a diversity breach of contract action, although plaintiff's expert on the "commercial reasonableness" of the plaintiff's performance of the contract was admitted without making Daubert findings no error was found when reviewed de novo because the witness "explained that in the financial sector, as he has seen and experienced it, businesses consider technological innovation satisfactory if it enables them to meet their business financial objective," in Metavante Corp. v. Emigrant Sav. Bank, __ F.3d __ (7th Cir. August 30, 2010) (Nos. 09-3007, 09-3996)
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The Federal Evidence Blog returns on Tuesday, September 7, 2010. Best wishes for the holiday.
Labor Day is celebrated on the first Monday in September. See 5 U.S.C. § 6103 (federal holidays).
For more background on Labor Day, see The History of Labor Day (Department of Labor).
After plaintiff amended his complaint to assert a negligent product design theory rather than negligent product installation theory, plaintiff's expert ergonomic witness was excluded from testifying as unqualified under FRE 702 due to admitted lack of training, education and experience in relation to product design, in Khoury v. Philips Medical Systems, __ F.3d __ (8th Cir. August 10, 2010) (No. 09-3919, 09-3965)
Read moreAdmissibility Of Evidence Of "Sudden Unexplained Wealth"
Thu, 09/02/2010
In drug conspiracy trial, admitting records of the defendant's wife's bank accounts under FRE 401 as the sudden accretion of wealth in the account which suggested it could be linked to the charged offense after a cooperating co-conspirator testified that he provided $10,000 to the defendant as his share of a robbery of the co-conspirator's cocaine supplier and a like amount was deposited in the bank account around the time of the offense, in United States v. Cecil, __ F.3d __ (6th Cir. August 10, 2010) (No. 08-5080)
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In trial for transportation of illegal aliens resulting in death, misconstruction of the charged crime 8 U.S.C. § 1324(a)(1)(B)(iv) as not requiring proof of proximate cause between the defendant's act of transporting illegal aliens and killing them, led to the erroneous exclusion on relevance grounds of FRE 401 and FRE 403 of defense evidence of proximate cause (that pursuing agents violated agency policy regarding deploying a spike strip across the road on which the defendant fled, breaking the chain of causation between the defendant's transport of the aliens and the accident that killed the aliens when the defendant ran over the spike strip), in United States v. Pineda-Doval, __ F.3d __ (9th Cir. August 10, 2010) (No. 08-10240)
Read moreEighth Circuit Resolves Open Issue On Jury Consideration Of Selective Prosecution Evidence
Tue, 08/31/2010
Eighth Circuit joins Third and Sixth Circuits in holding the district court could decide any vindictive prosecution issue before trial but the issue was not appropriate for the jury, in United States v. Clay, _ F.3d _ (8th Cir. Aug. 27, 2010) (No. 09-3134) (per curiam)
Read moreEighth Circuit Corrects Claim That Testifying Witness Must Be A Co-Conspirator For Statement Under FRE 801(d)(2)(E)
Mon, 08/30/2010
The focus in admitting a co-conspirator statement is on whether the declarant was a member of the conspiracy, not whether the testifying witness was a member; challenged co-conspirator statements were also non-testimonial, avoiding any Confrontation Clause issues, in United States v. Dinwiddie, _ F.3d _ (8th Cir. Aug. 25, 2010) (Nos. 09-2154, 09-2649)
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FRE 106 Rule Of Completeness Standards Of Relevance And Fairness
Fri, 08/27/2010
