The Federal Evidence Review has three indices to identify past articles, including the Master Index (below) (chronological listing by feature categories), the Rules Index (topical listing by rules) and Subject Index (alphabetical listing by subject).


To locate past issues and topics, select one of the Federal Evidence Review departments below (such as the Lead Story, Practice Tip, Circuit Splits):

Feature ArticlesCircuit DevelopmentsEvidence Issues
Lead Story - Focuses on a key issue involving the Federal Rules of Evidence or other evidence developments Circuit Splits - Highlights recent cases involving a split among the circuits in the interpretation and application of evidence principles Rule Index - Lists features that focus on particular Federal Rules of Evidence, and constitutional or statutory provisions concerning evidence law
Practice Tip - Highlights alternative grounds for admitting or excluding evidence Developing Consensus - Notes recent cases in which a consensus is growing among the circuits Subject Index - Lists particular topics covered in past issues of the Review
Other Significant Evidence Cases - Reviews evidence issues not readily falling under specific Rules of Evidence but with noteworthy evidence implications Open Issues - Focuses on open evidence issues recently identified or resolvedContents & Table Of Cases - Download material related to cases and issues covered each month in the Review
Supreme Court Watch - Reviews key evidence cases and issues before the U.S. Supreme CourtHighlights From Current Issues Of The Review Identifies cutting-edge topics covered in recent issuesPending Amendments - Updates status of proposed rule amendments

Contents

Download selected excerpts from each monthly issue of the Federal Evidence Review. Each issue of the Review covers as many cases as possible from the prior month involving the Federal Rules of Evidence. The selected excerpts include: (1) the In Focus Cover Page, highlighting the monthly topics and features and (2) the Contents Page, listing the cases covered in each issue. Past issues can be ordered upon request by e-mail from the Contact Page. .


Select the month below for the particular Cover Page issue you wish to review. An excerpt is included for each published issue.



Federal Evidence Review Past Issue Excerpts

Volume 5 - 2008
January 2008February 2008March 2008April 2008
May 2008June 2008July 2008August 2008
September 2008October 2008November 2008December 2008
Volume 4 - 2007
January 2007February 2007March 2007April 2007
May 2007 June 2007 July 2007 August 2007
September 2007 October 2007 November 2007 December 2007
Volume 3 - 2006
January 2006February 2006March 2006April 2006
May 2006June 2006July 2006August 2006
September 2006October 2006November 2006December 2006
Volume 2 - 2005
January 2005 February 2005 March 2005April 2005
May 2005 June 2005 July 2005 August 2005
September 2005 October 2005 November 2005 December 2005
Volume 1 - 2004
August 2004 September 2004 October 2004 November 2004
December 2004NANANA






Federal Evidence Review Feature Articles


Lead Story Index

Focusing on key issues involving the Federal Rules of Evidence and other
evidence developments. Past issues can be ordered upon request by e-mail from the Contact Page.


Title Date Vol Page
Volume 5 — 2008
Lead Story: Recent Attorney-Client Privilege Measures Pending in Congress July 2008 5 919
FRE 413, 414 And 415: Similar Act Evidence In Sex Offense Cases – Ten Common Questions And Misconceptions June 2008 5 787
Admitting Electronic Evidence: Hearsay Issues (Part II) May 2008 5 606
Spoliation Under The FREApr. 20085476
Admitting Electronic Evidence: Authentication Issues (Part I)Mar. 20085313
FRE 602: The Personal Knowledge Requirement: Ten Common Questions & MisconceptionsFeb. 20085167
Status Of The Journalist's Privilege In The Federal Courts And Recent Congressional ActivityJan. 2008520
Volume 4 — 2007
Steps For Avoiding Potential Prejudice, Confusion And Other Problems In Using Law Enforcement Dual Fact and Expert WitnessesDec. 200741752
FRE 403: Balancing Probative Value and Unfair Prejudice: Ten Common Questions & MisconceptionsNov. 200741613
The Practice And Role Of Motions In Limine In Federal Court Oct. 2007 4 1470
Admitting Flight And Other Forms Of Consciousness Of Guilt Evidence Sept. 2007 4 1257
Appellate Jurisdiction Over Trial Court Decisions Denying A Claim Of An Evidentiary PrivilegeAug. 200741088
The General Bar Against Using Guilt-Assuming Hypothetical Questions And Other Avenues To Question Character WitnessesJuly 20074951
Proposed Amendments To FRE 804(b)(6) (Forfeiture By Wrongdoing)June 20074791
Using Non-Hearsay To Admit Statements In Documents And Connect Key EvidenceMay 20074617
FRE 301 & Evidentiary Presumptions: Ten Common Questions & Misconceptions Apr. 20074437
Excluding Evidence Based On Violations Of Discovery And Other RulesMar. 20074299
The "Open Door" Doctrine: Opening The Evidence Door To Otherwise Inadmissible Evidence: Ten Common Questions & MisconceptionsFeb. 20074167
Are Further Changes On The Horizon Concerning The Corporate Attorney-Client Privilege And Work Product Protection?: The New McNulty Memorandum, Recent Congressional Action, And Proposed FRE 502 Suggest A Ripe Environment For Even Further Standards To Be PromulgatedJan. 2007425
Volume 3 — 2006
Reverse FRE 404(b) Evidence: Ten Common Questions & MisconceptionsDec. 200631638
FRE 615: Ten Common Questions & MisconceptionsNov. 200631518
Seven Key Principles For Qualifying An Expert Under FRE 702Oct. 200631391
FRE 703 (Bases Of Expert Opinion Testimony) — Ten Common Questions & Misconceptions Sept. 2006 3 1183
Is The Time Ripe For Adoption Of A Rule Of Selective Waiver Of The Attorney Client Privilege And Work Product Protection? Aug. 2006 3 1040
FRE 701 (Lay Witness Opinion Testimony) — Ten Common Questions & Misconceptions July 2006 3 873
FRE 404(b) Diverging Elements: A Circuit Split Ripe For Certiorari Review? June 2006 3 756
Further Observations On Admitting Evidence Under The Confrontation Clause Two Years After Crawford v. Washington May 2006 3 617
Sixth Amendment Confrontation Clause Rights And Video Conferencing — Struggling Or Stumbling Into The Twenty-First Century? Apr. 2006 3 433
FRE 501 — Spousal Communications Privilege — Ten Common Questions & Misconceptions Mar. 2006 3 307
Adverse Spousal Testimony Privilege — Ten Common Questions & Misconceptions Feb. 2006 3 194
An Overview Of The Pending Amendment To FRE 404(a) Concerning The Admissibility Of Character Evidence To Prove Conduct Jan. 2006 3 20
Volume 2 — 2005
An Overview Of The Pending Amendment To FRE 408 Concerning The Admissibility Of Compromise EvidenceDec. 200521135
An Overview Of The Pending FRE 606(b) Amendment: Adding Juror Competence To Testify On Verdict Reporting Errors Nov. 2005 2 1025
An Overview Of The Pending FRE 609(a)(2) Amendment: Seeking To Clarify Mandatory Impeachment Of Convictions Involving “Dishonesty Or False Statement” Oct. 2005 2 938
Newspapers And Periodicals As Evidence Sept. 2005 2 830
Fingerprint Identification Evidence - Ten Common Questions Aug. 2005 2 690
Common Evidence Issues Raised By Psychological Expert Evidence In Criminal Cases July 2005 2 567
Expert Eyewitness Identification: Common Grounds For Assessing Admissibility June 2005 2 448
Taking Judicial Notice - Ten Common Questions and Misconceptions on FRE 201 May 2005 2 345
FRE 404(b): Ten Common Questions and Misconceptions Apr. 2005 2 243
Common Questions To Consider In Introducing Or Opposing Recorded Conversations Mar. 2005 2 162
Non-Hearsay Statements and Examples: When is a Statement Hearsay and When is it Non-Hearsay? Feb. 2005 2 94
FRE 807 - Residual Hearsay Statement - Ten Common Questions and Misconceptions Jan. 2005 2 12
Volume 1 — 2004
Government Informant’s Privilege Dec. 2004 1 275
Harmless Error Doctrine: Promoting Fair Proceedings Nov.2004 1 201
FRE Notice Requirements Oct. 2004 1 133
After Crawford v. Washington: Early Observations On the Admissibility of Evidence Under the Confrontation Clause Sept. 2004 1 83
Publisher’s Column: Inaugural Issue Aug. 2004 1 13
Return to Master Index.




Practice Tip Index

Highlighting alternative grounds for admitting evidence under specific Federal Rules of Evidence, or discussing other suggestions for the practitioner. Past issues can be ordered upon request by e-mail from the Contact Page.

Title Date Vol Page
Volume 5 — 2008
Excluding Expert Opinion On Ultimate Legal Issues Under FRE 704 July 2008 5 919
Alternatives To FRE 413, 414 And 415 For The Admission Of Sexual Abuse Or Molestation Evidence June 2008 5 805
Four Ways To Determine Whether Facts Or Data Relied Upon By An Expert Are Reasonable Under FRE 703 May 2008 5 616
FRE 611(c): Five Unique Circumstances When The Use Of Leading Questions On Direct Examination Are PermittedApr. 20085485
FRE 801(d)(2)(B) And Alternate Grounds To Admit Adoptive Admission StatementsMar. 20085321
Witness Testimony Lacking Personal Knowledge And The FRE 803 Hearsay ExceptionsFeb. 20085178
Alternate Grounds For Excluding Witness Testimony Lacking Personal KnowledgeJan. 2008539
Volume 4 — 2007
FRE 801(d)(2)(C) And Alternative Grounds To Admit Statements Of An Authorized PartyDec. 200741764
FRE 801(d)(2)(D) And Alternative Grounds To Admit Statements Of A Party’s AgentNov. 200741632
Admitting Law Enforcement Lay Opinion Identification Testimony Oct. 2007 4 1487
FRE 801(d)(2)(E) And Alternative Grounds To Admit Co-Conspirator Statements Sept. 2007 4 1273
Implicit Waiver Of The Attorney-Client Privilege Aug. 200741103
FRE 801(d)(1)(B) And Alternative Grounds To Admit Prior StatementsJuly 20074961
Statements Involving Arrested Co-Conspirators Under FRE 801(d)(2)(E)June 20074806
The Attorney-Client Communication Privilege: Common Exceptions And Grounds For UnavailabilityMay 20074630
Parhways To Waiver On Appeal Under FRE 103(a) (Requiring A Timely "Objection Or Motion To Strike")Apr. 20074447
Factors To Assess When Court Interrogation, under FRE 614, Is ImpermissibleMar. 20074309
The "Opened Door" Doctrine And The Terminology Of Admitting Otherwise Excludable EvidenceFeb. 20074189
Evidence Of Witness's Mental Or Sensory ImpairmentJan. 2007438
Volume 3 — 2006
Constitutional Issues In Considering FRE 404(b) EvidenceDec. 200631650
Enforcing FRE 615 Witness Exclusion OrdersNov. 200631526
Proving FDIC Coverage As An Element Of Certain OffensesOct. 200631401
The Intersection Of FRE 703 (Bases Of Expert Opinion) With Other Evidence RulesSept. 200631192
FRE 609 (Impeachment By Evidence Of Conviction Of Crime)Aug. 200631047
The Intersection Of FRE 701 Lay Opinion Evidence With Other RulesJuly 20063881
Perspectives On The FRE 403 Balance Of The Probative Value Of The Evidence And Unfair PrejudiceJune 20063763
Evidentiary Hurdles In Admitting Film, Movie Or Video EvidenceMay 20063630
Authentication procedures Outside The Federal Rules Of EvidenceApr. 20063443
Exceptions To The Confidential Spousal Communications PrivilegeMar. 20063307
FRE 501: Exceptions To The Adverse Spousal Testimony PrivilegeFeb. 20063202
FRE 404: Rules Governing Admission Of Reputation Or Opinion Testimony About A Person's CharacterJan. 2006327
Volume 2 — 2005
FRE 408: Compromise and Offers to CompromiseDec. 200521145
FRE 103(a) And The Timeliness Of Evidence Objections Nov. 2005 2 1035
The "Against A Party" Requirement In Admitting Party Statements Under FRE 801(d)(2): Barring Hearsay And Exculpatory Statements Introduced By The Party Through Others Unless The Party Elects To Testify Oct. 2005 2 946
FRE 901: Authentication And Identification (Special Application: Telephone Conversations) Sept. 2005 2 836
FRE 601: Witness Competency And Choice Of Law In Federal Court Aug. 2005 2 703
Evidence Rules Regarding Statements About Family Matters July 2005 2 576
Forfeiting The Right To Object To Hearsay Under FRE 804(b)(6) Forfeiture By Wrongdoing June 2005 2 457
Alternative Ways To Judicially Notice An Adjudicative Fact May 2005 2 351
FRE 404(b): Other Crimes, Wrongs, or Acts April 2005 2 249
Admitting Plea-Related Statements: Recognized Exceptions Under FRE 410 March 2005 2 171
Admitting A Prior Inconsistent Statement When FRE 801(d)(1)(A) is Unavailable Feb. 2005 2 100
FRE 901: Authentication and Identification (Special Application: Handwriting) Jan. 2005 2 16
Volume 1 — 2004
Alternative Government Privileges Dec. 2004 1 260
FRE 901: Authentication and Identification (Special Application: Photographs) Nov.2004 1 203
FRE 1002: Requirement of Original (Best Evidence Rule) Oct. 2004 1 138
Alternative Ways to Admit Charts or Summaries When FRE 1006 is Unavailable Sept. 2004 1 87
Alternative Ways to Admit Business Records into Evidence when FRE 803(6) Is Unavailable Aug. 2004 1 14
Return to Master Index / Visit Subject Index / Visit Rule Index




Proposed Amendments

Material on past and current efforts to amend the Federal Rules of Evidence are covered in the Federal Evidence Review each month. Up-to-date coverage of the status of rule amendments is available on line on the Amendments Page .

Return to Master Index / Visit Subject Index / Visit Rule Index


Supreme Court Watch

Focusing on key cases and issues before the United States Supreme Court
that involve the Federal Rules of Evidence and other evidence developments.


Title Date Vol Page
Volume 5 — 2008
Supreme Court Clarifies Forfeiture By Wrongdoing Exception Under The Confrontation ClauseJuly 20085933
Sprint/United Management Co. v. Mendelsohn: Circuit Should Not Conduct Its Own FRE 401/403 Analysis Without Allowing Trial Court An Opportunity To RuleMar. 20085335
Danforth v. Minnesota: While Crawford v. Washington Does Not Apply Retroactively In Federal Proceedings, State Courts May Adopt Broader Retroactivity Rules For State ProceedingsMar.20085332
Volume 4 — 2007
Whorton v. Bockting: Supreme Court unanimously holds Crawford Confrontation Clause analysis does not apply retroactively on collateral review, reversing Ninth CircuitMar. 20074315
Volume 3 — 2006
Davis v. Washington And The Scope Of "Testimonial" Hearsay StatementsJune 20063896
Whether Crawford Applies Retroactively On Collateral Review? June 20063766
Return to Master Index / Visit Subject Index / Visit Rule Index




Circuit Developments (Periodic Features)


Circuit Splits Index

Highlighting recent circuit splits involving the Federal Rules of Evidence and other evidence issues. Past issues can be ordered upon request by e-mail from the Contact Page.

Rule Title Date Vol Page
Volume 5 — 2008
FRE 106 Rule of Completeness First and Fourth Circuits split on whether FRE 106 Rule of Completeness renders otherwise inadmissible hearsay admissible June 2008 5 807
Other Significant Evidence Issue: Spoliation Of EvidenceSixth Circuit Identifies Split With Three Others In Applying State Spoliation Law To Diversity CasesApr. 20085492
FRE 501 PrivilegesSixth Circuit Highlights Existing Circuit Split On The Dangerous-Patient Exception To The Psychotherapist-Patient PrivilegeMar. 20085329
FRE 403 & FRE 414 Sexual Abuse Predisposition EvidenceFourth Circuit Notes Split Between The Seventh And Ninth Circuits On Strict Application Of FRE 403 Factors In Considering Admission Of FRE 414 Molestation EvidenceJan. 2008548
Volume 4 — 2007
FRE 413 & FRE 414 Sexual Abuse Predisposition EvidenceSeventh Circuit Notes Circuit Division On 5-Factor LeMay Test For Admission Of FRE 413 & FRE 414 Sexual Abuse Predisposition EvidenceApr. 20074450
FRE 408: The "Another Purpose" ExceptionWhether Settlement Negotiation Evidence Is Admissible To Show Mitigation Of Damages Under The "Another Purpose" ExceptionApr. 20074454
Volume 3 — 2006
FRE 407: Subsequent Remedial MeasuresDoes The FRE 407 Bar Against Evidence Of Subsequent Remedial Measures Apply To Evidence Of Post-Accident Investigations And Tests?Dec. 200631661
FRE 302: Applicability of State LawTenth Circuit Splits With First, Fourth, And Eighth Circuits (And Its Own Precedent), Finding Erie Doctrine Is Inapplicable To The Federal Rules Of EvidenceDec. 200631665
FRE 301: Presumptions in General in Civil ActionsThird Circuit Notes Division On Standard Of Proof On Established Domicile PresumptionSept. 200631196
Sixth Amendment: Confrontation ClauseEleventh Circuit Notes Circuit Split And Joins Four Other Circuits In Holding Crawford Does Not Apply Retroactively On Collateral ReviewMay 20063637
FRE 704(b): Opinion on Ultimate IssueEleventh Circuit Notes Different Application Of FRE 704(b) To Admission Of Expert Testimony On Knowledge Of Presence Of DrugsApr. 20063450
Sixth Amendment: Confrontation ClauseMust Non-Testimonial Hearsay Statements Satisfy Ohio v. Roberts's Confrontation Clause Requirement?Apr. 20063447
Sixth Amendment: Confrontation ClauseEleventh Circuit Finds Crawford Confrontation Clause Decision Not To Apply Retroactively To Cases On Collateral ReviewMar. 20063371
FRE 408: Compromise and Offers to Compromise Admission Of Civil Compromise Evidence In Criminal Proceedings Under FRE 408 Jan. 2006 3 32
Volume 2 — 2005
Sixth Amendment: Confrontation Clause Whether 911 telephone calls are "testimonial" under Crawford? Nov. 2005 2 1041
FRE 801(d)(2): Admission By Party Opponent Under FRE 801(d)(2), Can A Statement By A Government Agent Be An Admission By A Party Opponent? June 2005 2 459
Sixth Amendment: Confrontation Clause The Retroactivity Of Crawford Confrontation Clause Analysis March 2005 2 173
FRE 501: Attorney Client Privilege Availability Of The Governmental Attorney-Client Privilege March 2005 2 175
Fifth Amendment: Right Against Self-Incrimination Does Use Of Post-Arrest, Pre-Miranda Silence Violate The Right Against Self-Incrimination? Feb. 2005 2 102
Volume 1 — 2004
FRE 803(4): Statements For Purposes Of Medical Diagnosis Or Treatment In admitting a child victim’s identification of the perpetrator under FRE 803(4), is a doctor required to explain that the statement is essential to diagnosis and treatment? Nov.2004 1 205
FRE 615: Exclusion of Witnesses Can FRE 615 (allowing a court to "order witnesses excluded so that they cannot hear the testimony of other witnesses") reach outside the courtroom? Oct. 2004 1 140
FRE 408: Compromise and Offers to Compromise Is civil settlement evidence admissible in a criminal fraud trial? Sept. 2004 1 89
FRE 501: Privileges: Exception to Psychotherapist-Patient Privilege Whether a dangerous-patient exception applies under the federal psychotherapist- patient privilege under FRE 501? Aug. 2004 1 16
FRE 103(a): Effect of Erroneous Ruling: Application of Cumulative Error Doctrine in Civil and Criminal Cases Does the cumulative error doctrine extended to civil cases? Aug. 2004 1 17
Return to Master Index / Visit Subject Index / Visit Rule Index




Developing Consensus

Noting recent cases in which a circuit consensus is developing on evidence issues. Past issues can be ordered upon request by e-mail from the Contact Page.

Rule Title Date Vol Page
Volume 5 — 2008
FRE 405(b) (Methods of Proving Character – Reputation or opinion) Fifth Circuit concludes that FRE 405(b) limits the use of a victim’s prior violence when offered only as proof of essential elements of homicide charge or defense May 2008 5 620
FRE 403 (Exclusion of Relevant Evidence)Fifth Circuit Finds Consensus That In A Subsequent Civil Suit, Admission Of Decision Not To Bring Criminal Charges Is Highly PrejudicialApr. 20085489
FRE 801(d)(1)(A) (Prior Inconsistent Statement)Fifth Circuit Joins Five Others, Holding That A Plea Agreement Factual Basis May Be Admitted As Substantive Evidence Of A Prior Inconsistent StatementMar. 20085325
Sixth Amendment (Confrontation Clause & FRE 803(8) (Public Record)Tenth Circuit Agrees With Four Other Circuits That A Public Record Under FRE 803(8) Is Non-TestimonialFeb. 20085182
FRE 803(6) (Business Records Exception)D.C. Circuit Joins Other Circuits In Holding That Records In Which A Firm Takes Custody Are "Made" By The Firm Under FRE 803(6)Jan. 2008544
Volume 4 — 2007
FRE 801(D)(2)(E) (Co-Conspirator Statements)Sixth Circuit Joins Six Other Circuits Holding That Co-Conspirator Statements Under The Hearsay Exception Of FRE 801(D)(2)(E) Are Not Testimonial Under CrawfordDec. 2007 41767
6th Amendment (Confrontation Clause)Sixth Circuit Joins Three Circuits In Recommending Joint Trial Procedure To Admit Incriminating Statements By One Co-Defendant Without Violating The Sixth Amendment Bruton Rights Of Other DefendantsDec. 2007 41769
FRE 901 (Authentication)Ninth Circuit Notes Trend Of Allowing Document Authentication In Asylum Proceedings By Other Than Official Government Certification Dec. 200741772
FRE 615(2) (Witness Exclusion)Tenth Circuit Joins Nine Other Circuits Holding That A Case Agent Is Not Subject To FRE 615(2) Witness ExclusionNov. 200741637
FRE 407 (Subsequent Remedial Measures) Eleventh Circuit Joins Eight Other Circuits Holding That FRE 407 Does Not Apply To Remedial Measures Taken Without The Defendant’s Voluntary Participation Sept. 2007 4 1281
Sixth Amendment (Confrontation Clause) Ninth Circuit Adopts A Two-Step De Novo And Abuse Of Discretion Standard Of Review For Confrontation Clause Claims Involving Limitations On Cross-Examination Sept. 2007 4 1279
FRE 404(b) (Other Acts)Eighth Circuit Joins Fourth, Ninth, And Tenth Circuits Finding That Prior Drunk Driving Convictions Are Admissible Under FRE 404(b) In Negligence Auto-Accident Action As Proof That The Defendant Was Especially Aware Of Drunk Driving Aug. 200741111
Sixth Amendment (Confrontation Clause): Six Circuits (Including The Second, Fourth, Fifth, Seventh, Eighth And Eleventh Circuits) Have Rejected Claims That The Confrontation Clause Disallows A Relaxed Evidentiary Standard In Federal Capital Sentencing ProceedingsAug. 200741108
FRE 501 (Privilege): Eleventh Circuit Joins Fourth, Seventh And Ninth Circuits In Declining To Recognize A "Medical Peer Review Privilege" In Federal Civil Rights Cases, Which Is Recognized In All Fifty States And The District Of ColumbiaJuly 20074967
Sixth Amendment (Confrontation Clause)The Eighth Circuit Joins First, Fifth, Ninth And Eleventh Circuits In Consensus That Use Of Warrant Of Deportation Is Not Testimonial Hearsay Under CrawfordJune 20074810
Sixth Amendment (Confrontation Clause)D.C. Circuit Joins Nine Other Circuits In Concluding Crawford Confrontation Clause Analysis Does Not Apply During Sentencing ProceedingsMay 20074637
FRE 401 (Relevance)Seventh Circuit Notes Consensus On Considering Dissimilarities In Out-Of-Court Experiment EvidenceApr. 20074458
FRE 413 & FRE 414 Sexual Abuse Predisposition EvidenceSeventh Circuit Notes Circuit Consensus That FRE 413 And FRE 414 Sexual Abuse Propensity Evidence Is Subject To FRE 403 BalancingApr. 20074467
FRE 706: Court Appointed ExpertsD.C. Circuit joins three other circuits in adopting an abuse of discretion standard of review for a court-appointed expert under FRE 706Mar. 20074320
Sixth Amendment (Confrontation Clause)Eighth Circuit Joins Four Other Circuits Concluding Warrants Of Deportation Are Non-Testimonial Under CrawfordMar. 20074 322
Sixth Amendment (Confrontation Clause)Tenth Circuit Notes Circuit Consensus To Apply An Objective Test For "Testimonial" Statements Under The Confrontation ClauseFeb. 20074193
FRE 1006: SummariesFirst Circuit joins other circuits in holding a summary under FRE 1006 can be based upon evidence admitted at trialJan. 2007442
Volume 3 — 2006
FRE 801(d)(1)(B): Prior Consistent StatementThird Circuit Notes Consensus About Use Of Objective Standard In Determining The Recent Fabrication Element For Admission Of Prior Consistent Statement Under FRE 801(d)(1)(B)Dec. 200631654
Sixth Amendment: Confrontation ClauseEighth Circuit Notes Consensus That Admission Of Certificate Of Nonexistence Of Record (CNR) Is Not Testimonial Under CrawfordDec. 200631658
FRE 410: Inadmissibility of PleasNinth Circuit Joins First Circuit Finding FRE 410 Bars The Introduction Of A Nolo Contendere Plea And Resulting Conviction To Prove The Underlying CrimeNov. 2006 31529
FRE 103(a): Effect of Erroneous RulingFifth Circuit Notes Consensus On Harmless Error In Confrontation Clause ViolationsOct. 200631408
FRE 403:Exclusion of Relevant Evidence on Grounds of Prejudice & FRE 702: Expert Testimony Fifth Circuit Joins Three Other Circuits Concluding Testimony About The Polygraph Examination Is Admissible When Not Offered To Prove Its Result Under FRE 403Oct. 200631412
FRE 902(b)(2): Self-authentication & FRE 702: Lay Opinion TestimonyWhether FRE 902(b)(2) Handwriting Authentication Must Comply With FRE 701 Personal Knowledge RequirementsOct. 200631415
Sixth Amendment: Confrontation ClauseNinth Circuit Notes Consensus With First And Seventh Circuits That Exclusion Of Cross-Examination On Specific Sentence Cooperating Witnesses Faced Did Not Violate Confrontation ClauseSept. 200631199
FRE 606(b): Inquiry into VerdictUnless Learned Through Improper Channels, Jury's Discussion Of The Defendant's Failure To Testify Is Not Reviewable Under FRE 606(b)Sept. 200631203
Sixth Amendment: Confrontation Clause; FRE 803(6): Business Records; FRE 902: Self AuthenticationSeventh Circuit Notes Growing Trend After Crawford That (a) "Testimonial" Includes Statements "Made With An Eye Toward Prosecution" And (b) Business Records Are Non-TestimonialSept. 200631205
Sixth Amendment: Confrontation ClauseTenth Circuit Joins Other Circuits In Concluding The Admission Of Reliable Hearsay At Sentencing Does Not Violate The Confrontation Clause After CrawfordAug. 200631050
Sixth Amendment: Confrontation ClauseFirst Circuit Notes Consensus That Use Of Warrant Of Deportation Is Not Testimonial Hearsay Under CrawfordJuly 20063891
FRE 702: Testimony By ExpertsTenth Circuit Notes Trend Rendering Eyewitness Identification Expert Evidence Neither Per Se Excludable, Nor Readily AdmissibleJuly 20063893
Sixth Amendment: Confrontation ClauseNinth Circuit Joins Other Circuits In Finding Use At Sentencing Of Hearsay Possessing A Minimum Indicia Of Reliability Does Not Violate The Confrontation ClauseMay 20063640
FRE 801(d)(2)(E): Coconspirator StatementsEleventh Circuit Finds Consensus That FRE 801(d)(2)(E) Coconspirator Statements Are Not "Testimonial" For Confrontation Clause PurposesMay 20063644
FRE 404(b): Other Crimes, Wrongs, or ActsThird Circuit Notes Circuit Agreement That Past Taxpaying Record Properly Admitted To Show Defendant's Intent In Tax Evasion Prosecution Under FRE 404(b)May 20063646
Sixth Amendment: Confrontation ClauseFifth Circuit Joins Ninth And Eleventh Circuits Finding Documents In Immigration File Non-testimonial HearsayApr. 20063452
Sixth Amendment: Confrontation ClauseEleventh Circuit Joins Four Other Circuits In Finding A Witnesses' Trial Testimony By Live, Two-Way Video Teleconference Violates Defendant's Sixth Amendment Confrontation RightsMar. 20063319
FRE 103: Rulings on EvidenceSixth Circuit Notes Defendant's Drug Activities Are Admissible Res Gestae Evidence Showing Motive Or Knowledge In A Firearm Possession CaseFeb. 20063204
FRE 103: Rulings on EvidenceNinth Circuit Concludes Parties Have Right To Lay Foundation For Admission Of Evidence Under FRE 103 And That Cumulative Error In A Civil Trial May Warrant A New TrialJan. 2006343
FRE 702: Testimony by ExpertsHandwriting Identification Satisfies FRE 702 Reliability StandardsJan. 2006339
Sixth Amendment: Confrontation ClauseD.C. Circuit Notes Other Circuits Reject Application Of Crawford's Limitation On "Testimonial Hearsay" In Parole HearingsJan. 2006336
Volume 2 — 2005
Sixth Amendment: Confrontation ClauseFirst Circuit Joins Four Other Circuits In Concluding Crawford Confrontation Clause Analysis Does Not Apply During Supervised Release ProceedingDec. 200521150
Sixth Amendment: Confrontation ClauseA Warrant Of Deportation Is "Non-Testimonial" Under CrawfordDec. 200521149
Sixth Amendment: Confrontation ClauseCrawford Does Not Apply At SentencingDec. 200521148
FRE 103(a): Effect of Erroneous Ruling Harmless Error Application: Can A Circuit Rule Sua Sponte On A Harmless Error? Sept. 2005 2 842
FRE 803(4): Medical Diagnosis Statements Does The Medical Diagnosis Statement Hearsay Exception Include Statements Made To A Non-Physician? Sept. 2005 2 839
Sixth Amendment: Confrontation Clause Does Crawford apply at sentencing? Aug. 2005 2 707
FRE 1101(d)(3): Applicability Of Rules Do The FRE Apply To Juvenile Transfer Proceedings? June 2005 2 642
FRE 702: Testimony By Experts Does Fingerprint Evidence Satisfy The Requirements Of Daubert? May 2005 2 353
FRE 615: Exclusion of Witnesses Ninth Circuit Joins Eighth Circuit In Holding That Trial Counsel May Qualify As A Person Whose Presence Is "Essential To The Presentation Of The Party's Cause" April 2005 2 253
Sixth Amendment: Confrontation Clause First Cases - Crawford Does Not Apply Retroactively On Collateral Review Jan. 2005 2 17
Volume 1 — 2004
FRE 501: Marital Communications Privilege Ninth Circuit Joins Other Circuits In Holding Either Spouse May Assert The "Marital Communications" Privilege Oct. 2004 1 143
FRE 801(d)(2)(B): Possession Of Documents As An Adoptive Admission Tenth Circuit Joins First And Ninth Circuits In Adopting "Possession Plus" Standard For Adoptive Admissions For Documents Sept. 2004 1 91
FRE 405: Methods of Proving Character Resolving Open Issue Concerning Use Of Guilt Assuming Hypotheticals In Cross-Examining Character Witnesses, Ninth Circuit Joins Majority Of Other Circuits In Prohibiting The Government From Using Guilt-Assuming Hypotheticals Aug. 2004 1 19
Return to Master Index / Visit Subject Index / Visit Rule Index




Open Issues Index

Combined listing of open issues that remain pending resolution or that have recently been resolved. Past issues can be ordered on the Subscribe Page.

Rule Title Date Vol Page
Volume 5 — 2008
FRE 106 (Remainder Of Or Related Writings Or Recorded Statements)Open Issue: Fifth Circuit Notes Unresolved Questions About How Broadly The FRE 106 “Rule Of Completeness” Reaches Concerning Testimony At Trial, That Is “Tantamount” To Introducing A Transcript Or RecordingJuly 20085927
FRE 609 (Impeachment by Evidence of Conviction of Crime)Ninth Circuit Resolves Open Issue Whether Prior Convictions More Than Ten Years Old May Be Used For Impeachment Purposes Under FRE 609 Where A Prior Convictions Are Used To Increase The Sentence Of A Subsequent ConvictionJuly 20085930
Sixth Amendment (Confrontation Clause) & FRE 902(11) (Self-authentication)D.C. Circuit Questions If Admitting Business Records Under FRE 902(11) Violates The Confrontation ClauseMar. 20085330
Volume 4 — 2007
6th Amendment (Confrontation Clause)Fifth Circuit Holds That Grand Jury Testimony May Be Used As A Foundation For Authentication Of Business Records And Not Violate The Confrontation ClauseNov. 200741641
FRE 804(a)(5): Definition Of Unavailability Ninth Circuit Adopts First Circuit Standard That FRE 804(a)(5) Requires The Proponent Of An Unavailable Witness Prevent The Witness From Becoming Absent Sept. 2007 41283
FRE 501: PrivilegesThird Circuit Considers Whether To Recognize The "Fiduciary Exception" To The Attorney-Client Privilege, Which Is Applied In Several Other CircuitsMay 20074641
FRE 501: PrivilegesNinth Circuit Resolves Open Question, Finding Attorney-Client Privilege's Crime Fraud Exception Must Be Shown By A Preponderance Of The EvidenceApr. 20074461
FRE 603: Oath or AffirmationSeventh Circuit holds that trial counsel can waive the oath requirement under FRE 603 and the defendant is not required to waive the requirementMar. 20074324
FRE 706:Court Appointed ExpertsSixth Circuit notes open issue under FRE 706 whether "court appointed experts" may include class settlement administratorsMar. 20074326
Volume 3 — 2006
Sixth Amendment: Confrontation ClauseSecond Circuit Notes Open Issue Whether Ohio v. Roberts "Particularized Guarantees Of Trustworthiness" Standard Continues To Apply To Non-Testimonial StatementsNov. 200631533
Sixth Amendment: Confrontation ClauseNinth Circuit Notes Continuing Open Issue Under The Confrontation Clause Whether Ohio v. Roberts Applies To Non-Testimonial StatementsSept. 200631209
FRE 501: PrivilegesTenth Circuit Confronts Open Issue Whether A Selective Waiver Of The Attorney-Client Privilege and Work-Product Doctrine Should Be Recognized And Declines To Do SoJuly 20063885
FRE 501: PrivilegesScope Of Spousal Communication Privilege During An InvestigationApr. 20063454
FRE 501: PrivilegesD.C. Circuit Notes Open Issue Concerning Existence Of A Federal Settlement PrivilegeApr. 20063456
Sixth Amendment: Confrontation ClauseSixth Circuit Notes Post-Crawford and Post-Booker Question Concerning Use Of Testimonial Hearsay At SentencingMar. 20063320
Sixth Amendment: Confrontation ClauseNinth Circuit Notes Open Issue Whether The Confrontation Clause Is Violated By Admission Of Foreign Business Records Under 18 U.S.C. 3505Mar. 20063324
Sixth Amendment: Confrontation ClauseSecond Circuit Notes Tension Between Admission Of Hearsay "In Furtherance" Of A Conspiracy And Crawford's Mandate To Exclude Such Hearsay When "Testimonial"Feb. 20063 208
Sixth Amendment: Confrontation Clause Fifth Circuit Notes Open Issue Whether Crawford Confrontation Clause Case Applies Retroactively Jan. 2006 3 47
Volume 2 — 2005
FRE 501: Privileges: Attorney-Client Privilege Sixth Circuit Resolves Whether A Municipal Corporation Can Assert The Attorney-Client Privilege In Civil Litigation Oct. 2005 2 950
FRE 704(a): Opinion on Ultimate Issue Eleventh Circuit notes open issue in a Section 1983 civil rights action whether an expert opinion on "deliberate indifference" amounts to a conclusion of law? April 2005 2 258
FRE 410: Inadmissibility of Pleas, Plea Discussions, and Related Statements Second Circuit notes open issue whether the admission of proffer statements in the government’s case-in-chief necessarily constitutes error (joining with at least one other circuit in noting open issue) April 2005 2 257
FRE 103(a): Effect of Erroneous Ruling Eleventh Circuit notes open issue whether, after a tentative in limine court ruling to admit or exclude evidence, the party seeking admission is required to offer the evidence again at trial in order to preserve the issue for appeal April 2005 2 255
Fifth Amendment: Right Against Self-Incrimination Eighth Circuit resolves open issue whether the government's use of post-arrest, pre-Miranda silence in its case in chief violates the Fifth Amendment right against self incrimination Feb. 2005 2 102
Sixth Amendment: Confrontation Clause & FRE 801(d)(2)(E): Co-conspirator Statements Second Circuit notes open issue whether co-defendant plea allocutions may be used to demonstrate the existence of a conspiracy under FRE 801(d)(2)(E) without violating Crawford v. Washington Jan. 2005 2 19
Volume 1 — 2004
18 U.S.C. § 3153: Administration of Pretrial Services Second Circuit resolves open issue whether pretrial Service Report statements may be used to impeach a defendant Nov. 2004 1 206
FRE 501: Privileges: Psychotherapist-Patient Privilege D.C. Circuit notes open issue concerning whether state or federal psychotherapist-patient privilege applies in case presenting both state and federal claims Sept. 2004 1 92
Return to Master Index / Visit Subject Index / Visit Rule Index




Other Significant Evidence Cases

Reviewing evidence issues that do not readily fall under specific Federal Rules of Evidence but may have noteworthy evidence implications (e.g., under statutes). Consistent with entries in this index, the date for the article reported is the date in which the issue is covered in the Review not the date the case or issue was decided. Past issues can be ordered upon request by e-mail from the Contact Page.

Evidence Issue Evidence Principle Date Vol Page
Volume 5 — 2008
Good Faith Basis To Question Witness US v. Taylor: Cross-examination question on whether witness’s state warrants had been quashed in exchange for her cooperation with the prosecution excluded for lacking a good faith basis May 2008 5 755
Bench Trial & Inadmissible Evidence Torres-Lazarini v. US: Trial court is presumed to ignore inadmissible evidence in bench trials May 2008 5 753
"Open Door" Doctrine US v. Marin: Agent’s testimony on knowing why drug trafficking defendant had weapon was admissible after the defense opened the door by leaving impression that defendant denied ownership of the gun at issue May 2008 5 751
"Open Door" DoctrineMunoz v. State Farm Lloyds: Admission of evidence that the plaintiff had failed a polygraph examination about his role in starting the fire in his civil suit for insurance proceeds did not "open the door" to proof that the plaintiff had not been criminally indicted for the arsonApr. 20085569
Spoliation of EvidenceAdkins v. Wolever: Sixth Circuit position in applying state law of spoliation conflicts with other circuits application of federal spoliation lawApr. 20085568
English Language RequirementUS v. Diaz: Untranslated Spanish-language documents were erroneously admitted violating the English Language Requirement, but the error was not plain error because the documents were admitted for a limited purposeApr.20085568
The "Open Door" DoctrineUS v. Elgeeh: In terrorism-related case, ageent's references to terrorism during his cross-examination were not unfairly prejudicial when the defense opened the door by questioning the agent about the prupose of the funding transfers at issueMar. 20085440
Volume 4 — 2007
Waiver Of Issue On AppealDefense failure to object to prosecution use of defendant's arguably privileged letter waived the issue on appealOct. 200741582
"Open Door" RuleIn voter fraud trial, the defense did not “open the door” to evidence concerning procedures to withdraw a ballot after the government admitted testimony on an area that the trial court had previously ruled was inadmissibleJuly 200741051
"Open Door" RuleIn tax and wire fraud prosecution, testimony concerning the basis for an underlying dispute which resulted in a settlement payment, which was originally excluded, was admissible after the defense opened the door to the issue during cross-examination of IRS agentJuly 200741049
Invited ErrorExclusion of prosecution witness’s testimony at the defendant’s request based on inadequate pretrial notice precluded the defendant from later asserting on appeal that the exclusion was erroneousJune 20074922
VouchingProsecutor did not improperly vouch for witness when his statements did not suggest he was assuring the jury that the witness's testimony was accurate or that extra-record evidence supported the witness's testimonyApr. 20074579
Recordings and TranscriptsTranscripts of tape recording of gang's drug dealings were properly admitted even thought the recording played at trial was difficult to hear since the trial court admonished the jury that only the tape was evidenceApr. 20074581
Excluding Evidence For Civil Discovery ViolationAffirming motion to strike expert affidavit in summary judgment proceeding after party failed to timely disclose expert as required by discovery scheduling orderMar. 20074399
Volume 3 — 2006
VouchingProsecutor did not improperly vouch for witness by introducing evidence of witness's obligation to testify truthfullyDec. 200631778
Fed.R.Civ. P. 16: DisclosureExclusion of expert evidence because of disclosure over four weeks after disclosure deadlineOct. 200631490
18 U.S.C. 3505: Foreign Business RecordsForeign certification of school exam records admissible as foreign business recordsOct. 200631492
Fed.R.Crim.P. 16(a)(1)(G)
Pretrial Notice Of Expert Witness
Admission of expert testimony after failure to provide pretrial notice not disturbed when no prejudice shownJune 20063841
Juror’s Receipt of Extraneous InformationJuror receipt of extraneous information on usual court procedure undermined ability to fairly determine caseMay 20063730
In-Court IdentificationIn-court identification by police admissible when officers saw video/photos of perpetration of charged crime and defendant admitted being person on the video/photosMay 20063728
Fed. R. App. P. 28(a)
Appeals Briefs
Evidence issue presented in reply brief waived when not in opening briefMay 20063727
Audio Recording FoundationRecording had sufficient foundation when recording device produced audio-record of a two-way conversation, even if device was designed only for dictationApr. 20063588
Preemptive Strategies Resulting In WaiverDefense introduction of evidence after losing summary judgment in order to preempt its sting when used by plaintiff, waived appeal of plaintiff's use of the evidenceApr. 20063586
Jury InstructionFailure to give limiting instruction contemporaneous with introduction of prior crimes evidence not plain error when limiting instruction given at close of the evidenceApr. 20063 584
Fed. R. App. P. 28(a)
Appellant’s Brief
Circuit dismisses appeal where party failed to explanation trial court error in excluding its line of cross-examinationApr. 20063582
Non-Mandatory Inferences Expert testimony regarding presence of innocent persons at drug deals admitted because inference the testimony permits is not mandatory and jury so instructedMar. 20063398
Fed. R. App. P. 28(a)
Appellant’s Brief
Circuit declines to reach merits of evidence issue and would not research and construct appellant’s legal arguments even for purpose of assessing any plain error Mar. 2006 3396
Two Witness RuleTwo Witness Rule that perjury conviction could not be based entirely on uncorroborated testimony of one witness was satisfiedFeb. 20063280
18 U.S.C. § 3505: Foreign Business RecordsForeign bank transaction records were admissible to show source of funds in fraudulent investment scheme in the U.S. because the records were certified, corroborated by domestic bank records and corroborated by witness testimonyFeb. 20063277
Clarification of Appellate Decision on EvidenceCircuit reconsiders clarifying prior evidence issue after government raised concerns about the possible stare decisis effect of the opinion and offered new argumentFeb. 20063276
Jury Exposure to Extrinsic Evidence Jury exposure to extrinsic evidence in fraud trial did not improperly affect verdict Jan. 2006 3 167
Objections Top Direct Examination The FRE provides no "quota system" limiting a party to a certain number of objections Jan. 2006 3 165
Fed. R. Civ. P. 56(e): Summary Judgment Expert witness' affidavit on ultimate legal issue in case was excludable as conclusory Jan. 2006 3 164
Fed. R. Civ. P. 56(e): Summary Judgment Affidavit evidence for summary judgment must be generally admissible in content or substance, although not necessarily in form Jan. 2006 3 162
Changed In Limine Ruling During Trial Pretrial evidentiary rulings are provisional and do not bind the trial court Jan. 2006 3 160
Volume 2 — 2005
Corpus Delicti Rule Child molestation conviction reversed under requirement for independent evidence of the corpus delicti Dec. 2005 2 1216
Curative Jury Instruction May Be Harmless Assuming curative instruction was ineffective concerning inadmissible evidence, any error was harmless Oct. 2005 2 1007
Curative Jury Instruction Presumed Followed A curative instruction is presumed to redress any error in admitting evidence unless there is "an overwhelming probability" that the jury was unable to follow the instruction Oct. 2005 2 1005
Translation of Foreign Language Video Tapes In mailing obscene materials case, translation of foreign videos was not required to determine whether the video tapes qualified as obscenity Oct. 2005 2 1004
Attempts to Call Prosecutor To Testify Requests to call prosecutor to testify are disfavored July 2005 2 665
Handling of Evidence Trial court found a "reasonable balance" in allowing the jury to view drug evidence by allowing the jury to view the evidence in the courtroom "and protecting them from allegations of misuse or tampering" June 2005 2 538
Vouching For Witness On direct examination, prosecutor may introduce evidence of a witness’ plea agreement’s truthfulness requirements without impermissibly vouching for the witness if prosecutor does not implicitly or explicitly communicate that the government can monitor and verify witness’ testimonial truthfulness June 2005 2 540
Vouching For Witness Rebuttal testimony did not vouch for the defendant’s brother by testifying that the brother would not have received "safety valve credit" if he had not incriminated defendant because his testimony did not bolster the brother’s credibility and simply explained the safety valve process June 2005 2 541
Discovery Discovery rules could not be manipulated to introduce evidence that the party had successfully withheld during discovery April 2005 2 306
Fed. R. Civ. P. 45(c): Protection of Persons Subject to Subpoenas Excluding expert witness in copyright infringement action after expert refused to be deposed Jan. 2005 2 71
Miranda Statements Rejecting argument that incriminating statements violate Miranda unless the interrogation is electronically recorded Jan. 2005 2 70
Volume 1 — 2004
18 U.S.C. § 3153: Pretrial Services Statute Pretrial Services Report statements may be used to impeach a defendant Nov. 2004 1 200
28 U.S.C. § 1731: Handwriting Comparison Reversing district court’s refusal to allow the jury to compare handwriting on two documents allegedly authored by a third person Aug. 2004 1 72
Return to Master Index / Visit Subject Index / Visit Rule Index

Highlights From Past And Current Issues Of The Federal Evidence Review

Identifying some of the many cutting-edge and topical issues in federal evidence law that were covered in each monthly number of the Federal Evidence Review
Past issues can be ordered upon request by e-mail from the Contact Page.


Article Highlighted Issue Circuit Page
Volume 5 — Number 2 — February 2008
Lead Story FRE 602: The Personal Knowledge Requirement: Ten Common Questions & MisconceptionsAll Circuits167
Practice Tip Witness Testimony Lacking Personal Knowledge And The FRE 803 Hearsay ExceptionsAll Circuits178
Developing Consensus Tenth Circuit Agrees With Four Other Circuits That A Public Record Under FRE 803 Is Non-Testimonial10th Cir. 182
United States v. Merrill Proving Inappropriate Prescriptions 11th Cir.206
United States v. Jimenez Limits On Examining Authentication Witness 3d Cir. 218
United States v. ShindermanUntruthful answers in medical license applications were admitted under FRE 608(b) as probative of defendant’s character for untruthfulness1st. Cir. 239
United States v. HarperExclusion of testifying confidential informant’s conviction for domestic violence was erroneous because the charges were pending when he agreed to cooperate5th Cir.250
United States v. Masferrertestimony by executive that his enterprise collected market information was not expert testimony because it provided the foundation for the admission of the market report evidence11th Cir. **
Volume 5 — Number 1 — January 2008
Lead Story Status Of The Journalist’s Privilege In the Federal Courts And Recent Congressional ActivityAll Circuits20
Practice Tip Alternative Grounds For Excluding Witness Testimony Lacking Personal KnowledgeAll Circuits39
United States v. Berber-Tinoco Erroneous Judicial Comments Based On Personal Knowledge During Suppression Hearing9th Cir.97
United States v. Taylor Counsel’s Argument Was Not Testimonial Under Crawford7th Cir.56
United States v. Brown EDTA Blood Testing Not Reliable 9th Cir.105
United States v. Zimmerman DNA Blood Sample Did Not Violate The Fifth Amendment Privilege Against Self-Incrimination Or Due Process Clause9th Cir.53
United States v. Adefehinti Business Records Certification under FRE 902(11) did not violate the Confrontation Clause D.C. Cir.132
Volume 4 — Number 12 — December 2007
Lead Story Steps For Avoiding Potential Prejudice, Confusion And Other Problems In Using Law Enforcement Dual Fact and Expert Witnesses All Circuits 1752
Practice TipFRE 801(d)(2)(C) And Alternative Grounds To Admit Statements Of An Authorized Party All Circuits 1764
Developing Consensus Sixth Circuit Joins Six Others Holding That Co-Conspirator Statements Under FRE 801(d)(2)(E) Are Not Testimonial Under Crawford 6th Cir. 1767
United States v. Johnson Remainder of Related Writings: The rule of completeness did not allow the defendant to require the admission of the redacted exculpatory portion of the defendant’s confession because it did not explain or place in context the admitted portion 2d Cir. 1791
United States v. Dohan Unduly Time Consuming: Exclusion of a chart and testimony contrasting the defendant’s net profits with the cooperating co-conspirator’s profits was properly excluded as unduly time consuming and cumulative 11th Cir. 1797
Al-Haramain Islamic Foundation, Inc./ v. Bush State Secret: The government successfully asserted the state secrets privilege and barred access to a sealed document concerning warrantless surveillance program9th Cir. 1805
Volume 4 — Number 11 — November 2007
Lead StoryFRE 403 Balancing Probative Value and Unfair Prejudice: Ten Common Questions & MisconceptionsAll Circuits 1613
Practice Tip FRE 801(d)(2)(D) And Alternative Grounds To Admit Statements Of A Party’s AgentAll Circuits1632
Developing Consensus A Case Agent Is Not Subject To FRE 615(2) Witness ExclusionAll Circuits 1637
Open Issue Fifth Circuit Holds That Grand Jury Testimony May Be Used As A Foundation For Authentication Of Business Records And Not Violate The Confrontation Clause 5th Cir. 1641
United States v. Salcido Admitting Chat Logs because they were relevant to show the defendant knew the images on his computer depicted minors and were not unfairly prejudicial since the government held the burden to prove intent 9th Cir. 1647
United States v. Morgan In health fraud trial, evidence on the defendant’s disregard of her pretrial release condition that she not open new bank account was admissible under FRE 404(b) to rebut her defense that she lacked fraudulent intent5th Cir. 1685
Volume 4 — Number 10 — October 2007
Lead Story: In Limine MotionsThe Practice And Role Of Motions In Limine In Federal Court All Circuits1470
Practice Tip: FRE 701: Lay Testimony Admitting Law Enforcement Lay Opinion Identification Testimony All Circuits1273
Sixth Amendment: Confrontation ClauseAdmission of informants’ statements that the defendant intended to distribute drugs violated defendant’s confrontation rights when the defendant could not cross-examine the non-testifying informants 6th Cir.1520
FRE 201: Judicial NoticeCircuit declines to judicially notice that Internet transmission of charged pornographic images went between states, establishing jurisdiction 10th Cir.1519
FRE 404(b) : Other Act Evidence < In drug conspiracy case, FRE 404(b) evidence of participation in drug robbery-murder was admissible against the co-defendant who opened the door with an entrapment defense, but not against the co-defendant who did not raise an entrapment defense7th Cir. 1538
FRE 606(b): Inquiry into Validity Of Verdict Circuit declines to decide if capital sentencing jury’s consideration of well-known themes for and against the death penalty in the Bible was an error since it use was not prejudicial 9th Cir. 1546
FRE 702: Expert Testimony Defense expert testimony properly excluded when expert admitted he lacked formalized training or experience necessary to explain issue he was called to testify upon 7th Cir. 1549
Volume 4 — Number 9 — September 2007
Lead Story: Consciounsess of Guilt EvidenceAdmitting Flight And Other Forms Of Consciousness Of Guilt EvidenceAll Circuits1257
Practice Tip: FRE 801(d)(2)(E): Co-Conspirator Statements FRE 801(d)(2)(E) And Alternative Grounds To Admit Co-Conspirator StatementsAll Circuits1273
Developing Consensus: Standard Of Review On Curtailing Cross-ExaminationNinth Circuit resolves an intra-circuit conflict on the standard of review of Confrontation Clause claims, adopting a two-step process including de novo and abuse of discretion standards, and joining five other circuits9th Cir.1279
Developing Consensus: FRE 407: Subsequent Remedial MeasuresEleventh Circuit joins eight other circuits in holding that FRE 407 does not apply to a remedial measures taken without the voluntary participation of the defendant 11th Cir.1281
Open Issue: FRE 804(a)(5): "Unavailable" Witness Ninth Circuit Joins First Circuit In Applying FRE 804(a)(5) Concerning Standard For An "Unavailable" Witness: "Implicit . . . in the duty to use reasonable means to procure the presence of an absent witness is the duty to use reasonable means to prevent a present witness from becoming absent"9th Cir.1283
Sixth Amendment: Confrontation ClauseMachine-Generated Data Does Not Violate Confrontation Clause: Machine-generated data used to determine whether a blood sample contained drugs or alcohol was not a "testimonial" statement under Crawford 4th Cir.1294
FRE 606(b): Inquiry into Validity Of Verdict Juror Internet Search: A juror Google search concerning a published article regarding the term "deliberating," which she read to the jury, was "extraneous" evidence but did not prejudice the trial 7th Cir. 1376
FRE 403: Relevant Evidence Suicidal Ideations Evidence:In video store and bank robbery trial, suicidal ideations and/or attempts may be admitted as relevant evidence of consciousness of guilt if not unfairly prejudicial under FRE 4036th Cir. 1351
Volume 4 — Number 8 — August 2007
Lead Story: FRE 501: PrivilegesImmediate Appeal of Adverse Determination of an Evidentiary Privilege ClaimAll Circuits1088
Practice Tip: FRE 501: Privileges Implicit Waiver Of The Attorney-Client Privilege All Circuits1103
Developing Consensus: FRE 404(b): Other Act EvidenceEighth Circuit Joins Fourth, Ninth, And Tenth Circuits Finding That Prior Drunk Driving Convictions Are Admissible Under FRE 404(b) In Negligence Auto-Accident Action As Proof That The Defendant Was Especially Aware Of Drunk Driving8th Cir.1111
Developing Consensus: Sixth Amendment: Confrontation ClauseSix Circuits (Including The Second, Fourth, Fifth, Seventh, Eighth And Eleventh Circuits) Have Rejected Claims That The Confrontation Clause Disallows A Relaxed Evidentiary Standard In Federal Capital Sentencing Proceedings2d Cir.1108
FRE 404(b): Prior Act Evidence Evidence Of Motive: Evidence that pastor of victim church used church’s funds for lavish personal expenditures was admissible prior act evidence to show motive to commit arson6th Cir. 1159
FRE 407: Subsequent Remedial MeasuresNo Compromise: Letters between discharged employee and her employer accepting offered reinstatement were not excludable as compromise statements in employment discrimination dispute 1st Cir.1169
FRE 501: PrivilegesPhysician-Patient Privilege: Federal court refuses to recognize a physician-patient privilege under FRE 501 7th Cir.1171
FRE 501: PrivilegesCrime-Fraud Exception: The crime-fraud exception to attorney-client and tax practitioner privileges applied to documents generated in furtherance of a crime7th Cir. 1173
FRE 606(b): Inquiry into Validity Of Verdict Common Juror Knowledge: In jury’s capital sentencing deliberations, juror’s comment about defendant’s right to an "automatic" appeal merely reflected his knowledge of a topic within common knowledge and was not extraneous information constituting misconduct 8th Cir. 1179
Volume 4 — Number 7 — July 2007
Lead Story: Hypothetical QuestionsThe General Bar Against Using Guilt-Assuming Hypothetical Questions And Other Avenues To Question Character Witnesses All Circuits951
Practice Tip: FRE 801(d)(1)(B): Prior Statements FRE 801(d)(1)(B) And Alternative Grounds To Admit Prior Statements All Circuits961
Developing Consensus: FRE 501: PrivilegesEleventh Circuit joins Fourth and Seventh Circuits in declining to recognize a “medical peer review privilege” in federal discrimination cases11th Cir.967
FRE 501: Privileges Recognizing Qualified Law Enforcement Privilege: First Circuit concludes “sensitive law enforcement protocols and techniques and the names and other personal information of the FBI agents involved” was covered by privilege1st Cir. 1015
Sixth Amendment: Confrontation ClauseNo Conflict Yet: While Confrontation Clause could require admission of a communication even cloaked in a valid claim of attorney-client privilege, there was no violation given the low probative value of the letter and effective cross-examination of the cooperator 9th Cir.1012
StipulationStipulation Could Not Be Withdrawn: Civil stipulation entered by prior counsel could not be set aside absent “good cause” 1st Cir.1047
Volume 4 — Number 6 — June 2007
Lead Story: FRE 804(b)(6): Forfeiture By WrongdoingProposed Amendments To FRE 804(b)(6) (Forfeiture By Wrongdoing)All Circuits791
Practice Tip: FRE 801(d)(2)(E): Co-conspirator StatementsStatements Involving Arrested Co-Conspirators Under FRE 801(d)(2)(E) All Circuits806
Developing Consensus: Sixth Amendment: Confrontation ClauseThe Eighth Circuit Joins First, Fifth, Ninth And Eleventh Circuits In Consensus That Use Of Warrant Of Deportation Is Not Testimonial Hearsay Under Crawford9th Cir.810
Sixth Amendment: Confrontation Clause Forfeiting Confrontation Rights: Defendant’s participation in conspiracy provided requisite proof that he engaged in co-conspirators’ wrongdoing which procured unavailability of witness 2d Cir. 815
Sixth Amendment: Confrontation ClauseNon-Testimonial Bank Records: Admission of bank board minutes as business records to show that board did not receive certain information was non-testimonial and did not violate defendant’s confrontation rights1st Cir.822
FRE 404(b):Other Act EvidenceFirst Amendment Evidence: Risqué stories on defendant’s PDA were admissible other act evidence even though it was “reading material” otherwise protected by the First Amendment, overruling previous authority that possession of lawful reading material was not conduct contemplated by FRE 404(b) 9th Cir874
FRE 606(b): Inquiry into Validity Of Verdict Juror Fears: No error in failing to investigate juror request to be excused when he feared for his safety because he worked in neighborhood where defendant allegedly torched building as charged, since this was intrinsic influence and did not arise from outside sources outside the trail 6th Cir. 884
FRE 702 : Expert Testimony Expert Modesty: Expert witness’s discounting of his own expertise is not dispositive of his qualifications under FRE 702, declining to adopt a per se rule that would exclude such testimony 10th Cir. 896
Volume 4 — Number 5 — May 2007
Lead Story: Using Non-Hearsay To Admit Statements In Documents And Connect Key EvidenceGeneral problems and approaches to admitting non-hearsay evidence embodied in hearsay documents or text All Circuits617
Practice Tip: The Attorney-Client Communication Privilege: Common Exceptions And Grounds For UnavailabilityReview of exceptions pertaining the the federal attorney-client privilegeAll Circuits630
Developing Consensus: Sixth Amendment (Confrontation Clause)D.C. Circuit Joins Nine Other Circuits In Concluding Crawford Confrontation Clause Analysis Does Not Apply During Sentencing ProceedingsD.C. Cir.637
Lead Story: Sixth Amendment (Confrontation Clause)D.C. Circuit Joins Nine Other Circuits In Concluding Crawford Confrontation Clause Analysis Does Not Apply During Sentencing ProceedingsD.C. Cir.637
FRE 801(d)(2)(E): United States v. MoranIn tax and fraud trial, Quickbooks financial records recovered from co-defendant's computer were admissible as records in furtherance of the conspiracy,and were used to keep track of complex financial transactions9th Cir. 722
FRE 401: United States v. KenyonIn aggravated sexual abuse of a child trial, minor's testimony about domestic violence was relevant to explain her "failure to report sexual abuse"8th Cir.667
Volume 4 — Number 4 — April 2007
Lead Story: FRE 301 & Evidentiary Presumptions: Ten Common Questions & MisconceptionsReviews basic issues in the application of presumptions under the FREAll Circuits437
Practice Tip: Pathways To Waiver On Appeal Under FRE 103(a)Reviews the requirement of making a timely objection or motion to strike improperly admitted evidence)All Circuits 447
Circuit Split: FRE 413 & FRE 414 Sexual Abuse Predisposition EvidenceSeventh Circuit Notes Circuit Division On 5-Factor LeMay Test For Admission Of FRE 413 & FRE 414 Sexual Abuse Predisposition Evidence 7th Cir. 450
Circuit Split: FRE 408 : The ":Another Purpose" ExceptionWhether Settlement Negotiation Evidence Is Admissible To Show Mitigation Of Damages Under The ":Another Purpose" Exception Under FRE 4086th Cir.454
Developing Consensus: FRE 401 (Relevance)Seventh Circuit Notes Consensus On Considering Dissimilarities In Out-Of-Court Experiment Evidence7th Cir.458
Developing Consensus: FRE 413 & FRE 414 Sexual Abuse Predisposition EvidenceSeventh Circuit Notes Circuit Consensus That FRE 413 And FRE 414 Sexual Abuse Propensity Evidence Is Subject To FRE 403 Balancing7th Cir.467
Open Issue: FRE 603: Oath or AffirmationSeventh Circuit holds that trial counsel can waive the oath requirement under FRE 603 and the defendant is not required to waive the requirement7th Cir. 324
Open Issue: FRE 706:Court Appointed ExpertsSixth Circuit notes open issue under FRE 706 whether "court appointed experts" may include class settlement administrators6th Cir. 326
Volume 4 — Number 3 — March 2007
Supreme Court Watch: Whorton v. Bockting Supreme Court unanimously holds Crawford Confrontation Clause analysis does not apply retroactively on collateral review, reversing Ninth CircuitAll Circuits315
Lead Story: Excluding Evidence Based On Violations Of Discovery And Other Rules Exclusion of otherwise admissible evidence Based On Violations Of Discovery And Other RulesAll Circuits299
Practice Tip: Factors To Assess When Court Interrogation, under FRE 614, Is ImpermissibleReviews factors the circuits use to assess if a trial court's interrogation of witnesses exceeds the scope of FRE 614All Circuits309
Developing Consensus: FRE 706D.C. Circuit joins three other circuits in adopting an abuse of discretion standard of review for a court-appointed expert under FRE 706D.C. Cir.320
Open Issue:FRE 603 Seventh Circuit holds that trial counsel can waive the oath requirement under FRE 603 and the defendant is not required to waive the requirement7th Cir.324
Open Issue: FRE 706 Sixth Circuit notes open issue under FRE 706 whether "court appointed experts" may include class settlement administrators6th Cir. 326
Volume 4 — Number 2 — February 2007
Lead Story: The "Open Door" DoctrineOpening The Evidence Door To Otherwise Inadmissible Evidence: Ten Common Questions & MisconceptionsAll Circuits167
Developing Consensus: Sixth AmendmentTenth Circuit Notes Circuit Consensus On Objective Test for "Testimonial" Statements Under Crawford10th Cir.193
FRE 404(b):United States v. Schafter Computer Evidence: Admission of narrative entitled "House of Incest" found on the defendant’s computer was not unfairly prejudicial and was far less prejudicial than other child pornography admitted at trial 10th Cir.236
Sixth Amendment: United States v. MooneyhamCrawford Undercover: Evidence of drug co-conspirator statements to undercover agent describing supplier was not “testimonial” because co-conspirator did not realize agent worked for law enforcement and therefore the statements were not the product of interrogation6th Cir.202
FRE 403: Arlio v. LivelyWeight Of Arbitration: In civil rights case, trial court erroneously admitted testimony that prior arbitration ruling that suspension of plaintiff was without cause because it was unduly prejudicial, even if admitted only on issue of damages and not liability2d Cir.227
FRE 403: United States v. LivelyLack Of Weight Of Prior Investigation: Evidence of arresting officer's dishonest report in another case was inadmissible since the evidence had little probative value because the officer's credibility was not in issue7th Cir.227
FRE 404(b): United States v. MurrayReverse FRE 404(b): In drug conspiracy involving murder trial, evidence of prior act in which co-conspirator had a third party kill a thief was inadmissible to show defendant did not kill drug dealer because lethal violence was not a distinctive method of dispute resolution in the drug trade7th Cir.239
Volume 4 — Number 1 — January 2007
Lead Story:Are Further Changes On The Horizon Concerning The Corporate Attorney-Client Privilege And Work Product Protection?The New McNulty Memorandum, Recent Congressional Action, And Proposed FRE 502 Suggest A Ripe Environment For Even Further Standards To Be Promulgated All Circuits25
Sixth Amendment: United States v. Sandoval-MendozaOvernight Ban On Defendant’s Communication With Counsel Violates Sixth Amendment: Ninth Circuit adopts per se rule that "any overnight ban on communication" violates Constitution9th Cir.49
FRE 404(b):United States v. WalkerNot Too Remote: In felon in possession of a firearm trial, 18 years between robbery and felon in possession charge was not too remote, particularly where the defendant was incarcerated for ten of the years8th Cir.80
FRE 801(d)(2)(E): United States v. GewinNeed Not Be Unlawful: In securities fraud action, co-conspirator testimony about the scheme was admissible under FRE 801(d)(2)(E) without proof that the conspiracy was unlawfulD.C. Cir.124
FRE: 702: United States v. HittGrooming Sexual Abuse Expert Testimony: Psychiatric sexual abuse behavior expert testimony concerning the behavior of abusers and their abused (including the grooming process used to isolate the child by sexual abusers) was admissible under FRE 7025th Cir.96
Developing Consensus: FRE 1006First Circuit joins other circuits in holding a summary under FRE 1006 can be based upon evidence admitted at trial1st Cir.42

Master Index of the Federal Evidence Review

Rule 502 section