Expert Testimony In The Guise Of Lay Testimony: Property Valuation

In insurance contract breach/bad faith litigation, property valuation testimony improperly designated as FRE 701 lay testimony rather than FRE 702 expert testimony in light of (1) analogies from prior circuit precedent; (2) a party’s effective concession of the issue on appeal; (3) the witness’ dependence on technical analysis in the field of property valuation; and (4)the prevailing trend of FRE interpretation, in James River Ins. Co. v. Rapid Funding, LLC __ F.3d __ (10th Cir. July 29, 2011) (No. 10–1145)

Read more

Computer Records Admitted Under Public Records Hearsay Exception

Government computer deportation records admitted under public records hearsay exception and did not violate the Confrontation Clause, in United States v. Lopez–Moreno, 420 F.3d 420 (5th Cir. 2005), cert. denied, 546 U.S. 1222 (2006)

The admission of the content of computer records may be challenged on hearsay grounds. In one case, the public records hearsay exception was used to admit government deportation records. Additionally, a Confrontation Clause challenge was denied since the records were not testimonial under Crawford. Read more

Limits To Relying On Internet Materials And Information In Court (Part IV)

Seventh Circuit noted terrorism and counterterrorism expert could not rely on the websites to show group’s nexus to terrorism unless the websites were properly authenticated, in Boim v. Holy Land Foundation for Relief and Development, 511 F.3d 707, 753 (7th Cir. 2007)

As part of a continuing series on Internet evidence, another case, Boim v. Holy Land Foundation for Relief and Development, highlights that information posted on the Internet is inadmissible unless it is properly authenticated. Read more



Expert Can Testify About “Role-Playing In ... Sexually Explicit Conversations On The Internet”

iStock_000000849855Medium.jpg

Majority panel suggests expert testimony should be permitted on retrial of charge for using the Internet to solicit sexual activity with a minor, in United States v. Joseph, 542 F.3d 13 (2d Cir. Sept. 9, 2008) (No. 06-5911-CR)

After being arrested for using the Internet to solicit sexual activity with a person the defendant believed to be a minor, can the defendant present expert testimony about Internet “role-playing” to support his defense that he thought the person he communicated with on the Internet was an adult? A divided Second Circuit panel recently addressed this issue and answered in the affirmative.Read more

Limits To Relying On Internet Materials And Information In Court (Part III)

Seventh Circuit agrees that web posts were inadmissible unless authenticated, among other challenges to the Internet evidence, in United States v. Jackson, 208 F.3d 633 (7th Cir.), cert. denied, 531 U.S. 973 (2000)

A fraud case underscored that postings on the Internet are inadmissible unless they are authenticated.

Defendant Jackson claimed that three packages containing art prints were damaged and defaced with racial epithets and one package was lost. She originally purchased the prints for a total of $2,000. She submitted a false claim for $572,000. An investigation exposed her role in the scheme and she was charged with fraud and obstruction counts. Read more

Lack Of Publications Did Not Disqualify Expert Testimony

On obstruction of justice count concerning murder of a witness, rifling and ballistics expert noted gun model possessed by defendant based on serial number and confirmed number of grooves matched the bullets which killed victim, in United States v. Mikos, 539 F.3d 706 (7th Cir. Aug. 25, 2008) (Nos. 06-2375, 06-2376, 06-2421)

A recent Seventh Circuit case considered whether expert testimony could be admitted in the absence of any publications in the field supporting the theory used.

Under FRE 702 and Daubert, the trial court fulfills a “gateway” role before admitting expert testimony. In Daubert, the Supreme Court identified four non-exclusive factors to assess the reliability of proposed expert testimony (whether “the reasoning or methodology underlying the testimony is scientifically valid and of whether that reasoning or methodology properly can be applied to the facts in issue”). The five factors include: Read more

Limits To Relying On Internet Materials and Information In Court (Part II)

Third Circuit criticized district court’s judicial notice and use of Internet information on motion to dismiss complaint, in Victaulic Co. v. Tieman, 499 F.3d 227 (3d Cir. 2007)

As another example of the limits of using Internet materials and information in the courts (see prior blog post), the Third Circuit was troubled by the district court’s sua sponte use of Internet information.

In the case, employee Joseph Tieman was a sales representative for Victaulic Company, a manufacturer of valves, couplings, sprinkler heads, and other mechanical devices. He had signed a Non-Disclosure, Invention Assignment and Non-Competition Agreement, which included a covenant not to compete. When he left Victaulic, he began working for competitor Tyco Fire Products, LP in a similar sales position. Tieman and Tyco sought a declaratory judgment that the covenant not to compete was invalid under state law. Victaulic filed counterclaims for breach of contract, misappropriation of trade secrets, tortious interference with contractual relations, and unfair competition. Tyco and Tieman moved to dismiss the counterclaim for failure to state a claim. The motion was granted on the breach of contract, tortious interference, and unfair competition claims. Victaulic appealed the dismissal of the claims. Read more

Under State Law, Plaintiff Could Provide Proof Of Medical Expenses Under FRE 302

Fifth Circuit Court, New Orleans

Foradori v. Harris, 523 F.3d 477 (5th Cir. 2008) highlights application of FRE 302 concerning application of state law in civil diversity action in federal court

In a civil diversity suit charging negligent failure to supervise, control, and train employees following a confrontation which resulted in patron’s quadriplegia, under FRE 302, state law permitted the plaintiff to testify and identify past medical expenses subject to cross-examination and other evidence notwithstanding the hearsay rule under FRE 801 and the authentication rule under FRE 901. Read more

Limits To Relying On Internet Materials And Information In Court (Part I)

Eighth Circuit remands immigration case in which the court relied on Wikipedia information, in Badasa v. Mukasey, 540 F.3d 909 (8th Cir. Aug. 29, 2008) (No. 07-2276)

Given the pervasive role of the Internet on so many levels of daily life, it is not surprising that information from the Internet is increasingly presented or considered in court. For example, a court may take judicial notice of information from the Internet as long as the requirements of the judicial notice rule, FRE 201, are satisfied. One recent case used the Internet to take judicial notice of the distance. See Citizens for Peace in Space v. City of Colorado Springs, 477 F.3d 1212, 1219 n.2 (10th Cir. 2007) (“[I]t appears that Checkpoint 1 was approximately 310 yards from the front of the International Conference Center. See http://www.gmap-pedometer.com last visited January 23, 2007). We take judicial notice of this distance. See FED. R. EVID. 201(b), (c).”). As with other evidence, information from the Internet may be admitted as long as it meets the standard under the FRE. Read more

Spousal Communications Privilege Inapplicable To Communication On Concealing Criminal Assets

Fifth Circuit highlights exception to privileged communications, in United States v. King, 541 F.3d 1143 (5th Cir. Aug. 26, 2008) (No. 07-30649)

Two separate privileges based on the marital relationship are recognized. First, confidential communications during marriage may be privileged. Second, another privilege may bar a spouse from testifying against the other during the marriage.

The first privilege was recently considered in King, a prosecution for a cocaine distribution conspiracy. Recorded conversations between the defendant and his wife were introduced at trial in support of the charged money laundering conspiracy.

In the conversation, the defendant and his wife discussed the use of a vehicle which the government claimed was purchased with drug proceeds. The defendant claimed the privilege barred the admission of the recorded conversation. The trial court and circuit both agreed that the privilege did not apply based on the “joint participation” crime exception under the privilege. 541 F.3d at 1146. The King case demonstrates that the societal benefits from a privilege protecting marital communications do not apply where the spouses jointly participate in criminal activity. Read more

Federal Rules of Evidence
PDF