Federal Evidence Review

Circuit suggests steps for providing expert testimony in United States v. Johnson, 488 F.3d 690 (6th Cir. 2007) (No. 05-4277).

It is well-accepted that the trial court has discretion on the manner in which to consider and admit expert testimony. See, e.g., Kumho Tire Co. v. Carmichael, 526 U.S. 137, 152 (1999) (“The trial court must have the same kind of latitude in deciding how to test an expert’s reliability, and to decide whether or when special briefing or other proceedings are needed to investigate reliability, as it enjoys when it decides whether that expert’s relevant testimony is reliable.”).Read more

Supplemental briefing on expert evidence issues was previously ordered in United States v. Nacchio, 535 F.3d 1165 (10th Cir. July 30, 2008) (No. 07-1311)

In a case to watch, on September 25, 2008, the Tenth Circuit, sitting en banc, heard argument on the insider trading case concerning defendant Nacchio, former CEO of Qwest Communications International, Inc. He was charged with 42 counts of insider trading and convicted on 19 counts. He was sentenced to serve six years in prison and ordered to pay a $19 million fine and forfeit about $52 million. A divided panel had originally reversed the convictions based on the exclusion of defense expert Professor Daniel Fischel, who would have testified that the pattern of the defendant’s stock trades where explained by factors other than insider information. See United States v. Nacchio, 519 F.3d 1140 (10th Cir. 2008).Read more

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

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

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

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

Although selective waiver of the attorney-client privilege was part of the early discussions of the proposal for reform, recently-enacted FRE 502 does not address selective waiver of the privilege

One missing feature from the recently enacted FRE 502 attorney-client privilege rule is a provision addressing the issue of selective waiver. Apparently, this issue was too controversial to be included in the legislation. However, the debate surrounding the selective waiver issue remains. The circuits are divided on whether a selective waiver rule should apply, with most circuits rejecting the selective waiver doctrine. See In re: Qwest Communications International Inc., Securities Litigation, 450 F.3d 1179 (10th Cir. 2006) (discussing circuit split) (reviewed in 3 FED. EVID. REV. 885 (July 2006)). Because this issue is likely to come up again, it is useful to review recent developments on this issue. Read more

New evidence rule guides waiver of the attorney-client privilege and work-product doctrine

On September 19, 2008, the President signed into law S. 2450 creating FRE 502, a new rule of evidence entitled: “Attorney-client privilege and work-product doctrine; limitations on waiver.” Read more

Fifth Circuit reverses child pornography distribution count of conviction for failure to authenticate printout of uploaded images and report listing filenames of the images, in United States v. Baker, 538 F.3d 324 (5th Cir. July 30, 2008) (No. 06-40757)

A recent child pornography case emphasizes the importance of authenticating images transferred or uploaded over the Internet and the consequences of failing to do so.

As required under a federal child pornography reporting statute, the Internet Service Provider Yahoo! reported to the National Center for Missing and Exploited Children (NCMEC) that an e-mail account was used to upload forty-six images of child pornography to a group Web site. NCMEC then reported the matter to law enforcement, which was required under the same federal law. See 42 U.S.C. § 13032 (reporting of child pornography by electronic communication service providers). After an investigation identifying the user of the Yahoo! account, a search warrant was executed at defendant Baker’s residence and his employer voluntarily provided his work computer and numerous diskettes from his office. Hundreds of child pornography images were identified. The defendant was charged with possessing, receiving, and distributing child pornography. Read more

Tenth Circuit concludes computer-generated “header” information (including the screen name, subject of the posting, the date the images were posted, and the individual's IP address) was not hearsay, and distinguishes computer-stored evidence, in United States v. Hamilton, 413 F.3d 1138, 1142-43 (10th Cir. 2005)

Computer evidence may be subject to hearsay challenges. A child pornography case highlights that not all computer evidence is hearsay and some may be admissible as non-hearsay. The case distinguished computer-generated and computer-stored information.

The case commenced when a German police official, using a program to scan the Internet for child pornography images, located 56 child pornography images posted on a newsgroup. After determining the IP address for these posting belonged to a U.S. Internet service provider, he referred the report of his findings to U.S. law enforcement. An ICE agent confirmed that the IP address was assigned to defendant Hamilton during the time the images were posted. Contact was made with the defendant, who resided on an Air Force Base. After a consent search did not reveal any images on his computer, he was told that the investigation included the posting of child pornography images. After waiving his Miranda rights, he admitted posting child pornography images. He proceeded to trial on a charge of knowingly transporting or shipping in interstate commerce child pornography, and was convicted. Read more