Federal Evidence Review

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

Seventh Circuit joins five other circuits in finding immigration file documents are non-testimonial hearsay under Crawford v. Washington, in United States v. Burgos, 539 F.3d 641 (7th Cir. Aug. 22, 2008) (No. 06-4091)

A consensus is developing among the circuits on whether immigration file documents are “testimonial” or not under Crawford v. Washington, 541 U.S. 36 (2004).

In United States v. Burgos, the Seventh Circuit addressed and resolved this open issue: “[U]nder the Sixth Amendment’s Confrontation Clause, whether the government may use at trial the contents of the defendant’s alien-registration file (his “A-file”) -- specifically, a warrant of deportation and a “certificate of nonexistence of record”-- to prove its case.” Burgos, 541 F.3d at 642. Read more

House joins Senate in passing S. 2450, which would create a new Federal Rule of Evidence (FRE 502) addressing recent issues involving the attorney-client privilege, including inadvertent disclosure, confidentiality agreements and court orders

On September 8, 2008, the U.S. House of Representatives passed S. 2450, which establishes a new FRE 502 concerning the attorney-client privilege. See 154 CONG. REC. H7817-H7820 (Sept. 8, 2008). The Senate had passed S. 2450 earlier in the year, on February 27, 2008. See 154 CONG. REC. S1317-S1319 (Feb. 27, 2008). Because the rule involved an evidentiary privilege, congressional action is required before the rule may be adopted. See 28 U.S.C. § 2074(b) (“Any such rule creating, abolishing, or modifying an evidentiary privilege shall have no force or effect unless approved by Act of Congress.”). According to the House debate, the legislation will now be sent to the President.

In sum, the new FRE 502 addresses some recurring issues under current law governing the waiver of the attorney-client privilege and work product. The rule clarifies that inadvertent disclosure does not result in waiver when the holder of the privilege takes reasonable steps to prevent disclosure. The rule allows parties to enter into a confidentiality agreement concerning privileged materials that is binding only on the parties, unless adopted in a court order. A court may order that disclosure of privileged information in a case is not waived for other federal and state proceedings. Read more

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

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

Ninth Circuit affirms exclusion of witness's trial testimony on a subject that the witness in a prior deposition claimed was privileged under the Fifth Amendment right against self-incrimination, in Nationwide Life Ins. Co. v. Richards, 541 F.3d 903 (9th Cir. Aug. 28, 2008) (No. 06-56562)

A dispute over the disbursement of a one million dollar insurance policy after a murder underscored how the Fifth Amendment Privilege Against Self-Incrimination cannot be selectively used as a shield. Read more

Trial court did not abuse its discretion in denying defense request to call passenger of car in which drugs were found who was expected to assert his Fifth Amendment privilege against self-incrimination, in United States v. Branch, 537 F.3d 328 (4th Cir. Aug. 20, 2008) (No. 06-4257)

A recent case underscores the prejudicial concerns from calling a witness merely to assert the Fifth Amendment privilege against self-incrimination.

The defendant was driving a sedan with a passenger. The car was stopped for a traffic violation. Eventually, based on some suspicious factors, a canine unit was summoned which signaled the presence of drugs. Officers found cocaine base, a digital scale, baggies, and other items in the car. The defendant was arrested and drug and firearm charges were filed. At trial, the defense asked to call the passenger anticipating that he would assert his Fifth Amendment privilege against self-incrimination. The defense hoped to signal to the jury that the passenger was responsible for the drugs. The trial court disallowed the witness noting it “would lead to speculation and unfair prejudice.” Branch, 537 F.3d at 334. After his conviction, the defendant appealed the issue.Read more

After passage in the House and approval by the Senate Judiciary Committee, action for passage of a reporter shield law seems to have slowed. "The Free Flow of Information Act" (S. 2035) now appears on hold and it is considered likely the 110th Congress will expire without action on the measure.

The latest action - or more properly, lack of action - on S. 2035 was a vote by the Senate on July 30, 2008. In Senate Vote #191 the Senate rejected a cloture motion to proceed with discussion of S.2035 (Motion to invoke cloture on the motion to proceed to consider S. 2035). The vote was primarily along party lines, with 51 Democrats voting for cloture (so that the Senate could take up the measure), 44 against cloture (of whom 43 were Republicans) and six not voting. A two-thirds vote of the Senate (60 votes) was necessary for cloture and to proceed with the bill. Read more

Eleventh Circuit notes the fact of the conviction and sentence were admissible under FRE 803(22) but the underlying facts could not be considered, in United States v. $125,938.62 Proceeds of certificates of deposit number 1271734730, $60,851.73 number 1271736329, et al., 537 F.3d 1287 (11th Cir. Aug. 6, 2008) (No. 07-10380)

A recent case from the Eleventh Circuit considered the admission of a foreign judgment of conviction and the limits to using the judgment.Read more

In fraud indictment focused on one primary victim, divided panel concludes trial court erred in granting motion to strike surplusage and exclude evidence of other act fraud allegations, in United States v. Siegal, 536 F.3d 306 (4th Cir. Aug. 12, 2008) (No. 07-4551)

At what point may an indictment contain other acts evidence which may be surplusage? That was the question recently posed in an appeal involving a fraud scheme in the Fourth Circuit.Read more