Federal Evidence Review

Circuit rejects argument that prior precedent was wrong about rule's inclusiveness in United States v. Cole, 537 F.3d 923 (8th Cir. Aug. 12, 2008) (No. 08-1091)

In Cole, the Eighth Circuit was presented with the argument that prior circuit precedent “improperly interpret[ed] FRE 404(b) as a rule of inclusion.” Cole, 537 F.3d at 928. The circuit noted: “We have long viewed Rule 404(b) as a rule of inclusion, and in our circuit, one panel is not at liberty to overrule the decision of another.” Cole, 537 F.3d at 928 (citing United States v. Brown, 499 F.3d 817, 822 (8th Cir. 2007) (“Rule 404(b) is a rule of inclusion, and when determining the admissibility of Rule 404(b) evidence, courts consider the following: whether the evidence is relevant, similar in kind and close in time to the crime charged, proven by a preponderance of the evidence, and not unfairly prejudicial.”), cert. denied, 128 S. Ct. 1222 (2008); other citation omitted). Read more

Circuit declines to consider application of forfeiture by wrongdoing exception under FRE 804(b)(6) In United States v. Wright, 536 F.3d 819 (8th Cir. Aug. 4, 2008) (No. 07-1439), deciding that a deceased witness statement concerning murder participants did not violate the confrontation clause since the statement was not “testimonial.”

On Confrontation Clause questions, the Eighth Circuit emphasized the importance of the threshold inquiry in determining whether the statement of a non-testifying witness is “testimonial” or not. The Confrontation Clause applies to “testimonial” statements. Read more

Defense psychologist expert “could have testified that it was unlikely, given the defendant’s psychology, that he would act on his intent,” in United States v. Gladish, 536 F.3d 646 (7th Cir. July 31, 2008) (No. 07-2718)

FRE 704, concerning expert opinions on ultimate issues, can present some challenges in application. Misapplication can result in reversal. There are two parts to the rule. The first part, under FRE 704(a), clarifies that an expert opinion can “embrace[] an ultimate issue to be decided by the trier of fact.” The second part of the rule contains an exception to the first part, and applies in criminal cases concerning the defendant’s mental state or condition. Under FRE 704(b), an expert is barred from testifying “whether the defendant did or did not have the mental state or condition constituting an element of the crime charged or of a defense thereto.” These issues are reserved for the fact finder.Read more

Agent’s testimony concerning the defendant’s character and the criminal conduct of others was inadmissible as non-hearsay to explain the background in the investigation, in United States v. Johnson, 529 F.3d 493 (2d Cir. 2008)

Normally, non-hearsay evidence may be offered to provide background concerning the case or investigation. This evidence may include information about how an investigation began or focused on particular persons or activities, and is not considered inadmissible hearsay. See, e.g., United States v. Mejia, 909 F.2d 242, 247 (7th Cir. 1990) (Non-hearsay “[e]vidence about the tip the DEA received was relevant to show something other than the tip's truth. That evidence was relevant to show why the DEA was watching Mejia's home, a fact that in no way depended on the tip's truth.”); United States v. Love, 767 F.2d 1052, 1063 (4th Cir. 1985) (“[A]n out of court statement is not hearsay if it is offered for the limited purpose of explaining why a government investigation was undertaken.”), cert. denied, 474 U.S. 1081 (1986). In the same vein, we also recently blogged on United States v. Goosby, 523 F.3d 632 (6th Cir. 2008), a case in which non-hearsay concerning the investigation did not violate the Confrontation Clause. Read more

IRS investigative analyst's non-hearsay background testimony (explaining how the defendant tax preparer was identified and referred for investigation) did not violate the Confrontation Clause, FRE 801(c), FRE 404(b), or FRE 403 in United States v. Goosby, 523 F.3d 632 (6th Cir. 2008)

Defendant Goosby, who had a tax preparation business, was prosecuted for preparing fraudulent tax returns. At trial, an IRS investigative analyst provided background on the case, including how the defendant was identified based on “a computer program that allows [the analyst] to review all the returns by a given tax preparer and rank the returns by amount of refund.” In reviewing the returns, the defendant was identified based on “a high ratio for returns prepared by Goosby’s business.” Goosby, 523 F.3d at 635. An investigation commenced and the defendant was charged. After his conviction, the court sentenced him to 46 months in prison.Read more

Passport and travel documents introduced in foreign language violated requirement that evidence be admitted in English language, but error was not fatal where defendant failed to object at trial, in United States v. Diaz, 519 F.3d 56 (1st Cir. 2008)

A recent case noted the requirement that documents in foreign languages should be translated into English and the failure to do so is error. Read more

Tenth Circuit orders further briefing on expert evidence questions for en banc rehearing of United States v. Nacchio, 533 F.3d 1165 (10th Cir. July 30, 2008) (No. 07-1311).

On March 17, 2008, a divided Tenth Circuit panel vacated the conviction on nineteen counts of insider trading of Joseph Nacchio, former CEO of Qwest Communications International, Inc. The majority concluded that the trial court erred by excluding the defendant’s expert witness who would have testified about whether economic diversification better explained the pattern of defendant’s stock trades than his insider information. See United States v. Nacchio, 519 F.3d 1140 (10th Cir. 2008).Read more

Former U.S. Attorney General Richard Thornburgh told the Senate Judiciary Committee in 2007 hearings that "[i]n all the years" of his service in law enforement "requests to organizations ... to hand over privileged information never came to my attention—and I would have rejected such a request if it had."

On June 25, the Federal Evidence Blog reported on a letter by 33 former U.S. Attorneys in support of S.186. The article, New Development On Attorney-Client Front described growing support for legislative measures that would codify a new statute: 18 U.S.C. § 3014 concerning the attorney-client privilege.Read more

Eleventh Circuit notes exception to FRE 615 general witness exclusion rule, in United States v. Edwards, 526 F.3d 747 (11th Cir. 2008)

Most of the time, a party can ask or the court can order that witnesses be excluded during a trial to prevent them from hearing testimony and evidence, under FRE 615 . According to the drafters, FRE 615 promotes the well-established principle that sequestering witnesses “discourage[es] and expos[es] fabrication, inaccuracy, and collusion.” Advisory Committee Notes (1972) (citation omitted). The Eleventh Circuit recently highlighted one of four exceptions under FRE 615. Read more

During Oversight hearings before the Senate Judiciary Committee on July 9, 2008, Attorney General Michael Mukasey responded to questions and argument by Senator Arlen Specter (R-Pa) about the need for legislation creating a federal evidentiary privilege for journalists. Specter is the sponsor of S. 2035, "The Free Flow of Information Act of 2007," which would create such a privilege.

Sen. Specter:

Attorney General Mukasey, what was the justification for keeping reporter Judith [Miller] in jail for 85 days when the source of the leak was known to be Deputy [Secretary of State] Richard Armitage?

Attorney General Mukasey:

As you know, I was not on duty when that case was - came to the fore and it is my own view that the case may very well be a better argument against the special counsel than it is in favor of legislation of the sort that’s been proposed. I think …

Sen. Specter:

I’m not – I’m not prepared to deal with special counsel because he’s not here. I … If I had Senator Leahy’s gavel I would have brought him in here a while ago once the case was finished. But its very germane in evaluating public policy on whether the Department of Justice ought to have the authority to issue a subpoena in the context and move for a contempt citation and hold a reporter in jail for 85 days under very unpleasant circumstances. I can attest to that first hand, I went to visit her.

Attorney General Mukasey:

There’s no such thing as jail under pleasant circumstances – it is an inherent contradiction and is something, that therefore, we use as a last resort and will continue to use as a last resort...

Sen. Specter:

Well, why did you need a resort when you know the leak? When you know who the leaker is – why go after a reporter and keep her in jail?

Attorney General Mukasey:

As I said...

Sen. Specter:

I…I know that would be better addressed to the special counsel...

Attorney General Mukasey:

It would

Sen. Specter:

Someday we may have an opportunity to do that. But right now you’re all we’ve got Attorney General Mukasey. And you’re the guy whose pushing the policy. So, I think its fair question to say to you: why maintain a policy which gives, whoever the prosecutor is, the power to do that when you know who the leaker is?

Attorney General Mukasey:

We don’t give that power to a prosecutor for precisely that reason. We require a clearance up through and including the Attorney General of the United States.

Sen. Specter:

The Attorney General of the United States is a prosecutor. My time is up and I will desist. We will revisit these issues doubtless.

After a flurry of action to create a journalist's privilege in the Fall of 2007, Congress has been quiescent. On October16, 2007 the House of Representatives passed "The Free Flow of Information Act of 2007" (H.R. 2102) by a vote of 398-21. That bill would create a shield to protect a reporter from legal processes that would compel the reporter to produce documents and to provide testimony or identify confidential informants. On October 4, 2007 the Senate Judiciary Committee approved a similar measure (S. 2035) by a 15-2 vote and the matter has been pending debate on the Senate floor ever since.

These congressional measures are designed to create a new protection for journalists - one that would replace rather than supplement the current doctrine of the journalist privilege in the federal courts. As in indicated by the Attorney General in a letter to the Senate leadership on S. 2035, the Bush Administration opposes the measure, fearing that it would frustrate the investigation of terrorism.

The background and developments of these actions are addressed in the Lead Story of the January 2008 issue of the Federal Evidence Review. The article reviews the traditional scope of the journalist privilege and considers recent developments that have reformed that privilege in the federal courts as well as the recent Congressional response to the latest developments in the evolution of the journalist privilege in the federal courts.Read more