The Rule Index chronologically lists particular topics covered in past issues of the Federal Evidence Review by specific Federal Rule of Evidence, constitutional or statutory provision. Past issues can be ordered upon request by e-mail from the Contact Page.

Subject Issue Volume No. Page No.
Fifth Amendment
Other Significant Evidence Cases: Fifth Amendment Act of Production — Reversing contempt ruling for failure to comply with grand jury subpoena under Fifth Amendment Act of ProductionOct. 20041148
Circuit Split: Fifth Amendment: Right Against Self-Incrimination — Does Use Of Post-Arrest, Pre-Miranda Silence Violate The Right Against Self-Incrimination?Feb. 20052102
Sixth Amendment
Lead Story: After Crawford v. Washington: Early observations on the admissibility of evidence under the Confrontation ClauseSept. 2004 1 83
Circuit Split: Sixth Amendment — Confrontation Clause — Whether 911 telephone calls are "testimonial" under Crawford ?Nov. 200521041
Developing Consensus: Sixth Amendment: Confrontation Clause — First Cases — Crawford does not apply retroactively on collateral reviewJan. 2005217
Open Issues Pending: 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. WashingtonJan. 2005219
Developing Consensus: Crawford Does Not Apply At SentencingDec. 200521148
Developing Consensus: A Warrant Of Deportation Is "Non-Testimonial" Under CrawfordDec. 200521149
Developing Consensus: First Circuit Joins Four Other Circuits In Concluding Crawford Confrontation Clause Analysis Does Not Apply During Supervised Release ProceedingsDec. 200521150
Developing Consensus: D.C. Circuit Notes Other Circuits Reject Application Of Crawford's Limitation On "Testimonial Hearsay" In Parole ProceedingsJan. 2006336
Open Issue: Fifth Circuit Notes Open Issue Whether Crawford Confrontation Clause Case Applies RetroactivelyJan. 2006347
Open Issue: Sixth Amendment: Confrontation Clause: Second 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
Circuit Split: Eleventh Circuit Suggests Crawford Confrontation Clause Decision Does Not Apply Retroactively On Collateral ReviewMarch 20063317
Developing Consensus: Eleventh Circuit Joins Four Other Circuits In Finding A Witnesses' Trial Testimony By A Live, Two-Way Video Conference Violates Sixth Amendment Confrontation RightsMarch 20063319
Open Issue: Sixth Circuit Notes Post-Crawford And Post-Booker Question Concerning Use Of Hearsay At SentencingMarch 20063320
Open Issue: Ninth Circuit Notes Open Issue Whether The Confrontation Clause Is Violated By Admission Of Foreign Business Records Under 18 U.S.C. § 3505March 20063324
Lead Story: Sixth Amendment Confrontation Clause Rights And Video Conferencing — Struggling Or Stumbling Into The Twenty-First Century?April 20063433
Circuit Split: Must Non-Testimonial Hearsay Statements Satisfy The Ohio v. Roberts Confrontation Clause Requirement?April 20063447
Developing Consensus: Fifth Circuit Joins Ninth And Eleventh Circuits Finding Immigration File Documents To Be Non-Testimonial HearsayApril 20063452
Lead Story: Further Observations On Admitting Evidence Under The Confrontation Clause Two Years After Crawford v. WashingtonMay 20063617
Circuit Split: Eleventh Circuit Notes Circuit Split And Joins Four Other Circuits In Holding Crawford Does Not Apply Retroactively On Collateral ReviewMay 20063637
Developing Consensus: Ninth Circuit Joins Other Circuits In Finding Use At Sentencing Of Hearsay Possessing A Minimum Indicia Of Reliability Does Not Violate The Confrontation ClauseMay 20063640
Developing Consensus: Eleventh Circuit Finds Consensus That FRE 801(d)(2)(E) Coconspirator Statements Are Not "Testimonial" For Confrontation Clause PurposesMay 20063644
Supreme Court Watch: Whether Crawford Applies Retroactively On Collateral ReviewJune 20063766
Developing Consensus: First Circuit Notes Consensus That Use of Warrant Of Deportation Is Not Testimonial Hearsay Under Crawford July 20063891
Supreme Court Watch: Davis v. Washington And The Scope Of "Testimonial" Hearsay StatementsJuly 20063896
Developing Consensus: Ninth Circuit Notes Consensus With First And Seventh Circuits That Exclusion Of Cross-Examination On Specific Sentence Cooperating Witness Faced Did Not Violate Confrontation ClauseSept. 200631199
Developing Consensus: Seventh Circuit Notes Growing Trend That (a) "Testimonial" Includes Statements "Made With An Eye Toward Prosecution" And (b) Business Records Are Non-TestimonialSept. 200631205
Open Issue: Ninth Circuit Notes Continuing Open Issue Under The Confrontation Clause Whether Ohio v. Roberts Applies To Non-Testimonial StatementsSept. 200631209
Developing Consensus: Sixth Amendment: Confrontation Clause - Eighth Circuit Notes Consensus That Admission Of Certificate Of Nonexistence Of Record (CNR) Is Not Testimonial Under CrawfordDec. 200631658
Open Issue: Sixth Amendment: Confrontation Clause - Second Circuit Notes Open Issue Whether Ohio v. Roberts "Particularized Guarantees Of Trustworthiness" Standard Continues To Apply To Non-Testimonial StatementsNov. 200631533
Supreme Court Watch: Whorton v. Bockting: Supreme Court unanimously holds Crawford Confrontation Clause analysis does not apply retroactively on collateral review, reversing Ninth CircuitMar. 20074315
Developing Consensus: D.C. Circuit Joins Nine Other Circuits In Concluding Crawford Confrontation Clause Analysis Does Not Apply During Sentencing ProceedingsMay 20074637
Developing Consensus: Eighth Circuit Joins Four Other Circuits Concluding Warrants Of Deportation Are Non-Testimonial Under CrawfordMar. 20074 322
Developing Consensus: Tenth Circuit Notes Circuit Consensus To Apply An Objective Test For "Testimonial" Statements Under The Confrontation ClauseFeb. 20074193
Developing Consensus: Seventh Circuit Joins Six Other Circuits Holding That FRE 801(D)(2)(E) Co-Conspirator Statements Are Not Testimonial Under Crawford Dec. 2007 4 1767
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 ClauseNov. 2007 41641
Developing Consensus: Ninth Circuit Adopts A Two-Step De Novo And Abuse Of Discretion Standard Of Review For Confrontation Clause Claims Involving Limitations On Cross-Examination, Joining Five Other Circuits Sept. 2007 41279
Developing Consensus: Six Circuits Have Rejected Claims That The Confrontation Clause Disallows A Relaxed Evidentiary Standard In Federal Capital Sentencing Aug. 2007 4 1108
Developing Consensus: D.C. Circuit Joins Nine Other Circuits In Concluding Crawford Confrontation Clause Analysis Does Not Apply During Sentencing Proceedings May 2007 4 637
Developing Consensus: Tenth Circuit Notes Circuit Consensus To Apply An Objective Test For “Testimonial” Statements Under The Confrontation Clause Feb. 2007 4 193
FRE 103 (Rulings on Evidence)
Developing Consensus: FRE 103: Rulings on Evidence: Sixth Circuit Notes Defendant's Drug Activities Are Admissible Res Gestae Evidence Showing Motive Or Knowledge In A Firearm Possession CaseFeb. 20063204
Open Issues Pending: 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 appealApril 20052255
Practice Tip: Pathways To Waiver On Appeal Under FRE 103(a) (Requiring A Timely "Objection Or Motion To Strike") Apr. 2007 4 447
FRE 103(a) (Effect Of Erroneous Ruling)
Developing Consensus: Ninth 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
Lead Story: Harmless Error Doctrine: Promoting Fair ProceedingsNov.20041201
Practice Tip: FRE 103(a) And The Timeliness Of Evidence ObjectionsNov.200521035
Circuit Split: FRE 103(a): Effect of Erroneous Ruling — Does the cumulative error doctrine extended to civil cases?Aug. 2004117
Developing Consensus: FRE 103. Harmless Error Application: Can A Circuit Rule Sua Sponte On A Harmless Error?Sept. 20052842
Developing Consensus: FRE 103(a): Effect of Erroneous Ruling - Fifth Circuit Notes Consensus On Harmless Error In Confrontation Clause ViolationsOct. 200631408
Practice Tip: Pathways To Waiver On Appeal Under FRE 103(a) (Requiring A Timely "Objection Or Motion To Strike")Apr. 20074447
FRE 103(d) (Plain Error)
Lead Story: 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 TestifyOct. 20052946
FRE 201 (Judicial Notice of Adjudicative Facts)
Lead Story: Taking Judicial Notice - Ten Common Questions on FRE 201May 20052345
Practice Tip: Alternative Ways To Judicially Notice An Adjudicative FactMay 20052351
FRE 301 (Presumptions in General in Civil Actions and Proceedings)
Circuit Split: Third Circuit Notes Division On Standard Of Proof On Established Domicile PresumptionSept. 200631196
Lead Story: FRE 301 & Evidentiary Presumptions: Ten Common Questions & MisconceptionsApr. 20074437
FRE 302 (Applicability of State Law)
Circuit Split: FRE 302: Applicability of State Law - Tenth Circuit Splits With First, Fourth, And Eighth Circuit (And Its Own Precedent), Finding Erie Doctrine Is Inapplicable To The Federal Rules Of EvidenceDec. 200631665
FRE 401 (Definition of "Relevant Evidence")
Developing Consensus: Seventh Circuit Notes Consensus On Considering Dissimilarities In Out-Of-Court Experiment EvidenceApr. 20074458
Lead Story: Admitting Flight And Other Forms Of Consciousness Of Guilt Evidence Sept. 2007 4 1257
FRE 403 (Exclusion of Relevant Evidence on Grounds of Prejudice, Confusion, or Waste of Time)
Practice Tip: Evidentiary Hurdles In Admitting Film, Movie Or Video EvidenceMay 20063630
Practice Tip: Perspectives On The FRE 403 Balance Of The Probative Value Of The Evidence And Unfair PrejudiceJune 20063763
Lead Story: Steps For Avoiding Potential Prejudice, Confusion And Other Problems In Using Law Enforcement Dual Fact and Expert Witnesses Dec. 2007 4 1752
Lead Story: FRE 403: Balancing Probative Value and Unfair Prejudice: Ten Common Questions & Misconceptions Nov. 2007 4 1613
Lead Story: Admitting Flight And Other Forms Of Consciousness Of Guilt Evidence Sept. 2007 4 1257
Circuit Split: Fourth Circuit Notes A Circuit Split Between The Seventh And Ninth Circuits On Whether The Trial Court Must Strictly Apply Specific Factors Under A FRE 403 Analysis Before Admitting Prior Child Molestation Evidence Under FRE 414 Jan. 2008 5 ***
Developing Consensus: Seventh Circuit Notes Circuit Consensus That FRE 413 and 414 Sexual Abuse Propensity Evidence Is Still Excludable Under FRE 403April 2007 4 467
FRE 404(a) (Character Evidence Generally)
Lead Story: An Overview Of The Pending Amendment To FRE 404(a) Concerning The Admissibility Of Character Evidence To Prove ConductJan. 2006320
Practice Tip: Rules Governing Admission Of Reputation Or Opinion Testimony About A Person's CharacterJan. 2006327
FRE 404(b) (Other crimes, wrongs, or acts)
Practice Tip: FRE 404(b): Other Crimes, Wrongs, or ActsApr. 20052249
Developing Consensus: Third Circuit Notes Circuit Agreement That Past Taxpaying Records Properly Admitted To Show Defendant's Intent In Tax Evasion Prosecution Under FRE 404(b)May 20063646
Lead Story: FRE 404(b) Divergent Elements: A Circuit Split Ripe For Certiorari Review?June 20063756
Lead Story: Reverse FRE 404(b) Evidence: Ten Common Questions & MisconceptionsDec. 200631638
Practice Tip: Constitutional Issues In Considering FRE 404(b) EvidenceDec. 200631650
Developing Consensus: Eighth Circuit Joins Fourth, Ninth, And Tenth Circuits Finding That Prior Drunk Driving Convictions Are Admissible Under FRE 404(b) Aug. 2007 4 1111
FRE 405 (Methods of Proving Character)
Developing Consensus: 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 hypotheticalsAug. 2004119
Circuit Split: FRE 407: Subsequent Remedial Measures - Does The FRE 407 Bar Against Evidence Of Subsequent Remedial Measures Apply To Evidence Of Post-Accident Investigations And Tests?Dec. 200631661
Lead Story: The General Bar Against Using Guilt-Assuming Hypothetical Questions And Other Avenues To Question Character Witnesses July 2007 4 951
FRE 407 (Subsequent Remedial Measures)
Developing Consensus: Developing Consensus: Eleventh Circuit Joins Eight Other Circuits In Holding That FRE 407 Does Not Apply To Remedial Measures Taken Without The Defendant’s Voluntary Participation Sept. 2007 4 1279
FRE 408 (Compromise and Offers to Compromise)
Circuit Split: FRE 408: Compromise and Offers to Compromise — Is civil settlement evidence admissible in a criminal fraud trial?Sept. 2004110
Lead Story: An Overview Of The Pending Amendment To FRE 408 Concerning The Admissibility Of Compromise EvidenceDec. 200521135
Practice Tip: FRE 408 (Compromise And Offers To Compromise)Dec. 200521145
Circuit Split: Admission Of Civil Compromise Evidence In Criminal Proceedings Under FRE 408Jan. 2006332
Open Issue: D.C. Circuit Notes Open Issue Concerning Existence Of A Federal Settlement PrivilegeApril 20063456
Circuit Split: Whether Settlement Negotiation Evidence Is Admissible To Show Mitigation Of Damages Under The ":Another Purpose" Exception Under FRE 4084454
Circuit Split: Whether settlement negotiation evidence is admissible to show mitigation of damages under the "another purpose" exception under FRE 408? April 2007 4 454
FRE 410 (Inadmissibility of Pleas, Plea Discussions, and Related Statements)
Practice Tip: Admitting Plea-Related Statements — Recognized Exceptions Under FRE 410March 20052171
Open Issues Pending: 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 20052257
Developing Consensus: FRE 410: Inadmissibility of Pleas - Ninth 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 413 (Evidence of Similar Crimes in Sexual Assault Cases)
Circuit Splits: Seventh Circuit Notes Circuit Division On 5-Factor LeMay Test For Admission Of FRE 413 & FRE 414 Sexual Abuse Predisposition EvidenceApr. 20074450
Developing Consensus: Seventh Circuit Notes Circuit Consensus That FRE 413 And FRE 414 Sexual Abuse Propensity Evidence Is Subject To FRE 403 BalancingApr. 20074467
Circuit Split: Seventh Circuit Notes Circuit Division On Five-Factor LeMay Test For Admission Of FRE 413 And FRE 414 Sexual Abuse Predisposition Evidence April 2007 4 450
Developing Consensus: Seventh Circuit Notes Circuit Consensus That FRE 413 and 414 Sexual Abuse Propensity Evidence Is Still Excludable Under FRE 403 April 2007 4 467
FRE 414 (Evidence of Similar Crimes in Child Molestation Cases)
Circuit Splits: Seventh Circuit Notes Circuit Division On 5-Factor LeMay Test For Admission Of FRE 413 & FRE 414 Sexual Abuse Predisposition EvidenceApr. 20074450
Developing Consensus: Seventh Circuit Notes Circuit Consensus That FRE 413 And FRE 414 Sexual Abuse Propensity Evidence Is Subject To FRE 403 BalancingApr. 20074467
Circuit Split: Fourth Circuit Notes A Circuit Split Between The Seventh And Ninth Circuits On Whether The Trial Court Must Strictly Apply Specific Factors Under A FRE 403 Analysis Before Admitting Prior Child Molestation Evidence Under FRE 414 Jan. 2008 5 48
Circuit Split: Seventh Circuit Notes Circuit Division On Five-Factor LeMay Test For Admission Of FRE 413 And FRE 414 Sexual Abuse Predisposition Evidence April 2007 4 450
Developing Consensus: Seventh Circuit Notes Circuit Consensus That FRE 413 and 414 Sexual Abuse Propensity Evidence Is Still Excludable Under FRE 403 April 2007 4 467
FRE 501 (Privileges — General Rule)
Practice Tip: FRE 501: Exceptions To The Adverse Spousal Testimony PrivilegeJan. 20063202
Lead Story: FRE 501: Adverse Spousal Testimony Privilege: Ten Common Questions & MisconceptionsFeb. 20063194
Lead Story: Government Informant’s Privilege Dec. 20041275
Practice Tip: The Overlap Of The Spousal Testimony Privilege And The Spousal Communications Privilege In The Federal CourtsDec. 20041280
Circuit Split: FRE 501: Attorney Client Privilege — Availability Of The Governmental Attorney-Client PrivilegeMarch 20052175
Open Issues Pending: FRE 501 Privilege — Attorney-Client. Whether A Municipal Corporation Can Assert The Attorney-Client Privilege In Civil LitigationOct. 20052950
Open Issues Resolved: 501 Privilege – Attorney-Client. Sixth Circuit Resolves Whether A Municipal Corporation Can Assert The Attorney-Client Privilege In Civil LitigationOct. 20052950
Circuit Split: FRE 501: Psychotherapist-Patient Privilege — Whether a dangerous-patient exception applies under the federal psychotherapist- patient privilege under FRE 501?Aug. 2004116
Developing Consensus: FRE 501: Marital Communications Privilege — Ninth Circuit joins other circuits in holding either spouse may assert the "marital communications" privilegeOct. 20041143
Lead Story: FRE 501— Spousal Communications Privilege — Ten Common Questions And MisconceptionsMarch 20063307
Practice Tip: Exceptions To The Spousal Communications PrivilegeMarch 20063314
Open Issue: Scope Of Spousal Communication Privilege During An InvestigationApril 20063454
Open Issue: D.C. Circuit Notes Open Issue Concerning Existence Of A Federal Settlement PrivilegeApril 20063456
Open Issue: Tenth 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
Practice Tip:The Attorney-Client Communication Privilege: Common Exceptions And Grounds For UnavailabilityMay 20074630
Open Issue: Third Circuit Considers Whether To Recognize The "Fiduciary Exception" To The Attorney-Client Privilege, Which Is Applied In Several Other CircuitsMay 20074641
OPen Issue: Ninth Circuit Resolves Open Question, Finding Attorney-Client Privilege's Crime Fraud Exception Must Be Shown By A Preponderance Of The EvidenceApr. 20074461
Practice Tip: Implicit Waiver Of The Attorney-Client Privilege Aug. 2007 4 1103
Lead Story: Appellate Jurisdiction Over Trial Court Decisions Denying A Claim Of An Evidentiary Privilege Aug. 2007 4 1088
Open Issue: Third Circuit Considers Whether To Recognize The “Fiduciary Exception” To The Attorney-Client Privilege, Which Is Applied In Several Other Circuits May 2007 4 641
Practice Tip: The Attorney-Client Communications Privilege: Common Exceptions And Grounds For Unavailability May 2007 4 630
Open Issue: Ninth Circuit Resolves Open Questions On Application Of Crime-Fraud Exception To Attorney-Client Privilege April 2007 4 461
Lead Story: Status Of The Journalist’s Privilege In the Federal Courts And Recent Congressional Activity Jan. 2008 5 20
FRE 502 (Proposed Attorney-Client Privilege and Work Product; Limitations on Waiver)
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 PromulgatedJan. 2007425
Lead Story:Is The Time Ripe For Adoption Of A Rule Of Selective Waiver Of The Attorney Client Privilege And Work Product Protection?Aug. 200631040
FRE 601 (General Rule of Competency)
Practice Tip: Evidence Of Witness’s Mental Or Sensory ImpairmentJan. 2007438
Lead Story: Practice Tip: FRE 601, Witness Competency, And Choice Of Law In Federal CourtAug. 20052703
FRE 603 (Oath or Affirmation)
Open Issue: Seventh 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 606(b) (Competency of Juror as Witness - Inquiry into Validity of Verdict)
Developing Consensus: Unless Learned Through Improper Channels, Jury Discussion Of The Defendant's Failure To Testify Is Not Reviewable Under FRE 606(b)Sept. 200631203
FRE 609 (Impeachment by Evidence of Conviction of Crime)
Lead Story: Pending FRE 609(a)(2) Amendment: Seeking To Clarify Mandatory Impeachment Of Convictions Involving "Dishonesty Or False Statement"Oct. 20052938
FRE 614 (Calling and Interrogation of Witnesses)
Practice Tip: Factors To Assess When Court Interrogation, under FRE 614, Is ImpermissibleMar. 20074309
Practice Tip: Factors To Assess When Court Interrogation Is Impermissible March 2007 4 309
FRE 615 (Exclusion of Witnesses)
Circuit Split: 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. 20041140
Developing Consensus: 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 20052253
Lead Story:FRE 615: Ten Common Questions & MisconceptionsNov. 200631518
Enforcing FRE 615 Witness Exclusion OrdersNov. 200631526
Developing Consensus: Tenth Circuit Joins Nine Circuits And Holds That Case Agent Responsible For An Investigation May Remain In The Courtroom Under FRE 615(2) And Normally Is Not Subject To A Witness Exclusion Rule Nov. 2007 4 1637
FRE 701 (Opinion Testimony by Lay Witnesses)
Lead Story: FRE 701 (Lay Witness Opinion Testimony) — Ten Common Questions & MisconceptionsJuly 20063873
Practice Tip: The Intersection Of FRE 701 Lay Opinion Evidence With Other RulesJuly 200638812
Lead Story: Steps For Avoiding Potential Prejudice, Confusion And Other Problems In Using Law Enforcement Dual Fact and Expert Witnesses Dec. 2007 4 1752
Practice Tip: Admitting Law Enforcement Lay Opinion Identification Testimony Oct. 2007 4 1487
FRE 702 (Testimony by Experts)
Lead Story: Common Evidence Issues Raised By Psychological Expert Evidence In Criminal CasesJuly 20052567
Lead Story: Expert Eyewitness Identification: Common Grounds For Assessing AdmissibilityJune 20052448
Developing Consensus: FRE 702: Testimony By Experts. Does Fingerprint Evidence Satisfy The Requirements Of Daubert?May 20052353
Other Significant Evidence Cases: Fed. R. Civ. P. 45(c) Protection of Persons Subject to Subpoena — Excluding expert witness in copyright infringement action after expert refused to be deposedJan. 2005271
Developing Consensus: Handwriting Identification Satisfies FRE 702 Reliability StandardsJan. 2006339
Developing Consensus: Tenth Circuit Notes Trend Rendering Eyewitness Identification Expert Evidence Neither Pre Se Excludable, Nor Readily AdmissibleJuly 20063893
Lead Story:Seven Key Principles For Qualifying An Expert Under FRE 702Oct. 200631391
Developing Consensus: 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
Lead Story: Steps For Avoiding Potential Prejudice, Confusion And Other Problems In Using Law Enforcement Dual Fact and Expert Witnesses Dec. 2007 4 1752
FRE 703 (Bases Of Expert Opinion Testimony)
Lead Story: FRE 703 (Bases of Expert Opinion Testimony) — Ten Common Questions & MisconceptionsSept. 200631183
Practice Tip: The Intersection Of FRE 703 (Bases Of Expert Opinion) With Other Evidence RulesSept. 200631192
FRE 704(a) (Compromise on Ultimate Issue)
Open Issues Pending: 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 20052258
FRE 704(b) (Compromise on Ultimate Issue)
Lead Story: Common Evidence Issues Raised By Psychological ExpertJuly 20052567
Circuit Split: Eleventh Circuit Notes Different Application Of FRE 704(b) For Admission Of Expert Testimony On Knowledge Of Presence Of DrugsApril 20063450
FRE 706 (Court Appointed Experts)
Developing Consensus: D.C. Circuit joins three other circuits in adopting an abuse of discretion standard of review for a court-appointed expert under FRE 706Mar. 20074320
Open Issue: Sixth Circuit notes open issue under FRE 706 whether "court appointed experts" may include class settlement administratorsMar. 20074326
Developing Consensus: D.C. Circuit Joins Three Other Circuits In Adopting An Abuse Of Discretion Standard Of Review For A Court-Appointed Expert Under FRE 706 March 2007 4 320
FRE 801(c) (Hearsay)
Lead Story: Non-Hearsay Statements and Examples: When is a Statement Hearsay and When is it Non-Hearsay?Feb. 2005294
Open Issue: Sixth Circuit Notes Post-Crawford And Post-Booker Question Concerning Use Of Hearsay At SentencingMarch 20063320
Lead Story: Using Non-Hearsay To Admit Statements In Documents And Connect Key Evidence May 2007 4 617
FRE 801(d)(1)(A) (Prior Inconsistent Statement)
Practice Tip: Admitting A Prior Inconsistent Statement When FRE 801(d)(1)(A) is UnavailableFeb. 20052100
FRE 801(d)(1)(B) (Prior Consistent Statement)
Developing Consensus: FRE 801(d)(1)(B): Prior Consistent Statement - Third 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
FRE 801(d)(2) (Admission By Party-Opponent)
Lead Story: 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 TestifyOct. 20052946
FRE 801(d)(2) (Admission By Party-Opponent)
Lead Story: 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 TestifyOct. 20052946
Circuit Split: 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 20052459
FRE 801(d)(2)(B) (Adoptive Admissions)
Developing Consensus: Possession of Documents as an Adoptive Admission — Tenth Circuit joins First and Ninth Circuits in adopting "possession plus" standard for adoptive admissions for documentsSept. 2004112
FRE 801(d)(2)(D) (Party's Agent)
Practice Tip: FRE 801(d)(2)(D) And Alternative Grounds To Admit Statements Of A Party’s Agent Nov. 2007 4 1632
FRE 801(d)(2)(E) (Coconspirator Statements)
Open Issues Pending: 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. WashingtonJan. 2005219
Developing Consensus: Eleventh Circuit Finds Consensus That FRE 801(d)(2)(E) Coconspirator Statements Are Not "Testimonial" For Confrontation Clause PurposesMay 20063644
Developing Consensus: Seventh Circuit Joins Six Other Circuits Holding That FRE 801(D)(2)(E) Co-Conspirator Statements Are Not Testimonial Under Crawford Dec. 2007 4 1767
Practice Tip: FRE 801(d)(2)(E) And Alternative Grounds To Admit Co-Conspirator Statements Sept. 2007 4 1273
Practice Tip: FRE 801(d)(2)(E) And Alternative Grounds To Admit Co-Conspirator Statements July 2007 4 961
Practice Tip: Statements Involving Arrested Co-Conspirators Under FRE 801(d)(2)(E) June 2007 4 806
FRE 802 (Hearsay Rule)
Lead Story: FRE 802 (Hearsay Rule) — Using Non-Hearsay To Admit Statements In Documents And Connect Key EvidenceMay 20074617
FRE 803(4)(Statements For Purposes Of Medical Diagnosis Or Treatment)
Circuit Split: 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. 20041205
Developing Consensus: Does The Medical Diagnosis Statement Hearsay Exception Include Statements Made To A Non-Physician?Sept. 20052839
FRE 803(6)(Records of Regularly Conducted Activity)
Practice Tip: FRE 803(6): Business RecordAug. 2004114
Open Issue: Ninth Circuit Notes Open Issue Whether The Confrontation Clause Is Violated By Admission Of Foreign Business Records Under 18 U.S.C. § 3505March 20063324
Developing Consensus: D.C. Circuit Joins Four Other Circuits In Holding Records In Which A Firm Takes Custody Are "Made" By the Firm And Are Admissible As Business Records Assuming Other Requirements Under FRE 803(6) Are Satisfied Jan. 2008 5 44
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 Nov. 2007 4 1641
FRE 804(a)(Hearsay Exceptions; Declarant Unavailable)
Open Issue: Ninth Circuit Adopts First Circuit Standard That FRE 804(a)(5) Requires The Proponent Of An Unavailable Witness’s Statement Show It Tried To Prevent Witness From Becoming Absent Sept. 2007 4 1283
FRE 804(b)(6)(Forfeiture By Wrongdoing)
Practice Tip: Forfeiting The Right To Object To Hearsay Under FRE 804(b)(6) Forfeiture By WrongdoingJune 20052457
Lead Story: Proposed Amendments To FRE 804(b)(6) (Forfeiture By Wrongdoing)June 20074791
FRE 807(Residual Exception)
Lead Story: FRE 807 — Residual Hearsay Statement — Ten Common Questions and MisconceptionsJan. 2005212
FRE 901 (Requirement of Authentication)
Practice Tip: Authentication Procedures Outside The Federal Rules Of EvidenceApril 20063443
Practice Tip: Proving FDIC CoverageOct. 200631401
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 Nov. 2007 4 1641
FRE 901 (b)(1)(Testimony of Witness With Knowledge)
Practice Tip: FRE 901 Authentication And Identification (Special Application: Telephone Conversations)Sept. 20052826
Practice Tip: FRE 901 Authentication And Identification (Special Application: Photographs)Jan. 2005216
Practice Tip: FRE 901 Authentication And Identification (Special Application: Handwriting)Nov. 20041203
FRE 901(b)(2) (Nonexpert Opinion on Handwriting)
Practice Tip: FRE 901: Authentication And Identification (Special Application: Handwriting)Nov. 20041203
FRE 901(b)(3) (Comparison By Trier or Expert Witness)
Practice Tip: FRE 901: Authentication And Identification (Special Application: Handwriting)Nov. 20041203
FRE 901(b)(5) (Voice Identification)
Practice Tip: FRE 901 Authentication And Identification (Special Application: Telephone Conversations)Sept. 20052836
FRE 901(b)(6)( Telephone Conversations)
Practice Tip: FRE 901 Authentication And Identification (Special Application: Telephone Conversations)Sept. 20052836
FRE 1001(2) (Definitions - Photographs)
Practice Tip: Evidentiary Hurdles In Admitting Film, Movie Or Video EvidenceMay 20063630
FRE 1002(Requirement of Original)
Practice Tip: FRE 1002: Requirement of Original (Best Evidence Rule)Oct. 20041138
FRE 1006(Summaries)
Developing Consensus: First Circuit Joins Other Circuits in Holding a Summary Under FRE 1006 Can Be Based Upon Evidence Admitted At TrialJan. 2007442
Practice Tip: Alternative Ways to Admit Charts or Summaries When FRE 1006 is UnavailableSept. 200418
FRE 1101(d)(3)(Miscellaneous Proceedings)
Developing Consensus: Do The FRE Apply To Juvenile Transfer Proceedings?June 20052642
Other Rules: Fed. R. Civ. P. 45(c) (Protection of Persons Subject to Subpoena)
Other Significant Evidence Cases: Excluding expert witness in copyright infringement action after expert refused to be deposedJan. 2005271
Other Significant Evidence Cases: 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 shown
June 20063841
Other Significant Evidence Cases: Fed.R.Civ. P. 16: Disclosure - Exclusion of expert evidence because of disclousre over four weeks after disclosure deadlineOct. 200631490
Statutes
Open Issues Resolved: 18 U.S.C. § 3153 (Pretrial Services) — Second Circuit resolves open issue whether pretrial Service Report statements may be used to impeach a defendantNov. 20041206
Other Significant Evidence Issues: 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 personAug. 2004172
Open Issue: Ninth Circuit Notes Open Issue Whether The Confrontation Clause Is Violated By Admission Of Foreign Business Records Under 18 U.S.C. § 3505March 20063324
Other Significant Evidence Cases: 18 U.S.C. § 3505: Foreign Business Records - Foreign certification of school exam records admissible as foreign business recordsOct. 200631492

Federal Evidence Review Rule Index

Rule 502 section