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 on the Order Past Issues 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 Production | Oct. 2004 | 1 | 148 |
| Circuit Split: Fifth Amendment: Right Against Self-Incrimination — Does Use Of Post-Arrest, Pre-Miranda Silence Violate The Right Against Self-Incrimination? | Feb. 2005 | 2 | 102 |
| Sixth Amendment | |||
| Lead Story: After Crawford v. Washington: Early observations on the admissibility of evidence under the Confrontation Clause | Sept. 2004 | 1 | 83 |
| Circuit Split: Sixth Amendment — Confrontation Clause — Whether 911 telephone calls are "testimonial" under Crawford ? | Nov. 2005 | 2 | 1041 |
| Developing Consensus: Sixth Amendment: Confrontation Clause — First Cases — Crawford does not apply retroactively on collateral review | Jan. 2005 | 2 | 17 |
| 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. Washington | Jan. 2005 | 2 | 19 |
| Developing Consensus: Crawford Does Not Apply At Sentencing | Dec. 2005 | 2 | 1148 |
| Developing Consensus: A Warrant Of Deportation Is "Non-Testimonial" Under Crawford | Dec. 2005 | 2 | 1149 |
| Developing Consensus: First Circuit Joins Four Other Circuits In Concluding Crawford Confrontation Clause Analysis Does Not Apply During Supervised Release Proceedings | Dec. 2005 | 2 | 1150 |
| Developing Consensus: D.C. Circuit Notes Other Circuits Reject Application Of Crawford's Limitation On "Testimonial Hearsay" In Parole Proceedings | Jan. 2006 | 3 | 36 |
| Open Issue: Fifth Circuit Notes Open Issue Whether Crawford Confrontation Clause Case Applies Retroactively | Jan. 2006 | 3 | 47 |
| 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. 2006 | 3 | 208 |
| Circuit Split: Eleventh Circuit Suggests Crawford Confrontation Clause Decision Does Not Apply Retroactively On Collateral Review | March 2006 | 3 | 317 |
| 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 Rights | March 2006 | 3 | 319 |
| Open Issue: Sixth Circuit Notes Post-Crawford And Post-Booker Question Concerning Use Of Hearsay At Sentencing | March 2006 | 3 | 320 |
| Open Issue: Ninth Circuit Notes Open Issue Whether The Confrontation Clause Is Violated By Admission Of Foreign Business Records Under 18 U.S.C. § 3505 | March 2006 | 3 | 324 |
| Lead Story: Sixth Amendment Confrontation Clause Rights And Video Conferencing — Struggling Or Stumbling Into The Twenty-First Century? | April 2006 | 3 | 433 |
| Circuit Split: Must Non-Testimonial Hearsay Statements Satisfy The Ohio v. Roberts Confrontation Clause Requirement? | April 2006 | 3 | 447 |
| Developing Consensus: Fifth Circuit Joins Ninth And Eleventh Circuits Finding Immigration File Documents To Be Non-Testimonial Hearsay | April 2006 | 3 | 452 |
| Lead Story: Further Observations On Admitting Evidence Under The Confrontation Clause Two Years After Crawford v. Washington | May 2006 | 3 | 617 |
| Circuit Split: Eleventh Circuit Notes Circuit Split And Joins Four Other Circuits In Holding Crawford Does Not Apply Retroactively On Collateral Review | May 2006 | 3 | 637 |
| 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 Clause | May 2006 | 3 | 640 |
| Developing Consensus: Eleventh Circuit Finds Consensus That FRE 801(d)(2)(E) Coconspirator Statements Are Not "Testimonial" For Confrontation Clause Purposes | May 2006 | 3 | 644 |
| Supreme Court Watch: Whether Crawford Applies Retroactively On Collateral Review | June 2006 | 3 | 766 |
| Developing Consensus: First Circuit Notes Consensus That Use of Warrant Of Deportation Is Not Testimonial Hearsay Under Crawford | July 2006 | 3 | 891 |
| Supreme Court Watch: Davis v. Washington And The Scope Of "Testimonial" Hearsay Statements | July 2006 | 3 | 896 |
| 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 Clause | Sept. 2006 | 3 | 1199 |
| Developing Consensus: Seventh Circuit Notes Growing Trend That (a) "Testimonial" Includes Statements "Made With An Eye Toward Prosecution" And (b) Business Records Are Non-Testimonial | Sept. 2006 | 3 | 1205 |
| Open Issue: Ninth Circuit Notes Continuing Open Issue Under The Confrontation Clause Whether Ohio v. Roberts Applies To Non-Testimonial Statements | Sept. 2006 | 3 | 1209 |
| Developing Consensus: Sixth Amendment: Confrontation Clause - Eighth Circuit Notes Consensus That Admission Of Certificate Of Nonexistence Of Record (CNR) Is Not Testimonial Under Crawford | Dec. 2006 | 3 | 1658 |
| 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 Statements | Nov. 2006 | 3 | 1533 |
| Supreme Court Watch: Whorton v. Bockting: Supreme Court unanimously holds Crawford Confrontation Clause analysis does not apply retroactively on collateral review, reversing Ninth Circuit | Mar. 2007 | 4 | 315 |
| 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: Eighth Circuit Joins Four Other Circuits Concluding Warrants Of Deportation Are Non-Testimonial Under Crawford | Mar. 2007 | 4 | 322 |
| Developing Consensus: Tenth Circuit Notes Circuit Consensus To Apply An Objective Test For "Testimonial" Statements Under The Confrontation Clause | Feb. 2007 | 4 | 193 |
| 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 Clause | Nov. 2007 | 4 | 1641 |
| 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 | 4 | 1279 |
| 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 Case | Feb. 2006 | 3 | 204 |
| 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 appeal | April 2005 | 2 | 255 |
| 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 Trial | Jan. 2006 | 3 | 43 |
| Lead Story: Harmless Error Doctrine: Promoting Fair Proceedings | Nov.2004 | 1 | 201 |
| Practice Tip: FRE 103(a) And The Timeliness Of Evidence Objections | Nov.2005 | 2 | 1035 |
| Circuit Split: FRE 103(a): Effect of Erroneous Ruling — Does the cumulative error doctrine extended to civil cases? | Aug. 2004 | 1 | 17 |
| Developing Consensus: FRE 103. Harmless Error Application: Can A Circuit Rule Sua Sponte On A Harmless Error? | Sept. 2005 | 2 | 842 |
| Developing Consensus: FRE 103(a): Effect of Erroneous Ruling - Fifth Circuit Notes Consensus On Harmless Error In Confrontation Clause Violations | Oct. 2006 | 3 | 1408 |
| 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(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 Testify | Oct. 2005 | 2 | 946 |
| FRE 201 (Judicial Notice of Adjudicative Facts) | |||
| Lead Story: Taking Judicial Notice - Ten Common Questions on FRE 201 | May 2005 | 2 | 345 |
| Practice Tip: Alternative Ways To Judicially Notice An Adjudicative Fact | May 2005 | 2 | 351 |
| FRE 301 (Presumptions in General in Civil Actions and Proceedings) | |||
| Circuit Split: Third Circuit Notes Division On Standard Of Proof On Established Domicile Presumption | Sept. 2006 | 3 | 1196 |
| Lead Story: FRE 301 & Evidentiary Presumptions: Ten Common Questions & Misconceptions | Apr. 2007 | 4 | 437 |
| 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 Evidence | Dec. 2006 | 3 | 1665 |
| FRE 401 (Definition of "Relevant Evidence") | |||
| Developing Consensus: Seventh Circuit Notes Consensus On Considering Dissimilarities In Out-Of-Court Experiment Evidence | Apr. 2007 | 4 | 458 |
| 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 Evidence | May 2006 | 3 | 630 |
| Practice Tip: Perspectives On The FRE 403 Balance Of The Probative Value Of The Evidence And Unfair Prejudice | June 2006 | 3 | 763 |
| 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 403 | April 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 Conduct | Jan. 2006 | 3 | 20 |
| Practice Tip: Rules Governing Admission Of Reputation Or Opinion Testimony About A Person's Character | Jan. 2006 | 3 | 27 |
| FRE 404(b) (Other crimes, wrongs, or acts) | |||
| Practice Tip: FRE 404(b): Other Crimes, Wrongs, or Acts | Apr. 2005 | 2 | 249 |
| 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 2006 | 3 | 646 |
| Lead Story: FRE 404(b) Divergent Elements: A Circuit Split Ripe For Certiorari Review? | June 2006 | 3 | 756 |
| Lead Story: Reverse FRE 404(b) Evidence: Ten Common Questions & Misconceptions | Dec. 2006 | 3 | 1638 |
| Practice Tip: Constitutional Issues In Considering FRE 404(b) Evidence | Dec. 2006 | 3 | 1650 |
| 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 hypotheticals | Aug. 2004 | 1 | 19 |
| 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. 2006 | 3 | 1661 |
| 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. 2004 | 1 | 10 |
| Lead Story: An Overview Of The Pending Amendment To FRE 408 Concerning The Admissibility Of Compromise Evidence | Dec. 2005 | 2 | 1135 |
| Practice Tip: FRE 408 (Compromise And Offers To Compromise) | Dec. 2005 | 2 | 1145 |
| Circuit Split: Admission Of Civil Compromise Evidence In Criminal Proceedings Under FRE 408 | Jan. 2006 | 3 | 32 |
| Open Issue: D.C. Circuit Notes Open Issue Concerning Existence Of A Federal Settlement Privilege | April 2006 | 3 | 456 |
| Circuit Split: Whether Settlement Negotiation Evidence Is Admissible To Show Mitigation Of Damages Under The ":Another Purpose" Exception Under FRE 408 | | 4 | 454 | |
| 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 410 | March 2005 | 2 | 171 |
| 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 2005 | 2 | 257 |
| 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 Crime | Nov. 2006 | 3 | 1529 |
| 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 Evidence | Apr. 2007 | 4 | 450 |
| Developing Consensus: Seventh Circuit Notes Circuit Consensus That FRE 413 And FRE 414 Sexual Abuse Propensity Evidence Is Subject To FRE 403 Balancing | Apr. 2007 | 4 | 467 |
| 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 Evidence | Apr. 2007 | 4 | 450 |
| Developing Consensus: Seventh Circuit Notes Circuit Consensus That FRE 413 And FRE 414 Sexual Abuse Propensity Evidence Is Subject To FRE 403 Balancing | Apr. 2007 | 4 | 467 |
| 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 Privilege | Jan. 2006 | 3 | 202 |
| Lead Story: FRE 501: Adverse Spousal Testimony Privilege: Ten Common Questions & Misconceptions | Feb. 2006 | 3 | 194 |
| Lead Story: Government Informant’s Privilege | Dec. 2004 | 1 | 275 |
| Practice Tip: The Overlap Of The Spousal Testimony Privilege And The Spousal Communications Privilege In The Federal Courts | Dec. 2004 | 1 | 280 |
| Circuit Split: FRE 501: Attorney Client Privilege — Availability Of The Governmental Attorney-Client Privilege | March 2005 | 2 | 175 |
| Open Issues Pending: FRE 501 Privilege — Attorney-Client. Whether A Municipal Corporation Can Assert The Attorney-Client Privilege In Civil Litigation | Oct. 2005 | 2 | 950 |
| Open Issues Resolved: 501 Privilege – Attorney-Client. Sixth Circuit Resolves Whether A Municipal Corporation Can Assert The Attorney-Client Privilege In Civil Litigation | Oct. 2005 | 2 | 950 |
| Circuit Split: FRE 501: Psychotherapist-Patient Privilege — Whether a dangerous-patient exception applies under the federal psychotherapist- patient privilege under FRE 501? | Aug. 2004 | 1 | 16 |
| Developing Consensus: FRE 501: Marital Communications Privilege — Ninth Circuit joins other circuits in holding either spouse may assert the "marital communications" privilege | Oct. 2004 | 1 | 143 |
| Lead Story: FRE 501— Spousal Communications Privilege — Ten Common Questions And Misconceptions | March 2006 | 3 | 307 |
| Practice Tip: Exceptions To The Spousal Communications Privilege | March 2006 | 3 | 314 |
| Open Issue: Scope Of Spousal Communication Privilege During An Investigation | April 2006 | 3 | 454 |
| Open Issue: D.C. Circuit Notes Open Issue Concerning Existence Of A Federal Settlement Privilege | April 2006 | 3 | 456 |
| 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 So | July 2006 | 3 | 885 |
| Practice Tip:The Attorney-Client Communication Privilege: Common Exceptions And Grounds For Unavailability | May 2007 | 4 | 630 |
| 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 |
| OPen Issue: Ninth Circuit Resolves Open Question, Finding Attorney-Client Privilege's Crime Fraud Exception Must Be Shown By A Preponderance Of The Evidence | Apr. 2007 | 4 | 461 |
| 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 Promulgated | Jan. 2007 | 4 | 25 |
| Lead Story:Is The Time Ripe For Adoption Of A Rule Of Selective Waiver Of The Attorney Client Privilege And Work Product Protection? | Aug. 2006 | 3 | 1040 |
| FRE 601 (General Rule of Competency) | |||
| Practice Tip: Evidence Of Witness’s Mental Or Sensory Impairment | Jan. 2007 | 4 | 38 |
| Lead Story: Practice Tip: FRE 601, Witness Competency, And Choice Of Law In Federal Court | Aug. 2005 | 2 | 703 |
| 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 requirement | Mar. 2007 | 4 | 324 |
| 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. 2006 | 3 | 1203 |
| 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. 2005 | 2 | 938 |
| FRE 614 (Calling and Interrogation of Witnesses) | |||
| Practice Tip: Factors To Assess When Court Interrogation, under FRE 614, Is Impermissible | Mar. 2007 | 4 | 309 |
| 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. 2004 | 1 | 140 |
| 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 2005 | 2 | 253 |
| Lead Story:FRE 615: Ten Common Questions & Misconceptions | Nov. 2006 | 3 | 1518 |
| Nov. 2006 | 3 | 1526 | |
| 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 & Misconceptions | July 2006 | 3 | 873 |
| Practice Tip: The Intersection Of FRE 701 Lay Opinion Evidence With Other Rules | July 2006 | 3 | 8812 |
| 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 Cases | July 2005 | 2 | 567 |
| Lead Story: Expert Eyewitness Identification: Common Grounds For Assessing Admissibility | June 2005 | 2 | 448 |
| Developing Consensus: FRE 702: Testimony By Experts. Does Fingerprint Evidence Satisfy The Requirements Of Daubert? | May 2005 | 2 | 353 |
| 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 deposed | Jan. 2005 | 2 | 71 |
| Developing Consensus: Handwriting Identification Satisfies FRE 702 Reliability Standards | Jan. 2006 | 3 | 39 |
| Developing Consensus: Tenth Circuit Notes Trend Rendering Eyewitness Identification Expert Evidence Neither Pre Se Excludable, Nor Readily Admissible | July 2006 | 3 | 893 |
| Lead Story:Seven Key Principles For Qualifying An Expert Under FRE 702 | Oct. 2006 | 3 | 1391 |
| 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 403 | Oct. 2006 | 3 | 1412 |
| 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 & Misconceptions | Sept. 2006 | 3 | 1183 |
| Practice Tip: The Intersection Of FRE 703 (Bases Of Expert Opinion) With Other Evidence Rules | Sept. 2006 | 3 | 1192 |
| 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 2005 | 2 | 258 |
| FRE 704(b) (Compromise on Ultimate Issue) | |||
| Lead Story: Common Evidence Issues Raised By Psychological Expert | July 2005 | 2 | 567 |
| Circuit Split: Eleventh Circuit Notes Different Application Of FRE 704(b) For Admission Of Expert Testimony On Knowledge Of Presence Of Drugs | April 2006 | 3 | 450 |
| 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 706 | Mar. 2007 | 4 | 320 |
| Open Issue: Sixth Circuit notes open issue under FRE 706 whether "court appointed experts" may include class settlement administrators | Mar. 2007 | 4 | 326 |
| 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. 2005 | 2 | 94 |
| Open Issue: Sixth Circuit Notes Post-Crawford And Post-Booker Question Concerning Use Of Hearsay At Sentencing | March 2006 | 3 | 320 |
| 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 Unavailable | Feb. 2005 | 2 | 100 |
| 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. 2006 | 3 | 1654 |
| 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 Testify | Oct. 2005 | 2 | 946 |
| 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 Testify | Oct. 2005 | 2 | 946 |
| 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 2005 | 2 | 459 |
| 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 documents | Sept. 2004 | 1 | 12 |
| 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. Washington | Jan. 2005 | 2 | 19 |
| Developing Consensus: Eleventh Circuit Finds Consensus That FRE 801(d)(2)(E) Coconspirator Statements Are Not "Testimonial" For Confrontation Clause Purposes | May 2006 | 3 | 644 |
| 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 Evidence | May 2007 | 4 | 617 |
| 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. 2004 | 1 | 205 |
| Developing Consensus: Does The Medical Diagnosis Statement Hearsay Exception Include Statements Made To A Non-Physician? | Sept. 2005 | 2 | 839 |
| FRE 803(6)(Records of Regularly Conducted Activity) | |||
| Practice Tip: FRE 803(6): Business Record | Aug. 2004 | 1 | 14 |
| Open Issue: Ninth Circuit Notes Open Issue Whether The Confrontation Clause Is Violated By Admission Of Foreign Business Records Under 18 U.S.C. § 3505 | March 2006 | 3 | 324 |
| 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 Wrongdoing | June 2005 | 2 | 457 |
| Lead Story: Proposed Amendments To FRE 804(b)(6) (Forfeiture By Wrongdoing) | June 2007 | 4 | 791 |
| FRE 807(Residual Exception) | |||
| Lead Story: FRE 807 — Residual Hearsay Statement — Ten Common Questions and Misconceptions | Jan. 2005 | 2 | 12 |
| FRE 901 (Requirement of Authentication) | |||
| Practice Tip: Authentication Procedures Outside The Federal Rules Of Evidence | April 2006 | 3 | 443 |
| Practice Tip: Proving FDIC Coverage | Oct. 2006 | 3 | 1401 |
| 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. 2005 | 2 | 826 |
| Practice Tip: FRE 901 Authentication And Identification (Special Application: Photographs) | Jan. 2005 | 2 | 16 |
| Practice Tip: FRE 901 Authentication And Identification (Special Application: Handwriting) | Nov. 2004 | 1 | 203 |
| FRE 901(b)(2) (Nonexpert Opinion on Handwriting) | |||
| Practice Tip: FRE 901: Authentication And Identification (Special Application: Handwriting) | Nov. 2004 | 1 | 203 |
| FRE 901(b)(3) (Comparison By Trier or Expert Witness) | |||
| Practice Tip: FRE 901: Authentication And Identification (Special Application: Handwriting) | Nov. 2004 | 1 | 203 |
| FRE 901(b)(5) (Voice Identification) | |||
| Practice Tip: FRE 901 Authentication And Identification (Special Application: Telephone Conversations) | Sept. 2005 | 2 | 836 |
| FRE 901(b)(6)( Telephone Conversations) | |||
| Practice Tip: FRE 901 Authentication And Identification (Special Application: Telephone Conversations) | Sept. 2005 | 2 | 836 |
| FRE 1001(2) (Definitions - Photographs) | |||
| Practice Tip: Evidentiary Hurdles In Admitting Film, Movie Or Video Evidence | May 2006 | 3 | 630 |
| FRE 1002(Requirement of Original) | |||
| Practice Tip: FRE 1002: Requirement of Original (Best Evidence Rule) | Oct. 2004 | 1 | 138 |
| FRE 1006(Summaries) | |||
| Developing Consensus: First Circuit Joins Other Circuits in Holding a Summary Under FRE 1006 Can Be Based Upon Evidence Admitted At Trial | Jan. 2007 | 4 | 42 |
| Practice Tip: Alternative Ways to Admit Charts or Summaries When FRE 1006 is Unavailable | Sept. 2004 | 1 | 8 |
| FRE 1101(d)(3)(Miscellaneous Proceedings) | |||
| Developing Consensus: Do The FRE Apply To Juvenile Transfer Proceedings? | June 2005 | 2 | 642 |
| 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 deposed | Jan. 2005 | 2 | 71 |
| 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 2006 | 3 | 841 |
| Other Significant Evidence Cases: Fed.R.Civ. P. 16: Disclosure - Exclusion of expert evidence because of disclousre over four weeks after disclosure deadline | Oct. 2006 | 3 | 1490 |
| 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 defendant | Nov. 2004 | 1 | 206 |
| 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 person | Aug. 2004 | 1 | 72 |
| Open Issue: Ninth Circuit Notes Open Issue Whether The Confrontation Clause Is Violated By Admission Of Foreign Business Records Under 18 U.S.C. § 3505 | March 2006 | 3 | 324 |
| Other Significant Evidence Cases: 18 U.S.C. § 3505: Foreign Business Records - Foreign certification of school exam records admissible as foreign business records | Oct. 2006 | 3 | 1492 |
