The Subject Index alphabetically lists particular topics covered in past issues of the Federal Evidence Review. Past issues can be ordered upon request by e-mail from the Contact Page.

Jump to a letter: A B C D E F G H I J K L M N O P Q R S T U V W X Y Z

Article Issue Volume No. Page No.
A
Abuse of Discretion
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: 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
Admission
Practice Tip: FRE 801(d)(2)(D) And Alternative Grounds To Admit Statements Of A Party’s AgentNov. 200741632
Practice Tip: FRE 801(d)(2)(C) And Alternative Grounds To Admit Statements Of An Authorized PartyDec. 200741764
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
Developing Consensus: FRE 801(d)(2)(B): Possession of Documents as an Adoptive Admission – Tenth Circuit joins First and Ninth Circuits in adopting "possession plus" standard for adoptive admissions for documentsSept. 2004191
Other Significant Evidence Cases: 18 U.S.C. § 3505: Foreign Business Records - Foreign certification of school exam records admissible as foreign business recordsOct. 200631492
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
Practice Tip: FRE 801(d)(2)(D) And Alternative Grounds To Admit Statements Of A Party’s Agent Nov. 2007 4 1632
Practice Tip: FRE 801(d)(2)(C) And Alternative Grounds To Admit Statements Of An Authorized Party Dec. 2007 4 1764
Circuit Split: Rule 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
Developing Consensus: Federal Rule of Evidence 801(d)(2)(B): 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 91
Practice Tip: FRE 801(d)(1)(B) And Alternative Grounds To Admit Prior Statements July 2007 4 961
Adoptive Admission
Practice Tip: FRE 801(d)(1)(B) And Alternative Grounds To Admit Prior Statements July 2007 4 961
Affirmation
Open Issue:Whether Trial Counsel Can Waive The Oath Or Affirmation Requirement Under FRE 603 Or The Defendant Must Personally Waive The Requirement?Mar. 20074324
Against A Party
Practice Tip: 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
Agent
Practice Tip:FRE 801(d)(2)(D) And Alternative Grounds To Admit Statements Of A Party’s AgentNov. 200741632
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 RuleNov. 200741637
Amendment
Lead Story:Proposed Amendments To FRE 804(b)(6) (Forfeiture By Wrongdoing)June 20074791
Appeal
Lead Story:Appellate Jurisdiction Over Trial Court Decisions Denying A Claim Of An Evidentiary PrivilegeAug. 200741088
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
Arrest
Practice Tip:Statements Involving Arrested Co-Conspirators Under FRE 801(d)(2)(E) June 20074806
Asylum
Developing Consensus:Ninth Circuit Notes Trend Of Allowing Document Authentication In Asylum Proceedings By Other Than Official Government CertificationDec. 200741772
Attorney-Client Privilege
Practice Tip:Implicit Waiver Of The Attorney-Client PrivilegeAug. 200741103
Open Issues:Third Circuit Considers Whether To Recognize The “Fiduciary Exception” To The Attorney-Client Privilege, Which Is Applied In Several Other CircuitsMay 20074641
Practice Tip: The Attorney-Client Communications Privilege: Common Exceptions And Grounds For UnavailabilityMay 20074630
Open Issue:Ninth Circuit Resolves Open Questions On Application Of Crime-Fraud Exception To Attorney-Client PrivilegeApril 20074461
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
Circuit Split: FRE 501: Attorney-Client Privilege – Availability Of The Governmental Attorney-Client PrivilegeMarch 20052175
Open Issues: 501 Privileges – Attorney-Client – Sixth Circuit Resolves Whether A Municipal Corporation Can Assert The Attorney-Client Privilege In Civil LitigationOct. 20052950
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
Authentication
Developing Consensus:Ninth Circuit Notes Trend Of Allowing Document Authentication In Asylum Proceedings By Other Than Official Government CertificationDec. 200741772
Open Issues: Fifth Circuit Holds That Grand Jury Testimony May Be Used As A Foundation For Authentication Of Business Records And Not Violate The Confrontation ClauseNov. 200741641
Practice Tip: FRE 901 Authentication And Identification (Special Application: Telephone Conversations)Sept. 20052836
Practice Tip: FRE 901 Authentication And Identification (Special Application: Photographs) Jan. 2005216
Practice Tip: Authentication Procedures Outside The FREApril 20063443
Developing Consensus: FRE 902(b)(2): Self-authentication & FRE 702: Lay Opinion Testimony - Whether FRE 902(b)(2) Handwriting Authentication Must Comply With FRE 701 Personal Knowledge RequirementsOct. 200631415
Authorized Party
Practice Tip: FRE 801(d)(2)(C) And Alternative Grounds To Admit Statements Of An Authorized PartyDec. 200741764
Availability
Circuit Split: FRE 501: Attorney-Client Privilege – Availability Of The Governmental Attorney-Client PrivilegeMarch 20052175
Jump to a letter: A B C D E F G H I J K L M N O P Q R S T U V W X Y Z
B
Best Evidence
Practice Tip: FRE 1002: Requirements of Original (Best Evidence Rule)Oct. 20041138
Bruton v. United States
Developing Consensus: Sixth Circuit Approves A Joint Trial Procedure To Admit A Co-Defendant’s Incriminating Statements Without Violating Other Defendants’ Confrontation RightsDec. 200741769
Business Records
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 SatisfiedJan. 2008544
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
Practice Tip: Fifth Circuit Holds That Grand Jury Testimony May Be Used As A Foundation For Authentication Of Business Records And Not Violate The Confrontation ClauseNov. 200741641
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: 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
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
Practice Tip: Proving FDIC CoverageOct. 200631401
Jump to a letter: A B C D E F G H I J K L M N O P Q R S T U V W X Y Z
C
Capital Case
Developing Consensus: Six Circuits Have Rejected Claims That The Confrontation Clause Disallows A Relaxed Evidentiary Standard In Federal Capital SentencingAug. 200741108
Case Agent
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 RuleNov. 200741637
Character
Lead Story: An Overview Of The Pending Amendment To FRE 404(a) Concerning The Admissibility Of Character Evidence To Prove ConductJan. 2006320
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
Chart
Practice Tip: Alternative Ways to Admit Charts or Summaries When FRE 1006 is UnavailableSept. 2004187
Child
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 414Jan. 2008548
Circuit Split: FRE 803(4): Statements For Purposes Of Medical Diagnosis Or Treatment – 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
Choice Of Law
Practice Tip: FRE 601, Witness Competency, And Choice Of Law In Federal CourtAug. 20052703
Circuit
Developing Consensus: FRE 103 – Harmless Error Application: Can A Circuit Rule Sua Sponte On A Harmless Error?Sept. 20052842
Lead Story: FRE 404(b) Divergent Elements: A Circuit Split Ripe For Certiorari Review?June 20063756
Circuit Splits – See Circuit Splits Index
Civil
Lead Story: An Overview Of The Pending Amendment To FRE 408 Concerning The Admissibility Of Compromise EvidenceDec. 200521135
Circuit Split: FRE 408: Compromise and Offers to Compromise – Is civil settlement evidence admissible in a criminal fraud trial?Sept. 2004110
Circuit Split: FRE 103(a): Effect of Erroneous Ruling – Does the cumulative error doctrine extended to civil cases?Aug. 2004117
Open Issues Pending: FRE 501 Privilege – Attorney-Client – Whether A Municipal Corporation Can Assert The Attorney-Client Privilege In Civil Litigation Oct. 20052950
Civil Rights
Open Issues: 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
Co–Conspirator Statement
Developing Consensus: Seventh Circuit Joins Six Other Circuits Holding That FRE 801(D)(2)(E) Co–Conspirator Statements Are Not Testimonial Under Dec. 200741767
Practice Tip: FRE 801(d)(2)(E) And Alternative Grounds To Admit Co–Conspirator StatementsSept. 200741273
Practice Tip: FRE 801(d)(2)(B) And Alternative Grounds To Admit Co–Conspirator StatementsSept. 20074961
Practice Tip: Statements Involving Arrested Co–Conspirators Under FRE 801(d)(2)(E)June 20074806
Open Issues: 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: Eleventh Circuit Finds Consensus That FRE 801(d)(2)(E) Coconspirator Statements Are Not "Testimonial" For Confrontation Clause PurposesMay 20063644
Co–Defendant
Developing Consensus: Sixth Circuit Approves A Joint Trial Procedure To Admit A Co-Defendant’s Incriminating Statements Without Violating Other Defendants’ Confrontation RightsDec. 200741769
Collateral Review
Supreme Court Watch: Supreme Court Unanimously Holds Crawford Confrontation Clause Analysis Does Not Apply Retroactively On Collateral Review, Reversing Ninth CircuitMarch 20074315
Developing Consensus: Sixth Amendment: Confrontation Clause " First Cases – Crawford Does Not Apply Retroactively On Collateral ReviewJan. 2005217
Circuit Split: Eleventh Circuit Suggests Crawford Confrontation Clause Decision Does Not Apply Retroactively On Collateral Review>March 20063317
Circuit Split: Eleventh Circuit Notes Circuit Split And Joins Four Other Circuits In Holding Crawford Does Not Apply Retroactively On Collateral ReviewMay 20063637
Supreme Court Watch: Whether Crawford Applies Retroactively On Collateral ReviewJune 20063766
Compromise
Circuit Split: Admission Of Civil Compromise Evidence In Criminal Proceedings Under FRE 408Jan. 2006332
Lead Story: An Overview Of The Pending Amendment To FRE 408 Concerning The Admissibility Of Compromise EvidenceDec. 200521135
Circuit Split: FRE 408: Compromise and Offers to Compromise " Is civil settlement evidence admissible in a criminal fraud trial?Sept. 2004110
Open Issue: D.C. Circuit Notes Open Issue Concerning Existence Of A Federal Settlement PrivilegeApril 20063456
Confrontation Clause
Developing Consensus: Sixth Circuit Approves A Joint Trial Procedure To Admit A Co-Defendant’s Incriminating Statements Without Violating Other Defendants’ Confrontation RightsDec. 200741769
Developing Consensus: Seventh Circuit Joins Six Other Circuits Holding That FRE 801(D)(2)(E) Co–Conspirator Statements Are Not Testimonial Under CrawfordDec. 200741767
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. 200741641
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 CircuitsSept. 200741279
Developing Consensus: Six Circuits Have Rejected Claims That The Confrontation Clause Disallows A Relaxed Evidentiary Standard In Federal Capital SentencingAug. 200741108
Developing Consensus: D.C. Circuit Joins Nine Other Circuits In Concluding Crawford Confrontation Clause Analysis Does Not Apply During Sentencing ProceedingsMay 20074637
Developing Consensus: Tenth Circuit Notes Circuit Consensus To Apply An Objective Test For Testimonial Statements Under The Confrontation ClauseFeb. 20074193
Supreme Court Watch: Supreme Court Unanimously Holds Crawford Confrontation Clause Analysis Does Not Apply Retroactively On Collateral Review, Reversing Ninth CircuitMarch 20074315
Lead Story: After Crawford v. Washington: Early Observations On the Admissibility of Evidence Under the Confrontation ClauseSept. 2004183
Circuit Split: Sixth Amendment - Confrontation Clause - Whether 911 telephone calls are "testimonial" under Crawford?Nov. 200521041
Circuit Split: Sixth Amendment – Confrontation Clause " The Retroactivity Of Crawford Confrontation Clause AnalysisMarch 20052173
Developing Consensus: Sixth Amendment – Confrontation Clause " Does Crawford apply at sentencing?Aug. 20052707
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
Circuit Split: Eleventh Circuit Suggests Crawford Confrontation Clause Decision Does Not Apply Retroactively On Collateral Review>March 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 CrawfordJuly 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 Witnesses 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
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
Open Issue: Sixth Amendment: Confrontation Clause - Ninth Circuit Notes Continuing Open Issue Under The Confrontation Clause Whether Ohio v. Roberts Applies To Non-Testimonial StatementsSept. 200631209
Confusion
Lead Story: Steps For Avoiding Potential Prejudice, Confusion And Other Problems In Using Law Enforcement Dual Fact and Expert WitnessesDec. 200741752
Consciousness of Guilt
Lead Story: Admitting Flight And Other Forms Of Consciousness Of Guilt EvidenceSept. 200741257
Corporation
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
Open Issues Pending: FRE 501 Privilege – Attorney-Client " Whether A Municipal Corporation Can Assert The Attorney-Client Privilege In Civil LitigationOct. 20052950
Court Appointed Expert
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 20074320
Courtroom
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: 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
Lead Story: Sixth Amendment Confrontation Clause Rights And Video Conferencing — Struggling Or Stumbling Into The Twenty-First Century?April 20063433
Lead Story: FRE 615: Ten Common Questions & MisconceptionsNov. 200631518
Court Interrogation
Practice Tip: Ninth Circuit Resolves Open Questions On Application Of Crime-Fraud Exception To Attorney-Client PrivilegeMar. 20074309
Crawford v. Washington
Developing Consensus: Seventh Circuit Joins Six Other Circuits Holding That FRE 801(D)(2)(E) Co–Conspirator Statements Are Not Testimonial Under CrawfordDec. 200741767
Developing Consensus: D.C. Circuit Joins Nine Other Circuits In Concluding Crawford Confrontation Clause Analysis Does Not Apply During Sentencing ProceedingsMay 20074637
Developing Consensus: The Eighth Circuit Joins The First, Fifth, Ninth And Eleventh Circuits Holding That The Use Of A Warrant Of Deportation Is Not Testimonial Hearsay Under CrawfordJune 20074810
Developing Consensus: Eighth Circuit Joins Four Other Circuits Concluding Warrants of Deportation Are Non-Testimonial Under CrawfordMarch. 20074810
Developing Consensus: Tenth Circuit Notes Circuit Consensus To Apply An Objective Test For Testimonial Statements Under The Confrontation ClauseFeb. 20074193
Supreme Court Watch: Supreme Court Unanimously Holds Crawford Confrontation Clause Analysis Does Not Apply Retroactively On Collateral Review, Reversing Ninth CircuitMarch 20074315
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
Developing Consensus: D.C. Circuit Notes Other Circuits Reject Application Of Crawford's Limitation On "Testimonial Hearsay" In Parole HearingsJan. 2006336
Open Issue: Fifth Circuit Notes Open Issue Whether Crawford Confrontation Clause Case Applies RetroactivelyJan. 2006347
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 ProceedingDec. 200521150
Lead Story: After Crawford v. Washington: Early Observations On the Admissibility of Evidence Under the Confrontation ClauseSept. 200414
Circuit Split: Sixth Amendment – Confrontation Clause " Whether 911 telephone calls are "testimonial" under Crawford?Nov. 200521041
Circuit Split: Sixth Amendment – Confrontation Clause " The Retroactivity Of Crawford Confrontation Clause Analysis March 20052173
Developing Consensus: Sixth Amendment – Confrontation Clause " Does Crawford apply at sentencing?Aug. 20052707
Developing Consensus: Sixth Amendment – Confrontation Clause " First Cases – Crawford Does Not Apply Retroactively On Collateral Review Jan. 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
Circuit Split: Eleventh Circuit Suggests Crawford Confrontation Clause Decision Does Not Apply Retroactively On Collateral Review>March 20063317
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
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 CrawfordJuly 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 Witnesses 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
Crime Fraud Exception
Open Issue: Ninth Circuit Resolves Open Questions On Application Of Crime–Fraud Exception To Attorney-Client PrivilegeApril 20074416
Criminal
Circuit Split: FRE 408: Compromise and Offers to Compromise " Is civil settlement evidence admissible in a criminal fraud trial?Sept. 2004110
Practice Tip: Proving FDIC CoverageOct. 200631401
Cross–Examination
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 CircuitsSept. 200741279
Lead Story: Admitting Flight And Other Forms Of Consciousness Of Guilt EvidenceSept. 200741257
Lead Story: The General Bar Against Using Guilt–Assuming Hypothetical Questions And Other Avenues To Question Character WitnessesJuly 20074951
Cumulative Error
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
Circuit Split: FRE 103(a): Effect of Erroneous Ruling " Does the cumulative error doctrine extended to civil cases?Aug. 2004117
Jump to a letter: A B C D E F G H I J K L M N O P Q R S T U V W X Y Z
D
Dangerous Patient
Circuit Split: FRE 501: Psychotherapist-Patient Privilege " Whether a dangerous-patient exception applies under the federal psychotherapist-patient privilege under FRE 501?Aug. 2004116
Daubert
Developing Consensus: FRE 702: Testimony By Experts " Does Fingerprint Evidence Satisfy The Requirements Of Daubert?May 20052353
Deliberate Indifference
Open Issues Pending: FRE 704(a): Opinion on Ultimate Issue: 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 lawApril 20052258
Lead Story: Seven Key Principles For Qualifying An Expert Under FRE 702Oct. 200631391
De NovoReview
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 CircuitsSept. 200741279
Deportation
Developing Consensus: A Warrant Of Deportation Is "Non-Testimonial" Under CrawfordDec. 200521149
Developing Consensus: Fifth Circuit Joins Ninth And Eleventh Circuits Finding Immigration File Documents To Be Non-Testimonial HearsayApril 20063452
Developing Consensus: First Circuit Notes Consensus That Use of Warrant Of Deportation Is Not Testimonial Hearsay Under CrawfordJuly 20063891
Deposition
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 " See Developing Consensus Index
Diagnosis
Circuit Split: FRE 803(4): Statements For Purposes Of Medical Diagnosis Or Treatment – 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: FRE 803(4) – Does The Medical Diagnosis Statement Hearsay Exception Include Statements Made To A Non-Physician?Sept. 20052839
Doctor
Circuit Split: FRE 803(4): Statements For Purposes Of Medical Diagnosis Or Treatment – 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
Drug Evidence
Circuit Split: Eleventh Circuit Notes Different Application Of FRE 704(b) For Admission Of Expert Testimony On Knowledge Of Presence Of DrugsApril 20063450
Jump to a letter: A B C D E F G H I J K L M N O P Q R S T U V W X Y Z
E
Erie Doctrine
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
Exception
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 803(4) – Does The Medical Diagnosis Statement Hearsay Exception Include Statements Made To A Non-Physician?Sept. 20052839
Exclusion
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
Exculpatory Statements
Practice Tip: 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
Experiment
Developing Consensus: : Seventh Circuit Notes Consensus On Considering Dissimilarities In Out Of Court Experiment EvidenceApril 20074458
Expert
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 Testimony) With Other Evidence RulesSept. 200631193
Developing Consensus: Handwriting Identification Satisfies FRE 702 Reliability StandardsJan. 2006339
Lead Story: Expert Eyewitness Identification: Common Grounds For Assessing AdmissibilityJune 20052448
Lead Story: Common Evidence Issues Raised By Psychological Expert Evidence In Criminal CasesJuly 20052567
Developing Consensus: FRE 702: Testimony By Experts Lead Story: Does Fingerprint Evidence Satisfy The Requirements Of Daubert?May 20052353
Open Issues Pending: FRE 704(a): Opinion on Ultimate Issue Lead Story: 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
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
Circuit Split: Eleventh Circuit Notes Different Application Of FRE 704(b) For Admission Of Expert Testimony On Knowledge Of Presence Of DrugsApril 20063450
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
The Intersection Of FRE 703 (Bases Of Expert Opinion) With Other Evidence RulesSept. 200631192
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
Developing Consensus: FRE 902(b)(2): Self-authentication & FRE 702: Lay Opinion Testimony - Whether FRE 902(b)(2) Handwriting Authentication Must Comply With FRE 701 Personal Knowledge RequirementsOct. 200641415
Other Significant Evidence Cases: Fed.R.Civ. P. 16: Disclosure
Exclusion of expert evidence because of disclosure over four weeks after disclosure deadline
Oct. 200631490
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
Lead Story: Steps For Avoiding Potential Prejudice, Confusion And Other Problems In Using Law Enforcement Dual Fact and Expert WitnessesDec. 200741752
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 706March 20074320
Eyewitness
Lead Story: Expert Eyewitness Identification: Common Grounds For Assessing AdmissibilityJune 20052448
Developing Consensus: Tenth Circuit Notes Trend Rendering Eyewitness Identification Expert Evidence Neither Pre Se Excludable, Nor Readily AdmissibleJuly 20063893
Jump to a letter: A B C D E F G H I J K L M N O P Q R S T U V W X Y Z
F
Fact Witness
Lead Story: Steps For Avoiding Potential Prejudice, Confusion And Other Problems In Using Law Enforcement Dual Fact and Expert WitnessesDec. 200741752
Family
Practice Tip: Evidence Rules Regarding Statements About Family MattersJuly 20052576
Fiduciary
Open Issue: Third Circuit Considers Whether To Recognize The "Fiduciary Exception" To The Attorney-Client Privilege, Which Is Applied In Several Other Circuits May 20074641
Fifth Amendment
Circuit Split: Fifth Amendment: Right Against Self-Incrimination " Does Use Of Post-Arrest, Pre-Miranda Silence Violate The Right Against Self-Incrimination?Feb. 20052102
Open Issues Resolved: Fifth Amendment: Right Against Self-Incrimination. Eighth Circuit resolves open issue whether the government's use of post-arrest, pre-Miranda silence in its case in chief violates the Fifth Amendment right against self incriminationFeb. 20052102
Fingerprint Evidence
Lead Story: Fingerprint Analysis In Federal Court – A Primer On AdmissibilityAug. 20052690
Developing Consensus: FRE 702: Testimony By Experts – Does Fingerprint Evidence Satisfy The Requirements Of Daubert?May 20052353
Flight
Lead Story:Admitting Flight And Other Forms Of Consciousness Of Guilt EvidenceSept. 200741257
Forfeiture By Wrongdoing
Lead Story:Proposed Amendments To FRE 804(b)(6) (Forfeiture By Wrongdoing)June 20074791
Practice Tip: Forfeiting The Right To Object To Hearsay Under FRE 804(b)(6) Forfeiture By WrongdoingJune 20052457
Foundation
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. 200741641
Jump to a letter: A B C D E F G H I J K L M N O P Q R S T U V W X Y Z
G
Government Agent
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
Government Informant’s Privilege
Lead Story: Government Informant’s PrivilegeDec. 20041275
Grand Jury
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. 200741641
Guilt
Lead Story: Admitting Flight And Other Forms Of Consciousness Of Guilt EvidenceSept. 200741257
Lead Story: The General Bar Against Using Guilt-Assuming Hypothetical Questions And Other Avenues To Question Character WitnessesJuly 20074951
Developing Consensus: FRE 405 (Methods of Proving Character)Aug. 2004119
Jump to a letter: A B C D E F G H I J K L M N O P Q R S T U V W X Y Z
H
Handwriting
Developing Consensus: Handwriting Identification Satisfies FRE 702 Reliability StandardsJan. 2006339
Other Significant Evidence Cases: Statutes 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
Developing Consensus: FRE 902(b)(2): Self-authentication & FRE 702: Lay Opinion Testimony - Whether FRE 902(b)(2) Handwriting Authentication Must Comply With FRE 701 Personal Knowledge RequirementsOct. 200631415
Harmless Error
Lead Story: Harmless Error Doctrine: Promoting Fair ProceedingsNov. 20041201
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. 20052848
Developing Consensus: FRE 103(a): Effect of Erroneous Ruling - Fifth Circuit Notes Consensus On Harmless Error In Confrontation Clause ViolationsOct. 200631408
Hearsay
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. 200741283
Lead Story: Using Non-Hearsay To Admit Statements In Documents And Connect Key Evidencet May 20074617
Open Issue: Sixth Circuit Notes Post-Crawford And Post-Booker Question Concerning Use Of Hearsay At SentencingMarch 20063320
Lead Story: Non-Hearsay Statements and Examples: When is a Statement Hearsay and When is it Non-Hearsay?Feb. 2005294
Practice Tip: 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. 20052946
Practice Tip: Forfeiting The Right To Object To Hearsay Under FRE 804(b)(6) Forfeiture By WrongdoingJune 20052457
Developing Consensus: FRE 803(4): Does The Medical Diagnosis Statement Hearsay Exception Include Statements Made To A Non-Physician?Sept. 20052839
Open Issue: Sixth Circuit Notes Post-Crawford And Post-Booker Question Concerning Use Of Hearsay At SentencingMarch 20063320
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
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
Supreme Court Watch: Davis v. Washington And The Scope Of "Testimonial" Hearsay StatementsJuly 20063896
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
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
Hypothetical
Lead Story: The General Bar Against Using Guilt-Assuming Hypothetical Questions And Other Avenues To Question Character WitnessesJuly 20074951
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
Jump to a letter: A B C D E F G H I J K L M N O P Q R S T U V W X Y Z
I
Identification
Practice Tip: Admitting Law Enforcement Lay Opinion Identification TestimonyOct. 200741487
Impairment
Practice Tip: Evidence Of Witness’s Mental Or Sensory ImpairmentJan. 2007438
Impeach
Open Issues Resolved: Statutes 18 U.S.C. § 3153 – Second Circuit resolves open issue whether Pretrial Service Report statements may be used to impeach a defendantNov. 20041206
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
In Limine Motions
Lead Story: The Practice And Role Of Motions In Limine In Federal CourtOct. 200741470
Inadmissible Evidence
Lead Story: The “Open Door” Doctrine: Opening The Evidence Door To Otherwise Inadmissible Evidence: Ten Common Questions & MisconceptionsFeb. 20074167
Inaugural
Lead Story: Publisher’s Column: Inaugural IssueAug. 2004113
Incrimination
Developing Consensus: Sixth Circuit Approves A Joint Trial Procedure To Admit A Co-Defendant’s Incriminating Statements Without Violating Other Defendants’ Confrontation RightsDec. 200741769
Identification
Lead Story: Expert Eyewitness Identification: Common Grounds For Assessing AdmissibilityJune 20052448
Practice Tip: FRE 901 – Authentication And Identification (Special Application: Telephone Conversations)Sept. 20052836
Practice Tip: FRE 901 – Authentication and Identification (Special Application: Photographs)Jan. 2005216
Circuit Split: FRE 803(4): Statements For Purposes Of Medical Diagnosis Or Treatment – 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
Practice Tip: Authentication Procedures Outside The Federal Rules Of EvidenceApril 20063443
Developing Consensus: Tenth Circuit Notes Trend Rendering Eyewitness Identification Expert Evidence Neither Pre Se Excludable, Nor Readily AdmissibleJuly 20063893
Impeachment By Conviction
Lead Story: Pending FRE 609(a)(2) Amendment: Seeking To Clarify Mandatory Impeachment Of Convictions Involving "Dishonesty Or False Statement"Oct. 20052938
Informant's Privilege
Lead Story: Government Informant’s PrivilegeDec. 20041275
Interrogation
Practice Tip: Factors To Assess When Court Interrogation Is ImpermissibleMarch 20074309
Other Significant Evidence Cases: Miranda Statements – Rejecting argument that incriminating statements violate Miranda unless the interrogation is electronically recordedJan. 2005270
Jump to a letter: A B C D E F G H I J K L M N O P Q R S T U V W X Y Z
J
Judicial Notice
Lead Story: Taking Judicial Notice - Ten Common Questions on FRE 201May 20052345
Practice Tip: Alternative Ways To Judicially Notice An Adjudicative FactMay 20052351
Juvenile
Developing Consensus: FRE 1101(d)(3): Applicability Of Rules – Do The FRE Apply To Juvenile Transfer Proceedings?June 20052642
Juror Competence
Lead Story: Pending FRE 606(b) Amendment: Adding Juror Competence To Testify On Verdict Reporting Errors Nov. 200521025
Developing Consensus: Unless Learned Through Improper Channels, Jury's Discussion Of The Defendant's Failure To Testify Is Not Reviewable Under FRE 606(b)Sept. 200631203
K
Jump to a letter: A B C D E F G H I J K L M N O P Q R S T U V W X Y Z
Knowledge
Practice Tip: Alternative Grounds For Excluding Witness Testimony Lacking Personal Knowledge Jan. 2008539
L
Lay Opinion Testimony
Practice Tip: Admitting Law Enforcement Lay Opinion Identification Testimony Oct. 200741487
Developing Consensus: FRE 902(b)(2): Self-authentication & FRE 702: Lay Opinion Testimony - Whether FRE 902(b)(2) Handwriting Authentication Must Comply With FRE 701 Personal Knowledge RequirementsOct. 200631415
Lay Opinion Testimony
Lead Story: Steps For Avoiding Potential Prejudice, Confusion And Other Problems In Using Law Enforcement Dual Fact and Expert Witnesses Dec. 200741752
Practice Tip: Admitting Law Enforcement Lay Opinion Identification Testimony Oct. 200741487
Jump to a letter: A B C D E F G H I J K L M N O P Q R S T U V W X Y Z
M
Marital Communications (see also Spousal Communications)
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
Medical
Developing Consensus: Eleventh Circuit joins Fourth, Seventh and Ninth Circuits in declining to recognize a “medical peer review privilege” in federal civil rights cases, which is recognized in all fifty states and the District of ColumbiaJuly 20074967
Circuit Split: FRE 803(4): Statements For Purposes Of Medical Diagnosis Or Treatment – 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: FRE 803(4) – Does The Medical Diagnosis Statement Hearsay Exception Include Statements Made To A Non-Physician? Sept. 20052839
Mental
Practice Tip: Evidence Of Witness’s Mental Or Sensory ImpairmentJan. 2007438
Miranda
Circuit Split: Fifth Amendment: Right Against Self-Incrimination – Does Use Of Post-Arrest, Pre-Miranda Silence Violate The Right Against Self-Incrimination?Feb. 20052102
Open Issues Resolved: Fifth Amendment: Right Against Self-Incrimination – Eighth Circuit resolves open issue whether the government's use of post-arrest, pre-Miranda silence in its case in chief violates the Fifth Amendment right against self incrimination?Feb. 20052102
Other Significant Evidence Cases: Miranda Statements – Rejecting argument that incriminating statements violate Miranda unless the interrogation is electronically recorded.Jan. 2005270
Municipal
Open Issues Pending: FRE 501 Privilege – Attorney-Client – Whether A Municipal Corporation Can Assert The Attorney-Client Privilege In Civil LitigationOct. 20052950
Jump to a letter: A B C D E F G H I J K L M N O P Q R S T U V W X Y Z
N
Newspapers
Lead Story: Newspapers And Periodicals As EvidenceSept. 20052830
Non-Hearsay
Lead Story: Using Non-Hearsay To Admit Statements In Documents And Connect Key EvidenceMay 20074617
Lead Story: Non-Hearsay Statements and Examples: When is a Statement Hearsay and When is it Non-HearsayFeb. 2005294
Non-Physician
Developing Consensus: FRE 803(4) – Does The Medical Diagnosis Statement Hearsay Exception Include Statements Made To A Non-Physician?Sept. 20052839
Notice
Lead Story: Federal Rules of Evidence Notice RequirementsOct. 20041133
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
Jump to a letter: A B C D E F G H I J K L M N O P Q R S T U V W X Y Z
O
Oath
Open Issue: Whether Trial Counsel Can Waive The Oath Or Affirmation Requirement Under FRE 603 Or The Defendant Must Personally Waive The Requirement?March 20074324
Objections
Practice Tip: FRE 103(a) And The Timeliness Of Evidence ObjectionsNov. 200521035
Offer
Circuit Split: FRE 408: Compromise and Offers to Compromise – Is civil settlement evidence admissible in a criminal fraud trial?Sept. 2004110
Open Door Doctrine
Lead Story: The "Open Door" Doctrine: Opening The Evidence Door To Otherwise Inadmissible Evidence: Ten Common Questions & MisconceptionsFeb. 20074167
Practice Tip: The "Open Door" Doctrine Doctrine And The Various Terminologies Used To Admit Otherwise Excludable EvidenceFeb. 20074189
Open Issues. See Open Issues Index
Other Acts Evidence
Developing Consensus: Eighth Circuit Joins Fourth, Ninth, And Tenth Circuits Finding That Prior Drunk Driving Convictions Are Admissible Under FRE 404(b)/td>Aug. 200741111
Lead Story: FRE 404(b): Ten Common Questions and MisconceptionsApr. 20052243
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
Other Significant Evidence Cases. See Other Significant Evidence Cases
Original
Practice Tip: FRE 1002: Requirement of Original (Best Evidence Rule)Oct. 20041138
Out-Of-Court
Developing Consensus: Seventh Circuit Notes Consensus On Considering Dissimilarities In Out Of Court Experiment EvidenceApril 20044458
Jump to a letter: A B C D E F G H I J K L M N O P Q R S T U V W X Y Z
P
Party
Practice Tip: FRE 801(d)(2)(C) And Alternative Grounds To Admit Statements Of An Authorized PartyDec. 200741764
Practice Tip: FRE 801(d)(2)(D) And Alternative Grounds To Admit Statements Of A Party’s AgentNov. 200741632
Party Opponent
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
Practice Tip: 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
Patient
Circuit Split: FRE 501: Psychotherapist-Patient Privilege – Whether a dangerous-patient exception applies under the federal psychotherapist-patient privilege under FRE 501?Aug. 2004116
Periodicals
Lead Story: Newspapers And Periodicals As EvidenceSept. 20052830
Personal Knowledge
Practice Tip: Alternative Grounds For Excluding Witness Testimony Lacking Personal KnowledgeJan. 2008539
Photographs
Practice Tip: FRE 901: PhotographsNov. 20041203
Practice Tip: FRE 901 - Authentication and Identification (Special Application: Photographs)Jan. 2005216
Practice Tip: Evidentiary Hurdles In Admitting Film, Movie Or Video EvidenceMay 20063630
Physician
Developing Consensus: FRE 803(4) – Does The Medical Diagnosis Statement Hearsay Exception Include Statements Made To A Non-Physician?Sept. 20052839
Plea
Practice Tip: Admitting Plea-Related Statements: Recognized Exceptions Under FRE 410March 20052171
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
Polygraph
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
Possession
Developing Consensus: FRE 801(d)(2)(B): 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
Post-Arrest
Circuit Split: Fifth Amendment: Right Against Self-Incrimination – Does Use Of Post-Arrest, Pre-Miranda Silence Violate The Right Against Self-Incrimination?Feb. 20052102
Open Issues Resolved: Fifth Amendment: Right Against Self-Incrimination – Eighth Circuit resolves open issue whether the government's use of post-arrest, pre-Miranda silence in its case in chief violates the Fifth Amendment right against self incriminationFeb. 20052206
Practice Tip See Practice Tip Index
Prejudice, Confusion Or Waste Of Time
Lead Story: Steps For Avoiding Potential Prejudice, Confusion And Other Problems In Using Law Enforcement Dual Fact and Expert WitnessesDec. 200741752
Practice Tip: Perspectives On The FRE 403 Balance Of The Probative Value Of The Evidence And Unfair PrejudiceJune 20063763
Developing Consensus: Tenth Circuit Notes Trend Rendering Eyewitness Identification Expert Evidence Neither Pre Se Excludable, Nor Readily AdmissibleJuly 20063893
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
Preserve
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
Presumptions
Lead Story: FRE 301 & Evidentiary Presumptions – Ten Common Questions & MisconceptionsApr. 20074437
Circuit Split: Third Circuit Notes Division On Standard Of Proof On Established Domicile PresumptionSept. 200631196
Pretrial Services
Open Issues Resolved: Statutes 18 U.S.C. § 3153 – Second Circuit resolves open issue whether Pretrial Service Report statements may be used to impeach a defendantNov. 20041206
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
Prior Inconsistent Statement
Practice Tip: Admitting A Prior Inconsistent Statement When FRE 801(d)(1)(A) is UnavailableFeb. 20052100
Privileges
Lead Story: Government Informant’s PrivilegeDec. 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 Privilege March 20052175
Open Issues Pending: FRE 501 Privilege – Attorney-Client – 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
Open Issues Pending: FRE 501: Federal Psychotherapist-Patient Privilege – D.C. Circuit notes open issue concerning whether state or federal psychotherapist-patient privilege applies in case presenting both state and federal claimsSept. 2004113
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
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
Lead Story: Status Of The Journalist’s Privilege In the Federal Courts And Recent Congressional ActivityJan. 2007520
Practice Tip: Implicit Waiver Of The Attorney-Client PrivilegeAug. 200741103
Lead Story: Appellate Jurisdiction Over Trial Court Decisions Denying A Claim Of An Evidentiary PrivilegeAug. 200741088
Developing Consensus: Eleventh Circuit joins Fourth, Seventh and Ninth Circuits in declining to recognize a "medical peer review privilege" in federal civil rights cases, which is recognized in all fifty states and the District of ColumbiaJuly 20074967
Open Issue: Third Circuit Considers Whether To Recognize The “Fiduciary Exception” To The Attorney-Client Privilege, Which Is Applied In Several Other Circuits May 20074641
Practice Tip: The Attorney-Client Communications Privilege: Common Exceptions And Grounds For UnavailabilityMay 20074630
Open Issue: Ninth Circuit Resolves Open Questions On Application Of Crime-Fraud Exception To Attorney-Client Privilege April 20074461
Probative Value
Lead Story: FRE 403: Balancing Probative Value and Unfair Prejudice–Ten Common Questions & MisconceptionsNov. 200741613
Proffer
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
Psychological Evidence
Lead Story: Common Evidence Issues Raised By Psychological Expert Evidence In Criminal CasesJuly 20052567
Circuit Split: Eleventh Circuit Notes Different Application Of FRE 704(b) For Admission Of Expert Testimony On Knowledge Of Presence Of DrugsApril 20063450
Developing Consensus: Tenth Circuit Notes Trend Rendering Eyewitness Identification Expert Evidence Neither Pre Se Excludable, Nor Readily AdmissibleJuly 20063893
Psychotherapist-Patient Privilege
Circuit Split: FRE 501: Psychotherapist-Patient Privilege – Whether a dangerous-patient exception applies under the federal psychotherapist-patient privilege under FRE 501? Aug. 2004116
Open Issues Pending: FRE 501: Federal Psychotherapist-Patient Privilege – D.C. Circuit notes open issue concerning whether state or federal psychotherapist-patient privilege applies in case presenting both state and federal claimsSept. 2004113
Publisher's Column
Lead Story: Publisher’s Column: Inaugural IssueAug. 2004113
Q
Jump to a letter: A B C D E F G H I J K L M N O P Q R S T U V W X Y Z
R
Recorded Conversations
Lead Story: Common Questions To Consider In Introducing Or Opposing Recorded ConversationsMar. 20052162
Other Significant Evidence Cases: Miranda Statements – Rejecting argument that incriminating statements violate Miranda unless the interrogation is electronically recordedJan. 2005270
Remedial Measures
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
Relevance
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
Remedial Measures
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 ParticipationMarch 20074315
Res Gestae 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
Residual Hearsay Exception
Lead Story: FRE 807 - Residual Hearsay Statement – Ten Common Questions and MisconceptionsJan. 2005212
Retroactive
Supreme Court Watch: Supreme Court Unanimously Holds Crawford Confrontation Clause Analysis Does Not Apply Retroactively On Collateral Review, Reversing Ninth CircuitMarch 20052173
Circuit Split: Sixth Amendment: Confrontation Clause – The Retroactivity Of Crawford Confrontation Clause AnalysisMarch 20052173
Developing Consensus: Sixth Amendment Confrontation Clause – First Cases - Crawford Does Not Apply Retroactively On Collateral ReviewJan. 2005217
Circuit Split: Eleventh Circuit Suggests Crawford Confrontation Clause Decision Does Not Apply Retroactively On Collateral Review>March 20063317
Circuit Split: Eleventh Circuit Notes Circuit Split And Joins Four Other Circuits In Holding Crawford Does Not Apply Retroactively On Collateral ReviewMay 20063637
Supreme Court Watch: Whether Crawford Applies Retroactively On Collateral ReviewJune 20063766
Jump to a letter: A B C D E F G H I J K L M N O P Q R S T U V W X Y Z
S
Section 3153
Open Issues Resolved: Statutes 18 U.S.C. § 3153. Second Circuit resolves open issue whether Pretrial Service Report statements may be used to impeach a defendantNov. 20041206
Section 3505
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
Selective Waiver - Attorney-Client Privilege
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
Self-Incrimination
Circuit Split: Fifth Amendment: Right Against Self-Incrimination – Does Use Of Post-Arrest, Pre-Miranda Silence Violate The Right Against Self-Incrimination?Feb. 20052102
Sensory
Practice Tip: Evidence Of Witness’s Mental Or Sensory ImpairmentJan. 2007438
Sentencing
Developing Consensus: Six Circuits Have Rejected Claims That The Confrontation Clause Disallows A Relaxed Evidentiary Standard In Federal Capital SentencingAug. 200741108
Developing Consensus: D.C. Circuit Joins Nine Other Circuits In Concluding Crawford Confrontation Clause Analysis Does Not Apply During Sentencing ProceedingsMay 20074637
Developing Consensus: Crawford Does Not Apply At SentencingDec. 200521148
Developing Consensus: Sixth Amendment – Confrontation Clause – Does Crawford apply at sentencing?Aug. 20052707
Open Issue: Sixth Circuit Notes Post-Crawford And Post-Booker Question Concerning Use Of Hearsay At SentencingMarch 20063320
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
Settlement
Circuit Split: Whether settlement negotiation evidence is admissible to show mitigation of damages under the ‘another purpose’ exception under FRE 408?April 20074454
Circuit Split: FRE 408: Compromise and Offers to Compromise – Is civil settlement evidence admissible in a criminal fraud trial?Sept. 2004110
Open Issue: D.C. Circuit Notes Open Issue Concerning Existence Of A Federal Settlement PrivilegeApril 20063456
Sexual Abuse
Circuit Split: Seventh Circuit Notes Circuit Division On Five-Factor LeMay Test For Admission Of FRE 413 And FRE 414 Sexual Abuse Predisposition EvidenceApril 20074450
Developing Consensus: Seventh Circuit Notes Circuit Consensus That FRE 413 and 414 Sexual Abuse Propensity Evidence Is Still Excludable Under FRE 403April 20074467
Silence
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 Clause Sept. 2004183
Circuit Split: Sixth Amendment: Confrontation Clause – The Retroactivity Of Crawford Confrontation Clause AnalysisMarch 20052173
Developing Consensus: Sixth Amendment Confrontation Clause – First Cases – Crawford Does Not Apply Retroactively On Collateral ReviewJan. 2005217
Developing Consensus: Sixth Amendment Confrontation Clause – Does Crawford apply at sentencing?Aug. 20052707
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
Circuit Split: Eleventh Circuit Suggests Crawford Confrontation Clause Decision Does Not Apply Retroactively On Collateral Review>March 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 CrawfordJuly 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 Witnesses 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
Developing Consensus: FRE 103(a): Effect of Erroneous Ruling - Fifth Circuit Notes Consensus On Harmless Error In Confrontation Clause ViolationsOct. 200631408
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
Open Issue: Sixth Amendment: Confrontation Clause - Ninth Circuit Notes Continuing Open Issue Under The Confrontation Clause Whether Ohio v. Roberts Applies To Non-Testimonial StatementsSept. 200631209
Spouse
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
Spousal
Practice Tip: The Overlap Of The Spousal Testimony Privilege And The Spousal Communications Privilege In The Federal CourtsDec. 20041280
Spousal Communications Privilege (see also Marital Communications Privilege)
Practice Tip: The Overlap Of The Spousal Testimony Privilege And The Spousal Communications Privilege In The Federal CourtsDec. 20041280
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
Spousal Testimony Privilege
Practice Tip: FRE 501: Exceptions To The Adverse Spousal Testimony PrivilegeFeb. 20063202
Lead Story: FRE 501: Adverse Spousal Testimony Privilege — Ten Common Questions & MisconceptionsFeb. 20063194
Practice Tip: The Overlap Of The Spousal Testimony Privilege And The Spousal Communications Privilege In The Federal CourtsDec. 20041280
Standard of Review
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 CircuitsSept. 200741279
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 March 2007 4320
Developing Consensus: FRE 103 – Harmless Error Application: Can A Circuit Rule Sua Sponte On A Harmless Error?Sept. 20052842
Striking of Evidence
Practice Tip: Pathways To Waiver On Appeal Under FRE 103(a) (Requiring A Timely Objection Or Motion To Strike)Apr. 20074447
Sua Sponte
Developing Consensus: FRE 103 – Harmless Error Application: Can A Circuit Rule Sua Sponte On A Harmless Error?Sept. 20052842
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. 2004187
Supervised Release
Developing Consensus: First Circuit Joins Four Other Circuits In Concluding Crawford Confrontation Clause Analysis Does Not Apply During Supervised Release ProceedingDec. 200521150
Supreme Court
Supreme Court Watch: Supreme Court Unanimously Holds Crawford Confrontation Clause Analysis Does Not Apply Retroactively On Collateral Review, Reversing Ninth CircuitMarch 20074315
Jump to a letter: A B C D E F G H I J K L M N O P Q R S T U V W X Y Z
T
Telephone
Circuit Split: Sixth Amendment – Confrontation Clause – Whether 911 telephone calls are "testimonial" under Crawford?Nov. 200521041
Practice Tip: FRE 901 Authentication And Identification (Special Application: Telephone Conversations)Sept. 20058836
Testimonial
Circuit Split: Sixth Amendment – Confrontation Clause – Whether 911 telephone calls are "testimonial" under Crawford?Nov. 200521041
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
Developing Consensus: Eleventh Circuit Finds Consensus That FRE 801(d)(2)(E) Coconspirator Statements Are Not "Testimonial" For Confrontation Clause PurposesMay 20063644
Developing Consensus: First Circuit Notes Consensus That Use of Warrant Of Deportation Is Not Testimonial Hearsay Under CrawfordJuly 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 Witnesses 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
Open Issue: Sixth Amendment: Confrontation Clause - Ninth Circuit Notes Continuing Open Issue Under The Confrontation Clause Whether Ohio v. Roberts Applies To Non-Testimonial StatementsSept. 200631209
Developing Consensus: Seventh Circuit Joins Six Other Circuits Holding That FRE 801(D)(2)(E) Co-Conspirator Statements Are Not Testimonial Under CrawfordDec. 200741767
Developing Consensus: The Eighth Circuit Joins The First, Fifth, Ninth And Eleventh Circuits Holding That The Use Of A Warrant Of Deportation Is Not Testimonial Hearsay Under CrawfordJune 20074810
Developing Consensus: : Eighth Circuit Joins Four Other Circuits Concluding Warrants of Deportation Are Non-Testimonial Under CrawfordMarch 20074322
Developing Consensus: : Tenth Circuit Notes Circuit Consensus To Apply An Objective Test For Testimonial Statements Under The Confrontation ClauseFeb. 20074193
Timeliness
Practice Tip: FRE 103(a) And The Timeliness Of Evidence ObjectionsNov. 200521035
Practice Tip: Pathways To Waiver On Appeal Under FRE 103(a) (Requiring A Timely “Objection Or Motion To Strike”) April 20074447
Trial Counsel
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
Transfer
Developing Consensus: FRE 1101(d)(3): Applicability Of Rules – Do The FRE Apply To Juvenile Transfer Proceedings?June 20052642
Treatment
Circuit Split: FRE 803(4): Statements For Purposes Of Medical Diagnosis Or Treatment – 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
U
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 AbsentSept.200541283
Practice Tip: Admitting A Prior Inconsistent Statement When FRE 801(d)(1)(A) is UnavailableFeb. 20052100
Practice Tip: Alternative Ways to Admit Charts or Summaries When FRE 1006 is UnavailableSept. 2004187
Unfair Prejudice
Lead Story: Steps For Avoiding Potential Prejudice, Confusion And Other Problems In Using Law Enforcement Dual Fact and Expert WitnessesDec. 200741752
Lead Story: FRE 403: Balancing Probative Value and Unfair Prejudice: Ten Common Questions & MisconceptionsNov. 200741613
Jump to a letter: A B C D E F G H I J K L M N O P Q R S T U V W X Y Z
V
Victim
Circuit Split: FRE 803(4): Statements For Purposes Of Medical Diagnosis Or Treatment – 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
Video
Lead Story: Sixth Amendment Confrontation Clause Rights And Video Conferencing — Struggling Or Stumbling Into The Twenty-First Century?April 20063433
Practice Tip: Evidentiary Hurdles In Admitting Film, Movie Or Video EvidenceMay 20063630
Vouching
Other Significant Evidence Cases: Vouching
Prosecutor did not improperly vouch for witness by introducing evidence of witness's obligation to testify truthfully
Dec. 200631778
Jump to a letter: A B C D E F G H I J K L M N O P Q R S T U V W X Y Z
W
Waiver
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: Implicit Waiver Of The Attorney-Client PrivilegeAug. 200741103
Open Issue: Whether Trial Counsel Can Waive The Oath Or Affirmation Requirement Under FRE 603 Or The Defendant Must Personally Waive The Requirement?March 20074324
Practice Tip:Pathways To Waiver On Appeal Under FRE 103(a) (Requiring A Timely Objection Or Motion To Strike) Apr. 20074447
Warrant of Deportation
Developing Consensus: The Eighth Circuit Joins The First, Fifth, Ninth And Eleventh Circuits Holding That The Use Of A Warrant Of Deportation Is Not Testimonial Hearsay Under CrawfordJune 20074810
Developing Consensus: Eighth Circuit Joins Four Other Circuits Concluding Warrants of Deportation Are Non-Testimonial Under CrawfordMarch 20074322
Witness
Practice Tip: Evidence Of Witness’s Mental Or Sensory ImpairmentJan. 2007438
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: 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
Lead Story: Sixth Amendment Confrontation Clause Rights And Video Conferencing — Struggling Or Stumbling Into The Twenty-First Century?April 20063433
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: FRE 615: Ten Common Questions & MisconceptionsNov. 200631518
Lead Story: Seven Key Principles For Qualifying An Expert Under FRE 702Oct. 200631391
Practice Tip: Enforcing FRE 615 Witness Exclusion OrdersNov. 200631526
Witness Competency
Practice Tip: FRE 601, Witness Competency, And Choice Of Law In Federal CourtAug. 20052703
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
Developing Consensus: Tenth Circuit Notes Trend Rendering Eyewitness Identification Expert Evidence Neither Pre Se Excludable, Nor Readily AdmissibleJuly 20063893
Witness Exclusion
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 RuleNov. 200741637
Work Product Protection
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
X
Y
Z

Jump to a letter: A B C D E F G H I J K L M N O P Q R S T U V W X Y Z

Federal Evidence Review Subject Index

Rule 502 section