In addressing open issue, Third Circuit joins five other circuits, in Johnson v. Tennis, _ F.3d _ (3d Cir. Nov. 19, 2008) (No. 07-1968)

In Bruton v. United States, 391 U.S. 123, 135-37 (1968), the Supreme Court held that the admission of a co-defendant’s confession implicating the defendant is reversible error where the codefendant did not testify and the co-defendant and defendant are jointly tried. The limiting instructions to the jury to disregard the confession in considering the guilt of the co-defendant were inadequate to cure the violation of the Confrontation Clause. How does the Bruton rule apply in a bench trial? The Third Circuit is the latest circuit to address this issue.  read more »

Resource Page and Article summarize key provisions in new attorney-client privilege and work product doctrine rule; case and other developments will continue to be monitored on the Resource Page at: http://Federal Evidence.com/resources502

Given the importance of new FRE 502 concerning the attorney-client privilege and work product doctrine, a new Resource Page has been launched by the Federal Evidence Review to provide key information about the rule and monitor continuing developments. The new rule was signed into law and became effective on September 19, 2008. See Pub. L. No. 110-322.  read more »

Where officers were unable to recall seizing and obtaining the particular items, the booking officer testified about his routine in providing seized drugs to the arresting officer and the arresting officer refreshed his recollection by reviewing his inventory report, in United States v. Tatum, _ F.3d _ (7th Cir. Nov. 24, 2008) (No. 07-3015)

A recent Seventh Circuit case highlights some key issues concerning the chain of custody for physical evidence where there was no independent recollection of the inventoried items. The manner in which the seized baggies containing crack cocaine were introduced was less than ideal, but not fatal.  read more »

In failure to pay federal taxes trial, evidence of the defendant’s personal expenditures was probative on the issue of willfulness, and her failure to file individual and corporate tax returns and make tax deposits was admissible under FRE 404(b), in United States v. Ellis, _ F.3d _ (7th Cir. Nov. 20, 2008) (No. 07-2643)

In a recent tax case, the Seventh Circuit considered the admissibility of the defendant’s personal expenditures, and her uncharged failure to file individual and corporate tax returns and to make tax deposits. The circuit affirmed the admission of this evidence at trial.  read more »

Expert testimony on whether lobbyist had pending “business” with a government agency at the time government official accepted travel for a golfing trip to Scotland was not harmless requiring reversal, in United States v. Safavian,528 F.3d 957 (D.C. Cir. 2008)

A D.C. Circuit case shows how an expert may be used to explain the meaning of words in a particular context. The term “business” had a unique meaning in the government contracts setting.  read more »

Authentication based on e-mail address, automatic reply to sender, the messages indicated knowledge of matter, and use of nicknames; and testimony concerning phone conversations after e-mail messages were transmitted, in United States v. Siddiqui, 235 F.3d 1318, 1322 (11th Cir. 2000), cert. denied, 533 U.S. 940 (2001)

An Eleventh Circuit case demonstrates how the context and content of e-mails can be used to authenticate its admission, under FRE 901(b)(4). The case also briefly addressed a hearsay challenge to the admission of the e-mails.  read more »

Fact witnesses were able to show failure to comply with professional standard of care, and jury could disbelieve defense experts, in United States v. Armstrong, _ F.3d _ (5th Cir. Nov. 21, 2008) (No. 07-30286 & No. 07-30320)

Defendant Armstrong, a registered nurse, operated a weight loss and pain management clinic. An investigation revealed that she and others illegally dispensed controlled-substance weight-loss drugs “outside the scope of professional practice and not for a legitimate medical purpose.” At trial, the defense called two expert witnesses “who opined that her conduct was not outside the scope of professional pain management.” Armstrong, _ F.3d at n.17. The government did not call any expert witnesses on this issue and relied on fact witness testimony. Defendant Armstrong, corporate defendants, and another doctor were convicted by the jury.  read more »

Second Circuit notes that “[t]he fact that a witness customarily carries or displays a swastika, as a tattoo or otherwise, therefore would tend to suggest that he or she holds racial, religious or ethnic prejudices”; error was harmless beyond a reasonable doubt based on other evidence of guilt, in United States v. Figueroa, _ F.3d _ (2d Cir. Nov. 18, 2008) (No. 06-1595)

The Second Circuit recently considered whether evidence that a witness had swastika tattoos may be used to show bias where the defendant was a member of a minority group.  read more »

A witness who participated in and saved the chat room evidence authenticated them at trial; questions concerning the completeness of the chat evidence went to the weight of the evidence and not admissibility, in United States v. Tank, 200 F.3d 627 (9th Cir. 2000)

In recent posts, cases were highlighted identifying problems in authenticating internet or electronic evidence. See Limits To Relying On Internet Materials and Information In Court ( Part V), ( Part VI), and ( Part VII). A Ninth Circuit case demonstrates the proper authentication of chat room log printouts seized from a computer.  read more »

Tenth Circuit reinstates conviction after concluding FRE 606(b) exceptions did not apply and Sixth Amendment right to an impartial jury was not violated; Tenth Circuit notes circuit split on whether allegations of juror misconduct on dishonesty during voir dire may be considered, in United States v. Benally, _ F.3d _ (10th Cir. Nov. 12, 2008) (No. 08-4009)

What happens after a jury verdict when a juror claims misconduct occurred during the jury deliberations? A recent Tenth Circuit case focused on whether allegations of juror racial bias may be reviewed by the court.  read more »