The Federal Evidence Review has three indices to identify past articles, including the Master Index (below) (chronological listing by feature categories), the Rules Index (topical listing by rules) and Subject Index (alphabetical listing by subject).
To locate past issues and topics, select one of the Federal Evidence Review departments below (such as the Lead Story, Practice Tip, Circuit Splits):
| Feature Articles | Circuit Developments | Evidence Issues |
|---|---|---|
| Lead Story - Focuses on a key issue involving the Federal Rules of Evidence or other evidence developments | Circuit Splits - Highlights recent cases involving a split among the circuits in the interpretation and application of evidence principles | Rule Index - Lists features that focus on particular Federal Rules of Evidence, and constitutional or statutory provisions concerning evidence law |
| Practice Tip - Highlights alternative grounds for admitting or excluding evidence | Developing Consensus - Notes recent cases in which a consensus is growing among the circuits | Subject Index - Lists particular topics covered in past issues of the Review |
| Other Significant Evidence Cases - Reviews evidence issues not readily falling under specific Rules of Evidence but with noteworthy evidence implications | Open Issues - Focuses on open evidence issues recently identified or resolved | Contents & Table Of Cases - Download material related to cases and issues covered each month in the Review |
| Supreme Court Watch - Reviews key evidence cases and issues before the U.S. Supreme Court | Highlights From Current Issues Of The Review Identifies cutting-edge topics covered in recent issues | Pending Amendments - Updates status of proposed rule amendments |
Contents
Download selected excerpts from each monthly issue of the Federal Evidence Review. Each issue of the Review covers as many cases as possible from the prior month involving the Federal Rules of Evidence. The selected excerpts include: (1) the In Focus Cover Page, highlighting the monthly topics and features and (2) the Contents Page, listing the cases covered in each issue. Past issues can be ordered on the Order Past Issues Page.
Select the month below for the particular Cover Page issue you wish to review. An excerpt is included for each published issue.
Federal Evidence Review Past Issue Excerpts
| Volume 5 - 2008 | |||
|---|---|---|---|
| January 2008 | February 2008 | March 2008 | April 2008 |
| May 2008 | June 2008 | July 2008 | August 2008 |
| September 2008 | October 2008 | November 2008 | December 2008 |
| Volume 4 - 2007 | |||
|---|---|---|---|
| January 2007 | February 2007 | March 2007 | April 2007 |
| May 2007 | June 2007 | July 2007 | August 2007 |
| September 2007 | October 2007 | November 2007 | December 2007 |
| Volume 3 - 2006 | |||
|---|---|---|---|
| January 2006 | February 2006 | March 2006 | April 2006 |
| May 2006 | June 2006 | July 2006 | August 2006 |
| September 2006 | October 2006 | November 2006 | December 2006 |
| Volume 2 - 2005 | |||
|---|---|---|---|
| January 2005 | February 2005 | March 2005 | April 2005 |
| May 2005 | June 2005 | July 2005 | August 2005 |
| September 2005 | October 2005 | November 2005 | December 2005 |
| Volume 1 - 2004 | |||
|---|---|---|---|
| August 2004 | September 2004 | October 2004 | November 2004 |
| December 2004 | NA | NA | NA |
Federal Evidence Review Feature Articles
Lead Story Index
Focusing on key issues involving the Federal Rules of Evidence and other
evidence developments. Past issues can be ordered on the Order Past Issues Page
| Title | Date | Vol | Page |
|---|---|---|---|
| Volume 5 — 2008 | |||
| Lead Story: Recent Attorney-Client Privilege Measures Pending in Congress | July 2008 | 5 | 919 |
| FRE 413, 414 And 415: Similar Act Evidence In Sex Offense Cases – Ten Common Questions And Misconceptions | June 2008 | 5 | 787 |
| Admitting Electronic Evidence: Hearsay Issues (Part II) | May 2008 | 5 | 606 |
| Spoliation Under The FRE | Apr. 2008 | 5 | 476 |
| Admitting Electronic Evidence: Authentication Issues (Part I) | Mar. 2008 | 5 | 313 |
| FRE 602: The Personal Knowledge Requirement: Ten Common Questions & Misconceptions | Feb. 2008 | 5 | 167 |
| Status Of The Journalist's Privilege In The Federal Courts And Recent Congressional Activity | Jan. 2008 | 5 | 20 |
| Volume 4 — 2007 | |||
| Steps For Avoiding Potential Prejudice, Confusion And Other Problems In Using Law Enforcement Dual Fact and Expert Witnesses | Dec. 2007 | 4 | 1752 |
| FRE 403: Balancing Probative Value and Unfair Prejudice: Ten Common Questions & Misconceptions | Nov. 2007 | 4 | 1613 |
| The Practice And Role Of Motions In Limine In Federal Court | Oct. 2007 | 4 | 1470 |
| Admitting Flight And Other Forms Of Consciousness Of Guilt Evidence | Sept. 2007 | 4 | 1257 |
| Appellate Jurisdiction Over Trial Court Decisions Denying A Claim Of An Evidentiary Privilege | Aug. 2007 | 4 | 1088 |
| The General Bar Against Using Guilt-Assuming Hypothetical Questions And Other Avenues To Question Character Witnesses | July 2007 | 4 | 951 |
| Proposed Amendments To FRE 804(b)(6) (Forfeiture By Wrongdoing) | June 2007 | 4 | 791 |
| Using Non-Hearsay To Admit Statements In Documents And Connect Key Evidence | May 2007 | 4 | 617 |
| FRE 301 & Evidentiary Presumptions: Ten Common Questions & Misconceptions | Apr. 2007 | 4 | 437 |
| Excluding Evidence Based On Violations Of Discovery And Other Rules | Mar. 2007 | 4 | 299 |
| The "Open Door" Doctrine: Opening The Evidence Door To Otherwise Inadmissible Evidence: Ten Common Questions & Misconceptions | Feb. 2007 | 4 | 167 |
| 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 |
| Volume 3 — 2006 | |||
| Reverse FRE 404(b) Evidence: Ten Common Questions & Misconceptions | Dec. 2006 | 3 | 1638 |
| FRE 615: Ten Common Questions & Misconceptions | Nov. 2006 | 3 | 1518 |
| Seven Key Principles For Qualifying An Expert Under FRE 702 | Oct. 2006 | 3 | 1391 |
| FRE 703 (Bases Of Expert Opinion Testimony) — Ten Common Questions & Misconceptions | Sept. 2006 | 3 | 1183 |
| 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 701 (Lay Witness Opinion Testimony) — Ten Common Questions & Misconceptions | July 2006 | 3 | 873 |
| FRE 404(b) Diverging Elements: A Circuit Split Ripe For Certiorari Review? | June 2006 | 3 | 756 |
| Further Observations On Admitting Evidence Under The Confrontation Clause Two Years After Crawford v. Washington | May 2006 | 3 | 617 |
| Sixth Amendment Confrontation Clause Rights And Video Conferencing — Struggling Or Stumbling Into The Twenty-First Century? | Apr. 2006 | 3 | 433 |
| FRE 501 — Spousal Communications Privilege — Ten Common Questions & Misconceptions | Mar. 2006 | 3 | 307 |
| Adverse Spousal Testimony Privilege — Ten Common Questions & Misconceptions | Feb. 2006 | 3 | 194 |
| An Overview Of The Pending Amendment To FRE 404(a) Concerning The Admissibility Of Character Evidence To Prove Conduct | Jan. 2006 | 3 | 20 |
| Volume 2 — 2005 | |||
| An Overview Of The Pending Amendment To FRE 408 Concerning The Admissibility Of Compromise Evidence | Dec. 2005 | 2 | 1135 |
| An Overview Of The Pending FRE 606(b) Amendment: Adding Juror Competence To Testify On Verdict Reporting Errors | Nov. 2005 | 2 | 1025 |
| An Overview Of The Pending FRE 609(a)(2) Amendment: Seeking To Clarify Mandatory Impeachment Of Convictions Involving “Dishonesty Or False Statement” | Oct. 2005 | 2 | 938 |
| Newspapers And Periodicals As Evidence | Sept. 2005 | 2 | 830 |
| Fingerprint Identification Evidence - Ten Common Questions | Aug. 2005 | 2 | 690 |
| Common Evidence Issues Raised By Psychological Expert Evidence In Criminal Cases | July 2005 | 2 | 567 |
| Expert Eyewitness Identification: Common Grounds For Assessing Admissibility | June 2005 | 2 | 448 |
| Taking Judicial Notice - Ten Common Questions and Misconceptions on FRE 201 | May 2005 | 2 | 345 |
| FRE 404(b): Ten Common Questions and Misconceptions | Apr. 2005 | 2 | 243 |
| Common Questions To Consider In Introducing Or Opposing Recorded Conversations | Mar. 2005 | 2 | 162 |
| Non-Hearsay Statements and Examples: When is a Statement Hearsay and When is it Non-Hearsay? | Feb. 2005 | 2 | 94 |
| FRE 807 - Residual Hearsay Statement - Ten Common Questions and Misconceptions | Jan. 2005 | 2 | 12 |
| Volume 1 — 2004 | |||
| Government Informant’s Privilege | Dec. 2004 | 1 | 275 |
| Harmless Error Doctrine: Promoting Fair Proceedings | Nov.2004 | 1 | 201 |
| FRE Notice Requirements | Oct. 2004 | 1 | 133 |
| After Crawford v. Washington: Early Observations On the Admissibility of Evidence Under the Confrontation Clause | Sept. 2004 | 1 | 83 |
| Publisher’s Column: Inaugural Issue | Aug. 2004 | 1 | 13 |
Practice Tip Index
Highlighting alternative grounds for admitting evidence under specific Federal Rules of Evidence, or discussing other suggestions for the practitioner. Past issues can be ordered on the Order Past Issues Page.
| Title | Date | Vol | Page |
|---|---|---|---|
| Volume 5 — 2008 | |||
| Excluding Expert Opinion On Ultimate Legal Issues Under FRE 704 | July 2008 | 5 | 919 |
| Alternatives To FRE 413, 414 And 415 For The Admission Of Sexual Abuse Or Molestation Evidence | June 2008 | 5 | 805 |
| Four Ways To Determine Whether Facts Or Data Relied Upon By An Expert Are Reasonable Under FRE 703 | May 2008 | 5 | 616 |
| FRE 611(c): Five Unique Circumstances When The Use Of Leading Questions On Direct Examination Are Permitted | Apr. 2008 | 5 | 485 |
| FRE 801(d)(2)(B) And Alternate Grounds To Admit Adoptive Admission Statements | Mar. 2008 | 5 | 321 |
| Witness Testimony Lacking Personal Knowledge And The FRE 803 Hearsay Exceptions | Feb. 2008 | 5 | 178 |
| Alternate Grounds For Excluding Witness Testimony Lacking Personal Knowledge | Jan. 2008 | 5 | 39 |
| Volume 4 — 2007 | |||
| FRE 801(d)(2)(C) And Alternative Grounds To Admit Statements Of An Authorized Party | Dec. 2007 | 4 | 1764 |
| FRE 801(d)(2)(D) And Alternative Grounds To Admit Statements Of A Party’s Agent | Nov. 2007 | 4 | 1632 |
| Admitting Law Enforcement Lay Opinion Identification Testimony | Oct. 2007 | 4 | 1487 |
| FRE 801(d)(2)(E) And Alternative Grounds To Admit Co-Conspirator Statements | Sept. 2007 | 4 | 1273 |
| Implicit Waiver Of The Attorney-Client Privilege | Aug. 2007 | 4 | 1103 |
| FRE 801(d)(1)(B) And Alternative Grounds To Admit Prior Statements | July 2007 | 4 | 961 |
| Statements Involving Arrested Co-Conspirators Under FRE 801(d)(2)(E) | June 2007 | 4 | 806 |
| The Attorney-Client Communication Privilege: Common Exceptions And Grounds For Unavailability | May 2007 | 4 | 630 |
| Parhways To Waiver On Appeal Under FRE 103(a) (Requiring A Timely "Objection Or Motion To Strike") | Apr. 2007 | 4 | 447 |
| Factors To Assess When Court Interrogation, under FRE 614, Is Impermissible | Mar. 2007 | 4 | 309 |
| The "Opened Door" Doctrine And The Terminology Of Admitting Otherwise Excludable Evidence | Feb. 2007 | 4 | 189 |
| Evidence Of Witness's Mental Or Sensory Impairment | Jan. 2007 | 4 | 38 |
| Volume 3 — 2006 | |||
| Constitutional Issues In Considering FRE 404(b) Evidence | Dec. 2006 | 3 | 1650 |
| Enforcing FRE 615 Witness Exclusion Orders | Nov. 2006 | 3 | 1526 |
| Proving FDIC Coverage As An Element Of Certain Offenses | Oct. 2006 | 3 | 1401 |
| The Intersection Of FRE 703 (Bases Of Expert Opinion) With Other Evidence Rules | Sept. 2006 | 3 | 1192 |
| FRE 609 (Impeachment By Evidence Of Conviction Of Crime) | Aug. 2006 | 3 | 1047 |
| The Intersection Of FRE 701 Lay Opinion Evidence With Other Rules | July 2006 | 3 | 881 |
| Perspectives On The FRE 403 Balance Of The Probative Value Of The Evidence And Unfair Prejudice | June 2006 | 3 | 763 |
| Evidentiary Hurdles In Admitting Film, Movie Or Video Evidence | May 2006 | 3 | 630 |
| Authentication procedures Outside The Federal Rules Of Evidence | Apr. 2006 | 3 | 443 |
| Exceptions To The Confidential Spousal Communications Privilege | Mar. 2006 | 3 | 307 |
| FRE 501: Exceptions To The Adverse Spousal Testimony Privilege | Feb. 2006 | 3 | 202 |
| FRE 404: Rules Governing Admission Of Reputation Or Opinion Testimony About A Person's Character | Jan. 2006 | 3 | 27 |
| Volume 2 — 2005 | |||
| FRE 408: Compromise and Offers to Compromise | Dec. 2005 | 2 | 1145 |
| FRE 103(a) And The Timeliness Of Evidence Objections | Nov. 2005 | 2 | 1035 |
| 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 901: Authentication And Identification (Special Application: Telephone Conversations) | Sept. 2005 | 2 | 836 |
| FRE 601: Witness Competency And Choice Of Law In Federal Court | Aug. 2005 | 2 | 703 |
| Evidence Rules Regarding Statements About Family Matters | July 2005 | 2 | 576 |
| Forfeiting The Right To Object To Hearsay Under FRE 804(b)(6) Forfeiture By Wrongdoing | June 2005 | 2 | 457 |
| Alternative Ways To Judicially Notice An Adjudicative Fact | May 2005 | 2 | 351 |
| FRE 404(b): Other Crimes, Wrongs, or Acts | April 2005 | 2 | 249 |
| Admitting Plea-Related Statements: Recognized Exceptions Under FRE 410 | March 2005 | 2 | 171 |
| Admitting A Prior Inconsistent Statement When FRE 801(d)(1)(A) is Unavailable | Feb. 2005 | 2 | 100 |
| FRE 901: Authentication and Identification (Special Application: Handwriting) | Jan. 2005 | 2 | 16 |
| Volume 1 — 2004 | |||
| Alternative Government Privileges | Dec. 2004 | 1 | 260 |
| FRE 901: Authentication and Identification (Special Application: Photographs) | Nov.2004 | 1 | 203 |
| FRE 1002: Requirement of Original (Best Evidence Rule) | Oct. 2004 | 1 | 138 |
| Alternative Ways to Admit Charts or Summaries When FRE 1006 is Unavailable | Sept. 2004 | 1 | 87 |
| Alternative Ways to Admit Business Records into Evidence when FRE 803(6) Is Unavailable | Aug. 2004 | 1 | 14 |
Proposed Amendments
Material on past and current efforts to amend the Federal Rules of Evidence are covered in the Federal Evidence Review each month. Up-to-date coverage of the status of rule amendments is available on line on the Amendments Page .
Return to Master Index / Visit Subject Index / Visit Rule IndexSupreme Court Watch
Focusing on key cases and issues before the United States Supreme Court
that involve the Federal Rules of Evidence and other evidence developments.
| Title | Date | Vol | Page |
|---|---|---|---|
| Volume 5 — 2008 | |||
| Supreme Court Clarifies Forfeiture By Wrongdoing Exception Under The Confrontation Clause | July 2008 | 5 | 933 |
| Sprint/United Management Co. v. Mendelsohn: Circuit Should Not Conduct Its Own FRE 401/403 Analysis Without Allowing Trial Court An Opportunity To Rule | Mar. 2008 | 5 | 335 |
| Danforth v. Minnesota: While Crawford v. Washington Does Not Apply Retroactively In Federal Proceedings, State Courts May Adopt Broader Retroactivity Rules For State Proceedings | Mar.2008 | 5 | 332 |
| Volume 4 — 2007 | |||
| 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 |
| Volume 3 — 2006 | |||
| Davis v. Washington And The Scope Of "Testimonial" Hearsay Statements | June 2006 | 3 | 896 |
| Whether Crawford Applies Retroactively On Collateral Review? | June 2006 | 3 | 766 |
Circuit Developments (Periodic Features)
Circuit Splits Index
Highlighting recent circuit splits involving the Federal Rules of Evidence and other evidence issues. Past issues can be ordered on the Order Past Issues Page.
| Rule | Title | Date | Vol | Page |
|---|---|---|---|---|
| Volume 5 — 2008 | ||||
| FRE 106 Rule of Completeness | First and Fourth Circuits split on whether FRE 106 Rule of Completeness renders otherwise inadmissible hearsay admissible | June 2008 | 5 | 807 |
| Other Significant Evidence Issue: Spoliation Of Evidence | Sixth Circuit Identifies Split With Three Others In Applying State Spoliation Law To Diversity Cases | Apr. 2008 | 5 | 492 |
| FRE 501 Privileges | Sixth Circuit Highlights Existing Circuit Split On The Dangerous-Patient Exception To The Psychotherapist-Patient Privilege | Mar. 2008 | 5 | 329 |
| FRE 403 & FRE 414 Sexual Abuse Predisposition Evidence | Fourth Circuit Notes Split Between The Seventh And Ninth Circuits On Strict Application Of FRE 403 Factors In Considering Admission Of FRE 414 Molestation Evidence | Jan. 2008 | 5 | 48 |
| Volume 4 — 2007 | ||||
| FRE 413 & FRE 414 Sexual Abuse Predisposition Evidence | 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 |
| FRE 408: The "Another Purpose" Exception | Whether Settlement Negotiation Evidence Is Admissible To Show Mitigation Of Damages Under The "Another Purpose" Exception | Apr. 2007 | 4 | 454 |
| Volume 3 — 2006 | ||||
| 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 |
| FRE 302: Applicability of State Law | Tenth Circuit Splits With First, Fourth, And Eighth Circuits (And Its Own Precedent), Finding Erie Doctrine Is Inapplicable To The Federal Rules Of Evidence | Dec. 2006 | 3 | 1665 |
| FRE 301: Presumptions in General in Civil Actions | Third Circuit Notes Division On Standard Of Proof On Established Domicile Presumption | Sept. 2006 | 3 | 1196 |
| Sixth Amendment: Confrontation Clause | Eleventh Circuit Notes Circuit Split And Joins Four Other Circuits In Holding Crawford Does Not Apply Retroactively On Collateral Review | May 2006 | 3 | 637 |
| FRE 704(b): Opinion on Ultimate Issue | Eleventh Circuit Notes Different Application Of FRE 704(b) To Admission Of Expert Testimony On Knowledge Of Presence Of Drugs | Apr. 2006 | 3 | 450 |
| Sixth Amendment: Confrontation Clause | Must Non-Testimonial Hearsay Statements Satisfy Ohio v. Roberts's Confrontation Clause Requirement? | Apr. 2006 | 3 | 447 |
| Sixth Amendment: Confrontation Clause | Eleventh Circuit Finds Crawford Confrontation Clause Decision Not To Apply Retroactively To Cases On Collateral Review | Mar. 2006 | 3 | 371 |
| FRE 408: Compromise and Offers to Compromise | Admission Of Civil Compromise Evidence In Criminal Proceedings Under FRE 408 | Jan. 2006 | 3 | 32 |
| Volume 2 — 2005 | ||||
| Sixth Amendment: Confrontation Clause | Whether 911 telephone calls are "testimonial" under Crawford? | Nov. 2005 | 2 | 1041 |
| 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 |
| Sixth Amendment: Confrontation Clause | The Retroactivity Of Crawford Confrontation Clause Analysis | March 2005 | 2 | 173 |
| FRE 501: Attorney Client Privilege | Availability Of The Governmental Attorney-Client Privilege | March 2005 | 2 | 175 |
| Fifth Amendment: Right Against Self-Incrimination | Does Use Of Post-Arrest, Pre-Miranda Silence Violate The Right Against Self-Incrimination? | Feb. 2005 | 2 | 102 |
| Volume 1 — 2004 | ||||
| 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.2004 | 1 | 205 |
| 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 |
| FRE 408: Compromise and Offers to Compromise | Is civil settlement evidence admissible in a criminal fraud trial? | Sept. 2004 | 1 | 89 |
| FRE 501: Privileges: Exception to Psychotherapist-Patient Privilege | Whether a dangerous-patient exception applies under the federal psychotherapist- patient privilege under FRE 501? | Aug. 2004 | 1 | 16 |
| FRE 103(a): Effect of Erroneous Ruling: Application of Cumulative Error Doctrine in Civil and Criminal Cases | Does the cumulative error doctrine extended to civil cases? | Aug. 2004 | 1 | 17 |
Developing Consensus
Noting recent cases in which a circuit consensus is developing on evidence issues. Past issues can be ordered on the Order Past Issues Page.
| Rule | Title | Date | Vol | Page |
|---|---|---|---|---|
| Volume 5 — 2008 | ||||
| FRE 405(b) (Methods of Proving Character – Reputation or opinion) | Fifth Circuit concludes that FRE 405(b) limits the use of a victim’s prior violence when offered only as proof of essential elements of homicide charge or defense | May 2008 | 5 | 620 |
| FRE 403 (Exclusion of Relevant Evidence) | Fifth Circuit Finds Consensus That In A Subsequent Civil Suit, Admission Of Decision Not To Bring Criminal Charges Is Highly Prejudicial | Apr. 2008 | 5 | 489 |
| FRE 801(d)(1)(A) (Prior Inconsistent Statement) | Fifth Circuit Joins Five Others, Holding That A Plea Agreement Factual Basis May Be Admitted As Substantive Evidence Of A Prior Inconsistent Statement | Mar. 2008 | 5 | 325 |
| Sixth Amendment (Confrontation Clause & FRE 803(8) (Public Record) | Tenth Circuit Agrees With Four Other Circuits That A Public Record Under FRE 803(8) Is Non-Testimonial | Feb. 2008 | 5 | 182 |
| FRE 803(6) (Business Records Exception) | D.C. Circuit Joins Other Circuits In Holding That Records In Which A Firm Takes Custody Are "Made" By The Firm Under FRE 803(6) | Jan. 2008 | 5 | 44 |
| Volume 4 — 2007 | ||||
| FRE 801(D)(2)(E) (Co-Conspirator Statements) | Sixth Circuit Joins Six Other Circuits Holding That Co-Conspirator Statements Under The Hearsay Exception Of FRE 801(D)(2)(E) Are Not Testimonial Under Crawford | Dec. 2007 | 4 | 1767 |
| 6th Amendment (Confrontation Clause) | Sixth Circuit Joins Three Circuits In Recommending Joint Trial Procedure To Admit Incriminating Statements By One Co-Defendant Without Violating The Sixth Amendment Bruton Rights Of Other Defendants | Dec. 2007 | 4 | 1769 |
| FRE 901 (Authentication) | Ninth Circuit Notes Trend Of Allowing Document Authentication In Asylum Proceedings By Other Than Official Government Certification | Dec. 2007 | 4 | 1772 |
| FRE 615(2) (Witness Exclusion) | Tenth Circuit Joins Nine Other Circuits Holding That A Case Agent Is Not Subject To FRE 615(2) Witness Exclusion | Nov. 2007 | 4 | 1637 |
| FRE 407 (Subsequent Remedial Measures) | Eleventh Circuit Joins Eight Other Circuits Holding That FRE 407 Does Not Apply To Remedial Measures Taken Without The Defendant’s Voluntary Participation | Sept. 2007 | 4 | 1281 |
| Sixth Amendment (Confrontation Clause) | Ninth Circuit Adopts A Two-Step De Novo And Abuse Of Discretion Standard Of Review For Confrontation Clause Claims Involving Limitations On Cross-Examination | Sept. 2007 | 4 | 1279 |
| FRE 404(b) (Other Acts) | Eighth Circuit Joins Fourth, Ninth, And Tenth Circuits Finding That Prior Drunk Driving Convictions Are Admissible Under FRE 404(b) In Negligence Auto-Accident Action As Proof That The Defendant Was Especially Aware Of Drunk Driving | Aug. 2007 | 4 | 1111 |
| Sixth Amendment (Confrontation Clause) | : Six Circuits (Including The Second, Fourth, Fifth, Seventh, Eighth And Eleventh Circuits) Have Rejected Claims That The Confrontation Clause Disallows A Relaxed Evidentiary Standard In Federal Capital Sentencing Proceedings | Aug. 2007 | 4 | 1108 |
| FRE 501 (Privilege) | : 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 Columbia | July 2007 | 4 | 967 |
| Sixth Amendment (Confrontation Clause) | The Eighth Circuit Joins First, Fifth, Ninth And Eleventh Circuits In Consensus That Use Of Warrant Of Deportation Is Not Testimonial Hearsay Under Crawford | June 2007 | 4 | 810 |
| Sixth Amendment (Confrontation Clause) | D.C. Circuit Joins Nine Other Circuits In Concluding Crawford Confrontation Clause Analysis Does Not Apply During Sentencing Proceedings | May 2007 | 4 | 637 |
| FRE 401 (Relevance) | Seventh Circuit Notes Consensus On Considering Dissimilarities In Out-Of-Court Experiment Evidence | Apr. 2007 | 4 | 458 |
| FRE 413 & FRE 414 Sexual Abuse Predisposition Evidence | 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 |
| FRE 706: Court Appointed Experts | 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 |
| Sixth Amendment (Confrontation Clause) | Eighth Circuit Joins Four Other Circuits Concluding Warrants Of Deportation Are Non-Testimonial Under Crawford | Mar. 2007 | 4 | 322 |
| Sixth Amendment (Confrontation Clause) | Tenth Circuit Notes Circuit Consensus To Apply An Objective Test For "Testimonial" Statements Under The Confrontation Clause | Feb. 2007 | 4 | 193 |
| FRE 1006: Summaries | First Circuit joins other circuits in holding a summary under FRE 1006 can be based upon evidence admitted at trial | Jan. 2007 | 4 | 42 |
| Volume 3 — 2006 | ||||
| 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 |
| 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 |
| 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 103(a): Effect of Erroneous Ruling | Fifth Circuit Notes Consensus On Harmless Error In Confrontation Clause Violations | Oct. 2006 | 3 | 1408 |
| 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 |
| 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 Requirements | Oct. 2006 | 3 | 1415 |
| Sixth Amendment: Confrontation Clause | Ninth Circuit Notes Consensus With First And Seventh Circuits That Exclusion Of Cross-Examination On Specific Sentence Cooperating Witnesses Faced Did Not Violate Confrontation Clause | Sept. 2006 | 3 | 1199 |
| FRE 606(b): Inquiry into Verdict | Unless Learned Through Improper Channels, Jury's Discussion Of The Defendant's Failure To Testify Is Not Reviewable Under FRE 606(b) | Sept. 2006 | 3 | 1203 |
| Sixth Amendment: Confrontation Clause; FRE 803(6): Business Records; FRE 902: Self Authentication | Seventh Circuit Notes Growing Trend After Crawford That (a) "Testimonial" Includes Statements "Made With An Eye Toward Prosecution" And (b) Business Records Are Non-Testimonial | Sept. 2006 | 3 | 1205 |
| Sixth Amendment: Confrontation Clause | Tenth Circuit Joins Other Circuits In Concluding The Admission Of Reliable Hearsay At Sentencing Does Not Violate The Confrontation Clause After Crawford | Aug. 2006 | 3 | 1050 |
| Sixth Amendment: Confrontation Clause | First Circuit Notes Consensus That Use Of Warrant Of Deportation Is Not Testimonial Hearsay Under Crawford | July 2006 | 3 | 891 |
| FRE 702: Testimony By Experts | Tenth Circuit Notes Trend Rendering Eyewitness Identification Expert Evidence Neither Per Se Excludable, Nor Readily Admissible | July 2006 | 3 | 893 |
| Sixth Amendment: Confrontation Clause | 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 |
| FRE 801(d)(2)(E): Coconspirator Statements | Eleventh Circuit Finds Consensus That FRE 801(d)(2)(E) Coconspirator Statements Are Not "Testimonial" For Confrontation Clause Purposes | May 2006 | 3 | 644 |
| FRE 404(b): Other Crimes, Wrongs, or Acts | Third Circuit Notes Circuit Agreement That Past Taxpaying Record Properly Admitted To Show Defendant's Intent In Tax Evasion Prosecution Under FRE 404(b) | May 2006 | 3 | 646 |
| Sixth Amendment: Confrontation Clause | Fifth Circuit Joins Ninth And Eleventh Circuits Finding Documents In Immigration File Non-testimonial Hearsay | Apr. 2006 | 3 | 452 |
| Sixth Amendment: Confrontation Clause | Eleventh Circuit Joins Four Other Circuits In Finding A Witnesses' Trial Testimony By Live, Two-Way Video Teleconference Violates Defendant's Sixth Amendment Confrontation Rights | Mar. 2006 | 3 | 319 |
| 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 |
| FRE 103: Rulings on Evidence | 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 |
| FRE 702: Testimony by Experts | Handwriting Identification Satisfies FRE 702 Reliability Standards | Jan. 2006 | 3 | 39 |
| Sixth Amendment: Confrontation Clause | D.C. Circuit Notes Other Circuits Reject Application Of Crawford's Limitation On "Testimonial Hearsay" In Parole Hearings | Jan. 2006 | 3 | 36 |
| Volume 2 — 2005 | ||||
| Sixth Amendment: Confrontation Clause | First Circuit Joins Four Other Circuits In Concluding Crawford Confrontation Clause Analysis Does Not Apply During Supervised Release Proceeding | Dec. 2005 | 2 | 1150 |
| Sixth Amendment: Confrontation Clause | A Warrant Of Deportation Is "Non-Testimonial" Under Crawford | Dec. 2005 | 2 | 1149 |
| Sixth Amendment: Confrontation Clause | Crawford Does Not Apply At Sentencing | Dec. 2005 | 2 | 1148 |
| FRE 103(a): Effect of Erroneous Ruling | Harmless Error Application: Can A Circuit Rule Sua Sponte On A Harmless Error? | Sept. 2005 | 2 | 842 |
| FRE 803(4): Medical Diagnosis Statements | Does The Medical Diagnosis Statement Hearsay Exception Include Statements Made To A Non-Physician? | Sept. 2005 | 2 | 839 |
| Sixth Amendment: Confrontation Clause | Does Crawford apply at sentencing? | Aug. 2005 | 2 | 707 |
| FRE 1101(d)(3): Applicability Of Rules | Do The FRE Apply To Juvenile Transfer Proceedings? | June 2005 | 2 | 642 |
| FRE 702: Testimony By Experts | Does Fingerprint Evidence Satisfy The Requirements Of Daubert? | May 2005 | 2 | 353 |
| 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 |
| Sixth Amendment: Confrontation Clause | First Cases - Crawford Does Not Apply Retroactively On Collateral Review | Jan. 2005 | 2 | 17 |
| Volume 1 — 2004 | ||||
| FRE 501: Marital Communications Privilege | Ninth Circuit Joins Other Circuits In Holding Either Spouse May Assert The "Marital Communications" Privilege | Oct. 2004 | 1 | 143 |
| 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 Documents | Sept. 2004 | 1 | 91 |
| 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 |
Open Issues Index
Combined listing of open issues that remain pending resolution or that have recently been resolved. Past issues can be ordered on the Subscribe Page.
| Rule | Title | Date | Vol | Page |
|---|---|---|---|---|
| Volume 5 — 2008 | ||||
| FRE 106 (Remainder Of Or Related Writings Or Recorded Statements) | Open Issue: Fifth Circuit Notes Unresolved Questions About How Broadly The FRE 106 “Rule Of Completeness” Reaches Concerning Testimony At Trial, That Is “Tantamount” To Introducing A Transcript Or Recording | July 2008 | 5 | 927 |
| FRE 609 (Impeachment by Evidence of Conviction of Crime) | Ninth Circuit Resolves Open Issue Whether Prior Convictions More Than Ten Years Old May Be Used For Impeachment Purposes Under FRE 609 Where A Prior Convictions Are Used To Increase The Sentence Of A Subsequent Conviction | July 2008 | 5 | 930 |
| Sixth Amendment (Confrontation Clause) & FRE 902(11) (Self-authentication) | D.C. Circuit Questions If Admitting Business Records Under FRE 902(11) Violates The Confrontation Clause | Mar. 2008 | 5 | 330 |
| Volume 4 — 2007 | ||||
| 6th Amendment (Confrontation Clause) | 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)(5): Definition Of Unavailability | Ninth Circuit Adopts First Circuit Standard That FRE 804(a)(5) Requires The Proponent Of An Unavailable Witness Prevent The Witness From Becoming Absent | Sept. 2007 | 4 | 1283 |
| FRE 501: Privileges | 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 |
| FRE 501: Privileges | 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 |
| FRE 603: Oath or Affirmation | 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 706:Court Appointed Experts | Sixth Circuit notes open issue under FRE 706 whether "court appointed experts" may include class settlement administrators | Mar. 2007 | 4 | 326 |
| Volume 3 — 2006 | ||||
| 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 |
| Sixth Amendment: Confrontation Clause | Ninth Circuit Notes Continuing Open Issue Under The Confrontation Clause Whether Ohio v. Roberts Applies To Non-Testimonial Statements | Sept. 2006 | 3 | 1209 |
| FRE 501: Privileges | 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 |
| FRE 501: Privileges | Scope Of Spousal Communication Privilege During An Investigation | Apr. 2006 | 3 | 454 |
| FRE 501: Privileges | D.C. Circuit Notes Open Issue Concerning Existence Of A Federal Settlement Privilege | Apr. 2006 | 3 | 456 |
| Sixth Amendment: Confrontation Clause | Sixth Circuit Notes Post-Crawford and Post-Booker Question Concerning Use Of Testimonial Hearsay At Sentencing | Mar. 2006 | 3 | 320 |
| Sixth Amendment: Confrontation Clause | Ninth Circuit Notes Open Issue Whether The Confrontation Clause Is Violated By Admission Of Foreign Business Records Under 18 U.S.C. 3505 | Mar. 2006 | 3 | 324 |
| 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 |
| Sixth Amendment: Confrontation Clause | Fifth Circuit Notes Open Issue Whether Crawford Confrontation Clause Case Applies Retroactively | Jan. 2006 | 3 | 47 |
| Volume 2 — 2005 | ||||
| FRE 501: Privileges: Attorney-Client Privilege | Sixth Circuit Resolves Whether A Municipal Corporation Can Assert The Attorney-Client Privilege In Civil Litigation | Oct. 2005 | 2 | 950 |
| 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 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 |
| 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 |
| 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. 2005 | 2 | 102 |
| 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 |
| Volume 1 — 2004 | ||||
| 18 U.S.C. § 3153: Administration of Pretrial Services | Second Circuit resolves open issue whether pretrial Service Report statements may be used to impeach a defendant | Nov. 2004 | 1 | 206 |
| FRE 501: Privileges: 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 claims | Sept. 2004 | 1 | 92 |
Other Significant Evidence Cases
Reviewing evidence issues that do not readily fall under specific Federal Rules of Evidence but may have noteworthy evidence implications (e.g., under statutes). Consistent with entries in this index, the date for the article reported is the date in which the issue is covered in the Review not the date the case or issue was decided. Past issues can be ordered on the Order Past Issues Page.
| Evidence Issue | Evidence Principle | Date | Vol | Page |
|---|---|---|---|---|
| Volume 5 — 2008 | ||||
| Good Faith Basis To Question Witness | US v. Taylor: Cross-examination question on whether witness’s state warrants had been quashed in exchange for her cooperation with the prosecution excluded for lacking a good faith basis | May 2008 | 5 | 755 |
| Bench Trial & Inadmissible Evidence | Torres-Lazarini v. US: Trial court is presumed to ignore inadmissible evidence in bench trials | May 2008 | 5 | 753 |
| "Open Door" Doctrine | US v. Marin: Agent’s testimony on knowing why drug trafficking defendant had weapon was admissible after the defense opened the door by leaving impression that defendant denied ownership of the gun at issue | May 2008 | 5 | 751 |
| "Open Door" Doctrine | Munoz v. State Farm Lloyds: Admission of evidence that the plaintiff had failed a polygraph examination about his role in starting the fire in his civil suit for insurance proceeds did not "open the door" to proof that the plaintiff had not been criminally indicted for the arson | Apr. 2008 | 5 | 569 |
| Spoliation of Evidence | Adkins v. Wolever: Sixth Circuit position in applying state law of spoliation conflicts with other circuits application of federal spoliation law | Apr. 2008 | 5 | 568 |
| English Language Requirement | US v. Diaz: Untranslated Spanish-language documents were erroneously admitted violating the English Language Requirement, but the error was not plain error because the documents were admitted for a limited purpose | Apr.2008 | 5 | 568 |
| The "Open Door" Doctrine | US v. Elgeeh: In terrorism-related case, ageent's references to terrorism during his cross-examination were not unfairly prejudicial when the defense opened the door by questioning the agent about the prupose of the funding transfers at issue | Mar. 2008 | 5 | 440 |
| Volume 4 — 2007 | ||||
| Waiver Of Issue On Appeal | Defense failure to object to prosecution use of defendant's arguably privileged letter waived the issue on appeal | Oct. 2007 | 4 | 1582 |
| "Open Door" Rule | In voter fraud trial, the defense did not “open the door” to evidence concerning procedures to withdraw a ballot after the government admitted testimony on an area that the trial court had previously ruled was inadmissible | July 2007 | 4 | 1051 |
| "Open Door" Rule | In tax and wire fraud prosecution, testimony concerning the basis for an underlying dispute which resulted in a settlement payment, which was originally excluded, was admissible after the defense opened the door to the issue during cross-examination of IRS agent | July 2007 | 4 | 1049 |
| Invited Error | Exclusion of prosecution witness’s testimony at the defendant’s request based on inadequate pretrial notice precluded the defendant from later asserting on appeal that the exclusion was erroneous | June 2007 | 4 | 922 |
| Vouching | Prosecutor did not improperly vouch for witness when his statements did not suggest he was assuring the jury that the witness's testimony was accurate or that extra-record evidence supported the witness's testimony | Apr. 2007 | 4 | 579 |
| Recordings and Transcripts | Transcripts of tape recording of gang's drug dealings were properly admitted even thought the recording played at trial was difficult to hear since the trial court admonished the jury that only the tape was evidence | Apr. 2007 | 4 | 581 |
| Excluding Evidence For Civil Discovery Violation | Affirming motion to strike expert affidavit in summary judgment proceeding after party failed to timely disclose expert as required by discovery scheduling order | Mar. 2007 | 4 | 399 |
| Volume 3 — 2006 | ||||
| Vouching | Prosecutor did not improperly vouch for witness by introducing evidence of witness's obligation to testify truthfully | Dec. 2006 | 3 | 1778 |
| Fed.R.Civ. P. 16: Disclosure | Exclusion of expert evidence because of disclosure over four weeks after disclosure deadline | Oct. 2006 | 3 | 1490 |
| 18 U.S.C. 3505: Foreign Business Records | Foreign certification of school exam records admissible as foreign business records | Oct. 2006 | 3 | 1492 |
| 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 |
| Juror’s Receipt of Extraneous Information | Juror receipt of extraneous information on usual court procedure undermined ability to fairly determine case | May 2006 | 3 | 730 |
| In-Court Identification | In-court identification by police admissible when officers saw video/photos of perpetration of charged crime and defendant admitted being person on the video/photos | May 2006 | 3 | 728 |
| Fed. R. App. P. 28(a) Appeals Briefs | Evidence issue presented in reply brief waived when not in opening brief | May 2006 | 3 | 727 |
| Audio Recording Foundation | Recording had sufficient foundation when recording device produced audio-record of a two-way conversation, even if device was designed only for dictation | Apr. 2006 | 3 | 588 |
| Preemptive Strategies Resulting In Waiver | Defense introduction of evidence after losing summary judgment in order to preempt its sting when used by plaintiff, waived appeal of plaintiff's use of the evidence | Apr. 2006 | 3 | 586 |
| Jury Instruction | Failure to give limiting instruction contemporaneous with introduction of prior crimes evidence not plain error when limiting instruction given at close of the evidence | Apr. 2006 | 3 | 584 |
| Fed. R. App. P. 28(a) Appellant’s Brief | Circuit dismisses appeal where party failed to explanation trial court error in excluding its line of cross-examination | Apr. 2006 | 3 | 582 |
| Non-Mandatory Inferences | Expert testimony regarding presence of innocent persons at drug deals admitted because inference the testimony permits is not mandatory and jury so instructed | Mar. 2006 | 3 | 398 |
| Fed. R. App. P. 28(a) Appellant’s Brief |
Circuit declines to reach merits of evidence issue and would not research and construct appellant’s legal arguments even for purpose of assessing any plain error | Mar. 2006 | 3 | 396 |
| Two Witness Rule | Two Witness Rule that perjury conviction could not be based entirely on uncorroborated testimony of one witness was satisfied | Feb. 2006 | 3 | 280 |
| 18 U.S.C. § 3505: Foreign Business Records | Foreign bank transaction records were admissible to show source of funds in fraudulent investment scheme in the U.S. because the records were certified, corroborated by domestic bank records and corroborated by witness testimony | Feb. 2006 | 3 | 277 |
| Clarification of Appellate Decision on Evidence | Circuit reconsiders clarifying prior evidence issue after government raised concerns about the possible stare decisis effect of the opinion and offered new argument | Feb. 2006 | 3 | 276 |
| Jury Exposure to Extrinsic Evidence | Jury exposure to extrinsic evidence in fraud trial did not improperly affect verdict | Jan. 2006 | 3 | 167 |
| Objections Top Direct Examination | The FRE provides no "quota system" limiting a party to a certain number of objections | Jan. 2006 | 3 | 165 |
| Fed. R. Civ. P. 56(e): Summary Judgment | Expert witness' affidavit on ultimate legal issue in case was excludable as conclusory | Jan. 2006 | 3 | 164 |
| Fed. R. Civ. P. 56(e): Summary Judgment | Affidavit evidence for summary judgment must be generally admissible in content or substance, although not necessarily in form | Jan. 2006 | 3 | 162 |
| Changed In Limine Ruling During Trial | Pretrial evidentiary rulings are provisional and do not bind the trial court | Jan. 2006 | 3 | 160 |
| Volume 2 — 2005 | Corpus Delicti Rule | Child molestation conviction reversed under requirement for independent evidence of the corpus delicti | Dec. 2005 | 2 | 1216 |
| Curative Jury Instruction May Be Harmless | Assuming curative instruction was ineffective concerning inadmissible evidence, any error was harmless | Oct. 2005 | 2 | 1007 |
| Curative Jury Instruction Presumed Followed | A curative instruction is presumed to redress any error in admitting evidence unless there is "an overwhelming probability" that the jury was unable to follow the instruction | Oct. 2005 | 2 | 1005 |
| Translation of Foreign Language Video Tapes | In mailing obscene materials case, translation of foreign videos was not required to determine whether the video tapes qualified as obscenity | Oct. 2005 | 2 | 1004 |
| Attempts to Call Prosecutor To Testify | Requests to call prosecutor to testify are disfavored | July 2005 | 2 | 665 |
| Handling of Evidence | Trial court found a "reasonable balance" in allowing the jury to view drug evidence by allowing the jury to view the evidence in the courtroom "and protecting them from allegations of misuse or tampering" | June 2005 | 2 | 538 |
| Vouching For Witness | On direct examination, prosecutor may introduce evidence of a witness’ plea agreement’s truthfulness requirements without impermissibly vouching for the witness if prosecutor does not implicitly or explicitly communicate that the government can monitor and verify witness’ testimonial truthfulness | June 2005 | 2 | 540 |
| Vouching For Witness | Rebuttal testimony did not vouch for the defendant’s brother by testifying that the brother would not have received "safety valve credit" if he had not incriminated defendant because his testimony did not bolster the brother’s credibility and simply explained the safety valve process | June 2005 | 2 | 541 |
| Discovery | Discovery rules could not be manipulated to introduce evidence that the party had successfully withheld during discovery | April 2005 | 2 | 306 |
| Fed. R. Civ. P. 45(c): Protection of Persons Subject to Subpoenas | Excluding expert witness in copyright infringement action after expert refused to be deposed | Jan. 2005 | 2 | 71 |
| Miranda Statements | Rejecting argument that incriminating statements violate Miranda unless the interrogation is electronically recorded | Jan. 2005 | 2 | 70 |
| Volume 1 — 2004 | ||||
| 18 U.S.C. § 3153: Pretrial Services Statute | Pretrial Services Report statements may be used to impeach a defendant | Nov. 2004 | 1 | 200 |
| 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 |
Highlights From Past And Current Issues Of The Federal Evidence Review
Identifying some of the many cutting-edge and topical issues in federal evidence law that were covered in each monthly number of the Federal Evidence Review
Past issues can be ordered on the Order Past Issues Page
| Article | Highlighted Issue | Circuit | Page |
|---|---|---|---|
| Volume 5 — Number 2 — February 2008 | |||
| Lead Story | FRE 602: The Personal Knowledge Requirement: Ten Common Questions & Misconceptions | All Circuits | 167 |
| Practice Tip | Witness Testimony Lacking Personal Knowledge And The FRE 803 Hearsay Exceptions | All Circuits | 178 |
| Developing Consensus | Tenth Circuit Agrees With Four Other Circuits That A Public Record Under FRE 803 Is Non-Testimonial | 10th Cir. | 182 |
| United States v. Merrill | Proving Inappropriate Prescriptions | 11th Cir. | 206 |
| United States v. Jimenez | Limits On Examining Authentication Witness | 3d Cir. | 218 |
| United States v. Shinderman | Untruthful answers in medical license applications were admitted under FRE 608(b) as probative of defendant’s character for untruthfulness | 1st. Cir. | 239 |
| United States v. Harper | Exclusion of testifying confidential informant’s conviction for domestic violence was erroneous because the charges were pending when he agreed to cooperate | 5th Cir. | 250 |
| United States v. Masferrer | testimony by executive that his enterprise collected market information was not expert testimony because it provided the foundation for the admission of the market report evidence | 11th Cir. | ** |
| Volume 5 — Number 1 — January 2008 | |||
| Lead Story | Status Of The Journalist’s Privilege In the Federal Courts And Recent Congressional Activity | All Circuits | 20 |
| Practice Tip | Alternative Grounds For Excluding Witness Testimony Lacking Personal Knowledge | All Circuits | 39 |
| United States v. Berber-Tinoco | Erroneous Judicial Comments Based On Personal Knowledge During Suppression Hearing | 9th Cir. | 97 |
| United States v. Taylor | Counsel’s Argument Was Not Testimonial Under Crawford | 7th Cir. | 56 |
| United States v. Brown | EDTA Blood Testing Not Reliable | 9th Cir. | 105 |
| United States v. Zimmerman | DNA Blood Sample Did Not Violate The Fifth Amendment Privilege Against Self-Incrimination Or Due Process Clause | 9th Cir. | 53 |
| United States v. Adefehinti | Business Records Certification under FRE 902(11) did not violate the Confrontation Clause | D.C. Cir. | 132 |
| Volume 4 — Number 12 — December 2007 | |||
| Lead Story | Steps For Avoiding Potential Prejudice, Confusion And Other Problems In Using Law Enforcement Dual Fact and Expert Witnesses | All Circuits | 1752 |
| Practice Tip | FRE 801(d)(2)(C) And Alternative Grounds To Admit Statements Of An Authorized Party | All Circuits | 1764 |
| Developing Consensus | Sixth Circuit Joins Six Others Holding That Co-Conspirator Statements Under FRE 801(d)(2)(E) Are Not Testimonial Under Crawford | 6th Cir. | 1767 |
| United States v. Johnson | Remainder of Related Writings: The rule of completeness did not allow the defendant to require the admission of the redacted exculpatory portion of the defendant’s confession because it did not explain or place in context the admitted portion | 2d Cir. | 1791 |
| United States v. Dohan | Unduly Time Consuming: Exclusion of a chart and testimony contrasting the defendant’s net profits with the cooperating co-conspirator’s profits was properly excluded as unduly time consuming and cumulative | 11th Cir. | 1797 |
| Al-Haramain Islamic Foundation, Inc./ v. Bush | State Secret: The government successfully asserted the state secrets privilege and barred access to a sealed document concerning warrantless surveillance program | 9th Cir. | 1805 |
| Volume 4 — Number 11 — November 2007 | |||
| Lead Story | FRE 403 Balancing Probative Value and Unfair Prejudice: Ten Common Questions & Misconceptions | All Circuits | 1613 |
| Practice Tip | FRE 801(d)(2)(D) And Alternative Grounds To Admit Statements Of A Party’s Agent | All Circuits | 1632 |
| Developing Consensus | A Case Agent Is Not Subject To FRE 615(2) Witness Exclusion | All Circuits | 1637 |
| 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 | 5th Cir. | 1641 |
| United States v. Salcido | Admitting Chat Logs because they were relevant to show the defendant knew the images on his computer depicted minors and were not unfairly prejudicial since the government held the burden to prove intent | 9th Cir. | 1647 |
| United States v. Morgan | In health fraud trial, evidence on the defendant’s disregard of her pretrial release condition that she not open new bank account was admissible under FRE 404(b) to rebut her defense that she lacked fraudulent intent | 5th Cir. | 1685 |
| Volume 4 — Number 10 — October 2007 | |||
| Lead Story: In Limine Motions | The Practice And Role Of Motions In Limine In Federal Court | All Circuits | 1470 |
| Practice Tip: FRE 701: Lay Testimony | Admitting Law Enforcement Lay Opinion Identification Testimony | All Circuits | 1273 |
| Sixth Amendment: Confrontation Clause | Admission of informants’ statements that the defendant intended to distribute drugs violated defendant’s confrontation rights when the defendant could not cross-examine the non-testifying informants | 6th Cir. | 1520 |
| FRE 201: Judicial Notice | Circuit declines to judicially notice that Internet transmission of charged pornographic images went between states, establishing jurisdiction | 10th Cir. | 1519 |
| FRE 404(b) : Other Act Evidence | < In drug conspiracy case, FRE 404(b) evidence of participation in drug robbery-murder was admissible against the co-defendant who opened the door with an entrapment defense, but not against the co-defendant who did not raise an entrapment defense | 7th Cir. | 1538 |
| FRE 606(b): Inquiry into Validity Of Verdict | Circuit declines to decide if capital sentencing jury’s consideration of well-known themes for and against the death penalty in the Bible was an error since it use was not prejudicial | 9th Cir. | 1546 |
| FRE 702: Expert Testimony | Defense expert testimony properly excluded when expert admitted he lacked formalized training or experience necessary to explain issue he was called to testify upon | 7th Cir. | 1549 |
| Volume 4 — Number 9 — September 2007 | |||
| Lead Story: Consciounsess of Guilt Evidence | Admitting Flight And Other Forms Of Consciousness Of Guilt Evidence | All Circuits | 1257 |
| Practice Tip: FRE 801(d)(2)(E): Co-Conspirator Statements | FRE 801(d)(2)(E) And Alternative Grounds To Admit Co-Conspirator Statements | All Circuits | 1273 |
| Developing Consensus: Standard Of Review On Curtailing Cross-Examination | Ninth Circuit resolves an intra-circuit conflict on the standard of review of Confrontation Clause claims, adopting a two-step process including de novo and abuse of discretion standards, and joining five other circuits | 9th Cir. | 1279 |
| Developing Consensus: FRE 407: Subsequent Remedial Measures | Eleventh Circuit joins eight other circuits in holding that FRE 407 does not apply to a remedial measures taken without the voluntary participation of the defendant | 11th Cir. | 1281 |
| Open Issue: FRE 804(a)(5): "Unavailable" Witness | Ninth Circuit Joins First Circuit In Applying FRE 804(a)(5) Concerning Standard For An "Unavailable" Witness: "Implicit . . . in the duty to use reasonable means to procure the presence of an absent witness is the duty to use reasonable means to prevent a present witness from becoming absent" | 9th Cir. | 1283 |
| Sixth Amendment: Confrontation Clause | Machine-Generated Data Does Not Violate Confrontation Clause: Machine-generated data used to determine whether a blood sample contained drugs or alcohol was not a "testimonial" statement under Crawford | 4th Cir. | 1294 |
| FRE 606(b): Inquiry into Validity Of Verdict | Juror Internet Search: A juror Google search concerning a published article regarding the term "deliberating," which she read to the jury, was "extraneous" evidence but did not prejudice the trial | 7th Cir. | 1376 |
| FRE 403: Relevant Evidence | Suicidal Ideations Evidence:In video store and bank robbery trial, suicidal ideations and/or attempts may be admitted as relevant evidence of consciousness of guilt if not unfairly prejudicial under FRE 403 | 6th Cir. | 1351 |
| Volume 4 — Number 8 — August 2007 | |||
| Lead Story: FRE 501: Privileges | Immediate Appeal of Adverse Determination of an Evidentiary Privilege Claim | All Circuits | 1088 |
| Practice Tip: FRE 501: Privileges | Implicit Waiver Of The Attorney-Client Privilege | All Circuits | 1103 |
| Developing Consensus: FRE 404(b): Other Act Evidence | Eighth Circuit Joins Fourth, Ninth, And Tenth Circuits Finding That Prior Drunk Driving Convictions Are Admissible Under FRE 404(b) In Negligence Auto-Accident Action As Proof That The Defendant Was Especially Aware Of Drunk Driving | 8th Cir. | 1111 |
| Developing Consensus: Sixth Amendment: Confrontation Clause | Six Circuits (Including The Second, Fourth, Fifth, Seventh, Eighth And Eleventh Circuits) Have Rejected Claims That The Confrontation Clause Disallows A Relaxed Evidentiary Standard In Federal Capital Sentencing Proceedings | 2d Cir. | 1108 |
| FRE 404(b): Prior Act Evidence | Evidence Of Motive: Evidence that pastor of victim church used church’s funds for lavish personal expenditures was admissible prior act evidence to show motive to commit arson | 6th Cir. | 1159 |
| FRE 407: Subsequent Remedial Measures | No Compromise: Letters between discharged employee and her employer accepting offered reinstatement were not excludable as compromise statements in employment discrimination dispute | 1st Cir. | 1169 |
| FRE 501: Privileges | Physician-Patient Privilege: Federal court refuses to recognize a physician-patient privilege under FRE 501 | 7th Cir. | 1171 |
| FRE 501: Privileges | Crime-Fraud Exception: The crime-fraud exception to attorney-client and tax practitioner privileges applied to documents generated in furtherance of a crime | 7th Cir. | 1173 |
| FRE 606(b): Inquiry into Validity Of Verdict | Common Juror Knowledge: In jury’s capital sentencing deliberations, juror’s comment about defendant’s right to an "automatic" appeal merely reflected his knowledge of a topic within common knowledge and was not extraneous information constituting misconduct | 8th Cir. | 1179 |
| Volume 4 — Number 7 — July 2007 | |||
| Lead Story: Hypothetical Questions | The General Bar Against Using Guilt-Assuming Hypothetical Questions And Other Avenues To Question Character Witnesses | All Circuits | 951 |
| Practice Tip: FRE 801(d)(1)(B): Prior Statements | FRE 801(d)(1)(B) And Alternative Grounds To Admit Prior Statements | All Circuits | 961 |
| Developing Consensus: FRE 501: Privileges | Eleventh Circuit joins Fourth and Seventh Circuits in declining to recognize a “medical peer review privilege” in federal discrimination cases | 11th Cir. | 967 |
| FRE 501: Privileges | Recognizing Qualified Law Enforcement Privilege: First Circuit concludes “sensitive law enforcement protocols and techniques and the names and other personal information of the FBI agents involved” was covered by privilege | 1st Cir. | 1015 |
| Sixth Amendment: Confrontation Clause | No Conflict Yet: While Confrontation Clause could require admission of a communication even cloaked in a valid claim of attorney-client privilege, there was no violation given the low probative value of the letter and effective cross-examination of the cooperator | 9th Cir. | 1012 |
| Stipulation | Stipulation Could Not Be Withdrawn: Civil stipulation entered by prior counsel could not be set aside absent “good cause” | 1st Cir. | 1047 |
| Volume 4 — Number 6 — June 2007 | |||
| Lead Story: FRE 804(b)(6): Forfeiture By Wrongdoing | Proposed Amendments To FRE 804(b)(6) (Forfeiture By Wrongdoing) | All Circuits | 791 |
| Practice Tip: FRE 801(d)(2)(E): Co-conspirator Statements | Statements Involving Arrested Co-Conspirators Under FRE 801(d)(2)(E) | All Circuits | 806 |
| Developing Consensus: Sixth Amendment: Confrontation Clause | The Eighth Circuit Joins First, Fifth, Ninth And Eleventh Circuits In Consensus That Use Of Warrant Of Deportation Is Not Testimonial Hearsay Under Crawford | 9th Cir. | 810 |
| Sixth Amendment: Confrontation Clause | Forfeiting Confrontation Rights: Defendant’s participation in conspiracy provided requisite proof that he engaged in co-conspirators’ wrongdoing which procured unavailability of witness | 2d Cir. | 815 |
| Sixth Amendment: Confrontation Clause | Non-Testimonial Bank Records: Admission of bank board minutes as business records to show that board did not receive certain information was non-testimonial and did not violate defendant’s confrontation rights | 1st Cir. | 822 |
| FRE 404(b):Other Act Evidence | First Amendment Evidence: Risqué stories on defendant’s PDA were admissible other act evidence even though it was “reading material” otherwise protected by the First Amendment, overruling previous authority that possession of lawful reading material was not conduct contemplated by FRE 404(b) | 9th Cir | 874 |
| FRE 606(b): Inquiry into Validity Of Verdict | Juror Fears: No error in failing to investigate juror request to be excused when he feared for his safety because he worked in neighborhood where defendant allegedly torched building as charged, since this was intrinsic influence and did not arise from outside sources outside the trail | 6th Cir. | 884 |
| FRE 702 : Expert Testimony | Expert Modesty: Expert witness’s discounting of his own expertise is not dispositive of his qualifications under FRE 702, declining to adopt a per se rule that would exclude such testimony | 10th Cir. | 896 |
| Volume 4 — Number 5 — May 2007 | |||
| Lead Story: Using Non-Hearsay To Admit Statements In Documents And Connect Key Evidence | General problems and approaches to admitting non-hearsay evidence embodied in hearsay documents or text | All Circuits | 617 |
| Practice Tip: The Attorney-Client Communication Privilege: Common Exceptions And Grounds For Unavailability | Review of exceptions pertaining the the federal attorney-client privilege | All Circuits | 630 |
| Developing Consensus: Sixth Amendment (Confrontation Clause) | D.C. Circuit Joins Nine Other Circuits In Concluding Crawford Confrontation Clause Analysis Does Not Apply During Sentencing Proceedings | D.C. Cir. | 637 |
| Lead Story: Sixth Amendment (Confrontation Clause) | D.C. Circuit Joins Nine Other Circuits In Concluding Crawford Confrontation Clause Analysis Does Not Apply During Sentencing Proceedings | D.C. Cir. | 637 |
| FRE 801(d)(2)(E): United States v. Moran | In tax and fraud trial, Quickbooks financial records recovered from co-defendant's computer were admissible as records in furtherance of the conspiracy,and were used to keep track of complex financial transactions | 9th Cir. | 722 |
| FRE 401: United States v. Kenyon | In aggravated sexual abuse of a child trial, minor's testimony about domestic violence was relevant to explain her "failure to report sexual abuse" | 8th Cir. | 667 |
| Volume 4 — Number 4 — April 2007 | |||
| Lead Story: FRE 301 & Evidentiary Presumptions: Ten Common Questions & Misconceptions | Reviews basic issues in the application of presumptions under the FRE | All Circuits | 437 |
| Practice Tip: Pathways To Waiver On Appeal Under FRE 103(a) | Reviews the requirement of making a timely objection or motion to strike improperly admitted evidence) | All Circuits | 447 |
| Circuit Split: FRE 413 & FRE 414 Sexual Abuse Predisposition Evidence | Seventh Circuit Notes Circuit Division On 5-Factor LeMay Test For Admission Of FRE 413 & FRE 414 Sexual Abuse Predisposition Evidence | 7th Cir. | 450 |
| Circuit Split: FRE 408 : The ":Another Purpose" Exception | Whether Settlement Negotiation Evidence Is Admissible To Show Mitigation Of Damages Under The ":Another Purpose" Exception Under FRE 408 | 6th Cir. | 454 |
| Developing Consensus: FRE 401 (Relevance) | Seventh Circuit Notes Consensus On Considering Dissimilarities In Out-Of-Court Experiment Evidence | 7th Cir. | 458 |
| Developing Consensus: FRE 413 & FRE 414 Sexual Abuse Predisposition Evidence | Seventh Circuit Notes Circuit Consensus That FRE 413 And FRE 414 Sexual Abuse Propensity Evidence Is Subject To FRE 403 Balancing | 7th Cir. | 467 |
| Open Issue: FRE 603: Oath or Affirmation | Seventh Circuit holds that trial counsel can waive the oath requirement under FRE 603 and the defendant is not required to waive the requirement | 7th Cir. | 324 |
| Open Issue: FRE 706:Court Appointed Experts | Sixth Circuit notes open issue under FRE 706 whether "court appointed experts" may include class settlement administrators | 6th Cir. | 326 |
| Volume 4 — Number 3 — March 2007 | |||
| Supreme Court Watch: Whorton v. Bockting | Supreme Court unanimously holds Crawford Confrontation Clause analysis does not apply retroactively on collateral review, reversing Ninth Circuit | All Circuits | 315 |
| Lead Story: Excluding Evidence Based On Violations Of Discovery And Other Rules | Exclusion of otherwise admissible evidence Based On Violations Of Discovery And Other Rules | All Circuits | 299 |
| Practice Tip: Factors To Assess When Court Interrogation, under FRE 614, Is Impermissible | Reviews factors the circuits use to assess if a trial court's interrogation of witnesses exceeds the scope of FRE 614 | All Circuits | 309 |
| Developing Consensus: FRE 706 | D.C. Circuit joins three other circuits in adopting an abuse of discretion standard of review for a court-appointed expert under FRE 706 | D.C. Cir. | 320 |
| Open Issue:FRE 603 | Seventh Circuit holds that trial counsel can waive the oath requirement under FRE 603 and the defendant is not required to waive the requirement | 7th Cir. | 324 |
| Open Issue: FRE 706 | Sixth Circuit notes open issue under FRE 706 whether "court appointed experts" may include class settlement administrators | 6th Cir. | 326 |
| Volume 4 — Number 2 — February 2007 | |||
| Lead Story: The "Open Door" Doctrine | Opening The Evidence Door To Otherwise Inadmissible Evidence: Ten Common Questions & Misconceptions | All Circuits | 167 |
| Developing Consensus: Sixth Amendment | Tenth Circuit Notes Circuit Consensus On Objective Test for "Testimonial" Statements Under Crawford | 10th Cir. | 193 |
| FRE 404(b):United States v. Schafter | Computer Evidence: Admission of narrative entitled "House of Incest" found on the defendant’s computer was not unfairly prejudicial and was far less prejudicial than other child pornography admitted at trial | 10th Cir. | 236 |
| Sixth Amendment: United States v. Mooneyham | Crawford Undercover: Evidence of drug co-conspirator statements to undercover agent describing supplier was not “testimonial” because co-conspirator did not realize agent worked for law enforcement and therefore the statements were not the product of interrogation | 6th Cir. | 202 |
| FRE 403: Arlio v. Lively | Weight Of Arbitration: In civil rights case, trial court erroneously admitted testimony that prior arbitration ruling that suspension of plaintiff was without cause because it was unduly prejudicial, even if admitted only on issue of damages and not liability | 2d Cir. | 227 |
| FRE 403: United States v. Lively | Lack Of Weight Of Prior Investigation: Evidence of arresting officer's dishonest report in another case was inadmissible since the evidence had little probative value because the officer's credibility was not in issue | 7th Cir. | 227 |
| FRE 404(b): United States v. Murray | Reverse FRE 404(b): In drug conspiracy involving murder trial, evidence of prior act in which co-conspirator had a third party kill a thief was inadmissible to show defendant did not kill drug dealer because lethal violence was not a distinctive method of dispute resolution in the drug trade | 7th Cir. | 239 |
| Volume 4 — Number 1 — January 2007 | |||
| 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 | All Circuits | 25 |
| Sixth Amendment: United States v. Sandoval-Mendoza | Overnight Ban On Defendant’s Communication With Counsel Violates Sixth Amendment: Ninth Circuit adopts per se rule that "any overnight ban on communication" violates Constitution | 9th Cir. | 49 |
| FRE 404(b):United States v. Walker | Not Too Remote: In felon in possession of a firearm trial, 18 years between robbery and felon in possession charge was not too remote, particularly where the defendant was incarcerated for ten of the years | 8th Cir. | 80 |
| FRE 801(d)(2)(E): United States v. Gewin | Need Not Be Unlawful: In securities fraud action, co-conspirator testimony about the scheme was admissible under FRE 801(d)(2)(E) without proof that the conspiracy was unlawful | D.C. Cir. | 124 |
| FRE: 702: United States v. Hitt | Grooming Sexual Abuse Expert Testimony: Psychiatric sexual abuse behavior expert testimony concerning the behavior of abusers and their abused (including the grooming process used to isolate the child by sexual abusers) was admissible under FRE 702 | 5th Cir. | 96 |
| Developing Consensus: FRE 1006 | First Circuit joins other circuits in holding a summary under FRE 1006 can be based upon evidence admitted at trial | 1st Cir. | 42 |