Federal Evidence Review blogs

Using Photographs And Testimony In Lieu Of Introducing Tangible Objects

Editor — Mon, 20 Jul 2009 08:12:11 +0000

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As long as a proper foundation is establish, a party may introduce photographs of tangible objects (a box of ammunition, identification cards with the defendant’s name, and an electronic scale), which had been seized and destroyed before trial, instead of the objects themselves, in United States v. Blaylock, F.3d (8th Cir. 2008) (No. 07-2608) (per curiam)

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Osborne DNA Case Mentioned At Sotomayor Confirmation Hearing

Editor — Fri, 17 Jul 2009 10:25:03 +0000

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Recent Osborne DNA Case and the role of using DNA evidence to exonerate prisoners is noted during questioning by Senator Richard J. Durbin, Assistant Senate Majority Leader

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Photograph Excluded For Failure To Meet Foundational Requirement

Editor — Thu, 16 Jul 2009 10:10:23 +0000

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The Second Circuit recently noted a problem after counsel failed to satisfy the foundational requirements for admission of a photograph through a witness familiar with the scene depicted in the photograph, in Zerega Ave. Realty Corp. v. Hornbeck Offshore Transp., LLC, F.3d (2d Cir. July 6, 2009) (No. 08-0639-cv)

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Company President’s Testimony On Lost Profits Inadmissible As Speculative For a New Product

Editor — Wed, 15 Jul 2009 10:04:49 +0000

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In a contract dispute, lay testimony of company president’s about lost profits was excluded under FRE 701 as not founded on personal knowledge or experience for a complex market involving a product that had never been sold, in Von der Ruhr v. Immtech Intern., Inc., _ F.3d _ (7th Cir. June 30, 2009) (No. 08-1496, 08-1956, 08-1971)

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No Cross-Examination On Forfeiture Of Defendant’s Residence Absent Showing Officer's Personal Interest

Editor — Tue, 14 Jul 2009 07:30:22 +0000

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In child pornography prosecution, in the absence of any showing that the officers had a direct or personal financial interest in the result of the case, the trial court properly excluded cross-examinationthat the Sheriff’s Office would receive about 25 percent of the proceeds resulting from the forfeiture of the defendant’s home, in United States v. Sarras, _ F.3d _ (11th Cir. June 16, 2009) (No. 08-11757)

Criminal forfeiture may be ordered for “any property constituting, or derived from, proceeds the person obtained directly or indirectly, as the result of” certain listed offenses. 18 U.S.C. § 982(a)(2) (Criminal Forfeiture). Normally, the proceeds of the criminal forfeiture are ultimately used by law enforcement and distributed under a pre-established formula. Read more

First Circuit Once Again Criticizes The Use Of Law Enforcement “Overview” Testimony

Editor — Mon, 13 Jul 2009 07:38:23 +0000

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After prior admonitions, First Circuit warns prosecutor that failure to avoid the problems in using an “overview” witness may result in possible sanctions or disciplinary action, in United States v. Flores-De-Jesus, _ F.3d _ (1st Cir. June 18, 2009) (No. 06-267, 06-2670, 06-2671) (Torruella, Lipez, and DiClerico (DJ))

The First Circuit recently expressed its concern about the use of overview witnesses, which it had criticized in other prior cases. As the circuit framed the issue:Read more

Murder Victim’s Steroid Exposure Not Relevant To Defendant’s Self-Defense Claim

Editor — Fri, 10 Jul 2009 10:58:23 +0000

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Evidence that murder defendant’s victim had steroids in his blood when he was killed attempting to execute an arrest warrant on the defendant was properly excluded because the evidence was not relevant to defendant's claims of self-defense, in United States v. Wilk, F.3d (11th Cir. June 29, 2009) (Nos. 07-14176, 07-14196)

In a recent case, the Eleventh Circuit affirmed the trial court’s exclusion of evidence of steroids found in the blood of the deputy sheriff that the defendant shot and killed. The defendant claimed the killing was in self-defense. He sought to admit post-mortem evidence of the victim's steroid use, contending that the drug could influence its users to act aggressively or erratically. The circuit concluded that the steroid evidence did not make the self-defense claim more or less probable – and so it was not relevant under FRE 401 -- in light of the defendant’s own testimony that indicated no aggressive or erratic action on the part of the victim. Read more

Forcing “A Fact Witness To Adopt Counsel's Legal Conclusion” Renders The Testimony “Incompetent” Under FRE 701

Editor — Thu, 09 Jul 2009 07:03:26 +0000

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On defense claim that the defendant did not affirmatively consent but only “acquiesced” to the search, defense counsel’s use of the word “acquiesced” in cross-examining the officer was inadmissible under FRE 701 for attempting to force the officer to adopt a legal conclusion, in United States v. Canipe, F.3d (6th Cir. June 30, 2009) (No. 08-5534)

Under the FRE, counsel can ask leading questions of a hostile witness, but that does not mean that there are not limits to the questions that may be asked. A recent case decided by the Sixth Circuit demonstrates that when the court serves as fact finder it is not tied to the literal words uttered by the witness and where counsel attempts to force the witness to adopt counsel’s legal conclusion, the court can discount this.Read more

Restyling The Federal Rules Of Evidence (Part IV)

Editor — Wed, 08 Jul 2009 08:34:34 +0000

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Progress on the “restyling” of the FRE continues as the U.S. Judicial Conference reviews the recommendation

At its fall 2009 meeting, the U.S. Judicial Conference will consider a recommendation by the Standing Committee on Rules of Practice and Procedure that a proposed version of the restyled Federal Rules of Evidence be released for public comment. If approved by the Conference, this will move forward the process of re-writing the federal rules in a "clear and consistent style." The Advisory Committee is trying to avoid any styling changes that would result in substantive changes. See Restyling The Federal Rules Of Evidence - 2009 (noting standards applied to “restyle” the FRE without proposing substantive changes).Read more

Owner's Opinion On His Property’s Value Not Admissible Absent Personal Knowledge, Expertise, Or Relevance

Editor — Tue, 07 Jul 2009 08:13:48 +0000

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Victim property owner's testimony about property’s reduced value due to the defendant’s nuisance was inadmissible despite rule permitting property owner testimony on property value because owner lacked personal knowledge or expertise; here owner's testimony was inadmissible hearsay and was not relevant, in Cunningham v. Masterwear Corp., F.3d (7th Cir. June 23, 2009) (No. 08-1924)

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