Federal Evidence Review blogs

House Judiciary Committee Amends And Passes H.R. 984 (State Secret Protection Act)

Editor — Fri, 13 Nov 2009 10:47:38 +0000

On November 5 the House Judiciary Committee held a markup session on the “State Secret Protection Act” (H.R. 984). Sponsored by Representative Jerrold Nadler (D-NY), chair of the Subcommittee on the Constitution, Civil Rights, and Civil Liberties, this bill was approved by Nadler’s subcommittee in June. Several weeks ago, this blog speculated whether new Department of Justice policies regarding a claim of the state secrets privilege might “head off an effort for reform of the privilege by Congress.” The Judiciary Committee’s amendment and favorable recommendation of H.R. 984 suggests that the answer to that question is "no." Read more

Tenth Circuit Notes “Abuse” Of “Background” Evidence As Non-Hearsay

Editor — Thu, 12 Nov 2009 08:52:27 +0000

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In drug distribution trial, detective’s testimony about hearing the defendant’s name mentioned by the cooperating witness as the supplier of the drugs during a controlled buy was inadmissible hearsay since it was erroneously offered for its truth that the defendant was a drug supplier and was not necessary to provide “a coherent story about” the investigation of the defendant; while Tenth Circuit warns of “apparently widespread abuse” of the “background exception to the hearsay rule,” the conviction is affirmed since hearsay was not plain error, in United States v. Hinson, F.3d (10th Cir. Nov. 3, 2009) (No. 08-3086)

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Commemorating Veterans Day

Editor — Wed, 11 Nov 2009 10:34:03 +0000

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The Federal Evidence Blog
returns on
Thursday, November 12, 2009.

Veterans Day is celebrated on November 11th each year. See 5 U.S.C. § 6103 (federal holidays).

What is the difference between Veterans Day and Memorial Day? The Department of Veterans Affairs provides this answer:

“Many people confuse Memorial Day and Veterans Day. Memorial Day is a day for remembering and honoring military personnel who died in the service of their country, particularly those who died in battle or as a result of wounds sustained in battle. While those who died are also remembered, Veterans Day is the day set aside to thank and honor ALL those who served honorably in the military - in wartime or peacetime. In fact, Veterans Day is largely intended to thank LIVING veterans for their service, to acknowledge that their contributions to our national security are appreciated, and to underscore the fact that all those who served - not only those who died - have sacrificed and done their duty.”

See Veterans Day Frequently Asked Questions. For more background on Veterans Day, see The Origins of Veterans Day (Department of Veterans Affairs); History of Veterans Day (Department of Veterans Affairs). Illustration: US Marine Corps War Memorial (Iwo Jima Monument) Rosslyn, Virginia near Washington DC photographed by Christopher Hollis for Wdwic Pictures Dual-licensed under the GFDL and Creative Commons CC-BY 2.5

FRE 411 Bars Evidence Of Liability Insurance To Show Wrongful Acts

Editor — Tue, 10 Nov 2009 08:46:35 +0000

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In negligence action concerning an automobile accident, evidence of liability insurance under FRE 411 was properly excluded when offered to show negligence and was not offered for another purpose permitted under the rule, in King v. Harrington, 447 F.3d 531, 533 (7th Cir. 2006)

FRE 411 bars evidence of insurance liability on “the issue whether the person acted negligently or otherwise wrongfully.” FRE 411. However, the rule further specifies that exclusion of insurance liability evidence is not required “when offered for another purpose, such as proof of agency, ownership, or control, or bias or prejudice of a witness.” FRE 411. Read more

Seventh Circuit Highlights Proof Of Existence Of A Conspiracy To Admit Co-Conspirator Statements

Editor — Mon, 09 Nov 2009 10:38:09 +0000

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On a “close question” involving the admission of co-conspirator statements through a confidential informant, the Seventh Circuit noted that the proposed co-conspirator statements could be considered in determining the admissibility of the statements, some independent facts supported the existence of the conspiracy by a preponderance of the evidence in United States v. Harris, _F.3d _ (7th Cir. Oct. 30, 2009) (No. 08-4026)

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Senate Judiciary Committee - No Formal Steps Back Or Forward On S. 448 Media Shield Law

Editor — Fri, 06 Nov 2009 13:42:54 +0000

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As we suggested here on November 4, expectations were high for further action on S. 448, the "Free Flow Of Information Act" at the Senate Judiciary Committee's business meeting on November 5. But the meeting ended with the matter being "held over" for a future meeting not yet scheduled. This raises the prospect that time might run out on the bill before the year's end and force consideration of the measure during the 2010 election cycle.

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Expert’s Drug Causation Testimony Admissible Despite Acknowledgment Of Other Independent Causation Risks

Editor — Thu, 05 Nov 2009 09:58:23 +0000

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In litigation for failure to warn of breast cancer risk from hormone replacement therapy, plaintiff's expert’s testimony as to specific causation (that the defendant's hormone replacement drugs were the cause of the plaintiff's breast cancer) was admissible; fact that plaintiff also had independent "breast cancer risk factors and a family history" of breast cancer did not undermine admissibility of expert's differential diagnosis that plaintiff's cancer "would not have developed without hormone replacement therapy," in In re Prempro Products Liability Litigation, F.3d (8th Cir. Nov. 2, 2009) (Nos. 08-2555, 08-2711, 08-2713)

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S. 448 Reporter Shield Bill Back On Track?

Editor — Wed, 04 Nov 2009 10:46:15 +0000

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A proposal to revise the Senate version of the "Free Flow Of Information Act" (S. 448) was released last week and greeted with enthusiasm by many media organizations. Reportedly reflecting an agreement between media organizations and the Obama Administration, the measure is expected to be taken up at the next business meeting of the Senate Judiciary Committee on Thursday, November 5.

In late October, we reported slowing progress on S. 448, the "Free Flow Of Information Act." The House version of the Act (H.R. 985) had already passed in its chamber and been on the schedule of the Senate Judiciary Committee since early summer. S. 448 has remained on the "business meeting" agenda for Judiciary Committee for several weeks now, without substantial forward movement. However, the American Society of News Editors (ASNE) reported last week that it anticipates action on the bill at the Committee's business meeting on November 5, with the introduction of an amendment to the bill to satisfy White House concerns. Read more

Complying With Fed. R. App. P. 28(e) To Challenge Trial Evidence On Appeal

Editor — Tue, 03 Nov 2009 09:15:33 +0000

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First Circuit notes failure of party to “cite the pages of the appendix or of the transcript at which the evidence was identified, offered, and received or rejected,” as required under Fed. R. App. P. 28(e), waived review of evidence challenges on appeal, in Guillemard-Ginorio v. Urrutia-Valles, _ F.3d _ (1st Cir. Oct. 29, 2009) (No. 08-1302)

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Drawing The Line Between Expert And Lay Testimony On Peer-To-Peer File Sharing Program

Editor — Mon, 02 Nov 2009 09:43:07 +0000

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In considering admissibility of testimony about LimeWire peer-to-peer file sharing program, Fifth Circuit notes that “[t]he case law is not completely clear on where to draw the line between expert and lay testimony,” in United States v. Caldwell, _ F.3d _ (5th Cir. Oct. 26, 2009) (No. 08-50804)

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Federal Evidence Review blogs

House Judiciary Committee Amends And Passes H.R. 984 (State Secret Protection Act)

Tenth Circuit Notes “Abuse” Of “Background” Evidence As Non-Hearsay

Commemorating Veterans Day

The Federal Evidence Blog returns on Thursday, November 12, 2009.

FRE 411 Bars Evidence Of Liability Insurance To Show Wrongful Acts

In negligence action concerning an automobile accident, evidence of liability insurance under FRE 411 was properly excluded when offered to show negligence and was not offered for another purpose permitted under the rule, in King v. Harrington, 447 F.3d 531, 533 (7th Cir. 2006)

Seventh Circuit Highlights Proof Of Existence Of A Conspiracy To Admit Co-Conspirator Statements

Senate Judiciary Committee - No Formal Steps Back Or Forward On S. 448 Media Shield Law

Expert’s Drug Causation Testimony Admissible Despite Acknowledgment Of Other Independent Causation Risks

S. 448 Reporter Shield Bill Back On Track?

Complying With Fed. R. App. P. 28(e) To Challenge Trial Evidence On Appeal

Drawing The Line Between Expert And Lay Testimony On Peer-To-Peer File Sharing Program

The Federal Evidence Blog
returns on
Thursday, November 12, 2009.