Federal Evidence Review blogs

Barring Evidence Of A "Collateral Source" And FRE 403

Editor — Wed, 30 May 2012 17:38:56 +0000

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In an FELA suit against defendant railroad for injuries suffered by a former employee whom the defendant alleged was only malingering, admitting evidence that the plaintiff was currently receiving disability benefits as part of his railroad retirement, because its probative value under FRE 403 was not outweighed by its potential unfair prejudice, declining "to apply the rule against admitting evidence of ... compensation for injury from a source collateral to the defendant," (the "collateral source rule") in Crowther v. Consolidated Rail Corp., F.3d (1st Cir. May 18, 2012) (No. 11–1578)

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D.C. Circuit And The "Per Se" Admission Of Agency Reports

Editor — Tue, 29 May 2012 07:22:52 +0000

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In a failure to hire employment discrimination case against defendant federal library, D.C. Circuit affirms trial court's admission of "Factual Background" and exclusion of the remainder of an administrative report, including its conclusion that the alleged discrimination occurred; Circuit, deferring to the trial judge action, notes that with seven other circuits, the D.C. circuit rejects that recommendations of administrative bodies "are per se admissible," in Ponce v. Billington, F.3d (D.C. Cir. May 18, 2012) (No. 11-5117)

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In Memory Of Those Who Served

Editor — Tue, 29 May 2012 04:00:00 +0000

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The Federal Evidence Blog returns
Tuesday, May 29, 2012
after Memorial Day, the federal holiday commemorating
the sacrifices of
those in the military service of our country.

Memorial Day is celebrated on the last Monday in May. See 5 U.S.C. § 6103 (federal holidays).

Admitting The SEC Form 10-K Annual Report As A Business Record

Editor — Sat, 26 May 2012 00:31:58 +0000

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In civil enforcement action, admitting SEC Form 10-K Annual Report restating financial statements was a business record “as a report made at or near the time of the accounting review by those with knowledge of” the company books which was a “financial statement audit,” in S.E.C. v. Jasper, _ F.3d _ (9th Cir. May 15, 2012) (No. 10-17064)

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Whether A Translation Is A "Mere[] ... Conduit" For A Declarant's Statement

Editor — Thu, 24 May 2012 18:28:22 +0000

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In methamphepamine distribution trial, defendant's answers to custom inspectors' questions were not hearsay statements by it's interpreter, entitling the defendant under the Sixth Amendment to the right to cross-examine the translator under Crawford because the statements at issue were "considered statements of the original declarant" having satisfied a four-factor test used in the Ninth Circuit to determine when a translator acts as merely a language conduit of the declarant, in United States v. Romo-Chavez, F.3d (9th Cir. May 23, 2012) (No. 10–10424)

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Falling Short Of The Daubert Standard

Editor — Wed, 23 May 2012 09:07:17 +0000

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Even though trial courts have considerable discretion in performing the Daubert gatekeeping role (including how to assess the reliability of an expert, what procedures to utilize, and the ultimate determination of reliability) if a court's determination on the admissibility of an expert opinion under FRE 702 reflects an “off-the-cuff decision” with no “detailed” or “specific” findings on the record, an abuse of discretion is normally a reviewing court's conclusion, in Procter & Gamble Co. v. Haugen, 427 F.3d 727 (10th Cir. Oct. 19, 2005) (No. 03-4234)

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Child's Family Therapy Statement Admissible As FRE 803(4) Statement For Medical Treatment

Editor — Tue, 22 May 2012 16:22:57 +0000

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In a homicide prosecution, admitting as statements for medical diagnosis and treatment under FRE 803(4) the answers by an eight year old victim to a social worker regarding the defendant's abuse, resulting in physical injuries; the family therapy participants' (defendant, victim and family members) "primary purpose" in consulting the social worker was to "develop a treatment plan" as part of a medical program offered by the defendant's employer, in United States v. DeLeon, F.3d (4th Cir. May 15, 2012) (No. 10–4064)

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The Confrontation Clause and Admission Of Statements Involving A Non-Testifying Interpreter

Editor — Mon, 21 May 2012 07:52:24 +0000

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Ninth Circuit notes that the Confrontation Clause cases have not considered “the question whether, when a speaker makes a statement through an interpreter, the Sixth Amendment requires the court to attribute the statement to the interpreter”; the failure to call the interpreter to testify at trial did not violate the Confrontation Clause where nothing indicated that the interpreter served as “anything other than a language conduit” or had a motive to mistranslate, in United States v. Hieng, _ F.3d _ (9th Cir. May 11, 2012) (No. 09-10401)

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Using Federal Jury Instructions For Discerning A Crime Of Dishonesty Under FRE 609(b)

Editor — Fri, 18 May 2012 16:20:28 +0000

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In prosecution for knowingly violating the Clean Water Act, under FRE 609(b) impeachment evidence that a prosecution witness had been convicted of larceny was properly excluded because the crime of larceny was not a crime of dishonesty, as is seen from consulting the relevant statutory language and the model circuit jury instructions regarding the charge, in United States v. Pruett, F.3d (5th Cir. May 15, 2012) (No. 11–30572)

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Taking Judicial Notice Of Stock Prices (Part III)

Editor — Thu, 17 May 2012 16:51:05 +0000

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In reviewing dismissal of class action alleging breach of fiduciary responsibilities by trustee in stock option plan, circuit takes judicial notice of stock prices which were not alleged in the complaint under FRE 201, in Lanfear v. Home Depot, Inc., _ F.3d _ (11th Cir. May 8, 2012) (No. 10-13002)

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Federal Evidence Review blogs

Barring Evidence Of A "Collateral Source" And FRE 403

D.C. Circuit And The "Per Se" Admission Of Agency Reports

In Memory Of Those Who Served

The Federal Evidence Blog returns Tuesday, May 29, 2012 after Memorial Day, the federal holiday commemorating the sacrifices of those in the military service of our country.

Admitting The SEC Form 10-K Annual Report As A Business Record

Whether A Translation Is A "Mere[] ... Conduit" For A Declarant's Statement

Falling Short Of The Daubert Standard

Child's Family Therapy Statement Admissible As FRE 803(4) Statement For Medical Treatment

The Confrontation Clause and Admission Of Statements Involving A Non-Testifying Interpreter

Using Federal Jury Instructions For Discerning A Crime Of Dishonesty Under FRE 609(b)

Taking Judicial Notice Of Stock Prices (Part III)

In reviewing dismissal of class action alleging breach of fiduciary responsibilities by trustee in stock option plan, circuit takes judicial notice of stock prices which were not alleged in the complaint under FRE 201, in Lanfear v. Home Depot, Inc., _ F.3d _ (11th Cir. May 8, 2012) (No. 10-13002)

The Federal Evidence Blog returns
Tuesday, May 29, 2012
after Memorial Day, the federal holiday commemorating
the sacrifices of
those in the military service of our country.