01 Friday Dec 2017
Posted in Admissibility, Discovery, Document Coding, E-Discovery, Evidence, Federal Rules of Evidence, Rule 803 Exception, Rule 902
≈ Comments Off on eDiscovery Day Has Arrived.
Everlaw Guest Post: When Has a Producing Party Completed Document Review? by Josh Gilliland, Bow Tie Law
On November 24, 2017, I posted a reminder of this federal evidence rule change that became effective today, December 1st, or as Josh calls it, “eDiscovery Day.” Josh Gilliland’s post and webpage covers the changes in more depth, and are worth a bookmark for future reference. Don’t overlook the tweets on the right-hand side of the page. -CCE
24 Friday Nov 2017
Posted in Admissibility, Authentication, E-Discovery, Evidence, Federal Rules of Evidence, Rule 803 Exception, Rule 902
≈ Comments Off on December 1, 2017 Amendments to the Federal Rules of Evidence on Hearsay and E-Discovery Authentication.
Federal Rules of Evidence Amendments for 2018, Federal Rule of Evidence (2017 Edition)
https://www.rulesofevidence.org/federal-rules-of-evidence-amendments-for-2018/
The links no longer work in my January 22, 2017 post on the amendments to the Federal Rules of Evidence. The amendments are effective December 1, 2017. This link is reliable and worth a bookmark. This website includes the rules, highlights the amendments, and the Committee Notes. -CCE
22 Sunday Jan 2017
Posted in Authentication, Discovery, E-Discovery, Evidence, Rule 803 Exception, Rule 902
≈ Comments Off on New Federal Rules in Evidence in 2017 Will Affect The Hearsay Exception and E-Discovery.
Tags
BakerHostetler, Carey Busen, Discovery Advocate Blog, E-Discovery, Federal Rules of Evidence, Gilbert S. Keteltas, Gregg Kettles, Hearsay, Santa Clara Law Review
25 Saturday Apr 2015
Posted in Evidence, Trial Tips and Techniques, Witnesses
≈ Comments Off on The Rule of Witness Sequestration.
No Contact: Superior Court of Pennsylvania Reacts to Violation of Sequestration Order by…Lifting the Order, by Colin Miller, EvidenceProf Blog
If you’ve ever been to trial and in charge of wrangling witnesses, you know about the rule of sequestration. Usually one or both parties invoke the rule at the beginning of trial, and anyone who may testify as a witness must leave the courtroom. The point is to prevent any witness’ testimony to be influenced by that of another’s.
This post discusses the Rule and the Court’s ruling when the Rule is not followed. Like Mr. Miller, I don’t understand the Court’s ruling on this one. -CCE
Similar to its federal counterpart, Pennsylvania Rule of Evidence 615 reads as follows:
At a party’s request the court may order witnesses sequestered so that they cannot learn of other witnesses’ testimony. Or the court may do so on its own. But this rule does not authorize sequestering:
(a) a party who is a natural person;
(b) an officer or employee of a party that is not a natural person (including the Commonwealth) after being designated as the party’s representative by its attorney;
(c) a person whose presence a party shows to be essential to presenting the party’s claim or defense; or
(d) a person authorized by statute or rule to be present.
So, assume that a judge orders a witness sequestered and tells him not to discuss the case with prior witnesses. Further, assume that the witness violates this sequestration order by talking to a prior witness. You’d expect there to be severe consequences for that witness, right? . . .
30 Saturday Aug 2014
Posted in 2nd Circuit Court of Appeals, Admissibility, Appellate Law, Authentication, Court Rules, Court Rules, Courts, Evidence, Federal District Court Rules, Rule 803 Exception, Rule 902
≈ Comments Off on What Happens When No Written Notice Is Given To Offer An Exhibit?
Tags
Colin Miller, Court Record, EvidenceProf Blog, Federal Rules of Evidence, Rule 901(11), Second Circuit
Did You Notice That?: 2nd Circuit Excuses Lack of Written Notice Under Rule 902(11), by Evidence ProfBlogger, Editor: Colin Miller, EvidenceProf Blog
The original or a copy of a domestic record that meets the requirements of Rule 803(6)(A)-(C), as shown by a certification of the custodian or another qualified person that complies with a federal statute or a rule prescribed by the Supreme Court. Before the trial or hearing, the proponent must give an adverse party reasonable written notice of the intent to offer the record — and must make the record and certification available for inspection — so that the party has a fair opportunity to challenge them.
So, what happens if a party does not give reasonable written notice of its intent to offer a business record into evidence but there is evidence that the opposing party had actual notice of this intent? That was the question addressed by the Second Circuit in its recent opinion in United States v. Komasa, 2014 WL 4233396 (2nd Cir. 2014). . . .
07 Saturday Jun 2014
Posted in 8th Circuit Court of Appeals, Appellate Law, Evidence, Legal Analysis, Legal Writing, Motions, Motions in Limine, Rule 103
≈ Comments Off on 8th Circuit Motions of Limine and Offers of Proof.
Tags
Eighth Circuit, Evidence, EvidenceProf Blog, Federal Rules of Evidence, Legal Writing, Motion in Limine, Offer of Proof, Rule 103
Renewal Notice: 8th Circuit Finds No Offer of Proof Needed Based on Prior Definitive Ruling, by Colin Miller, Evidence ProfBlogger, EvidenceProf Blog
As amended in 2000, Federal Rule of Evidence 103(b) reads as follows:
(b) Not Needing to Renew an Objection or Offer of Proof. Once the court rules definitively on the record — either before or at trial — a party need not renew an objection or offer of proof to preserve a claim of error for appeal.
So, assume that a party files a motion in limine seeking to exclude evidence before trial. If the judge makes a definitive ruling deeming the subject evidence inadmissible, does the proponent need to make an offer of proof at trial? In Smith v. Hy–Vee, 622 F.3d 904 (8th Cir.2010), the Eighth Circuit answered this question in the affirmaive. In Lawrey v. Good Samaritan Hosp., 2014 WL 2489076 (8th Cir. 2014), however, the same court answered the question in the negative. . . .
23 Sunday Mar 2014
Posted in Evidence, Hearsay, Rule 803 Exception, Rule 807
Tags
Colin Miller, Evidence, Evidence ProfBlogger, Federal Rules of Evidence, Hearsay, Jeffrey Bellin, Rule 403, Rule 803, Rule 807, United States v. Boyce
A New Theory of Hearsay, Take 4: Further Thoughts on United States v. Boyce, by Colin Miller, Editor, EvidenceProf Blogger
It’s interesting that Jeff [Jeffrey Bellin] posted an entry about Judge Posner’s concurrence in United States v. Boyce yesterday [February 14, 2014]. My latest set of hearsay posts has come in connection with a CLE I’m conducting in which I argue, in essence, that Rule 807 should swallow much of Rules 801 through 806. So, it’s refreshing to see that such an esteemed jurist apparently holds a similar viewpoint. Here are some more thoughts on Boyce:
United States v. Boyce is a garden variety case in which a 911 call was admitted under the present sense impression to the rule against hearsay (Federal Rule of Evidence 803(1)) and/or the excited utterance exception (Federal Rule of Evidence 803(2)). They also again raise the question of why courts are not engaging in a Rule 403 balancing of such statements. . . .
23 Sunday Mar 2014
Posted in 7th Circuit Court of Appeals, Evidence, Excited Utterances, Hearsay, Present Sense Impression, Rule 803 Exception
≈ Comments Off on Judge Posner’s Theories On Hearsay Exceptions.
Tags
Colin Miller, Evidence ProfBlogger, Exited Utterances, Federal Rules of Evidence, Hearsay, Judge Posner, Present Sense Impression, Rule 803, United States v. Boyce
Judge Posner Advocates Reforming the Hearsay Rules, by Evidence ProfBlogger, Colin Miller, Editor, EvidenceProf Blogger
As Colin explores alternate hearsay theories in his posts, it is worth highlighting a concurrence in U.S. v. Boyce, decided today in the Seventh Circuit, where Judge Richard Posner attacks the merits of both the present sense impression and excited utterance hearsay exceptions (FRE 803(1) and (2)). As Judge Posner notes, the arguments against these exceptions are not new, but his no-holds-barred critique, stating the exceptions are “not even good folk psychology,” is sure to generate interest in revisiting the hearsay thicket.
22 Saturday Mar 2014
Posted in 11th Circuit Court of Appeals, Criminal Law, Evidence, Federal Rules of Evidence, Hearsay, Legal Writing, Motion to Suppress, Motions, Rule 602, Rule 803 Exception
≈ Comments Off on New Theory of Hearsay, Take 3!
Tags
Anonymous Hearsay Declarant, Colin Miller, EvidenceProf Blog, Federal Rules of Evidence, Hearsay, Motion to Suppress, Rule 602, Rule 803, United States v. Daniels
A New Theory of Hearsay, Take 3: Rule 602 & Anonymous Hearsay Declarants, by Editor Colin Miller, Evidence ProfBlogger, EvidenceProf Blog
Federal Rule of Evidence 803(1) provides an exception to the rule against hearsay for
A statement describing or explaining an event or condition, made while or immediately after the declarant perceived it.
As a Rule 803 exception, this present sense impression exception applies “regardless of whether the declarant is available as a witness….” Indeed, the exception can apply even if the declarant has not been identified. But, like with a witness’s testimony at trial, a statement offered under a hearsay exception is only admissible if the declarant had personal knowledge under Federal Rule of Evidence 602. So, where does that leave us?
16 Sunday Mar 2014
Posted in 8th Circuit Court of Appeals, Appellate Law, Child Molestation, Criminal Law, Evidence, Federal Rules of Evidence, Rule 403, Rule 412, Rule 413, Rule 414, Sexual Assault, Speker evidence
≈ Comments Off on 8th Circuit Decision Raises Evidence Questions.
Tags
Child Molestation, Criminal Law, Evidence, Federal Rules of Evidence, Rule, Rule 403, Rule 412, Rule 413, Rule 414, Sexual Abuse, Sexual Assault, Speker evidence
Reversal of Fortune: Should Suspects be Able to Introduce Reverse 413/414 Evidence?, by Colin Miller, Editor, Evidence Prof Blogger
[I]n United States v. Thunder, 2014 WL 944752 (8th Cir. 2014), the defendant was charged with sexual abuse of a minor and sexual abuse of a person incapable of consenting. At trial, the defendant sought to introduce the prior sexual abuse conviction of an alleged alternate suspect, but the district court deemed the evidence inadmissible under Rule 412(c)(1). This prompts two questions: (1) Why did the Eighth Circuit mention Rule 412; and (2) Is there such a thing as reverse Rule 413/414 evidence? . . . .
02 Sunday Mar 2014
Posted in Internet, Juror Impeachment, Jury Instructions, Mistrials, Research, Rule 606, Trial Tips and Techniques, Verdict
≈ Comments Off on Google Mistrials – A Continuing Problem.
Tags
Bob Kalinowski, citizensvoice.com, Colin Miller, Eastern District of North Carolina, EvidenceProg Blog, Federal Rules of Evidence, Google Mistrial, Juror Impeachment, Jury instructions, Jury Trials, Litigation, Mistrials, Rule 606(b)
Stealing the Verdict: Eastern District of North Carolina Allows Jury Impeachment Regarding Internet Research, by Colin Miller, EvidenceProg Blog
“Google mistrials” have been a problem for some time. Here are two examples – one in 2014 and another in 2011 — in which a juror used Internet legal research during the trial and discussed it with fellow jurors, causing a mistrial. -CCE
An emerging problem in the American justice system is jurors conducting internet research about a case, leading to the Google mistrial. And, when such research is not discovered until after trial, as in United States v. LaRoque, 2014 WL 683729 (E.D.N.C. 2012), it leads to jury impeachment.
Mistrial by Internet A Growing Concern, By Bob Kalinowski (Staff Writer), citizensvoice.com
Legal experts have coined them ‘Google mistrials.’
Curious jurors seeking to conduct their own research surf the Internet about facts presented in court, bringing a halt to important court cases and tainting the outcome.
Sometimes it’s done unwittingly. Other times it’s done against a judge’s specific directions.
02 Sunday Mar 2014
Posted in 11th Circuit Court of Appeals, Appellate Law, Criminal Law, Evidence, Federal Rules of Evidence, Rule 706, Summary judgment
≈ Comments Off on Can A Prisoner Get An Expert Witness Under Federal Rule 706 For His Medical Condition?
Tags
11th Circuit Court of Appeals, Alabama, Colin Miller, EvidenceProf Blog, Expert Witness, Federal Rules of Evidence, Gillentine v. Correctional Medical Services, Hepatitis C, Prisoner, Rule 706, Summary judgment
Is There a Doctor in the House?: 11th Circuit Remands After Lower Court’s Erroneous Rule 706 Ruling, posted by Colin Miller, EvidenceProf Blog
This post discusses an Alabama District Court’s and 11th Circuit Court of Appeal’s interpretation of Rule 706(a) of the Federal Rule of Evidence in a prisoner’s lawsuit in which he claims that he has Hepatitis C, his illness is not being treated and, without treatment, he will become sicker and die. -CCE
Federal Rule of Evidence 706(a) provides that:
On a party’s motion or on its own, the court may order the parties to show cause why expert witnesses should not be appointed and may ask the parties to submit nominations. The court may appoint any expert that the parties agree on and any of its own choosing. But the court may only appoint someone who consents to act.
As you can see from the language of Rule 706(a), there is nothing in the Rule’s text limiting expert appointment to either criminal or civil cases. So where did that leave the plaintiff in Gillentine v. Correctional Medical Services, 2014 WL 701575 (11th Cir. 2014)?
11 Tuesday Feb 2014
Posted in Admissibility, Evidence, Federal Rules of Evidence, Hearsay, Trial Tips and Techniques, Witnesses
≈ Comments Off on A New Theory of Hearsay – Part 1.
Tags
Character Evidence, Colin Miller, Evidence, Evidence ProfBlogger, EvidenceProf Blog, Federal Rules of Evidence, Hearsay, Hearsay Declarant, Hearsay Exceptions, Objections, Witness
A New Theory of Hearsay: Incorporating Rule 403 Into the Hearsay Analysis, by Evidence ProfBlogger (Colin Miller, Editor), EvidenceProf Blog
Federal Rule of Evidence 803 provides exceptions to the rule against hearsay that apply regardless of the availability of the hearsay declarant. Federal Rule of Evidence 804 provides exceptions to the rule against hearsay that apply if the hearsay declarant is ‘unavailable.’ As exceptions to the rule against hearsay, these Rules merely place qualifying statements beyond the scope of Federal Rule of Evidence 802. And what this means is that, like all evidence, statements falling under a hearsay exception must be relevant under Federal Rule of Evidence 401 and have a probative value that is not substantially outweighed by dangers such as the danger of unfair prejudice under Federal Rule of Evidence 403. And yet, parties almost never make Rule 403 objections to evidence offered under a hearsay exception, and courts almost never sustain such objections. Why?
The Researching Paralegal 
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