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White Collar Defense & Compliance Developments in Criminal Law, Federal Case Law and Statutory Developments

Category Archives: Evidence

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FBI Agent Cannot Testify As Human Lie Detector, Opining On Defendant’s Truthfulness

Posted in Evidence

Alain Leibman writes: Sometimes, a court opinion reveals the prosecutorial tactic under scrutiny, the lower court’s endorsement of the same and defense attorney’s failure to object to the same, to be a real head-scratcher, a kind of “what in the world could they have been thinking?” experience.  The Tenth Circuit recently had such an experience involving a federal… Continue Reading

Attorney-Client Privilege Precludes Counsel, Following Discharge By Client, From Testifying To Defendant’s Understanding Of And Agreement To Plea Terms

Posted in Evidence, Trial tactics

Alain Leibman writes: It is among the most difficult episodes in a defense counsel’s practice.  Whether testifying on a former client’s habeas petition under 28 U.S.C. § 2255 alleging ineffective assistance or on a motion brought by new counsel to withdraw a guilty plea, no defense attorney wants to respond to inquiries from the court or… Continue Reading

Third Circuit Constricts Rule 404(b) Admissibility By Requiring That Evidence Not Only Be Offered For A Permissible Purpose, But That It Not Give Rise To A Propensity Inference

Posted in Evidence, Trial tactics

Alain Leibman writes: Federal Rule of Evidence 404(b) permits evidence of non-charged crimes, wrongs, or acts to be admitted if probative of a purpose under the Rule, such as motive, intent, or lack of mistake.  The Rule is often referred to as a rule of inclusion, rather than exclusion, because it favors the admissibility of such… Continue Reading

Gun-Possession Conviction Reversed Because Police Officers Testified To Hearsay Contents Of 911 Call Identifying Suspect Resembling Defendant, Going Beyond Permissible “Background” Evidence

Posted in Evidence

Alain Leibman writes: While much of the jurisprudence addressing the admissibility of out-of-court statements in criminal cases turns on abstract notions of the meaning of the Sixth Amendment’s Confrontation Clause (see a recent example here), defense counsel can sometimes block or successfully appeal the admission of testimony simply because the applicable rules of evidence bar… Continue Reading

State Court Order Restraining Use of Bank Account Proceeds Admissible In Bank Fraud Prosecution To Establish Knowledge And Intent

Posted in Evidence

The Second Circuit recently held that a state court asset freeze order could be admitted in a prosecution for the activity which led to the entry of the civil order, despite the obvious prejudice to the defendant, because the order was not offered for its truth and because a limiting instruction could cure any prejudice.

Supreme Court Makes It Difficult To Gain Suppression Of Eyewitness Identification

Posted in Evidence

The Supreme Court held last week that courts have no general gate-keeping requirement to perform before admitting eyewitness identification evidence, that an admissibility hearing is necessary only when the identification was procured by the police through unnecessarily suggestive techniques, and that suppression is appropriate only if improper police conduct created a “substantial likelihood of misidentification.”

“Inextricably Intertwined Misconduct” — Narrative Glue or Prosecutive End-Run Around Rule 404(b)?

Posted in Evidence

Federal Rule of Evidence 404(b), and its state analogs, place limits on the prosecution’s ability to admit damaging evidence about a defendant by requiring that the evidence of his/her other bad acts be moored to a permissible purpose illustrated in the Rule. Prosecutors typically attempt to slip the bounds of the Rule by offering such evidence, not under the categories of 404(b), but as “inextricably intertwined” with the charged offenses, what was once known as the “res gestae” to the crime. In a thoughtful survey of the law concerning this loosely-defined and elastic concept, the Iowa Supreme Court recently criticized and limited this law enforcement tool.

Third Circuit Permits Government To Bolster Informant’s Credibility By Introducing Testimony About Other Convictions In Same Sting Operation

Posted in Evidence

In a recent post here we commented on the perplexing affirmance in a recent case in which the Third Circuit agreed that a government cooperating witness could speculate in his testimony regarding what a defendant knew or thought in a given conversation about the accuracy of tax returns signed by that defendant. Even if such… Continue Reading

Cooperating Witness Permitted To Offer Opinion As To Defendant’s Guilty Knowledge

Posted in Evidence

A vexing problem in trying white collar cases involving alleged group activity is the willingness of judges to allow cooperating witnesses to offer their opinions as to the guilty knowledge of the defendant-participants. Prosecutors elicit cooperator opinion testimony regarding defendants to the effect that “they all knew” of certain fraud or “everyone in the office… Continue Reading

Testing results on Barry Bonds’ urine and blood samples thrown out, but did Ninth Circuit and prosecutors misunderstand the evidentiary issue?

Posted in Evidence

In a long-awaited decision last week, the Ninth Circuit Court of Appeals, by a 2-1 vote, affirmed a ruling of the trial court in United States v. Barry Lamar Bonds which granted a defense motion in throwing out blood and urine test results in Barry Bonds’ perjury prosecution. While the majority opinion filed on June… Continue Reading

Rule of Completeness is Broader than FRE 106

Posted in Evidence

A useful lesson drawn from a recent Tenth Circuit case: don’t hesitate to use the common law “rule of completeness” in an effort to admit verbal statements, such as those memorialized in transcripts of plea allocutions or grand jury testimony, when no hearsay exception presents itself. United States v. Lopez-Medina, 2010 WL 56944 (10th Cir.,… Continue Reading

Fingerprint Analysis Again Passes Daubert Muster

Posted in Evidence

The Tenth Circuit recently joined the Third Circuit in upholding against a Daubert and FRE 702 challenge the admissibility of fingerprint identification.  In United States v. Baines, 2009 U.S. App. LEXIS 15945 (10th Cir., July 20, 2009), the appeals court affirmed a trial court’s decision to admit fingerprint identification testimony which implicated Baines in the possession… Continue Reading

Impeachment of convicted witness may be limited to fact of conviction alone

Posted in Evidence

The rules of evidence to which most frequent resort is made in impeaching witnesses with evidence of misconduct are FRE 608(b) and FRE 609.  Rule 608(b) provides that specific instances of the witness’s conduct to show untruthfulness, other than conviction of a crime under 609, may not be proved extrinsically; that is, the questioner must generally… Continue Reading

Doctrine of “impeachment by contradiction” allows defense to use evidence not otherwise admissible in order to impugn cooperator

Posted in Evidence

The concept of "impeachment by contradiction" does not appear in the Federal Rules of Evidence. A vestige of the common law of evidence, the doctrine, however, survived the codification of the FRE and constitutes a valuable overlay and weapon for cross-examiners. Although FRE 609 may not permit convictions to be used which do not meet… Continue Reading

Grand jury testimony of cooperator, who was not called by the government at trial, admissible under FRE 804(b)(1)

Posted in Evidence, Grand jury

Monte McFall, a local California lobbyist and ex-officio staffer for an elected official, was charged in a Hobbs Act conspiracy for allegedly coercing a state contractor into paying McFall a fee in exchange for McFall’s assistance in securing funding. The co-conspirator, a lawyer and crony named Sawyer, had earlier testified at length in the grand… Continue Reading

Extrinsic Evidence May Be Used To Impeach Even If FRE 608(b) Appears To Prohibit It

Posted in Evidence

Trial attorneys understand that generally a witness can be impeached with evidence of his or her prior acts going to truthfulness, but only by cross-examining the witness on the point. FRE 608(b) requires the examiner to accept the witness’s answer, and prohibits accomplishing the impeachment extrinsically, through the testimony of a follow-on witness or the… Continue Reading