Two years of federal evidence

Once again one of my two favorite evidence blogs (federal evidence review) has published the annual “review” for 2013 and for 2014.

Key Evidence Issues During 2013

1. Supreme Court Watch: Fifth Amendment (Self-Incrimination Clause): Kansas v. Cheever: Allowing The Government To “Follow” Where The Defense Leads On Defense Expert Mental State Evidence

2. Supreme Court Watch: Fifth Amendment (Self-Incrimination Clause): Salinas v. Texas: Splintered Ruling Fails To Provide Guidance On Prearrest Contacts With Law Enforcement

3. Supreme Court Watch: Fourth Amendment (Search and Seizure Clause): Maryland v. King: Divided Court Upholds DNA Sample Collection From Arrestees For A “Serious” Crime Without A Search Warrant

4. Supreme Court Watch: Fifth Amendment (Due Process Clause): Smith v. United States: Unanimous Conspiracy Withdrawal Ruling

5. Certification (a civil case).

6. Supreme Court Watch: Sixth Amendment (Right to Present a Defense) (Confrontation Clause); FRE 608(b) (Specific Instances of Conduct): Nevada v. Jackson: No Constitutional Right To Present Extrinsic Evidence For Impeachment Purposes

7. Addressing Juror Internet Research During Trials

8. Electronic And Internet Evidence Issues

9. FRE 706: Encouraging The Use And Consideration Of Court-Appointed Experts

10. Rule Amendments: FRE 803(10) (Absence of a Public Record)

Each of the above issues had something of value and interest to military justice practitioners. For example:

In Smith v. United States, 568 U.S. _, 133 S.Ct. 714 (Jan. 9, 2013), the Supreme Court held unanimously that the burden of proof to establish withdrawal from a conspiracy, is on the accused, and the prosecution has no burden to disprove withdrawal under the Fifth Amendment Due Process Clause.

And now, “we look forward at some key evidence issues that may arise in 2014.”

Key Evidence Issues for 2014

1. Supreme Court Watch: Sixth Amendment (Confrontation Clause): Continuing Confusion On Expert Testimony Following Williams v. Illinois

2. Circuit Split: Sixth Amendment (Confrontation Clause): Division under the Confrontation Clause on “Language Conduit” Theory for Interpreters

3. Supreme Court Watch: Is An Analytical Shift Coming for Fourth Amendment Analysis on the Search and Seizure of Digital Evidence?

4. Open Issue (civil case):

5. Circuit Splits: Challenging A Verdict Based On Claims of Juror Racial Bias During Deliberations Or Claims of Juror Dishonesty During Voir Dire

6. Legislation: Will Congress Enact a New Media Shield Privilege?

7. Rule Amendment: Sixth Amendment (Confrontation Clause): More Notice and Demand Rules?

8. Rule Amendment: FRE 801(d)(1)(B): Encouraging the Use and Consideration Of Court-Appointed Experts

9. Rule Amendment: FRE 803(6) (Business Records), FRE 803(7) (Absence of Business Records), and FRE 803(8) (Public Records)

10. Considering the Role of Cameras in the Courtroom

Professor Friedman, a frequent litigator on confrontation issues hasn’t blogged recently, but here is one related to post-Williams issues.

[T]he second petition for certiorari in Turner v. United States, No. 13-127, one of the cases that was GVRed (grant, vacate, remand) in light of Williams v. Illinois, came before the Supreme Court’s conference on Friday but the Court did not take any action. (The case was originally distributed for the conference of September 30, but before hen the Court requested a response form the Government, so the case was relisted.) It may well be that the Court realizes that it needs to do something in light of the confusion created by the fractured decision in Williams, but it has not yet decided which case to take. There are several others pending. The Court has already requested a response from the State in Brewington v. North Carolina, No. 13-504, filed in October, and the State’s response is not due until February 3. Derr v. Maryland, No. 13-637, was filed on Nov. 20, Ortiz-Zape v. North Carolina, No. 13-633, on Nov. 21, and Cooper v. Maryland, No. 13-644, on Nov. 22.

(Note: I have one case pending at a CCA on issue 5 – impeaching a verdict.)