EvidenceProf Blog

Tenth Circuit Finds That Judge's Statement to Jury That Contradicted Defendant's Testimony Violated Rule 605

Federal Rule of Evidence 605 provides that

The presiding judge may not testify as a witness at the trial. A party need not object to preserve the issue.

Rule 605 covers not only literal testimony but also the functional equivalent of testimony. One such example can be found in the recent opinion of the Tenth Circuit in United States v. Andasola, 2021 WL 4166671 (10th Cir. 2021).

Continue reading

Supreme Court of Wyoming Finds Statements on Bodycam Footage Were Admissible as Excited Utterances

Similar to its federal counterpart, Wyoming Rule of Evidence 803(2) provides an exception to the rule against hearsay for

A statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition.

As the recent opinion of the Supreme Court of Wyoming in Jackson v. State, 492 P.3d 911 (Wyo. 2021), makes clear, the court applies a five factor test for determining whether a statement qualified as an "excited utterance" under this exception.

Continue reading

The Proposed Amendment to Federal Rule of Evidence 702

In August, three proposed amendments to the Federal Rules of Evidence were released for public comment. The public comment period closes on February 16, 2022. This is the third in a series of three posts about these amendments. The second proposed amendment is a proposed amendment to Federal Rule of Evidence 702, which currently states that

A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if:

(a) the expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue;

(b) the testimony is based on sufficient facts or data;

(c) the testimony is the product of reliable principles and methods; and

(d) the expert has reliably applied the principles and methods to the facts of the case.

Continue reading

The Proposed Amendment to Federal Rule of Evidence 615

In August, three proposed amendments to the Federal Rules of Evidence were released for public comment. The public comment period closes on February 16, 2022. This is the second in a series of three posts about these amendments. The second proposed amendment is a proposed amendment to Federal Rule of Evidence 615, which currently states that

At a party’s request, the court must order witnesses excluded so that they cannot hear other witnesses’ testimony. Or the court may do so on its own. But this rule does not authorize excluding:

(a) a party who is a natural person;

(b) an officer or employee of a party that is not a natural person, 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 to be present.

Continue reading

Proposed Amendment Would Expand Rule of Completeness

In August, three proposed amendments to the Federal Rules of Evidence were released for public comment. The public comment period closes on February 16, 2022. In the next three posts, I will cover these proposed amendments. The first is a proposed amendment to Federal Rule of Evidence 106 (the rule of completeness), which currently states that

If a party introduces all or part of a writing or recorded statement, an adverse party may require the introduction, at that time, of any other part — or any other writing or recorded statement — that in fairness ought to be considered at the same time.

Continue reading