Evidence:
Miscellaneous Evidence
Sixth Circuit Decisions
• 105 - Limiting InstructionU.S. v. Fowler, 04-4472 (8/1/08)
> Defendant was tried with several other individuals for RICO violations. During trial, the government introduced testimony against a codefendant to establish that he was involved in two murders and receipt of marijuana. The evidence was not admissible against defendant, so he requested a limiting instruction from the district court regarding the evidence. The district court refused to provide the instruction, defendant was convicted, and he appealed.
* Holding: Fed. R. Crim. P. 105 requires a district court to provide an appropriate limiting instruction where evidence is admissible as to one party, but not another. The court held that the district court erred in failing to provide a limiting instruction regarding the evidence. The court found, however, that the error was harmless because of the otherwise compelling evidence of defendant’s guilt. Thus, defendant’s conviction was affirmed.
• 106 - Rule of Completeness
U.S. v. Holden, 07-5573 (2/24/09)
> Defendant was charged with falsifying facts in a matter within the jurisdiction of the EPA. At trial, a government agent testified about oral statements made by defendant. During cross examination of the agent, defendant attempted to elicit other statements that defendant made to the agent during the same interview under the rule of completeness. The district court determined that defendant had waived the rule by failing to invoke it at the time the defendant’s statements were introduced during direct examination. Defendant was convicted and he appealed.
* Holding: Deciding an open question in the Sixth Circuit, the court first held that the waiver rule is not applicable to the rule of completeness. Thus, a defendant may wait until a later point in the case to invoke the rule and admit the evidence. Second, the court held that the rule of completeness of FRE 106 has been expanded to include oral statements through application of FRE 611(a). Third, the court ruled that the confines of the rule of completeness permit a party to introduce additional portions of a statement where necessary to put the admitted portions in proper context. Finally, the court found that the district court erred in refusing to permit defendant to introduce the omitted portions of his statement. The court nonetheless ruled that the error was harmless because the statements defendant attempted to introduce were equivocal and were hearsay. The court noted that the rule of completeness is not meant to “make something admissible that should be excluded.” Accordingly, defendant’s conviction was affirmed.
• 901 - Authentication
U.S. v. Damrah, 04-4216 (5/6/05)
> Defendant was indicted for making false statements on a citizenship application regarding his affiliation with certain terrorist- related groups. At trial, the government presented video tapes of defendant engaged in fund raising events for the groups. On appeal, Defendant argued that the tapes had not been properly authenticated.
* Holding: Relying on an advisory note to FRE 901(b)(4), the court held that video tapes may be self-authenticating by distinctive characteristics. Evidence of how the tapes were made and handled is not required. The court ruled that the tapes may be sufficiently authenticated if they appear to be what they purport to be and the defense is not able to make any serious challenge to their authenticity. The court also emphasized that the tapes were corroborated by other parts of the government’s case. Thus, the admission of the tapes was affirmed.
• 1006 - Summaries
U.S. v. Jamieson, 02-3403 (10/28/05)
> Defendant was charged in a complex fraud scheme and at trial the government utilized several summaries because of the enormous amount of documentary evidence. Defendant challenged the use of the summaries on appeal.
* Holding: To be admissible, a summary must meet five requirements: (1) the underlying documents must be voluminous, (2) the documents must be made available for inspection at a reasonable time and place, (3) the underlying documents must be themselves admissible, (4) the summary must be accurate and non-prejudicial, and (5) the summary must be introduced through a witness who supervised its preparation. Defendant challenged the timeliness of the production of the documents and their independent admissibility, and the court held that the records had been timely produced given their quantity, and that the records were admissible under the business records exception.
• 1006 - Summary Evidence
U.S. v. Moon, 06-5581 (1/16/08)
> Defendant was charged with health care fraud in relation to her practice of providing patients with partial doses of cancer medicine, but billing the federal health care program for full doses. During trial, the government introduced charts that were prepared by a government agent which showed (1) a comparison of the drugs defendant purchased with the amount she claimed to administer, and (2) an estimate of the profits alleged to have resulted from defendant’s billing practices. Defendant was convicted and argued on appeal that the evidence was improper summary evidence.
* Holding: Five requirements must be met in order to introduce summary evidence under FRE 1006: (1) the underlying documents are so voluminous that they cannot be conveniently examined in court; (2) the underlying documents must be made available to the opposing party at a reasonable time and place; (3) the underlying documents must be admissible in evidence; (4) the summary must be accurate and non-prejudicial; and (5) the summary must be introduced through a witness who supervised its preparation. In the case, the court held that all five requirements were satisfied and the summary was properly admitted.
• Experimental Evidence
U.S. v. Baldwin, 04-3199 (8/10/05)
> Defendant faked his own abduction and, as a result, was charged with three counts of wire fraud and conspiracy to defraud. During trial, defendant proposed to offer a videotape wherein he reenacted how he was able to unzip his pants in the back seat of a car while tied up, a feat that he was not able to do when questioned by the FBI. The district court refused to admit the video and defendant appealed.
* Holding: The court held that experimental evidence is admissible as long as it is relevant and probative. The evidence is deemed probative if the conditions of the experiment are identical or substantially similar to the conditions of the transaction in litigation. In the case, the experiment was filmed in a different car than defendant’s (although it was very similar), the defendant’s hands were tied differently, and the passenger seat was pushed all the way forward in the video, thus giving defendant more room than he would have had. Under these circumstances, the court found no abuse of discretion in excluding the video tape. The court also opined, however, that it would not have found abuse of discretion if the district court had chosen to admit the tape.
• Admission of Grand Jury Transcript
U.S. v. Smith, 04-1476 (8/18/05)
> At defendant’s trial for drug conspiracy, a government witness’ testimony contradicted what he had said before the grand jury. In response, the government introduced into evidence the transcript of the grand jury testimony. The district court provided no form of limiting instruction when admitting the exhibit. Defendant appealed.
*Holding: The court held that the district court abused its discretion in admitting the transcript into evidence without any form of limiting instruction. The court ruled that admission of transcripts to the jury may give undue weight to the testimony in the transcript and prejudice the cross-examining party. The better practice is to simply read the prior testimony to the jury. Nonetheless, the court found the admission of the transcript and the failure to give a limiting instruction to be harmless because the defendant failed to show how he was prejudiced and because the evidence against defendant was otherwise strong.
• Bias
U.S. v. Davis, 03-1451 (11/22/05)
> At trial on defendant’s drug charges, he attempted to cross examine a cooperating government witness about the government’s failure to turn the witness over to state authorities on an outstanding warrant. Defendant claimed that the evidence was offered to show the witness’ bias in favor of the government, but the prosecutor indicated that the government knew nothing about the warrant. The district court refused to let defendant cross examine the witness on the topic, and defendant appealed.
* Holding: A defendant may cross examine a witness based upon bias; however, in this case the court found no abuse of discretion in the district court’s refusal to permit the cross examination. The court held that the line of questioning was marginally relevant to show bias because defendant could not establish a link between the witness’ testimony and the failure to turn the witness over to local authorities.
• Flight Evidence
U.S. v. Atchley, 04-6521 (1/23/07)
> Defendant was charged in state court with manufacturing meth and absconded while the case was pending. Defendant was subsequently charged federally and arrested. While defendant was on the lam, he was also charged with murder in another state. During the proceedings before the district court, defendant moved to exclude evidence of his flight. Defendant argued that his flight was actually as a result of the pending murder charge, but that he could not argue this point to the jury because of the substantial prejudice that would ensue. The district court withheld ruling on the motion until trial, but then defendant failed to object at trial to the flight evidence and accompanying jury instruction. Defendant appealed.
* Holding: The probative value of flight evidence depends on the degree of certainty with which the following four inferences may be drawn: “(1) from the defendant’s behavior to flight; (2) from flight to consciousness of guilt; (3) from consciousness of guilt to consciousness of guilt concerning the crime charged; and (4) from consciousness of guilt concerning the crime charged to actual guilt of the crime charged.” Although the court intimated that the admission of the flight evidence may have been error, because defendant failed to object to the evidence at trial, the court applied the plain error standard. As such, the court found that defendant’s substantial rights had not been affected because the evidence against defendant was overwhelming.
• Summary Witnesses
U.S. v. Vasilakos, 05-3166 (11/21/07)
> Defendant was charged with conspiracy and mail fraud. At trial, the government utilized an IRS agent as both an expert witness and a summary witness. Defendant did not request, and the district court did not provide, a jury instruction that the summary testimony was only an aid to the jury, not evidence. Defendant was convicted and he appealed.
* Holding: Because defendant did not request a limiting instruction, the court applied plain error review. First, the court held that the district court’s failure to provide a limiting instruction to the jury regarding use of the summary testimony was error. The court ruled, however, that the error did not affect defendant’s substantial rights because the evidence against defendant was otherwise overwhelming. Accordingly, the court found no plain error, and defendant’s conviction was affirmed.