Federal Rules of Evidence

March 6, 2023

Federal Criminal Cases: the Importance of Knowing the Rules of Evidence

Here in gorgeous Atlanta, Georgia I am working on a client’s case which involves questions about whether evidence was properly admitted into the trial. This effort reminded me of a two major observations that apply to all of my federal criminal cases which I handle both here in Atlanta as well as other parts of the country in which I practice.

FIRST: In federal court, evidence is admitted (or kept out) pursuant to two sets of rules. In other words, you need to know the rules before the attorney can really help his or her client.

One set of rules comes from our beloved United States Constitution. This venerable document contains the promise of “due process”. It also the promise (in the Fifth Amendment) that no person shall be required to be a witness against him or herself. The wonderful Sixth Amendment says that all people are entitled to the assistance of an attorney when charged with a crime, and perhaps most importantly, that the accused person has the right to “confront” her or his accusers.

January 22, 2019

Evidence? We don’t need no stinking Evidence!!

by Kish Law

Our friendly federal court of appeals here in Atlanta issued a recent opinion about evidence in a case arising out of a federal prosecution that reminded me of the funny quote from Blazing Saddles (and earlier movies and stories) about how the bad guys “don’t need no stinking badges.” For the evidence geeks out there, the opinion concerns preliminary rules for assessing and potentially accepting a piece of evidence when there is a strong challenge as to whether the evidence is “authentic” under Rule 901 of the Federal Rules of Evidence. After 36 years of trying cases in federal court, I call this “passing the smell test” for challenged documents. The opinion is a lesson on how lawyers need to keep abreast of these rules, which can often win, or lose, a case.

Raul Gutierrez committed fraud when constructing the airport on the island nation of Trinidad and Tobago, and somehow the decidedly unfriendly federal prosecutors were able to bring federal criminal charges against him in south Florida. Raul pled guilty in 2006, and as I have discussed on earlier occasions, the Judge imposed the usual financial penalties, such as restitution, along with a hefty prison sentence. Raul had some real estate in Florida, the judge “forfeited ” the property, and later the nation of Trinidad and Tobago wanted to get the land as a “victim” of the offense. Time passed, the island got the judge to let them weigh in on whether they could go after the property, and then, a magical thing happened. A company that was once associated with our friend Raul claimed that they held a “security interest” in the property, even though no one had ever mentioned this million dollar “interest” nor recorded it in the preceding decade. In other words, years later, friends of Raul claimed they held a piece of paper that said they had a superior interest in the particular piece of real estate. Continue reading

December 5, 2016

The always confusing “nolo” plea comes up in a federal criminal case

by Kish Law

As a criminal defense lawyer I often get questions as to whether there is a difference between a “regular” guilty plea and a “nolo” plea. Technically, the latter is from the Latin phrase, “nolo contendre”, more or less translating into “no contest.” A few days ago the United States Court of Appeals for the Eleventh Circuit, where we handle lots of cases, issued an opinion discussing the “nolo” plea, its ramifications, and issued a ruling as to when a prosecutor can make use of an earlier “no contest” plea. The case is United States v. Green.

Mr. Green has had some previous problems with law enforcement, and his problems got worse when he was charged with new crimes. He got out on bail, but only with the condition that he wear a GPS-monitored ankle bracelet. He apparently removed the ankle monitor, so the police went looking for him at a woman’s residence where they figured to find him. Once inside the master bedroom, the police saw a large jacket (and the woman was not that size), men’s shoes on the floor, and most importantly, a firearm and ammunition scattered around. They subsequently discovered the unlucky Mr. Green hiding nearby in the closet. The feds charged him with being a previously (12 times!) convicted felon in possession of a firearm, and he went to trial represented by a very capable Federal Public Defender. Continue reading

October 3, 2014

It Must Be True: It’s on the Internet!–Federal Court Reverses Criminal Case Because Russian Social Media Page Not Properly Authenticated

by Kish Law

People who have the misfortune of finding this blog know that I like to write about the intersection of the modern tech-filled world with older rules that govern criminal cases, rules like the Fourth Amendment and the like. The United States Court of Appeals for the Second Circuit recently reversed a federal criminal case out of New York when the prosecutor convinced the trial judge to let her use a page off what is supposedly the Russian version of Facebook. The prosecutor and the judge essentially said that because the page had the Defendant’s picture and some other information related to him he must have been the one to create it. The appellate court took a different view, and reversed the conviction, the ruling can be found here.

Aleksandr Zhyltsou is from the Ukraine, and supposedly is a professional forger. Another Ukrainian con man named Timku was caught in a series of frauds, pretending to be a diplomat and the like. Timku tried to help himself by agreeing to testify against Zhyltsou concerning a bogus birth certificate that Timku used to avoid military service back in the Ukraine (a not unreasonable effort, considering recent events). According to Timku, he saw the Defendant put the birth certificate together on a laptop when they were at a cafe, and noted that the document was sent to him via an email address that the Defendant had previously used. The prosecutor shored up parts of Timku’s story with witnesses showing that birth certificates can be used to avoid military service, and that this particular email with the birth certificate did indeed come through this particular email address, However, there was no proof that the human being on trial, Zhyltsou, was the person who created and sent the document, other than Timku’s testimony.
Continue reading

June 19, 2012

Confrontation Clause Debacle: Supreme Court Muddies the Water by Ruling that Report on Which Expert Relied Need Not Be Admitted or Subject to Cross-Examination

by Kish Law

One of the few bright spots in the Supreme Court’s criminal law cases over the past few years has been the resurgence in emphasis on the protections afforded by the Sixth Amendment’s Confrontation Clause. However, yesterday in a badly fractured 5-4 decision, the High Court took a step backwards, or maybe even sideways. The case is Williams v. Illinois.

Recall that a couple of years ago the Supreme Court ruled that prosecutors cannot use crime lab reports in criminal trials unless the analysts responsible for creating the report came to court and gave live testimony. Last year that rule was reaffirmed and deepened when the Court said the Confrontation Clause was violated if the prosecutor called a colleague or supervisor of the analyst who did the work.
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May 11, 2010

Phaknikone: Eleventh Circuit Holds Myspace Profile Photographs Inadmissible Character Evidence, but Harmless Error

by Kish Law

Yesterday, the Eleventh Circuit, which hears appeals from federal cases here in Atlanta, held in U.S. v. Phaknikone that profile photographs from the criminal defendant’s Myspace account were inadmissible evidence of character. The government argued that the photos demonstrated modus operandi: the defendant’s gangsta style as shown in the photographs identified the defendant because he robbed banks “like a gangster.” The Court saw through the argument, but held that admitting the photos was harmless error, due to the “overwhelming” evidence of Phaknikone’s guilt.

The relevant photograph in this case showed Phaknikone in the driver’s seat of a car. A tattoo is visible on his neck, as well as a large tattoo on his left arm, and he is holding a handgun in his right hand. A passenger is handing something to a child in the back seat of the car. The Court held that this photograph “proves only that Phaknikone, on an earlier occasion, possessed a handgun in the presence of a child. Although the photograph may portray a ‘gangster-type personality,’ the photograph does not evidence the modus operandi of a bank robber who commits his crimes with a signature trait.”

Phaknikone was convicted on fifteen counts stemming from seven bank robberies in late 2006 and early 2007 in Northeast Georgia. He was captured fleeing one robbery and confessed to three more. Evidence regarding clothing and shoes worn by the robbers, eyewitness accounts of his tattoos, and behavior during the robberies was introduced by the government, as well. The Court held that the evidence was overwhelming, viewed in its totality, so the admission of the photographs was harmless error.