Monthly Archives: January 2014

Mens Rea Revisited: Knowingly does not mean not knowing the law.

U.S. v. O'Malley (aka "Butch") | 12-2771

January 2014

Federal regulations abound. It has been reported that more than 13,000 final rules were published in the Federal Register during President Obama’s first term. Over 330 of those rules were classified as “major.” Nevertheless, in O’Malley, the Seventh Circuit reminds us that a person is presumed to know all of these regulations, and can be found guilty of “knowingly” violating one of them, without proof that he ever opened up the Code of Federal Regulations or was otherwise aware of the substance of the regulation. Read More >>

Duality of Lay and Expert Witness, and Its Potential Pitfalls

U.S. v. Jones and Brown | 11-3864; 12-1695

January 2014

It is always important to remember that a single witness can provide both lay and expert testimony, and the line between the two is fine. Lay testimony is based upon one’s own observations. That testimony transforms to expert testimony if the witness brings his experience or training to bear on her “personal observations and makes connections for the jury based on that specialized knowledge.”

In Jones, a police officer walked – and crossed – this line when testifying about a dye pack that exploded in the messenger bag of a bank robber. Read More >>

Lay and Expert Witness Issues – Round II

U.S. v. Cheek | 12-2472

January 2014

In Cheek, the Seventh Circuit again expounded on the lay witness/expert witness distinction – this time reviewing the testimony of an FBI agent who testified about the meaning of “code words” used by drug dealers on intercepted telephone calls. Read More >>

Discovery Sanctions: The Wisdom of an Iowa Farmer

In Re: Boehringer Ingelheim Pharmaceuticals | 13-3898

January 2014

Sanctionable discovery conduct has seen a precipitous rise, especially in the context of e-discovery. According to industry studies, from 2009 to 2012, parties sought sanctions for discovery abuses in 459 cases. Boehringer reminds us that parties engaged in such spats should remember a wise saying often used by Iowa farmers: “Pigs get fat, and hogs get slaughtered.”Read More >>