Evidence

• Citation: Vol. 67 No. 4
• Publication year: 2016

Evidence

W. Randall Bassett

Val Leppert

Stephen A. McCullers

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Evidence

by W. Randall Bassett^* Val Leppert^** and Stephen A. McCullers^***

I. Introduction

The 2015 term of the United States Court of Appeals for the Eleventh Circuit¹ included precedential opinions on a variety of important evidentiary issues. Several Eleventh Circuit cases, as well as a key decision from the United States Supreme Court, further explored the contours of the Confrontation Clause. The Eleventh Circuit also considered a number of cases regarding the admissibility of expert testimony at trial. These cases seem to continue the Eleventh Circuit's recent trend of applying greater scrutiny to lower court decisions excluding expert evidence, while applying a more deferential standard when the lower court allowed expert evidence.

Also noteworthy were two published Eleventh Circuit opinions concerning the relevance and prejudicial effect of "bad act" evidence. In one case involving charges of identity theft and filing false tax returns, the court affirmed the admission of the defendant's other acts of fraud. In the other, the court held that evidence of the defendants' memberships in white supremacist gangs was not unfairly prejudicial where this evidence was relevant to criminal intent. Finally, the court provided

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useful guidance on the application of the residual exception to the hearsay rule, stressing that this exception should only be used in "exceptional circumstances." This Evidence Survey describes all of these rulings to provide practitioners with a concise overview of how the law of evidence evolved in the Eleventh Circuit during 2015.

II. Constitutional Evidentiary Principles

A. The Confrontation Clause

In criminal prosecutions, the Confrontation Clause in the Sixth Amendment of the United States Constitution² guarantees the accused's right "to be confronted with the witnesses against him."³ In 1980, the Supreme Court held in Ohio v. Roberts⁴ that the Clause allows the admission of an out-of-court statement by an unavailable witness if the statement bore "adequate indicia of reliability;" for example, if the statement fell "within a firmly rooted hearsay exception" or had "particularized guarantees of trustworthiness."⁵ But the Court repudiated the Roberts approach in 2004, holding in Crawford v. Washington⁶ the Confrontation Clause bars the admission of "[t]estimonial statements of witnesses absent from trial," unless "the declarant is unavailable" and the defendant "had a prior opportunity to cross-examine" the declarant.⁷ Since Crawford, courts have tried to define when an out-of-court statement is "testimonial" and thus implicates the Clause. As a general matter, testimonial statements are those that a declarant "would reasonably expect to be used prosecutorially."⁸ Courts therefore examine whether the "primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution."⁹ Examples of testimonial statements include "formal statement[s] to government officers, . . . affidavits, custodial examinations, [and] prior testimony that the defendant was unable to cross-examine."¹⁰

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In the 2015 term, the Supreme Court decision Ohio v. Clark¹¹ and a couple of opinions from the Eleventh Circuit shed further light on when an out-of-court statement is testimonial. In Clark, a jury sentenced the defendant to twenty-eight years imprisonment after concluding that he had brutally abused his girlfriend's children. Central to the prosecution's case against the defendant were the out-of-court statements by one of the victims—a three-year-old boy who told his teachers at school that the defendant was responsible for the severe injuries the teachers had discovered. The defendant argued, and the Ohio Supreme Court agreed, that the boy's identification of the defendant as the perpetrator was a testimonial out-of-court statement barred by the Confrontation Clause.¹²

However, the United States Supreme Court concluded that the boy's statements were not testimonial because the primary purpose of the teachers' questions about the identity of the perpetrator was not to prosecute the defendant, but rather to protect the boy and other children from further abuse by the same person.¹³ As the Court noted, "There is no indication that the primary purpose of the conversation was to gather evidence for [the defendant's] prosecution. On the contrary, it is clear that the first objective was to protect [the child]."¹⁴ Several observations buttressed the Court's conclusion that the statements were not testimonial: (1) the teachers never informed the boy "that his answers would be used to arrest or punish his abuser," (2) the boy "never hinted that he intended his statements to be used by the police or prosecutors," (3) the conversation between the boy and his teachers "was informal and spontaneous," and (4) the boy's young age makes it "extremely unlikely" that "[he] would intend his statements to be a substitute for trial testimony."¹⁵

Two additional aspects of the Clark opinion are worth noting. First, the Court addressed a question it had previously reserved—whether the Confrontation Clause even applies to statements made to persons other than law enforcement.¹⁶ The Court refused to "adopt a categorical rule" excluding statements to non-law enforcement persons "from the Sixth Amendment's reach," but it added "such statements are much less likely to be testimonial than statements to law enforcement officers."¹⁷

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Second, the opinion contains dicta that drew the ire of Justices Scalia and Ginsburg in a concurring opinion. After explaining that "a statement cannot fall within the Confrontation Clause unless its primary purpose was testimonial," the Court's opinion cautions that this "does not mean that the Confrontation Clause bars every statement that satisfies the 'primary purpose' test."¹⁸ Noting that the Confrontation Clause "does not prohibit the introduction of out-of-court statements that would have been admissible in a criminal case at the time of the founding," the Court explained "the primary purpose test is a necessary, but not always sufficient, condition for the exclusion of out-of-court statements under the Confrontation Clause."¹⁹ In other words, the Clause does not necessarily bar the admission of all testimonial out-of-court statements; there may be additional considerations such as whether the statement would have been admissible around the time the Sixth Amendment was passed.

Justices Scalia and Ginsburg were none too pleased with this aspect of the opinion, calling it "absolutely false" and unsupported by precedent.²⁰ According to the concurring opinion, "[t]he Confrontation Clause categorically entitles a defendant to be confronted with the witnesses against him; and the primary-purpose test sorts out, among the many people who interact with the police informally, who is acting as a witness and who is not. Those who fall into the former category bear testimony, and are therefore acting as 'witnesses,' subject to the right of confrontation."²¹ The concurring opinion concludes emphatically, "There are no other mysterious requirements that the Court declines to name."²²

The Eleventh Circuit applied the primary purpose test in two cases during the last term. In United States v. Wilson,²³ the court held text messages between the defendant's former attorney and a government agent were not testimonial and thus did not implicate the Confrontation Clause.²⁴ Observing that the messages were informal communications to coordinate the delivery of certain boxes, the court determined the "cooperative and informal nature of those text messages was such that

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an objective witness would [not] reasonably expect [the texts] to be used prosecutorially."²⁵

The Eleventh Circuit reached the same result in United States v. Rodriguez,²⁶ an unpublished opinion affirming a conviction of two defendants (Rodriguez and Robinson) for armed robbery.²⁷ Rodriguez argued that the government's admission of certain conversations between a now-deceased co-conspirator and his girlfriend violated the Confrontation Clause.²⁸ The court held the relevant statements "plainly were not made with the primary purpose of aiding in a criminal investigation, as they were from private conversations [the now-deceased co-conspirator] had with his girlfriend outside the trial context."²⁹

The Rodriguez case also provided occasion for the court to address a question it had not previously answered: whether statements must be testimonial to violate the Bruton³⁰ bar against the use of confessions by non-testifying criminal defendants in a joint trial to the extent the statements directly inculpate a co-defendant, though they might be otherwise admissible against the confessing defendant.³¹ Louis Robinson, the second defendant in Rodriguez, contended that the admission of the now-deceased co-conspirator's statements to his girlfriend violated the Bruton bar because they implicated Robinson in the offense without affording him a chance for cross-examination.³² Following the approach of several other circuits, the Eleventh Circuit concluded that Bruton's "protections only apply to testimonial statements" because Bruton "was premised on the Confrontation Clause."³³ And because the now-deceased co-conspirator's conversations with his girlfriend were not testimonial, the Bruton bar was inapplicable.³⁴ While Rodriguez was an unpublished opinion—and therefore is not considered binding precedent³⁵ —it does provide insight into how the court would analyze the Bruton issue and it may be cited as persuasive authority.

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In addition to the two cases addressing the "testimonial" requirement, the Eleventh Circuit issued one more noteworthy decision involving the Confrontation Clause. In United States v. Reese,³⁶ the court concluded that the Confrontation Clause does not apply in supervised release...