Evidence

• Publication year: 2015

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 United States Court of Appeals for the Eleventh Circuit's 2014 term featured several interesting opinions addressing the admissibility of evidence.¹ For example, the court tackled two issues of first impression analyzing constitutional rights against the admission of evidence. In one case, the Eleventh Circuit decided whether the Confrontation Clause applies to evidence used by a district court in determining jurisdiction over the offense in a pretrial hearing. In another case, the court developed a rule to determine when an adverse inference jury instruction is warranted after a nonparty invokes its Fifth Amendment right to remain silent in a civil case.

The Eleventh Circuit also issued several noteworthy opinions concerning the admissibility of expert testimony. In one decision, the court reversed the lower court's Daubert ruling after cautioning that federal courts cannot defer to the recommendations of industry groups when determining the admissibility of expert evidence. In two equally interesting cases, the court affirmed the exclusion of expert testimony

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where the plaintiff's expert failed to adequately explain his methodology or to employ the methodology he allegedly relied upon.

Finally, the Eleventh Circuit published two notable opinions addressing a common evidentiary issue: the balancing of relevance and undue prejudice under Rules 401 and 403 of the Federal Rules of Evidence. One decision discussed the admissibility of alternative causation evidence in a wrongful death case, and the other considered whether a plaintiff in a hostile work environment suit can use evidence of racial harassment against his co-workers that was not directly connected to the plaintiff's supervisor.

II. CONSTITUTIONAL EVIDENTIARY PRINCIPLES

A. Addressing the Limits and Application of the Confrontation Clause

In criminal prosecutions, the Confrontation Clause in the Sixth Amendment to the United States Constitution² guarantees the accused's right "to be confronted with the witnesses against him."³ The Confrontation Clause therefore 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.⁴ In the 2014 term, the Eleventh Circuit published two opinions further defining the scope of the Confrontation Clause.

In United States v. Mathis,⁵ the court held that text messages from the victim of a child molester were not testimonial and therefore did not implicate the Confrontation Clause.⁶ A jury convicted Mathis of several child exploitation offenses after receiving, among other things, evidence of text messages a victim sent to Mathis's smartphone. Because the victim did not testify at trial, Mathis argued that the admission of the text messages violated his rights under the Confrontation Clause.⁷

The Eleventh Circuit disagreed.⁸ The victim's text messages were not testimonial, and thus not subject to the Confrontation Clause because they "were not formal statements to government officers, they were not

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made during a custodial examination, and they did not constitute an affidavit, prior testimony, or pretrial statements that [the victim] would reasonably expect to be used prosecutorially."⁹ Instead, the victim's text messages "were informal, haphazard communications sent at all hours and from locations such as his house, the bus stop, and his school"—not the type of "circumstances that would lead an objective witness reasonably to believe that they would be available for use at a later trial."¹⁰ Accordingly, the text messages were not testimonial and did not implicate the Confrontation Clause.¹¹

In United States v. Campbell,¹² the Eleventh Circuit considered whether the Confrontation Clause applies to a certification used by the district court in a pretrial determination of whether it has jurisdiction over a case.¹³ A grand jury indicted the defendant under the Maritime Drug Law Enforcement Act¹⁴ after law enforcement arrested him on a flagless vessel transporting drugs in international waters.¹⁵ This statute subjects "'a vessel without nationality'" to the jurisdiction of the United States.¹⁶ It defines such a stateless vessel as, among other things, "'a vessel aboard which the master or individual in charge makes a claim of registry and for which the claimed nation of registry does not affirmatively and unequivocally assert that the vessel is of its nationality.'"¹⁷ The master of Campbell's vessel claimed that it was registered in Haiti; however, when the Coast Guard inquired, the Haitian government could neither confirm nor deny the registry of the vessel.¹⁸

At a pretrial hearing to determine whether the district court had extraterritorial jurisdiction over the vessel, the government introduced into evidence a certification of the Secretary of State that included a statement of a Coast Guard commander that, upon his inquiry, the Republic of Haiti could neither confirm nor deny the registry of the vessel. Campbell objected on the ground that the admission of the certification violated his right under the Confrontation Clause. The district court overruled Campbell's objection and concluded that the

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certification sufficiently established extraterritorial jurisdiction over Campbell's vessel.¹⁹

On appeal, the Eleventh Circuit held that the certification was not subject to the Confrontation Clause.²⁰ According to the court, "[t]he Confrontation Clause does not bar the admission of hearsay to make a pretrial determination of jurisdiction when that hearsay does not pertain to an element of the offense."²¹ And "[b]ecause the stateless nature of Campbell's vessel was not an element of his offense to be proved at trial, the admission of the certification did not violate his right to confront the witnesses against him."²²

In reaching this conclusion, the Eleventh Circuit noted that the United States Supreme Court's Confrontation Clause jurisprudence focused on facts to be proven at trial; indeed, the Supreme Court "has never extended the reach of the Confrontation Clause beyond the confines of a trial."²³ In other words, "[t]he Confrontation Clause protects a defendant's trial right to confront testimony offered against him to establish his guilt"—it does not limit the use of evidence to establish jurisdiction under the Maritime Drug Law Enforcement Act at a pretrial hearing.²⁴ The Eleventh Circuit found further support for its holding in case law from other circuits similarly refusing to extend the Confrontation Clause to "pre- and post-trial proceedings that do not concern the adjudication of a defendant's guilt or innocence."²⁵ But, the Eleventh Circuit preserved the issue of whether pre- and post-trial proceedings that touch on the guilt or innocence of the accused could implicate the Confrontation Clause.²⁶ The court specifically cautioned that it did "not decide whether the Confrontation Clause could ever apply to a pretrial determination."²⁷ The court "conclude[d] only that it does not apply to this pretrial determination of jurisdiction where the certification does not implicate either the guilt or innocence of a defendant charged with an offense under the [Maritime Drug Law Enforcement] Act."²⁸

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B. The Privilege Against Self-Incrimination

The Fifth Amendment to the Constitution of the United States provides that "[n]o person . . . shall be compelled in any criminal case to be a witness against himself."²⁹ To protect a defendant's right to remain silent and "to minimize the danger that the jury will give evidentiary weight to a defendant's failure to testify," a trial judge "has the constitutional obligation, upon proper request," to give a no-adverse-inference instruction to the jury during the guilt phase of trial.³⁰ In White v. Woodall,³¹ the United States Supreme Court considered whether it was objectively unreasonable for a court to refuse such an instruction during the penalty phase.³²

The defendant in White pleaded guilty to capital murder, capital kidnapping, and first-degree rape. During the penalty phase of trial, the defendant exercised his Fifth Amendment privilege not to testify.³³ Counsel for the defendant asked the trial judge for a blanket no-adverse-inference instruction to inform the jury that "'[a] defendant is not compelled to testify and the fact that the defendant did not testify should not prejudice him in any way.'"³⁴ The trial judge denied this request. The Kentucky Supreme Court affirmed the trial court's decision and found that, under United States Supreme Court precedent, the Fifth Amendment does not require a blanket no-adverse-inference instruction during the penalty phase of trial.³⁵

Following the Kentucky Supreme Court's decision, the defendant filed a petition for a writ of habeas corpus in federal court. The federal district court held that the state court's refusal to issue the requested no-adverse-inference instruction violated the defendant's Fifth Amendment privilege against self-incrimination. The Sixth Circuit Court of

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Appeals affirmed, ordering the Commonwealth of Kentucky to resentence the defendant or release him. The Supreme Court granted certiorari.³⁶

Writing for the majority, Justice Scalia stressed that under the federal habeas statute, a federal court shall grant a habeas petition only if the decision of the state court "'was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States.'"³⁷ This standard is "difficult to meet"³⁸ and requires "an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement."³⁹ Furthermore, "state courts enjoy 'broad discretion' in their adjudication of a...