Evidence

• Publication year: 2021

Evidence

W. Randall Bassett

Val Leppert

Lauren Newman

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Evidence

by W. Randall Bassett^*

Val Leppert^**

and Lauren Newman^***

I. Introduction

In its 2020 term, the United States Court of Appeals for the Eleventh Circuit¹ issued several important and precedential opinions on a number of evidentiary topics. For example, in four published opinions, the court considered whether certain evidence was "testimonial" to determine whether its admission would implicate the Sixth Amendment's Confrontation Clause.² The court also addressed whether a defendant on federal supervised release faces a "classic penalty situation," thereby deeming any confession compelled in violation of the Fifth Amendment, when a probation officer asks him to answer questions that would reveal he had committed new crimes.³

The Eleventh Circuit additionally issued several opinions concerning lay witness and expert testimony. In five published opinions, the court affirmed the district courts' categorization of testimony as admissible

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under Rule 701⁴ as lay witness testimony.⁵ Regarding the admissibility of expert opinions, the court in three cases followed its trend of deferring to the district courts on the use or exclusion of expert testimony, affirming all three in published opinions.⁶

The court also issued several opinions balancing Rule 401's⁷ relevancy requirement against Rule 403's⁸ grant of discretion to exclude relevant evidence where "its probative value is substantially outweighed" by, among other things, unfair prejudice or a likelihood of confusion.⁹ Although the court has long recognized that Rule 403 is "an extraordinary remedy that the court should invoke sparingly,"¹⁰ it nonetheless excluded evidence under the rule in two published opinions this term.¹¹ The court also addressed the Rules' prohibition against character evidence¹² and hearsay in several published opinions.¹³ This survey of the Eleventh Circuit's 2020 opinions on evidentiary issues summarizes all of these rulings and provides the practitioner with a concise overview of the most important developments to the law of evidence.

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II. CONSTITUTIONAL EVIDENTIARY PRINCIPLES

A. The Confrontation Clause

The Confrontation Clause of the Sixth Amendment of the United States Constitution guarantees that "[i]n all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him."¹⁴ In Crawford v. Washington,¹⁵ the Supreme Court of the United States interpreted the clause as barring 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.¹⁶ The Supreme Court declined to define with particularity what a "testimonial" statement is but identified a "core class" of testimonial materials including "affidavits, depositions, prior testimony, or confessions," as well as "statements that were made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial."¹⁷ Since Crawford, the Supreme Court has clarified the difference between testimonial and nontestimonial statements by focusing on the "primary purpose" of the questioning that elicited the out-of-court statement.¹⁸ Statements are nontestimonial "when made in the course of police interrogation under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency."¹⁹ Statements are testimonial, however, "when the circumstances objectively indicate that there is no such ongoing emergency, and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution."²⁰

In four published opinions this term,²¹ the Eleventh Circuit considered whether certain public records, business records, and summaries of records, were testimonial and therefore subject to the Confrontation

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Clause. In United States v. Santos,²² the defendant—a native of the Dominican Republic—applied for naturalization.²³ As part of this process, he completed an N-400 Application for Naturalization, "which is a standard form that all individuals must submit to the government to become a naturalized citizen."²⁴ In a section titled "Good Moral Character," the defendant certified under penalty of perjury that he had never been arrested, charged with a crime, convicted of a crime, or been in jail or prison.²⁵ Roughly a year-and-a-half later, a United States Citizen and Immigration Services (USCIS) officer interviewed the defendant.²⁶ During the interview, the officer annotated the N-400 form in red ink, writing comments such as "claims no arrest[,] no offense[,] no DUI" under the defendant's answers, and then signed the Application.²⁷ At the end of the interview, the defendant swore under penalty of perjury that the contents of the Application, including the officer's annotations, were true and correct.²⁸

The question before the court in Santos was whether the district court's introduction of the N-400 Application for Naturalization, including the USCIS officer's annotations, violated the defendant's Sixth Amendment rights under the Confrontation Clause. Relying on a case from the United States Court of Appeals for the First Circuit,²⁹ the court concluded that it did not.³⁰ The court reasoned that all naturalization applicants are required to complete a Form N-400 Application and that USCIS officers perform the same verification process in every naturalization interview.³¹ Moreover, "USCIS officers are not conducting the interviews because they suspect the applicants of crimes and are not making the red marks on the Form N-400 for later criminal prosecution."³² The court therefore determined that the defendant's annotated Form N-400 Application was a "nontestimonial public record produced as a matter of administrative routine" and "for the primary purpose of determining [the defendant's] eligibility for naturalization."³³ Because the red marks on the annotated Form N-400 Application were

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nontestimonial, the court concluded that their admission could not violate the Confrontation Clause.³⁴

In United States v. Ruan,³⁵ the court addressed the question of whether the admission of data from Alabama's Prescription Database Monitoring Program (PDMP) violated the defendants' Sixth Amendment rights under the Confrontation Clause.³⁶ The court first observed that "certain statements by their nature are not testimonial—for example, business records or statements in furtherance of a conspiracy."³⁷ Because the court determined the PDMP reports were business records, it found that "they [we]re not testimonial and d[id] not violate the Confrontation Clause."³⁸ The court additionally noted, however, that even if the reports were not business records, they would nonetheless be nontestimonial. It reasoned that "[p]harmacists are required by law to enter the PDMP data for the primary purpose of aiding physicians in treating patients, such as combating addiction."³⁹ "[T]he fact that the pharmacists may be aware when they input the data that law enforcement also has access to the database if needed during an investigation does not transform the data entry into the type of formal statement required for testimonial evidence."⁴⁰ The court therefore affirmed the district court's admission of the PDMP data, concluding it was not implicated by the Confrontation Clause.

In United States v. Clotaire,⁴¹ the court addressed the applicability of the Confrontation Clause to another business record.⁴² In Clotaire, the district court admitted screenshots of ATM surveillance footage pursuant to Rules 803(6)⁴³ and 902(11)⁴⁴ under the records of regularly conducted business activity.⁴⁵ The defendant objected to this evidence, arguing "that the person who pulled still frames from the video surveillance [footage was] a witness against him and [] he therefore had the right to confront the methods used to produce the images and the opportunity to cross-examine someone with knowledge of how the exhibits were created."⁴⁶

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The Eleventh Circuit disagreed, finding that "[s]till frame pictures are not statements at all, let alone testimonial ones."⁴⁷ It observed that "pictures are not witnesses[,]" "[s]urveillance cameras are not witnesses, and surveillance photos are not statements."⁴⁸ The court additionally expressed skepticism at the defendant's suggestion that the photos were somehow "enhanced."⁴⁹ The court determined that even if they had undergone some "post-capture processing for clarity," any such processing would not make them testimonial, because the photo processor did nothing more than get the clearest image.⁵⁰ "[S]he made no assertion about what the image showed or who it might be."⁵¹ Because the surveillance photos nor their purported enhancement constituted statements, much less testimonial ones, the court affirmed the district court's admission of the ATM surveillance photos.⁵²

Although the Eleventh Circuit ultimately found the business records in Ruan and Clotaire nontestimonial and therefore they did not implicate the Confrontation Clause, the court's analysis varied slightly between the cases. In Ruan, the Eleventh Circuit found the PDMP data nontestimonial because it was a business record.⁵³ It cited United States v. Wilson⁵⁴ and United States v. Naranjo⁵⁵ for the proposition that business records are categorically nontestimonial and therefore not implicated by the Confrontation Clause.⁵⁶ Both Wilson and Naranjo cited Crawford for support.⁵⁷ However, the Eleventh Circuit in Clotaire expressly rejected any such categorical approach.⁵⁸ In a footnote at the end of the opinion, the court stressed that its conclusion that the ATM surveillance photos were nontestimonial "does not—and cannot—rest on

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[its] determination that the ATM...