JurisdictionUnited States,Federal
Publication year2022
CitationVol. 73 No. 4


W. Randall Bassett

Val Leppert

Lauren Newman Smith

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W. Randall Bassett*

Val Leppert**

Lauren Newman Smith***

I. Introduction

In its 2021 term,1 the United States Court of Appeals for the Eleventh Circuit issued several important and precedential opinions on a number of evidentiary topics. For example, in two opinions, the court considered the totality of the evidence to determine whether admission of testimonial hearsay implicated the Sixth Amendment's Confrontation Clause or was instead harmless error.2 The court also twice addressed whether a suggestion to the jury that a defendant's silence was substantive evidence of his guilt violated the defendant's Fifth Amendment rights.3

Additionally, the Eleventh Circuit issued several opinions concerning lay witness and expert testimony. In two opinions this term, the court affirmed the district courts' categorization of testimony as lay witness testimony and therefore admissible under Federal Rule of Evidence

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701.4 Regarding the admissibility of expert opinions, the court in four cases followed its trend of deferring to the district courts on the use or exclusion of expert testimony, affirming all four in published opinions.5

Lastly, the court also issued several opinions balancing Rule 401's6 relevancy requirement against Rule 403's7 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.8 The court further addressed the prohibition against character evidence9 and hearsay in several opinions.10 This Survey summarizes all of these rulings and provides the practitioner with a concise overview of the most important developments in the law of evidence.

II. Constitutional Evidentiary Principals

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."11 In Crawford v. Washington,12 the Supreme Court of the

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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.13 The 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."14 Since Crawford, the 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.15 Statements are testimonial "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."16 Statements are nontestimonial, however, "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."17 The Eleventh Circuit has also found that statements are "clearly nontestimonial" when made "unwittingly" to government informants because they are made "freely without a reasonable belief that [they] . . . would be available for use at a later trial."18

In three opinions this term, the Eleventh Circuit looked at ancillary evidence to reject a Confrontation Clause challenge. In United States v. Powell,19 a detective noticed an SUV speeding and weaving through traffic. After running the plates, the detective found inconsistencies between the registered description and the vehicle, thereby suggesting it was stolen, so he decided to perform a traffic stop. The driver and a passenger—the defendant—both fled, after which the detective spotted a firearm on the front of the SUV by the passenger side. A different detective interviewed the defendant and requested a search warrant for the contents of his phone, which revealed photos of the defendant

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brandishing two different firearms. The defendant was found guilty of possession of a firearm by a convicted felon.20

At trial, one of the detectives relayed statements made to her by two other women who were riding in the back of the SUV.21 One of the women told the detective "that she didn't know anything," that "the gun wasn't hers," and that she was the defendant's girlfriend.22 The detective testified that the other woman told her "she didn't know anything about that gun and it wasn't hers."23

On appeal, the defendant argued that this testimony was "testimonial hearsay" that violated the Confrontation Clause.24 The Eleventh Circuit determined that even if the testimony violated the defendant's Sixth Amendment rights, any error was harmless.25 The "statements were ancillary at worst and cumulative at best to the government's case."26 Moreover, even though the defendant could not cross-examine the hearsay declarants, "he was given ample opportunity to cross [the detective]."27 The court went on to note that "the strength of the government's case alone ma[de] th[e] error harmless."28 Because "[t]he government's case would have been no less persuasive if the hearsay statements had been excluded," the Eleventh Circuit found any Confrontation Clause violation was harmless error.29

In United States v. Pendergrass,30 the defendant challenged the admission of four statements, including "the statements of [the defendant's] girlfriend and her mother that [the defendant] lived in the basement of their home."31 Although the statements from the defendant's girlfriend and her mother concerning the defendant's residence were testimonial hearsay, the Eleventh Circuit determined that the defendant could not show that their admission violated his substantial rights because that information was established through other means.32

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The court further found that the remaining challenged statements were not hearsay because they were not offered for the truth of the matter asserted.33 Accordingly, the court determined that the statements could not violate the Confrontation Clause.34 Relying on its decision in United States v. Jiminez,35 the court reiterated that the Confrontation Clause "'prohibits only statements that constitute impermissible hearsay' because 'the Clause . . . does not bar the use of testimonial statements for purposes other than establishing the truth of the matter asserted.'"36 Because the first three categories of challenged testimony did not qualify as hearsay, the defendant's Confrontation Clause challenge necessarily failed.37

The defendant in Pendergrass argued on appeal that the Eleventh Circuit's decision in United States v. Charles38 warranted a different result; however, the court disagreed.39 In Charles, the Eleventh Circuit held that "a proper Confrontation Clause analysis does not begin or end with a determination of whether a statement constitutes 'impermissible hearsay.'"40 The court then explained that the Confrontation Clause analysis "first requires a determination of whether the declarant's statement is 'testimonial,' i.e. a declaration offered for the purpose of proving some fact to be used at trial."41 Because the first three challenged statements were not offered for the truth of the matters asserted nor to prove guilt, they were not testimonial hearsay and therefore could not trigger the Confrontation Clause.

B. The Privilege Against Self-Incrimination

More commonly known as the right against self-incrimination, the Fifth Amendment of the Constitution of the United States provides that "[n]o person . . . shall be compelled in any criminal case to be a witness against himself."42 The Supreme Court has explained that "statements made during a custodial interrogation are not admissible at trial unless

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the defendant was first advised of his rights, including the right against self-incrimination."43 An individual is considered to be "in custody" for Miranda purposes when there is a "formal arrest or restraint on freedom of movement of the degree associated with a formal arrest."44 The inquiry focuses on the perspective of a reasonable innocent person, and "the actual, subjective beliefs of the defendant and the interviewing officer on whether the defendant was free to leave are irrelevant."45

In United States v. Vorasiangsuk, the Eleventh Circuit affirmed the district court's finding that the defendant was not in custody for Miranda purposes after the court considered the totality of the circumstances.46 The interview in Vorasiangsuk was calm and cordial and the agents did not "physically touch, threaten, point their guns at, handcuff, or even raise their voices" to the defendant.47 Although the court observed that "[t]he location of the interview is not necessarily dispositive, [ ]courts are much less likely to find a custodial encounter when the interrogation occurs 'in familiar or at least neutral surroundings, such as the suspect's home.'"48 The fact that the conversation took place at the defendant's residence bolstered the court's conclusion that the defendant was not in custody.49

To protect an accused's right to silence, the Fifth Amendment also forbids suggesting to the jury that a defendant's silence is substantive evidence of his guilt.50 To determine whether such a suggestion has been made, the Eleventh Circuit looks to whether either of the following is true: "(1) the comment was 'manifestly intended' to invite the impermissible inference of guilty; or (2) the nature of the comment was such...

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