Evidence

• Publication year: 2020

Evidence

W. Randall Bassett

Val Leppert

Elijah T. Staggers

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Evidence

by W. Randall Bassett^* Val Leppert^** Elijah T. Staggers^***

In the 2019 term, the United States Court of Appeals for the Eleventh Circuit issued several opinions deciding evidentiary issues. Those opinions span a broad range of topics including constitutional limitations on admissible evidence, expert testimony, the scope of certain hearsay exceptions, and various other evidentiary rules. This article looks back at the Eleventh Circuit's 2019 term to highlight and analyze keynote decisions on those issues.

I. CONSTITUTIONAL LIMITATIONS ON THE ADMISSIBILITY OF EVIDENCE

A. Fifth Amendment—Miranda

The Fifth Amendment to the United States Constitution provides, "No person shall . . . be compelled in any criminal case to be a witness against himself[.]"¹ In Miranda v. Arizona,² the Supreme Court of the United States recognized this Amendment limits the admissibility of

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evidence.³ There, the Supreme Court held "the prosecution may not use statements[] . . . stemming from custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination[]" as such action would violate the Fifth Amendment.⁴ The Court reasoned that custodial interrogations require special safeguards to protect an individual's Fifth Amendment right against self-incrimination because the "inherently compelling pressures" of a custodial interrogation "undermine an individual's will to resist and to compel him to speak where he would otherwise not do so freely."⁵

The Supreme Court stated in Miranda that those "procedural safeguards" require the government to advise a defendant of the "right to remain silent, that any statement he does make may be used as evidence against him, and that he has a right to the presence of an attorney."⁶ Thus, Miranda requires the government to give a suspect those warnings if it seeks to use "statements" obtained during a "custodial interrogation" against a criminal defendant at trial.⁷ But Miranda has its limits. The Supreme Court has articulated boundaries and exceptions to Miranda that lower courts apply to determine whether Miranda requires the exclusion of statements at trial.

In United States v. Ochoa,⁸ the Eleventh Circuit considered the following questions: (1) whether a defendant's pre-Miranda statements made to an FBI agent before a SWAT team conducted a search of his home fell within the "public safety exception" to the Miranda rule; and (2) whether the defendant invoked Miranda rights during an interview at the police station, such that the statements were inadmissible at trial.⁹ An FBI agent questioned Ochoa at his residence while executing an arrest warrant for Ochoa.¹⁰ Upon arriving at the residence, the FBI agent ordered Ochoa and other suspects out of the home and asked them whether there were any "[b]ombs, booby traps, weapons," or other "harmful" objects that could harm SWAT team members who might enter the residence.¹¹ Ochoa responded that a handgun was inside the house. The police then took Ochoa into custody and mirandized him.

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The police interrogator asked Ochoa whether he wanted to waive his Miranda rights.¹² Ochoa first responded, "You're asking me at this time [if] I'm willing to answer questions without a lawyer. I don't agree with that."¹³ But Ochoa continued speaking with the interrogating officer.¹⁴ In response to a later question, "So, is that a yes, you'll speak without an attorney," Ochoa responded, "Yes."¹⁵ The police used Ochoa's statements made later during that interview, namely that there was a gun in Ochoa's house, as a basis for obtaining a search warrant for the house where police found several guns and ammunition. The government charged Ochoa with knowingly possessing a firearm and ammunition while a convicted felon, among other crimes.¹⁶

At trial, Ochoa moved to suppress the introduction of the statements made outside the house and his statements made during the police interview, arguing that they violated his Fifth Amendment right against self-incrimination as protected by Miranda. The district court denied that motion for the following reasons: (1) Ochoa's statements outside his home fell within the public safety exception to Miranda; and (2) Ochoa did not unambiguously invoke his Miranda rights during the interview.¹⁷ On appeal, the Eleventh Circuit affirmed—reviewing factual findings for clear error and reviewing de novo the application of law to facts.¹⁸

As to Ochoa's statements made outside his home, the Eleventh Circuit held they were admissible because they fell within the well-established public safety exception to the Miranda rule.¹⁹ The Supreme Court first recognized the public safety exception to Miranda in New York v. Quarles.²⁰ Under this exception, "a suspect's answers may be admitted into evidence" where a "police officer[] asks questions reasonably prompted by a concern for the public safety," even if the officer did not first read the suspect Miranda warnings.²¹ The Eleventh Circuit reasoned that Ochoa's statements outside the house fell within the public safety exception, because the FBI officer asked questions he reasonably believed were necessary to secure the scene, and reasonably

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feared that he and his team members could be in danger when they entered the home.²²

The Eleventh Circuit also held that Ochoa's statements during the interview were admissible, because Ochoa did not unambiguously invoke his Miranda right to remain silent or have an attorney present during the interview.²³ Citing Davis v. United States,²⁴ the Eleventh Circuit recognized the Supreme Court's rule that an invocation of Miranda must be "unambiguous" or "unequivocal."²⁵ If not, then the police "officers have no obligation to stop questioning him."²⁶ Ochoa's statement that he did not "'agree' with" the request to be questioned without a lawyer present was not an unambiguous invocation of Miranda, because it was not an express statement that Ochoa wished to have an attorney present.²⁷ Also, because the officer could have reasonably interpreted Ochoa's statements as indicating his confusion, it was appropriate for the officer to ask clarifying questions.²⁸

B. Sixth Amendment-Confrontation Clause

The Sixth Amendment likewise establishes constitutional limits on the admissibility of evidence. The Confrontation Clause of the Sixth Amendment states, "[i]n all criminal prosecutions, the accused shall enjoy the right to . . . be confronted with the witnesses against him."²⁹ The Confrontation Clause bars hearsay testimony of a declarant who is then unavailable at trial, or where in-court testimony is being offered and the defendant was unable to cross-examine the witness at that time.³⁰ The Supreme Court has outlined the type of testimony that the Confrontation Clause bars when a witness is unavailable. Until 2004, the Supreme Court followed the Ohio v. Roberts³¹ framework which permitted statements of unavailable witnesses if they demonstrated an "adequate 'indicia of reliability'" by falling within a "firmly rooted hearsay exception" or showing "particularized guarantees of trustworthiness."³² But, Crawford v. Washington³³ abrogated the old

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regime by holding that the Confrontation Clause barred "testimonial" hearsay.³⁴ The Supreme Court later clarified in Davis v. Washington,³⁵ that a statement is "testimonial" if it is offered to "prove past events potentially relevant to later criminal prosecution," whereas statements are "nontestimonial" if being "made in the course of police interrogation" where the "primary purpose of the interrogation is to . . . meet an ongoing emergency."³⁶ The court in Davis contemplated that it would be difficult to "produce an exhaustive classification of all conceivable statements . . . as either testimonial or nontestimonial."³⁷ Accordingly, lower courts have decided on a case-by-case basis whether statements are testimonial or nontestimonial.

This past term, in United States v. Cooper,³⁸ the Eleventh Circuit addressed the distinction between testimonial and nontestimonial statements. In that case, the defendant was charged with sex trafficking, among other federal crimes.³⁹ At trial, the district court allowed the prosecution to present the testimony of an officer who stated that unidentified men told him they came to the defendant's apartment "in response to the Backpage ad to receive [sexual] services."⁴⁰ On appeal, the Eleventh Circuit held that the court below abused its discretion because the statements were indeed testimonial.⁴¹ After all, the agent "questioned the visitors during his investigation, to gain facts probative of [the defendant's] guilt."⁴² But the court reasoned that the violation amounted to harmless error, because the testimony "did not contribute to the verdict obtained."⁴³ Aside from these statements, the government presented strong evidence at trial linking Cooper's illicit business to Backpage. Cooper made advertisement payments to Backpage; he posted to Backpage with his IP address; and undercover officers testified that they used Cooper's Backpage advertisement to contact women who offered sexual services.⁴⁴

The Eleventh Circuit also addressed the standard for when a witness is considered "unavailable" for purposes of the Confrontation Clause. In

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United States v. Smith,⁴⁵ the court stated that unavailability "does not require the government to make every conceivable effort to locate a witness; it requires only a good faith effort that is reasonable under all of the circumstances of the case."⁴⁶ The witness in Smith had no phone or address, had absconded outside of Florida, and was in hiding.⁴⁷ Although the government successfully served a subpoena on the witness, the Court deemed the witness unavailable because the government's unsuccessful efforts to locate witness were in good faith and reasonable under...