Evidence

• Publication year: 2017

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 2016 term of the United States Court of Appeals for the Eleventh Circuit¹ included important precedential opinions on a number of evidence topics. For example, in four cases the court considered what evidence constitutes "testimonial out-of-court statements" that are precluded by the Sixth Amendment's Confrontation Clause unless the declarant is unavailable and the defendant has a prior opportunity for cross-examination.² The court also considered the interplay between a defendant's Sixth Amendment right to an effective cross-examination and the district court's authority to limit the scope of cross-examination.³

The court issued two published opinions of importance regarding the Fifth Amendment right against self-incrimination: one addressed whether a defendant's pre-Miranda silence may be used as substantive

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evidence of guilt;⁴ the other considered the issue of first impression of whether a public employee may waive Fifth Amendment protections, which would allow statements made during an investigation to be used in a subsequent criminal case.⁵

Regarding the admissibility of expert opinions, in the 2016 term the Eleventh Circuit continued the apparent trend (discussed in last year's evidence survey)⁶ of more closely scrutinizing exclusions of expert evidence. Similar to previous years, the circuit court affirmed four out of the five expert evidence cases it considered,⁷ with the single reversal being a case where the district court excluded the plaintiff's primary expert evidence and then granted summary judgment for the defendant.⁸

The Eleventh Circuit also issued two published opinions addressing matters of first impression regarding the Federal Rules of Evidence's prohibition on character evidence. In one case involving a defendant's claim that he was entrapped by the government in a charge of coercing an underage girl into prostitution, the Eleventh Circuit held that the defendant should have been allowed to introduce evidence of specific conduct to rebut the government's claim that he was predisposed to seek out sex with minors.⁹ In another case of first impression, the court held that a conviction following a nolo contendere plea does not provide sufficient evidence such that it may be admitted to show the defendant committed a "prior bad act" under Rule 404(b) of the Federal Rules of Evidence.¹⁰ This Survey of the Eleventh Circuit's 2016 evidence opinions provides a concise summary of all of these rulings and provides the practitioner with a succinct overview of the most important evidence rulings by the Eleventh Circuit in 2016.

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II. Constitutional Evidentiary Principles

A. The Confrontation Clause

The Confrontation Clause in the Sixth Amendment of the United States Constitution¹¹ guarantees that "[i]n all criminal prosecutions, the accused shall enjoy . . . the right to be confronted with the witnesses against him."¹² Interpreting the Clause in Crawford v. Washington,¹³ the Supreme Court of the United States held that it 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.¹⁴ Since Crawford, the courts have tried to define when an out-of-court statement is "testimonial" and thus implicates the Clause. Generally speaking, testimonial statements are those that a declarant "would reasonably expect to be used prosecutorially."¹⁵ For example, "formal statements to government officers . . . affidavits, custodial examinations, [and] prior testimony that the defendant was unable to cross-examine."¹⁶ To determine whether statements are testimonial, courts often examine whether the "primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution."¹⁷

During the 2016 term, the Eleventh Circuit applied the primary-purpose test in United States v. Hughes,¹⁸ where a jury convicted the defendant of being a felon in possession of a firearm.¹⁹ A key piece of the government's case was a Computer-Aided Dispatch (CAD) report²⁰ containing statements by a 911 caller that the defendant was wielding a gun while standing outside a bar.²¹ The defendant contended that the Confrontation Clause barred the admission of the CAD report because it

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included testimonial statements made by the caller and the caller was not available for cross-examination at trial.²² The Eleventh Circuit disagreed because "the testimony at trial established that the primary purpose of a CAD report ordinarily is 'to provide information to the officers who are responding in the field in realtime to allow them to address whatever ongoing emergency is being reported.'"²³ In other words, the purpose of the 911 call was to address an ongoing emergency — not to prove past events potentially relevant to later criminal prosecutions.²⁴ The CAD report thus did not implicate the Confrontation Clause.²⁵

In three unpublished opinions, the Eleventh Circuit also had to determine whether certain statements were testimonial and thus barred by the Confrontation Clause absent an opportunity for cross-examination of the declarant. In Thomas v. Secretary, Florida Department of Corrections,²⁶ the court concluded that conversations between a husband and his wife were not testimonial because they were private in nature and thus not the type of statements one "would reasonably expect to be used at trial."²⁷ The court reached the same conclusion in United States v. Ramirez²⁸ with respect to private conversations between a man and his fiance. However, the Eleventh Circuit reached the opposite result in United States v. Bates,²⁹ where the government introduced child pornography investigation reports as evidence against a defendant charged with possessing and distributing child pornography.³⁰ Because these reports "relied on input from law enforcement officers" and 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,"³¹ they were testimonial and their introduction into evidence violated the Confrontation Clause.³²

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Besides barring the introduction of testimonial out-of-court statements, the Confrontation Clause also guarantees the defendant's right to conduct a cross-examination that is effective enough to (1) expose the jury "to facts sufficient for it to draw inferences relating to the reliability of th[e] witness" and (2) enable the defendant "to make a record from which he could argue why the witness might have been biased."³³ That right is not absolute; instead, it is subject to the trial court's reasonable limitations on the scope of cross-examination "based on concerns about, among other things, harassment, prejudice, confusion of the issues, the witness' safety, or interrogation that is repetitive or only marginally relevant."³⁴ To balance these concerns with the defendant's right to an effective cross-examination, courts should consider "whether a reasonable jury would have received a significantly different impression of a witness' credibility had counsel pursued the proposed line of cross-examination."³⁵

Several cases during the 2016 term required the Eleventh Circuit to address the interplay between the defendant's right to an effective cross-examination on the one hand and the trial court's authority to control the scope of cross-examination on the other hand. In United States v. Rushin,³⁶ the court faced these competing considerations in the context of the defendant seeking to question witnesses about the sentences they may have received if they had not cooperated with the government.³⁷ While the district court allowed the defendant to establish that the cooperating witnesses were all receiving significantly reduced sentences as a result of their plea bargains, it precluded questions concerning the precise number of years of prison time the witnesses may have received without the plea bargain.³⁸

The Eleventh Circuit found the district court's limitation reasonable and consistent with the Confrontation Clause.³⁹ Because the permitted cross-examination established the witnesses' biases and motivations for testifying favorably to the government, questions concerning the exact number of years of prison time would have added little probative value and, instead, would have potentially (1) invited jury nullification (because the questions would have alerted the jurors to the sentence the

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defendant was facing) and (2) lead to "confusing and convoluted 'mini-trials' on the issue of sentencing alone."⁴⁰

In United States v. Castronuovo,⁴¹ a case involving an illegal "pill mill" operation, the Eleventh Circuit also concluded that the district court's limitations on the defendant's cross-examination were reasonable and did not violate the Confrontation Clause.⁴² The defendant sought to question a key player in the pill mill scheme about his tattoo and about racial slurs he had used, but the Eleventh Circuit affirmed the district court's prohibition of these questions because the defendant had already conducted a thorough cross-examination of this witness and the proposed questions concerning the tattoos and the racial slurs "would not have provided a significantly different impression of his credibility."⁴³

B. The Privilege Against Self-incrimination

More commonly known as the right against self-incrimination, the Fifth Amendment of the Constitution of the United States⁴⁴ provides that "[n]o person . . . shall be compelled in any criminal case to be a witness against himself . . . ."⁴⁵ During the 2016 term, the Eleventh Circuit Court of Appeals issued two published opinions discussing the Fifth Amendment right against self-incrimination. The first...