Evidence

• Publication year: 2023

Evidence

W. Randall Bassett

Nikolas L. Volosin

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Evidence W. Randall Bassett^* Nikolas L. Volosin^**

In its 2022 term, the United States Court of Appeals for the Eleventh Circuit issued several opinions on evidence.¹ The opinions covered evidentiary issues ranging from admitting statements by criminal defendants under Miranda,² the admission of expert and lay opinion testimony,³ the use of character evidence under Federal Rule of Evidence 404,⁴ and the admission of hearsay evidence based on exceptions under Rule 803.⁵ The discussion below explores these evidentiary issues and how the Eleventh Circuit addressed them in its 2022 term.

I. The Constitutional Limits on Admitting Evidence under Miranda

Under the Fifth Amendment to the United States Constitution, "No person shall . . . be compelled in any criminal case to be a witness against himself."⁶ The Supreme Court of the United States acknowledged that the Fifth Amendment limits whether evidence may be admitted in Miranda v. Arizona.⁷ The Court made clear that the prosecution violates the Fifth Amendment if it uses "statements . . . stemming from custodial interrogation of the defendant unless it demonstrates the use of

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procedural safeguards effective to secure the privilege against self-incrimination."⁸ The Court reasoned that the "inherently compelling pressures" of a custodial interrogation requires special safeguards to shield individuals' Fifth Amendment rights against self-incrimination because those interrogations "undermine [an] individual's will to resist and to compel him to speak where he would otherwise not do so freely."⁹ The procedural safeguards prescribed by the Court require that the government notify 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."¹⁰ It follows that the government must give a suspect these "Miranda warnings" if it intends to introduce statements made by a suspect during a custodial interrogation as evidence at trial.¹¹ Still, even with these safeguards in place, there are limits to Miranda, as explained by the Supreme Court, and applied in the lower courts.

In its 2022 term, the United States Court of Appeals for the Eleventh Circuit in United States v. Woodson¹² considered whether statements made by a defendant inside a police vehicle were inadmissible under Miranda, and whether another individual's "subjective" statements at the scene while the defendant was in custody were admissible.¹³ After the defendant challenged the district court's failure to suppress statements made to police under Miranda, the Eleventh Circuit specifically addressed (1) whether courts may consider subjective beliefs—of the suspect or others at the scene—when determining whether a suspect is in custody; (2) whether a reasonable person in the defendant's circumstance would have felt free to terminate the interrogation with police; and (3) whether the environment during the interrogation presented serious risks of coercion.¹⁴ The court answered no to questions one and three, but yes to question two.¹⁵ Woodson's convictions included producing child pornography, as well as conspiring to, and sending extortionate interstate communications.¹⁶ After law enforcement traced Woodson's location, following reports about his crimes, about fifteen officers executed a search warrant at his family's

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townhouse. A detective handcuffed and proceeded to interview both Woodson and his brother, who also was on scene. The detective removed Woodson's handcuffs before interviewing him inside a police van. Before the interview, the detective told Woodson that he was not under arrest nor charged with a crime, and that they were only communicating voluntarily. After casual conversation, Woodson eventually admitted to participating in the crimes. Woodson was arrested eight months later.¹⁷

Before trial, Woodson moved to suppress his statements from the interview, arguing that the discussion was a custodial interrogation that required Miranda warnings.¹⁸ The United States District Court for the Southern District of Florida adopted the magistrate's recommendation to deny the motion, finding that Woodson was not in custody under Miranda. The magistrate considered evidence including Woodson's brother's testimony that Woodson was under the impression that he could have declined to talk to the detectives and that he did not feel pressure to do so. The jury convicted Woodson on all counts, and he was sentenced to serve fifty years in prison.¹⁹ On appeal, the Eleventh Circuit affirmed.²⁰

As to the first question, whether the court may consider subjective beliefs about whether Woodson was in custody under Miranda, the Eleventh Circuit noted that "the determination of custody under Miranda depends entirely on 'the objective circumstances of the interrogation.'"²¹ The court held that it was improper for the magistrate judge to consider Woodson's brother's subjective beliefs because the custody test is entirely objective.²² The court also noted that considering subjective beliefs "would risk turning the Miranda custody analysis into an opinion survey."²³

And the Eleventh Circuit answered no to the question whether the context of Woodson's interview would have caused a reasonable person not to feel free to leave.²⁴ The key factor the court considered to reach this conclusion is that the detective, at the beginning of the interview, advised Woodson that he was not under arrest or charged with a crime, and that the conversation was voluntary.²⁵ The court also noted that regardless of

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the dispute over whether Woodson was specifically told he could leave the police vehicle, because the officer gave the necessary warnings and disclosure that he was not under arrest, a reasonable person would not feel compelled to stay.²⁶ Further the court noted additional factors that suggest a reasonable person would feel free to leave, including that Woodson was not handcuffed, sat in the front seat, and nothing suggested that the doors were locked.²⁷

Finally, the Eleventh Circuit held that even if a reasonable person would not have felt free to leave, the environment surrounding the interrogation did not present risks of coercion.²⁸ The court rejected Woodson's argument that the police presence itself created a risk of coercion, considering he was only handcuffed briefly and was interviewed in a setting viewable to the public.²⁹ The court finally noted that, in any event, only the circumstances of the interview itself—not what occurred before or after—were relevant to the coercion analysis.³⁰

II. Admitting Lay Witness Testimony—Federal Rule of Evidence 701

Federal Rule of Evidence 701³¹ governs lay witness testimony where the witness is not testifying as an expert.³² Under the Rule:

[T]estimony in the form of opinion is limited to one that is: (a) rationally based on the witness's perception; (b) helpful to clearly understanding the witness testimony or to determining a fact in issue; and (c) not based on scientific, technical, or other specialized knowledge within the scope of Rule 702.³³

"Lay opinion testimony cannot provide specialized explanations or interpretations that an untrained layman could not make if perceiving the same acts or events."³⁴ In its 2022 term, the United States Court of Appeals for the Eleventh Circuit considered whether lay witness testimony offered by an expert witness who had been withdrawn by the

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party offering the testimony necessarily constituted specialized knowledge that rendered the opinion inadmissible under Rule 701.³⁵

In Great Lakes Ins. SE v. Wave Cruiser LLC,³⁶ the Eleventh Circuit held that the United States District Court for the Southern District of Florida abused its discretion by considering a withdrawn expert's opinion testimony, alternatively presented as lay opinion, but determined that the district court's consideration was harmless error.³⁷ An insurer brought an action against an insured vessel owner, seeking a declaratory judgment that the insured's all-risk marine insurance policy did not cover catastrophic failure of the vessel's engine, after the insured's vessel suffered catastrophic engine failure and it submitted a claim for the failure. The policy excluded engine damage unless an accidental external event caused the damage.³⁸ The district court found that the insured failed to show "that an external event caused the engine damage."³⁹

On appeal, the insured argued, in part, that the district court erred "[in] considering expert testimony from a lay witness."⁴⁰ The testimony stemmed from the witness' inspection of the engine, where he discovered clamshells in the engine's water pump, and engine parts that "[came] off the engine when it failed."⁴¹ The insurer identified this witness as an expert witness under Rule 702⁴² but withdrew him as a Rule 702 expert after he denied expert knowledge about engines and testified that he did not consider himself an expert witness at deposition. The insurer then proffered his testimony as lay opinion testimony under Rule 701.⁴³ The specific evidence presented by the insurer's witness, as lay opinion testimony included (1) the witness' "observation[s] regarding the clamshells found on the intake side of the [vessel engine's] pump and his speculation that although 'such marine organisms would restrict intake flow,' these clams likely did not since 'there was no evidence of the engine overheating'" and (2) the witness' observations that "the elongation of one of the engine's connecting rods was the kind of damage that occurred over a period of time."⁴⁴

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The Eleventh Circuit held that it was within the district court's discretion to allow the witness' testimony about the "presence of clams and that the connecting rod was elongated because [it] was 'based on [his] firsthand knowledge' and observations."⁴⁵ But the court held that:

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