Evidence - Marc. T. Treadwell

• Publication year: 2000

Evidenceby Marc T. Treadwell*

I. Introduction

This survey marks the fourteenth year the author has surveyed Eleventh Circuit evidence decisions. During these years there has been, in the author's opinion, an unmistakable trend—a trend that continued during the current survey period. In stark contrast to the days when the Eleventh Circuit rigorously examined district court evidentiary decisions and freely reversed those decisions, the Eleventh Circuit now carefully defers to district judges. The abuse-of-discretion standard that has always governed evidentiary issues on appeal now seems to be the standard of review in practice as well as in name.

Absent some action by Congress, the most extensive changes to the Federal Rules of Evidence in recent years will become effective December 1, 2000. A summary and brief discussion of the amendments follow. The full text of the new Rules and the Advisory Committee notes can be found at the website of the Administrative Office of the United States Courts.¹

An amendment to Rule 103² may provide needed clarity to the circumstances that require a party to renew an objection or to make an additional offer of proof after a court has previously ruled on an evidentiary matter. The new rule will provide that "[o]nce the court makes a definitive ruling on the record admitting or excluding evidence, either at or before trial, a party need not renew an objection or offer a proof to preserve a claim of error for appeal."³ Thus, if a court grants a motion in limine to exclude evidence, and assuming that the party wishing to propound the evidence made an adequate offer of proof, that party need not make a further offer of proof at trial. Similarly, if the trial court denies the motion in limine and rules that the evidence will be admissible at trial, the party seeking to exclude that evidence need not object at trial when the evidence is tendered. The same is true of "continuing objections" during trial; they are no longer necessary. However, the new rule has both an express and, it would seem, an implicit limitation. The express limitation is that the ruling must be "definitive."⁴ Thus, if the trial court's ruling is conditional or equivocal, further action would be required when the evidence is tendered. The implicit limitation is that the circumstances existing at the time of the initial ruling must also exist when the issue arises again. For example, the district court may, based upon the facts established at the time of its ruling on a motion in limine, deny the motion. When the issue arises again at trial, the record may contain additional facts relevant to the issue. Similarly, a ruling excluding evidence may be entirely correct based on the facts then known to the district court, but incorrect based on further facts developed at trial. In either event, it would seem that the party should renew his objection or make another offer of proof based on the changed circumstances or additional facts.

Current Rule 404(a)(2) permits a defendant to offer evidence of a pertinent trait of character of his alleged victim.⁵ The proposed amendment to Rule 404(a)(2) would allow the prosecution to tender evidence of a homicide victim's character trait of peacefulness to rebut a defendant's contention that the alleged victim was the aggressor.⁶ This change to Rule 404(a)(2) is substantially narrower than the amendment initially proposed, which would have allowed the prosecution to tender rebuttal evidence to any evidence of a victim's character tendered by the defense.⁷

As discussed in this survey and several prior surveys, the Supreme Court's landmark decision in Daubert v. United States⁸ has had a profound impact on the scope of admissible expert testimony. Since Daubert district courts and courts of appeals have struggled to come to terms with the district courts' new gatekeeper role in determining the admissibility of expert testimony. Daubert has now inspired proposed amendments to the Federal Rules of Evidence.

Rule 701 currently addresses the scope of opinion testimony by lay witnesses.⁹ Amended Rule 701 will make clear that lay witnesses cannot give opinion testimony based on "scientific, technical, or other specialized knowledge within the scope of Rule 702."¹⁰ In other words, the reliability requirements imposed by Daubert on expert testimony cannot be avoided by labeling the witness a lay witness.

The proposed amendment to Rule 702 basically codifies Daubert and requires that expert testimony must be based upon sufficient facts or data, must be the product of reliable principles and methods, and those principles and methods must be applied reliably to the facts of the case.¹¹

Rule 703 allows an expert to base opinions on facts or data not admitted in evidence if the facts or data are "of a type reasonably relied upon by experts in the particular field."¹² The proposed amendment to Rule 703 provides that such facts or data, although relied upon by the expert, cannot be disclosed to the jury by the proponent of the testimony unless the court determines that the probative value of the facts or data in assisting the jury to evaluate the expert's opinion substantially outweighs their prejudicial effect.¹³

The business records exception to the hearsay rule, Rule 803(6),¹⁴ will be amended to allow the foundational requirements of the exception to be established "by certification that complies with Rule 902(11), Rule 902(12), or a statute permitting certification," rather than by a "live" witness.¹⁵ Thus, it would not be necessary to bring the records custodian into the courtroom to establish that the documents satisfy the requirements of the business records exception. To complement this amendment, subdivisions 11 and 12 will be added to Rule 902, the Rule providing the means of self-authentication.¹⁶ Rule 902(11) will permit a records custodian to certify that domestic documents meet the requirements of Rule 803(6).¹⁷ Rule 902(12) does the same for foreign records.¹⁸

II. Article I: General Provisions

Rule 101 provides that the Federal Rules of Evidence "govern proceedings in the courts of the United States."¹⁹ Notwithstanding this seemingly clear statement, however, the precise application of the Rules can be problematic.²⁰ In diversity cases, state law provides the substantive rule of decision, but procedural issues, such as the admission of evidence, are determined by federal law. However, there are some exceptions to this general rule. For example, Rules 302, 501, and 601 provide express exceptions for presumptions of fact in civil actions, privileges, and competency of witnesses.²¹ These Rules provide that if state law governs the substantive issues, then state evidentiary rules will govern those evidentiary issues. In addition to these express exceptions, there are judicially created exceptions to the general applicability of the Federal Rules of Evidence. For example, some state evidentiary rules may embody a matter of state substantive policy. In that event, the state evidentiary rule is often applied. For example, in Gardener v. Chrysler Corp.,²² the Tenth Circuit held that a state law prohibiting the admission of evidence of failure to use a seatbelt is not simply a rule of evidence that "we could then ignore," but rather is a statement of substantive law "'concerned with the channeling of behavior outside the courtroom, and where as in this case the behavior in question is regulated by state law rather than by federal law, state law should govern even if the case happens to be in federal court.'"²³ This apparently is the case in the Eleventh Circuit because, during the current survey, the Eleventh Circuit in Whitley v. United States²⁴ affirmed a district court's application of a Georgia statute²⁵ deeming the failure to wear a seatbelt irrelevant.²⁶

Also during the survey period, the effect of state rules on the admission of evidence in federal courts arose in a federal criminal trial. In United States v. Lowery,²⁷ defendant contended that the trial court should have suppressed the testimony of his alleged coconspirator because that testimony was based on plea bargain agreements between the coconspirator and the prosecution.²⁸ Defendant argued that Rule 4-3.4(b) of the Florida Bar Rules of Professional Conduct, which forbids lawyers from "'offer[ing] an inducement to a witness,'" rendered the plea agreements inadmissible.²⁹ The district court agreed and suppressed the statements.³⁰ Although the district court's local rules incorporated the Florida Bar Rules, and Congress, since the district court's opinion, had by statute provided that government prosecutors are subject to state bar organization rules, the Eleventh Circuit nevertheless held that the Florida Bar Rule did not bar the admission of the codefendant's testimony.³¹ The admissibility of evidence in federal courts, the Eleventh Circuit held, is a matter entirely of federal law: "State rules of professional conduct, or state rules on any subject, cannot trump the Federal Rules of Evidence."³²

To reach this conclusion, the court took an interesting route. The court noted that Rule 402 provides that all relevant evidence is admissible, "'except as otherwise provided by the Constitution of the United States, by act of Congress, by these rules, or by other rules prescribed by the Supreme Court pursuant to statutory authority.'"³³ This, the court held, was "an exclusive list of the sources of authority for exclusion of evidence in federal court."³⁴ Because state rules of professional conduct are not listed in Rule 402, the court determined they cannot bar the admission of evidence in federal court.³⁵ Similarly, because local rules of federal courts are not listed in Rule 402, they also cannot bar the admission of otherwise admissible evidence.³⁶ Finally, the court reasoned, Congress's decision to subject United States Attorneys to local bar rules was not aimed at the admission of evidence.³⁷ Clearly, the court...