Evidence - Marc T. Treadwell

• Publication year: 2006

Evidenceby Marc T. Treadwell^*

I. Introduction

This survey year saw the continuation of what has become a clear trend in Eleventh Circuit evidence decisions. 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 studiously defers to district judges. The reason for this trend can be debated. Perhaps because most evidentiary issues addressed by the Eleventh Circuit arise in the context of criminal cases, and because Eleventh Circuit judges are more conservative today, the Eleventh Circuit is less likely to reverse criminal convictions, particularly on evidentiary grounds. or perhaps that the abuse of discretion standard of review, which governs evidentiary issues, mandates deference to district judges: something that the old "activist" judges ignored. The answer no doubt depends on one's perspective. One thing, however, is clear—do not expect the Eleventh Circuit to flyspeck district court evidentiary rulings.

It may be argued—not by the author, but by some—that this increasingly lower level of scrutiny of district court evidentiary decisions can lead to prosecutorial sloppiness and cavalier consideration of objections.¹ For those who want to make that argument, the Eleventh Circuit's seventy-page decision in United States v. Baker² provides some ammunition. In Baker eleven defendants appealed their drug-related convictions contending that the district court made numerous errors in its evidentiary rulings. The Eleventh Circuit readily agreed.³ For example, a police sergeant testified that his investigation "revealed" that several of the defendants were involved in a totally unrelated shooting that left one person dead and two wounded.⁴ Clearly, this testimony was inadmissible hearsay and inadmissible extrinsic act evidence in violation of Rule 404(b).⁵ The fact that the defendants may have been involved in an unrelated murder had nothing to do with the drug charges against them. The district court, in another ruling, allowed a homicide detective to testify that he had "'received information' from an anonymous caller" stating that several of the defendants were involved in another shooting.⁶ The district court admitted the evidence, not to prove the truth of the statement by the anonymous caller, but rather to explain how the detective conducted his investigations.⁷ The Eleventh Circuit was blunt: "We do not understand this reasoning."⁸ The court held that the district court abused its discretion by admitting the testimony.⁹

Page after page, the Eleventh Circuit reviewed similar claims of errors by the district court and ruled repeatedly that the district court had abused its discretion by admitting hearsay evidence and inadmissible extrinsic act evidence. As it turned out, the Eleventh Circuit deemed most of the errors harmless; however, the court did reverse the convictions of two of the defendants.¹⁰ No extended discussion of the court's analyses of the district court's errors is necessary because the errors were obvious; indeed, many were so clearly erroneous they were reversed under the plain error standard.¹¹ Admittedly, this is an extreme example of the wholesale admission of clearly inadmissible evidence, but the point some would make is that decreased appellate scrutiny may lead to less circumspect district court decisions, and the district court's ruling in Baker may support their point.

Several amendments to the Federal Rules of Evidence are scheduled to become effective December 1, 2006. Current information on the status of the proposed Rules can be found at the United States Courts' website.¹²

Rule 404,¹³ which governs the use of character evidence offered to prove conduct, will be amended to clarify that character evidence is generally not admissible in civil cases.¹⁴ Apparently, at the behest of the Criminal Division of the Department of Justice, Rule 408,¹⁵ which addresses the admissibility of evidence of conduct and statements made in compromise negotiations, will be amended to expand the use of settlement discussions in criminal cases.¹⁶ This change will be particularly relevant to Eleventh Circuit criminal law practitioners given the court's decision, discussed below, in United States v. Arias.¹⁷ The logic of the proposed amendment is questionable, especially if one accepts that statements made during settlement discussions, accompanied as they often are by puffing and grandstanding, are dubious evidence of fault. Also, public policy favors compromise; therefore, statements made during compromise negotiations should not be admissible. Why those statements would be more probative in a criminal case than in a civil case is questionable.

Current Rule 606(b)¹⁸ broadly bars the admission of juror testimony about jury verdicts.¹⁹ The Rule allows an exception: jurors may testify regarding "extraneous prejudicial information . . . improperly brought to the jury's attention or whether any outside influence was improperly brought to bear upon any juror."²⁰ The proposed amendment would allow a second exception that would permit jurors to testify on the issue of whether the verdict recorded is the result of a clerical mistake.²¹

Rule 609²² governs the use of convictions to impeach a witness's credibility. Currently, a witness can be impeached with a conviction if the crime "involved dishonesty or false statement."²³ The proposed amendment to Rule 609 would permit the admission of a conviction to impeach a witness's credibility if the conviction was for a crime that "readily can be determined" to have been "an act of dishonesty or false statement by the witness."²⁴ Although the difference in language is subtle, the proposed amendment purports to resolve the conflict that now exists among the circuits of how to determine whether a conviction involves dishonesty or false statement.²⁵ Specifically, the conflict is whether courts may only examine the strict elements of the crime to determine whether the offense involves dishonesty or false statement.²⁶ The Advisory Committee opted to expand Rule 609(a)(2) to permit impeachment "if the underlying act of deceit readily can be determined from information such as the charging instrument."²⁷

The Advisory Committee on Evidence Rules has proposed a new rule, Rule 502,²⁸ regarding waiver of the attorney-client privilege. At the time of publication, the rule had just been released for comment. If adopted, this will be the first time that the drafters of the Federal Rules of Evidence have ventured into the land of privileges. Pursuant to current Rule 501,²⁹ the drafters have heretofore left it to the courts to develop rules and principles regarding privileges.³⁰ Proposed Rule 502(a) provides that the voluntary disclosure of "any significant part" of privileged attorney-client communications or work product information constitutes a waiver of the privilege or protection.³¹ However, disclosure does not constitute a waiver if (1) the disclosure is itself privileged or protected; (2) if the disclosure, under certain circumstances, was inadvertent; or (3) if the disclosure was made to a governmental agency during an investigation by that agency.³² Apparently, one principal purpose of the proposed Rule is to deal with inadvertent disclosures. The exception for inadvertent disclosures applies only if "the holder of the privilege or work product protection took reasonable precautions to prevent disclosure and took reasonably prompt measures . . . to rectify the error."³³

Subdivision (c) of proposed Rule 502 provides that agreements between or among parties concerning non-waiver, while binding on the parties to the agreement, are not binding on non-parties unless the agreement is approved by the court.³⁴ For example, if during the course of a deposition the parties agree that a witness can testify about a particular matter and that his testimony will not constitute a waiver of the attorney-client privilege or work product protection, the parties would have to stop the deposition and get court approval of the agreement if they want their agreement to apply to nonparties. The comments to Subdivision (c) make clear that the drafters are contemplating the impact of such agreements on strangers to the case.³⁵ However, Subdivision (c) does not limit from its scope joint defense agreements or similar agreements pursuant to which parties with a common legal interest agree to share information without waiving attorney-client privilege or work product protection. However, it also appears from the comments to the new Rule that the exception in Subdivision (b)(1)—providing that a disclosure that is privileged or protected is not a waiv-er³⁶ —is intended to encompass joint representation agreements. Because the disclosure among parties to a joint defense agreement is not itself a disclosure, then there is no waiver, regardless of whether the agreement has court approval. At least this argument is available to parties entering such agreements. The new Rule would be helpful if it explicitly recognized joint defense and similar agreements.

II. Article I: General Provisions

Federal Rule of Evidence 103(a) requires a party to timely object to the admission or exclusion of evidence to preserve that issue for appeal.³⁷ In the absence of an objection, a party appealing the admission or exclusion of evidence must establish "plain error."³⁸ The Eleventh Circuit's decision in United States v. Chau³⁹ contains an interesting plain error analysis in the context of the United States Supreme Court's landmark decision in Crawford v. Washington.⁴⁰ As discussed in last year's survey,⁴¹ the Supreme Court in Crawford overruled Ohio v. Roberts⁴² and held that out-of-court "testimonial" statements are not admissible at trial unless the declarant is unavailable and the defendant had prior opportunity to cross-examine the witness.⁴³

In Chau the defendant challenged the use of hearsay...