Evidence - Marc T. Treadwell

• Publication year: 1995

Evidenceby Marc T. Treadwell^*

I. Introduction

In recent past evidence surveys, the author has suggested, perhaps presumptuously, that the Eleventh Circuit has markedly decreased its level of scrutiny of district court evidentiary decisions. It appears that in most cases, the Eleventh Circuit is willing to defer broadly to the discretion afforded district judges in evidentiary rulings. As a result, the number of Eleventh Circuit decisions in which evidentiary issues played a predominant part has decreased. Decisions rendered by the Eleventh Circuit during the current survey period suggest that the court is allocating its resources to evidentiary issues in which appellate guidance is broadly needed rather than micro-managing the routine evidentiary decisions of district judges. Thus, while the number of evidentiary decisions during the current survey period was again "down," the court issued significant rulings in the areas of privilege and hearsay. The court, it seems, continues to avoid what had been fertile ground in the past—the admissibility of extrinsic act evidence under Rules 403 and 404.

II. Federal Rule of Evidence 201: Judicial Notice Of Adjudicated Facts

In United States v. Jones,¹ the government sought to recover loans made to a physician while a medical student.² Upon completion of a residency program, the physician agreed to serve four years in a rural practice in exchange for the forgiveness of his student loan debt.³

However, the health center employing the physician terminated him prior to the completion of his four year obligation.⁴ He sued the health center alleging sex discrimination and retaliatory discharge. A jury returned a verdict against the physician.⁵

The government moved for summary judgment in its action to recover funds loaned to the physician.⁶ In the summary judgment motion, the government denied any obligation to reassign the physician to another hospital because he was dismissed for cause.⁷ To establish this contention, the government submitted a copy of the order, entered in the physician's discrimination suit, denying his motion for judgment notwithstanding the verdict or, in the alternative, for a new trial.⁸ In this order, the trial judge concluded that the physician was terminated because of poor attendance and other problems.⁹ The district court granted the government's motion relying in part upon the findings of fact in the order denying the physician's motion.¹⁰

On appeal, the physician argued that this order was inadmissible and, in its absence, an issue of fact remained for the jury to resolve.¹¹ The government argued that the district court acted properly in taking judicial notice of the order.¹² The Eleventh Circuit first noted that a fact must be incapable of reasonable dispute before it may be judicially noticed.¹³ Regarding court orders in particular, the Eleventh Circuit noted that a court may take judicial notice of a document filed in another court to establish certain procedural details, but not to establish the truth of the matters asserted in the other litigation.¹⁴ The court held that the order at issue did not indisputably establish that the physician had refused to work.¹⁵ The Eleventh Circuit found judicial notice of the order was improper and reversed the district court.¹⁶

III. Federal Rule of Evidence 404: Character Evidence Not Admissible To Prove Conduct: Exceptions; Other Crimes

Rule 404¹⁷ is the principal rule of evidence addressing the admissibility of "extrinsic act evidence"—evidence of acts and transactions other than the one at issue. The rule is intended to prevent the introduction of propensity evidence—evidence of prior misconduct solely offered to prove that a defendant is more likely to have committed the charged offense. Extrinsic act evidence is, however, admissible to prove motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.¹⁸ To determine the admissibility of extrinsic act evidence under Rule 404, the Eleventh Circuit uses the test established in United States v. Beechum.¹⁹ First, the extrinsic act evidence must be relevant to an issue other than the defendant's character.²⁰ Second, the prosecution must prove the defendant committed the extrinsic act.²¹ Third, the evidence must not contravene Rule 403.²²

In 1991 the Supreme Court of the United States amended Rule 404(b) to provide that the prosecution must, upon request by a defendant, give reasonable notice in advance of trial of its intention to present extrinsic act evidence.²³ The Eleventh Circuit first interpreted this amendment in United States v. Perez-Tosta.²⁴ In Perez-Tosta the government informed the defendant of its intent to use extrinsic act evidence immediately prior to jury selection. The district court found that the prosecutor first knew four days prior to the start of trial of the witnesses who would testify about the extrinsic acts.²⁵ The prosecution had notified the defendant of its intent to call these witnesses the next business day, which was the first day of trial.²⁶ Prosecutors, however, did not intend to call the witnesses until six days later.²⁷ Thus, the district court found that the defendant had six days notice.²⁸ Based on these facts, the district court concluded that the government gave reasonable notice.²⁹

On appeal, the Eleventh Circuit, noting that this was an issue of first impression, concluded that the determination of whether notice is reasonable should be based on three factors.³⁰ First, the district court should consider the government's motivation and circumstances.³¹ The mere fact that prosecutors learned of the evidence shortly before trial does not necessarily establish the purity of their motives. The government's failure to prepare its case in a timely manner could have caused the late discovery of the extrinsic act evidence. Thus, in applying the first factor, the government is charged with possessing the knowledge that a timely and reasonable preparation for trial would have revealed the evidence. Second, the district court should consider the prejudice that a defendant will suffer because of the allegedly late notice.³² Third, the district court should consider the significance of the evidence to the government's case.³³ The court concluded that Rule 404(b) "is a rule of inclusion, and 404(b) evidence, like other relevant evidence, should not lightly be excluded when it is central to the prosecution's case."³⁴

Applying these three factors, the Eleventh Circuit held that the district court properly admitted the extrinsic act evidence.³⁵ The court attached particular significance to the defendant's failure to point to specific actions he would have taken had he earlier known of the government's intent to use extrinsic act evidence.³⁶ Thus, merely arguing that notice was inexcusably late will not support a finding of inadmissibility with respect to extrinsic act evidence. Defendants must establish why admission of the evidence would prejudice their case. In the context of this issue, defendants should be prepared to show what steps they would have taken if given more time to counter or ameliorate the evidence.

Frequently, defendants anxious to prevent the admission of extrinsic act evidence will offer to stipulate to a particular fact or element of an offense. An effective stipulation to the point the government seeks to prove through the admission of extrinsic act evidence renders the evidence irrelevant. As demonstrated in United States v. Taylor,³⁷ this tactic is more effective in theory than in practice. In Taylor the defendant argued on appeal that the district court improperly admitted extrinsic act evidence, given his offer to stipulate to intent.³⁸ The Eleventh Circuit acknowledged that a proper stipulation may render extrinsic act evidence inadmissible but, on the facts of the case, found the defendant's offer insufficient.³⁹ In addition to intent, the government used the extrinsic act evidence to prove knowledge, motive, and absence of mistake.⁴⁰ The defendant offered to stipulate that he had the intent to traffic in drugs.⁴¹ The government, however, used the evidence to prove his intent to join a conspiracy.⁴² Thus, the defendant's offer did not entirely eliminate the need for the extrinsic act evidence. As a practical matter, a defendant may have difficulty stipulating intent to conspire to buy and sell drugs, knowledge, motive, and the absence of any reasonable grounds for mistake, while still proclaiming his innocence.

Finally, in United States v. demons,'⁴³ the Eleventh Circuit reaffirmed that if extrinsic act evidence is used to prove identity—that the defendant was the perpetrator of the charged offense—the prior offenses must be so similar as to mark "the offenses as the handiwork of the accused."⁴⁴

IV. Federal Rule of Evidence 501: Privileges

The Federal Rules of Evidence, rather than undertaking the daunting task of formulating rules that recognize and define various evidentiary privileges, yield to the courts and allow the Federal Judiciary to formulate such rules in nondiversity cases.⁴⁵ In diversity cases, state law determines the existence of privileges.⁴⁶

In Cox v. Administrator United States Steel & Carnegie⁴⁷ local union members filed suit against their union and their employer alleging misconduct on the part of the union and the employer during collective bargaining.⁴⁸ The union members sought discovery of information contained in communications between the union and its attorneys and the employer and its attorneys.⁴⁹ The district court, relying on the Garner doctrine,⁵⁰ held that the plaintiffs could discover communications between the union president and the union's attorneys.⁵¹ On appeal, the Eleventh Circuit recognized that, in some situations, shareholders can discover otherwise privileged communications between corporate management and corporate attorneys based on the management's obligation to manage the corporation for the benefit of...