Evidence - Marc T. Treadwell

• Publication year: 2004

Evidence

Marc T. Treadwell^*

I. Introduction

On March 8, 2004, the United States Supreme Court, in Crawford v. Washington,¹ rendered its most significant evidence decision in a number of years. Since the Court's 1980 ruling in Ohio v. Roberts,² holding that the Sixth Amendment's confrontation clause does not necessarily bar the admission of out of court statements in criminal trials, federal and state courts have increasingly allowed prosecutors to use hearsay statements against criminal defendants if trial judges found that the statements bore sufficient indicia of reliability. Crawford likely will bring an end to that.

As the author has often commented in surveys of Georgia evidence decisions, Georgia appellate courts have stretched Ohio v. Roberts to its absolute limits through what has become known as the necessity exception to the rule against hearsay.³ Statements by an absent witness to police, for example, are routinely admitted under the suspect theory that statements to law enforcement officers are somehow inherently reliable.⁴ In Crawford, the Supreme Court overruled Ohio v. Roberts and held that out of court statements by unavailable witnesses are not admissible at trial unless the witness is unavailable and the defendant had prior opportunity to cross-examine the witness; no matter how reliable the statements may be, they are not admissible absent an opportunity by the defendant to cross-examine the declarant.⁵

The precise ramifications of Crawford will take some time to sort out, but they no doubt will be pervasive. Clearly, it would seem, Georgia's necessity exception will fall.

The current survey period provided more evidence of an undeniable trend in the United States Court of Appeals for the Eleventh Circuit. Fewer cases had any significant discussion of evidentiary issues. Whether this is good depends on one's perspective. For example, criminal defense lawyers surely look back wistfully to the years when the Eleventh Circuit minutely scrutinized district court evidentiary decisions and freely reversed convictions on the grounds that district courts erroneously admitted, for example, extrinsic act evidence or evidence whose probative value was outweighed by its prejudicial impact. Those lawyers may argue that the Eleventh Circuit and the federal judiciary generally have become more conservative. others, however, will argue that the Eleventh Circuit is simply applying the abuse of discretion standard as it should be applied. That a district court is wrong is not enough; the broad discretion afforded to district judges on evidentiary issues requires a higher showing. In any event, the fact that the Eleventh Circuit rarely overturns district court evidentiary decisions — or for that matter vigorously debates those decisions — is beyond dispute.

The one exception to this trend is appeals inspired by Daubert v. Merrell Dow Pharmaceuticals, Inc.⁶ As in past years, Daubert figured prominently in Eleventh Circuit decisions as district courts and the Eleventh Circuit continued to struggle in their efforts to define the district court's role as gatekeeper—to block suspect expert testimony at the courthouse door.

II. Article IV: Relevancy

As noted in prior surveys,⁷ Rule 403,⁸ once a tool frequently used by the Eleventh Circuit to reverse convictions, has not been used successfully in recent years by defendants claiming that district courts improperly admitted prejudicial evidence. Nevertheless, during the past two survey periods, Rule 403 figured prominently in Eleventh Circuit decisions,⁹ and that was again the case during the current survey period. These recent cases do not likely suggest a return to the days of minute scrutiny of district court evidentiary decisions, but they may offer some help to criminal defense lawyers attacking the admission of unduly prejudicial evidence.

In United States v. Jernigan,¹⁰ defendant claimed he was improperly prejudiced when his co-defendant tendered evidence that defendant was a gang member.¹¹ The Eleventh Circuit first noted that co-defendant did not simply demonstrate that defendant was a gang member, which the court acknowledged implied that the defendant was a "bad person," but rather co-defendant introduced evidence that the gang, in which defendant was a member, often wrapped firearms in red bandanas, the gang's color.¹² Because ownership of a firearm found wrapped in a red scarf was a key issue in the case, the evidence was probative of a legitimate issue.¹³ Nevertheless, the Eleventh Circuit was concerned about the prejudicial impact of evidence of gang membership.¹⁴ "Indeed, modern American street gangs are popularly associated with a wealth of criminal behavior and social ills, and an individual's membership in such an organization is likely to provoke strong antipathy in a jury."¹⁵ Consequently, "the Rule 403 calculus was in [the court's] view a close one, and the district court would have been justified in deciding this issue either way."¹⁶ However, the Eleventh Circuit spent some time acknowledging and describing the district court's unique position to observe and determine first-hand the potential prejudicial impact of such evidence.¹⁷ Some evidentiary decisions "turn on matters uniquely within the purview of the district court, which has first-hand access to documentary evidence and is physically proximate to testifying witnesses and the jury."¹⁸ Consequently, though the question was close, the Eleventh Circuit deferred to the district court's "unique position" and refused to overturn defendant's conviction.¹⁹

In United States v. Dodds,²⁰ defendant, who was charged with possessing child pornography, claimed the admission of 66 of the 3400 pornographic pictures found in his possession was sufficiently prejudicial to outweigh the minimal probative value of the evidence.²¹ Perhaps[Vol. 55 tipping its hand, the Eleventh Circuit first noted that Rule 403 is an extraordinary remedy that should be invoked only sparingly and that district courts applying the 403 balancing test should favor the admission of relevant evidence.²² The Eleventh Circuit distinguished cases relied on by defendant noting that in Dodds, the disputed evidence was not extrinsic, but rather constituted the crime for which defendant was charged.²³ Also, the 66 pictures introduced were a fraction of the 3400 pictures found in defendant's possession. Moreover, the Eleventh Circuit decided that Dodds was not a case in which defendant simply had the images in his possession but had not actually viewed them.²⁴ Although defendant denied that he looked at the pictures, other evidence suggested that he had.²⁵ The photographs were clearly probative.²⁶ The photographs depicted child pornography, and defendant knew the pictures depicted child pornography.²⁷ Thus, the photographs tended to prove defendant's intent to collect such pornography.²⁸ Under these circumstances, the court held that the district court did not abuse its discretion when it concluded that the probative value of the 66 photographs outweighed the prejudicial impact of their admission.²⁹

The Eleventh Circuit's decision in United States v. Harriston³⁰ does not directly involve Rule 403 but demonstrates that sometimes evidence can be so prejudicial that convictions must be overturned.³¹ In Harriston the prosecution inexplicably adduced evidence that defendant had been convicted of an unrelated murder. At trial, even the prosecution acknowledged that the testimony was inadmissible. Although the district court recognized the obvious prejudicial impact of the evidence, it denied defendant's motion for a mistrial on all counts of the indictment.³² The Eleventh Circuit reversed, holding that defendant was entitled to a new trial.³³

III. Article V: Privileges

Both prosecutors and criminal defense attorneys should study carefully the Eleventh Circuit's decision in United States v. Almeida.³⁴ In Almeida the Eleventh Circuit attempted to provide clear guidance for co-defendants entering into joint-defense agreements.³⁵ Two defendants, who were charged with narcotics trafficking, entered into a joint-defense agreement and thereafter shared voluminous information, including work product and privileged attorney-client communications. However, shortly before trial, one defendant, Fainberg, pleaded guilty to one count of racketeering and agreed to testify against his co-defendant, Almeida.³⁶

When Fainberg testified at trial, Almeida's attorney asked Fainberg to recite information he had provided to Almeida's attorney. The prosecutor objected on the grounds that the communications conveying the information were privileged, and recounting that information in open court would amount to a waiver of the attorney-client privilege. The district court sustained the objection, ruling that because of defendants' joint-defense agreement, Almeida's attorney could not use any information he obtained from Fainberg. The district court also ruled that the government, as an interested party, had standing to object to protect the attorney-client relationship created by the joint-defense agreement. Post trial proceedings and discovery revealed that if Fainberg had been allowed to testify, Fainberg would have provided information helpful to Almeida's defense.³⁷ on appeal, Almeida primarily argued that his right to effective representation was abridged by the district court's sweeping ruling.³⁸ The Eleventh Circuit, however, took a different tack. The Eleventh Circuit first distinguished joint-defense agreements from situations in which one attorney jointly represents two defendants.³⁹ In the latter, the guilty plea of one defendant clearly places the attorney in a position of irreconcilable conflict.⁴⁰ How, the Eleventh Circuit posited, can an attorney vigorously cross-examine one client who has turned against his other client without violating his duty of loyalty to one or the other?⁴¹ In a joint-defense agreement, however, each defendant has his own...