Evidence - Marc T. Treadwell

• Publication year: 2001

Evidenceby Marc T. Treadwell^*

I. Introduction

This survey marks the fifteenth year the author has surveyed Eleventh Circuit evidence decisions. 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, and other courts, rigorously examined district court evidentiary decisions and freely reversed those decisions, the Eleventh Circuit now carefully defers to district judges. The reason for this trend can be debated. Perhaps, given that most evidentiary issues addressed by the Eleventh Circuit arise in the context of criminal cases, Eleventh Circuit judges are today more conservative and thus less likely to reverse criminal convictions, particularly on evidentiary grounds. Or, perhaps it is that the abuse of discretion standard of review, which governs evidentiary issues, mandates deference to district judges, something that "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.

A number of amendments to the Federal Rules of Evidence became effective December 1, 2000. Amended Rule 103¹ may provide needed clarity to the circumstances requiring a party to renew an objection or to make an additional offer of proof. The new Rule provides 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 of proof to preserve a claim of error for appeal."² Thus, if a court grants a motion in limine to exclude evidence, and assuming 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, and cautious lawyers will likely think twice before relying on a pretrial objection to preserve an issue for appeal. The express limitation is that the ruling must be "definitive."³ Thus, if the trial court's ruling is conditional or equivocal, the objecting or propounding party is required to act further 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 at trial. For example, the district court may, based upon the record 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 additional facts developed at trial. In either event, a party should renew his objection or make another offer of proof based on the changed circumstances or additional facts.

Rule 404(a)(2) permits a defendant to offer evidence of a pertinent trait of character of his alleged victim.⁴ The amendment to Rule 404(a)(2) allows the prosecution to tender its own evidence of that same character trait in rebuttal.⁵

The Supreme Court's landmark decision in Daubert v. Merrell Dow Pharmaceuticals, Inc.,⁶ 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 amendments to the Federal Rules of Evidence.

Amended Rule 701 makes clear that lay witnesses cannot give opinion testimony based on "scientific, technical, or other specialized knowledge within the scope of Rule 702."⁷ In other words, the reliability require- ments imposed by Daubert on expert testimony cannot be avoided by labeling the witness a lay witness.

Amended Rule 702 basically codifies Daubert⁸ 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."⁹

Amended Rule 703 provides that facts or data, although relied upon by an 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."¹⁰

The business records exception to the hearsay rule, Rule 803(6),¹¹ has been 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.¹² Thus, it is no longer necessary to bring a records custodian into the courtroom to establish that documents satisfy the requirements of the business records exception. To complement this amendment, subdivisions 11 and 12 have been added to Rule 902, the Rule providing the means of self-authentication.¹³ Rule 902(11) permits a records custodian to certify that domestic documents meet the requirements of Rule 803(6).¹⁴ Rule 902(12) does the same for foreign records.¹⁵

II. Article One: General Provisions

Rule 101 provides that the Federal Rules of Evidence "govern proceedings in the courts of the United States."¹⁶ Notwithstanding this seemingly clear statement, the precise application of the Rules can be problematic. In diversity cases, state law provides the substantive rule of decision, but federal law determines procedural issues, such as the admission of evidence. However, there are exceptions to this general rule. For example, in the case of presumptions of fact in civil cases,¹⁷ privileges,¹⁸ and competency of witnesses,¹⁹ if state law governs the substantive issues, then state evidentiary rules control those evidentiary issues. Also, what may nominally appear to be a state evidentiary rule is sometimes held to be a state substantive law. This has universally been the case with regard to parol evidence rules, which govern the admissibility of oral agreements to vary or contradict contractual language. During the current survey period, the Eleventh Circuit reaffirmed that parol evidence rules are rules "of substantive law, not evidence, so [they are] applied by federal courts sitting in diversity."²⁰

Rule 103(a) requires a party to object timely to the admission or exclusion of evidence to preserve that issue for appeal.²¹ In the absence of an objection, a party appealing the admission or exclusion of evidence must establish "plain error."²² The Eleventh Circuit's unusually fractious decision in United States v. Campbell,²³ illustrates the application and effect of the "plain error" rule. In Campbell customs agents discovered cocaine in defendant's luggage as he attempted to enter the United States. Defendant voluntarily gave an oral statement to a customs agent who then reduced the statement to writing.²⁴ In the middle of the written statement, the agent wrote that "he had told Campbell that 'nobody gives this amount of cocaine to somebody they don't trust.'"²⁵ During the one day trial, the prosecution heavily relied on defendant's statement and the agent's hearsay opinion that defendant knew the cocaine was in his luggage. Defendant's attorney never objected to the repeated use of the agent's opinion. On appeal, however, defendant contended that the statement was hearsay and should not have been admitted.²⁶ In a per curiam majority opinion, the Eleventh Circuit noted that because of the absence of an objection at trial, defendant had to prove the prosecutor's use of the hearsay opinion was plain error.²⁷ Noting that while it did not condone the agent's conduct, the court concluded that the admission of the opinion did not meet the plain error standard.²⁸ The court was "unwilling to say that a trial court's failure to sua sponte redact a defendant's statement to remove hearsay is error," much less plain error.²⁹ The court determined that even if there was plain error, the admission of the statement did not, for several reasons, satisfy the second prong of the plain error standard—that the error effected defendant's "substantial rights."³⁰ First, the agent was subject to cross examination.³¹ Second, the agent could have expressed the same opinion at trial as an expert witness.³² Finally, there was other evidence from which the jury could conclude that defendant knew the cocaine was in his luggage.³³

In a strongly worded dissent, Judge Godbold took the majority and the Government to task.³⁴ He particularly castigated the prosecution for first manufacturing evidence—the agent's hearsay opinion—and then repeatedly utilizing that evidence. To Judge Godbold, the agent's insertion of his opinion in defendant's statement "was no less egregious than police manufacture of evidence by planting a 'throw down' gun at the scene of a crime or forging a confession."³⁵ The heavy burden of the plain error rule, Judge Godbold argued, should not "immunize the government from the wrong of using evidence that it knows is tainted."³⁶ Rather, the court should have treated the matter as one of constitutional error and prosecutorial misconduct.³⁷ Had it done so, defendant's conviction would have been reversed and the case would have been remanded for a fair trial.³⁸ !!!

This is a shabby case. Our government can do better than this. It would have elevated itself by confessing error, thereby sending a signal to its agent that it demands rectitude from those who gather evidence for our judicial system and those who use it...