Evidence - Marc T. Treadwell

• Publication year: 1996

Evidenceby Marc T. Treadwell^*

I. Introduction

The publication of this article marks the tenth time the Mercer Law Review has honored the author by asking him to survey Eleventh Circuit evidence decisions. While some may argue the Review has returned to the same well entirely too many times, ten years of analyzing Eleventh Circuit evidence decisions cannot help but to give some perspective and, perhaps, even some insight into the court's decisions. In this regard, there can be no doubt that the Eleventh Circuit has dramatically reduced its level of scrutiny of evidentiary issues. In the late 1980s, it could be fairly said that the court often paid only lip service to the principle that district court evidentiary decisions could be reversed only for abuse of discretion. Thus, in early survey issues, we see the Eleventh Circuit minutely reviewing evidence to determine whether the district court ran afoul of Rule 403 which prohibits the admission of evidence if its prejudicial impact outweighs its probative value. Although, as discussed below, the Eleventh Circuit continues to apply the Rule 403 balancing test as a part of the test for admissibility of extrinsic act evidence under Rule 404(b), it is virtually unheard of for the court to spend any time discussing Rule 403 alone. Rule 404(b), which has probably received more attention from the Eleventh Circuit than any other single rule of evidence, has become a much less significant factor in appeals. Similarly, the admissibility of co-conspirators' statements under Rule 801(d)(2)(E) is now a routine matter rather than a fecund ground for reversal.

One can debate endlessly the reason for this trend. No doubt, some say that it is a consequence of the appointment of more conservative judges. However, the existence of the trend is unmistakable. In today's environment, the Eleventh Circuit clearly defers much more broadly to the evidentiary decisions of district court judges.

II. Article IV: Relevancy and Its Limits

The drafters of the Federal Rules of Evidence deserve high praise for the twelve rules governing relevant evidence. These twelve, generally brief, rules provide a cogent distillation of common law principles of relevancy and a straightforward guide to practitioners. Article IV begins with the simple statement that '"relevant evidence' means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence."¹ In years past, most relevancy issues addressed by the Eleventh Circuit have involved Rule 404(b), which governs the admission of extrinsic act evidence. Because district courts are vested with broad discretion in evidentiary matters, the Eleventh Circuit rarely discusses, much less reverses, the admission or exclusion of evidence on general relevancy grounds. The Eleventh Circuit's decision in United States v. Williams² provides a good illustration of proper general relevancy analysis. In Williams, defendant, who was charged with attempted carjacking, complained that the district court improperly admitted testimony that an individual whom he shot, but did not kill, was residing "in the cemetery" at the time of the trial.³ In criminal trials, the Eleventh Circuit noted, the scope of relevancy is generally determined by the elements of the offense and the defendant's defenses.⁴ Even if evidence is relevant, it may be excluded if "its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by consideration of undue delay, wasted time, or needless presentation of cumulative evidence."⁵ In determining the relevancy of evidence, district courts are granted broad discretion and should be affirmed "even though we would have gone the other way had it been our call."⁶ Williams was such a case. Had it been the district court, the Eleventh Circuit noted, it would have excluded evidence that the victim had died because his subsequent death was not relevant to the elements of the offense. Nevertheless, it could be said that the testimony was relevant,

"although perhaps not by a wide margin."⁷ For example, the district court could have concluded that the evidence was relevant to explain the witness's absence at trial.⁸

Rule 404 is the principal rule of evidence addressing the admissibility of "extrinsic act evidence"—evidence of acts and transactions other than the one at issue.⁹ The rule is intended to prevent the introduction of what has been called propensity evidence or evidence of prior misconduct offered solely to prove that a defendant is of bad character and thus is more likely to have committed the charged offense. Although nothing in the terms of Rule 404(b) limits its application to criminal cases, courts rarely mention Rule 404 in civil cases. Indeed, the level of scrutiny of extrinsic act evidence seems much lower in criminal cases than in civil cases. At first glance, this appears to be somewhat of an anomaly. In criminal cases, where life and freedom are at stake, courts routinely admit evidence of a defendant's prior misconduct. Yet in civil cases, evidence of extrinsic occurrences is generally not admissible. For example, in an automobile negligence case, it is highly unlikely that a plaintiff could introduce evidence that a defendant had been involved in prior motor vehicle collisions. There is, however, a rational basis for this disparity of treatment. Criminal prosecutions generally involve intentional misconduct. The fact that a defendant committed a prior similar offense is relevant to prove his intent to commit the charged offense. Typically, civil cases do not involve intentional misconduct. In the automobile negligence case, evidence that a defendant was involved in a prior collision would merely serve to prove that the defendant, because he was negligent on one occasion, is more likely to have been negligent on the occasion at issue. This is precisely the result Rule 404 seeks to avoid.

To determine the admissibility of extrinsic act evidence under Rule 404, the Eleventh Circuit uses the test established by the old Fifth Circuit in United States v. Beechum.¹⁰ First, the extrinsic act evidence must be relevant to an issue other than the defendant's character.¹¹ Second, the prosecution must prove that the defendant committed the extrinsic act.¹² Third, the evidence must not contravene Rule 403.¹³ Consistent with its recent generally more relaxed scrutiny of district court evidentiary decisions, the Eleventh Circuit, in stark contrast to its prior practice, generally deferred to the district courts' extrinsic act evidence decisions during the survey period.¹⁴

The Eleventh Circuit's decision in United States v. Delgado¹⁵ is an excellent primer on Rule 404(b) analysis. In Delgado, defendant contended the district court improperly admitted, during his drug trafficking trial, evidence of his arrest and conviction on cocaine possession charges that were unrelated to the drug trafficking charges and which occurred after the drug trafficking charges.¹⁶ The Eleventh Circuit first noted that it made no difference that the extrinsic act occurred after the charged offense; the admissibility of the extrinsic act evidence is still determined by the Beechum test.¹⁷ The government contended the extrinsic act was relevant to the issue of defendant's intent to commit the charged offense and, thus, was relevant to an issue other than defendant's character.¹⁸ The Eleventh Circuit agreed that by pleading not guilty, defendant made intent an issue, and the extrinsic act was relevant to prove defendant's intent to commit the charged offense because the state of mind involved in both offenses is the same.¹⁹ The government easily satisfied the second element of the Beechum test—defendant had been convicted of the extrinsic offense.²⁰

Defendant next argued that the probative value of the evidence was outweighed by its prejudice because the two offenses were not similar and, thus, the third prong of Beechum had not been met.²¹ The extrinsic offense involved a small purchase of drugs from an undercover agent while the charged offense involved a multi-million dollar drug importation scheme.²² The Eleventh Circuit was not swayed. Generally, if the extrinsic act evidence is offered to prove intent, the required degree of similarity is not as great.²³ Because both offenses related to trafficking in cocaine, the offenses were sufficiently similar that the probative value of the extrinsic offense outweighed its prejudicial impact. Accordingly, the Eleventh Circuit held, the Beechum test was satisfied, and the district court did not abuse its discretion when it admitted the extrinsic act evidence.²⁴

The temporal connection between the extrinsic act and the charged offense is sometimes a factor in the determination of whether evidence of the extrinsic act should be admitted. It is not, however, a very significant factor. In United States v. Lampley,²⁵ the Eleventh Circuit held that transactions occurring fifteen years earlier were not too remote in time to be inadmissible extrinsic act evidence.²⁶

In United States v. Muscatell,²⁷ the Eleventh Circuit addressed the issue of whether the evidence in question was extrinsic or intrinsic.²⁸ The outcome of this inquiry has significant ramifications. If the evidence is extrinsic, it must pass muster under Rule 404(b), including the Rule's notice requirement, and the jury must be instructed on the proper use of extrinsic act evidence. If the evidence is intrinsic, it is treated like any other evidence.

The fact that the evidence does not relate directly to the charged offense does not necessarily mean that it is extrinsic. For example, evidence is not extrinsic for the purposes of Rule 404 "if it arose out of the same transaction or series of transactions as the charged offense, was inextricably intertwined with evidence of the...