Evidence - Marc T. Treadwell

• Publication year: 2010

Evidenceby Marc T. Treadwell^*

I. Introduction

During the survey year from January 1, 2009 to December 31, 2009,¹ the United States Court of Appeals for the Eleventh Circuit continued its recent trend of limiting the number of its published opinions, a trend discussed in more detail in a previous survey.² This Survey will address several unpublished—yet noteworthy—decisions. However, readers should bear in mind Eleventh Circuit Rule 36-2, which provides that "[u]npublished opinions are not considered binding precedent, but they may be cited as persuasive authority."³ Also note that the court's internal operating procedures suggest an even more limited role for unpublished opinions:

The court generally does not cite to its "unpublished" opinions because they are not binding precedent. The court may cite to them where they are specifically relevant to determine whether the predicates for res judicata, collateral estoppel, or double jeopardy exist in the case, to ascertain the law of the case, or to establish the procedural history or facts of the case.⁴

II. Article III. Presumptions

In many previous surveys of both Eleventh Circuit and Georgia evidence decisions, the Author has placed discussion of spoliation cases in the section about presumptions.⁵ This is because historically the "adverse inference" presumption has been the remedy for spoliation of evidence. Specifically, if a party destroys or spoliates evidence, the jury can be charged that they may infer that the evidence, if it were available, would be harmful to the spoliator.⁶ However, as discussed in more recent surveys, courts have become increasingly aggressive and creative in fashioning sanctions for spoliation of evidence.⁷ This year was no exception in the Eleventh Circuit.

In Graff v. Baja Marine Corp.,⁸ the plaintiffs contended that a motorboat's "gimbal housing" fractured under normal operating conditions. The plaintiffs alleged that when the gimbal housing fractured, the boat spun out of control, ejecting the plaintiffs' decedent from the boat. The defendants contended that the gimbal housing fractured as a result of a severe impact, which in turn was caused by the operator's misuse. Shortly after the incident, a team of experts hired by the plaintiffs removed the gimbal housing and conducted destructive testing on a portion of the gimbal housing without first notifying the defendants. Not surprisingly, when the defendants learned of the destructive testing, they contended that the plaintiffs, by allowing their experts to destroy evidence, had spoliated evidence. The United States District Court for the Northern District of Georgia agreed and excluded evidence of the test results. Without this evidence, the plaintiffs could not prove a product defect, and therefore, the district court granted summary judgment to the defendants.⁹ on appeal, the plaintiffs contended that exclusionary sanctions were inappropriate.¹⁰ The Eleventh Circuit disagreed, holding that the plaintiffs' experts spoliated evidence.¹¹ The defendants were prejudiced by this destructive testing because the gimbal housing was the critical evidence in the case.¹² Moreover, the plaintiffs' experts used test samples smaller than recommended by industry standards and thus wasted what little material was available for testing. Consequently, they eliminated any opportunity to conduct more reliable tests. Whether or not the plaintiffs acted with malice, they clearly were more culpable than the defendants.¹³ Thus, the Eleventh Circuit held that the district court did not abuse its discretion when it excluded the test results from evidence.¹⁴

The decision in Graff is one of the most recent of an increasing number of Georgia and Eleventh Circuit decisions imposing exclusionary sanctions against both plaintiffs and defendants in civil cases for spoliating evidence.¹⁵ Smart lawyers will learn from these cases and rethink the way they, their clients, and their experts handle critical evidence.

III. Article IV. Relevancy

Federal Rule of Evidence 404¹⁶ is the principal rule governing the admissibility of "extrinsic act evidence"—evidence of acts and transactions other than the one at issue—offered for substantive, as opposed to impeachment, purposes.¹⁷ Rule 404 is intended to prevent the admission of evidence of prior misconduct solely to prove that a defendant is more likely to have committed the charged offense.¹⁸ However, Rule 404's prohibition against extrinsic act evidence is subject to broad exceptions.¹⁹ Although not admissible to prove a party's propensity to engage in misconduct, extrinsic act evidence is admissible "for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident."²⁰ Viewed in a practical light, it is easy to see why Rule 404 restricts the admission of extrinsic act evidence. In a close case, evidence that a defendant committed other crimes can have a profound impact on jurors. For example, jurors will likely take a dim view of a defendant with a long "rap sheet." Jurors may discern a propensity on the part of such a defendant to commit crimes, or they may conclude that a man of his character must be guilty.

As discussed in previous surveys, Rule 404(b) once played a significant and frequent role in Eleventh Circuit evidence decisions.²¹ This has not been the case in recent years, and the same is true for the current survey period. only two Eleventh Circuit decisions addressing Rule 404(b) merit discussion—and then only briefly. In United States v. Kapordelis,²² which involved a truly sordid affair concerning a Georgia anesthesiologist's obsession with child pornography,²³ the defendant contended that evidence of the defendant's sexual relations with minors in the Czech Republic was improperly admitted under Rule 404(b) because his conduct was legal in the Czech Republic. Therefore, the defendant argued that because there was no crime or wrong, there was no evidence admissible under Rule 404(b).²⁴ The Eleventh Circuit dismissed this argument.²⁵ By its plain language, Rule 404(b) applies to "'other crimes, wrongs, or acts'" and thus is not limited to criminal acts.²⁶ The fact that the defendant's conduct may have been lawful in the Czech Republic did not mean that evidence of those acts was inadmissible to prove the defendant committed the offenses charged in the United States.²⁷ Further, evidence of his conduct in the Czech Republic was relevant to a legitimate issue and was not offered simply to prove bad character.²⁸ The defendant denied taking pornographic pictures of minors and claimed that someone else must have downloaded the pictures to his computer.²⁹ The fact that he engaged in sexual relations with minors was admissible to refute his argument that it could not have been him who took pornographic pictures of children or downloaded such pictures to his computer.³⁰

By its terms, Rule 404(b) applies to evidence of other or extrinsic acts;³¹ therefore, evidence of acts "inextricably intertwined" with the charged offense is not considered extrinsic act evidence for purposes of Rule 404(b), a point made by the Eleventh Circuit in United States v. Covington.³² In Covington the defendant was charged with attempting to procure a "hit" on his girlfriend in an effort to prevent her from testifying in a state criminal proceeding. In the state court proceeding, the defendant had been charged with beating his girlfriend and threatening her with a gun. At trial in the federal proceeding, the United States District Court for the Middle District of Florida admitted recorded phone calls and correspondence between the defendant and his girlfriend discussing the beating, the pistol that the defendant brandished during the beating, and the girlfriend's testimony about the beating. The defendant contended that this was evidence of other crimes, wrongs, or acts, and it should not have been admitted in his trial for charges relating to the attempted murder of his girlfriend.³³ The Eleventh Circuit disagreed.³⁴ The beating and the charges resulting from the beating provided the underlying motive for the attempted murder, and therefore, evidence related to the beating was "'necessary to complete the story of the crime.'"³⁵ Further, this evidence tended to prove the defendant's motive for wanting his girlfriend dead.³⁶ Although the Eleventh Circuit held that the evidence was "admissible under Rule 404(b),"³⁷ it would have been just as accurate to say that Rule 404(b) did not apply because the evidence was not, in fact, extrinsic to the charged offense.

The Federal Rules' version of a rape shield statute is found in Federal Rule of Evidence 412.³⁸ In United States v. Sarras,³⁹ the defendant contended that the district court erred when it refused to allow him to cross-examine his minor victim about her subsequent sexual relations with her boyfriend. The defendant contended that the prosecution opened the door to this testimony when the victim testified that she had been traumatized by the defendant's sexual abuse, which involved photographs depicting the victim engaged in sexual acts with an adult male.⁴⁰ The Eleventh Circuit rejected the defendant's argument for several reasons.⁴¹ First, the victim could have been traumatized by the defendant's sexual abuse regardless of whether she had other sexual relations.⁴² In other words, the mere fact that she had sexual relations was not necessarily relevant to the question of whether she had been traumatized. Second, the fact that the victim may have had sexual relations did not tend to prove that the victim had not been sexually abused.⁴³ Indeed, the photographs established sexual abuse; the only question was whether the defendant was the male seen in the photo-graphs.⁴⁴ Finally, the defendant had ample opportunity to cross-examine the victim about any possible motives for false allegations that the defendant had sexually abused her.⁴⁵

IV. Article VII...