Evidence - Marc T. Treadwell

• Publication year: 2002

Evidenceby Marc T. Treadwell^*

I. Introduction

Previous surveys have addressed the trend—or at least what the Author perceives to be the trend—of the Eleventh Circuit Court of Appeals in recent years to defer more to district judges' evidentiary decisions.¹ Supporters of this trend no doubt would contend that that is exactly what the abuse of discretion standard requires. Indeed, the Eleventh Circuit's current formulation of the abuse of discretion standard demands a very limited review. Specifically the Eleventh Circuit has announced: "We review the evidentiary rulings by the district for an abuse of discretion .... We reverse only if the complaining party establishes that the evidentiary ruling resulted in a 'substantial prejudicial effect,' thus warranting reversal of the jury's verdict."² One consequence of this trend is fewer evidentiary decisions, a fact illustrated by simply comparing the number of pages in various surveys. In the late 1980s and early 1990s, evidence survey articles could total thirty pages or more. Last year's survey was less than seventeen pages and this year's survey required only fourteen pages to report on significant Eleventh Circuit decisions.

II. Article IV: Relevancy

When previous surveys speculated that the Eleventh Circuit was dramatically lowering the court's level of scrutiny of evidentiary issues, surveyors cited Federal Rule of Evidence 403 as perhaps the clearest indicator of this trend.³ Rule 403 allows the court, under some circumstances, to exclude relevant evidence, most notably when the danger of unfair prejudice substantially outweighs the probative value of the evidence. When the Author first began surveying Eleventh Circuit evidentiary decisions in 1986, the court frequently invoked Rule 403 in criminal cases to reverse convictions on the ground that prejudicial evidence should not have been admitted.⁴ In more recent years, however, Rule 403 has rarely been a factor and certainly has not been the tool for rigid scrutiny that it once was. However, Rule 403 made something of a comeback during the present survey year, and, oddly enough, this comeback occurred in civil cases.

In Anderson v. WBMG-42,⁵ plaintiff contended that her employer unlawfully discriminated against her when she was fired for "unprofessional behavior."⁶ In support of her case, plaintiff unsuccessfully attempted to introduce evidence that demonstrated similarly situated employees were treated more leniently. The district court, relying on Rule 403, excluded the evidence.⁷ On appeal, the Eleventh Circuit agreed with plaintiff that the evidence was relevant.⁸ The Eleventh Circuit also agreed that Rule 403 should only be used sparingly to exclude relevant evidence.⁹ Nevertheless, the Eleventh Circuit held that the district court did not abuse its discretion when it excluded this relevant evidence.¹⁰ The court concluded that forays into the similar incidents "would have in effect generated a mini-trial on collateral issues which would not relate to the racial discrimination alleged" in plaintiff's claim.¹¹ The court's opinion also suggests, but does not make clear, that the evidence had not been developed during discovery, and therefore, the development of the evidence at trial would have been even more time consuming.

Notwithstanding the high standard of review for evidentiary appeals, the Eleventh Circuit was not willing to defer to the district court in United States Steel, LLC v. Tieco, Inc.¹² and thus overturned a multi-million dollar verdict.¹³ In Tieco, a factually complex case, defendants prevailed on their counterclaims for malicious prosecution, abusive process, and similar claims. Defendants largely relied on a trial court opinion from a previous proceeding between the parties that was extraordinarily favorable to defendants, no doubt because it was drafted by defendants' attorneys. Plaintiffs argued that the district court should have excluded the opinion pursuant to Rule 403.¹⁴ The Eleventh Circuit first noted that plaintiffs had failed to raise, and thus had waived, their best argument—that the opinion was hearsay.¹⁵ Nevertheless, the court, relying on Rule 403, concluded that the district court abused its discretion when it admitted the opinion.¹⁶ First, and notwithstanding the fact that plaintiffs did not raise a hearsay objection, the court reasoned that the hearsay nature of the document was still pertinent to its Rule 403 analysis.¹⁷ Hearsay, the court noted, is generally unreliable, and the opinion was, in the court's view, particularly unreliable and misleading.¹⁸ Because the opinion had been prepared for the trial judge by defendants' attorney, the opinion virtually was tantamount to testimony by defendants, which, not surprisingly, was extremely self-serving. The fact that a judge had accepted the opinion as his own only made the document even more prejudicial because this acceptance gave the document judicial weight.¹⁹ Thus, the court concluded, the prejudicial impact of the opinion outweighed its probative value, and the district court abused its discretion when the court admitted the opinion.²⁰

Rule 404 is the principal rule of evidence 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.²¹ The Rule is intended to prevent the admission of evidence of misconduct on other occasions solely to prove that a defendant is more likely to have committed the charged offense.²² The admissibility of extrinsic act evidence is determined by a three part test sometimes called the Beechum test.²³ First, the extrinsic act evidence must be relevant to an issue other than the defendant's character.²⁴ Second, the prosecution must prove the defendant committed the extrinsic act.²⁵ The prosecution need not prove this element beyond a reasonable doubt; proof by a preponderance of the evidence is sufficient.²⁶ Third, the evidence must not contravene Rule 403; the probative value of the extrinsic act evidence must not be substantially outweighed by its undue prejudice.²⁷

In United States v. Dickerson²⁸ the Eleventh Circuit considered whether the district court properly admitted evidence of defendant's possession of cocaine after the defendant allegedly committed the charged offense of conspiracy to possess cocaine.²⁹ The court first noted that it made no difference that the extrinsic offense took place after the charged offense; the Rule 404(b) test is the same.³⁰ Here, the prosecution tendered evidence of the extrinsic offense to prove intent, and thus, the first question was whether the extrinsic offense required the same intent as the charged offense.³¹ Given that both offenses involved the possession of large quantities of cocaine, the court had no difficulty concluding that the intent involved in both offenses was the same.³² With regard to the second prong, whether the government proved defendant committed the extrinsic offense, the court decided that although the offense was proved through the uncorroborated testimony of an accomplice, that was sufficient.³³ Finally, the court concluded that the probative value of the evidence substantially outweighed its possible prejudicial effect.³⁴ In this regard, the court relied on an aspect of the Rule 404(b) analysis that must be particularly perverse to defendants: The weaker the government's case, the greater the government needs extrinsic act evidence.³⁵ This analysis enhances the probative value of the evidence.³⁶ Thus, the court concluded that the district court properly admitted evidence of defendant's subsequent possession of cocaine.³⁷

Rule 404(b) does not apply to evidence, even though extrinsic to the indictment, that is inextricably intertwined with the charged offense.³⁸ During the survey period, the Eleventh Circuit apparently relied on this principle to affirm the district court's admission of defendant's drug transactions at his trial for unlawful possession of firearms in United States v. Thomas.³⁹ In Thomas, the defendant, perhaps understandably, argued that his prior drug activity had nothing to do with the elements of the offense of unlawful possession of a firearm.⁴⁰ The Eleventh Circuit disagreed.⁴¹ Relying on authority from the Eighth and Ninth Circuits, the court noted the "known correlation between drug dealing and weapons."⁴² Defendant argued that those cases were distinguishable because his drug activity was unrelated to his alleged possession of a firearm—when the weapons were found, no drugs were found.⁴³ The Eleventh Circuit was unpersuaded: "We hold, however, that the evidence of his drug trafficking was in sufficiently close proximity, temporally and physically, to be relevant to proving that he knowingly possessed the weapons."⁴⁴ Finally, the court refused to concede that the evidence of defendant's drug activity was admitted to impugn his character: "The evidence of Thomas' drug trafficking was admitted to prove knowing possession of the firearms, not character."⁴⁵

III. Article V: 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 rules of privilege in nondiversity cases.⁴⁶ In diversity cases, state law determines the existence of privileges.⁴⁷

In United States v. Singleton,⁴⁸ the Eleventh Circuit addressed an issue of first impression—whether communications between permanently separated spouses fall within the scope of the marital communications privilege.⁴⁹ In Singleton, defendant's spouse, in cooperation with the FBI, wore a recording device to tape a conversation with defendant during which defendant made incriminating statements. Overruling defendant's objection, the district court admitted the tape recorded conversation after concluding that the parties were permanently separated, and thus, defendant was...