Evidence - Marc T. Treadwell

• Publication year: 2003

Evidenceby Marc T. Treadwell^*

I. Introduction

The page length of the annual survey of Eleventh Circuit evidence decisions has, over the years, become shorter and shorter. This year is no exception. There are simply fewer cases that have any significant discussion of evidentiary issues. Whether this is a good thing likely depends on one's perspective. For example, criminal defense lawyers likely think nostalgically of the years when the Eleventh Circuit micro-analyzed district court evidentiary decisions and freely reversed convictions on the ground that district courts erroneously admitted, for example, extrinsic act evidence. They may argue that the Eleventh Circuit, and the federal judiciary generally, has become more conservative. others, however, will contend that the Eleventh Circuit is simply applying the abuse of discretion standard as it should be applied—it is not enough that a district court is wrong; the broad discretion afforded district court judges on evidentiary issues requires a higher showing. In any event, and whatever one's view may be, the fact that the Eleventh Circuit rarely overturns district court evidentiary decisions is beyond debate.

II. Article I: General Provisions

Federal Rule of Evidence 103(a) requires a party to timely object to the admission or exclusion of evidence to preserve that issue for appeal.¹ In the absence of an objection, a party appealing the admission or exclusion of evidence must establish "plain error."² The Eleventh Circuit applies Rule 103 with a vengeance, and that perhaps is one reason for the dramatic decline in Eleventh Circuit decisions addressing evidentiary issues.

In addition, as illustrated by the Eleventh Circuit's decision in Brough v. Imperial Sterling, Ltd.,³ the standards of review governing evidentiary appeals make it unlikely that a challenge to a district court's admission or exclusion of evidence will be successful. In Brough appellant Imperial Sterling contended that plaintiff made several references to defendants' financial status that were improper under Florida law.⁴ With regard to defendants' timely objections to testimony and argument concerning defendants' financial status, the court noted that any error would require reversal only if(1) the district court abused its discretion in admitting the evidence or permitting the argument and (2) defendant could establish that the ruling had a substantial prejudicial effect.⁵ While the Eleventh Circuit agreed that the district court improperly admitted this evidence, the court stated that there was other admissible evidence that would allow "the jury to determine that both [defendants] were wealthy parties" and, thus, appellant was not harmed by the admission of this evidence.⁶

With regard to evidence and arguments to which defendants made no objection, Imperial Sterling's appeal was governed by the plain error standard of review.⁷ "For there to be plain error, there must (1) be error, (2) that is plain, (3) that affects the substantial rights ofthe party, and (4) that seriously affects the fairness, integrity, or public reputation of a judicial proceeding."⁸ A party can rarely satisfy the plain error standard, and the appellant in Brough was no exception.⁹ Plaintiff's reference in closing argument to one of the defendants as a "'one hundred million dollar company'" combined with the reference to plaintiff as "'an individual who has a wife who is working, who has a baby at home, a new home, who lives based upon the income that's generated from those particular things, . . . this job, [and] his wife's job, versus a one hundred million dollar company,'" was clearly inappropri-ate.¹⁰ Furthermore, plaintiff's counsel argued that defendants were willing to breach their contract with plaintiff and had little concern over any resulting litigation because defendants had "'at least three lawyers in place at one time, and [had] one hundred million dollars in assets to go forward with that lawsuit.'"¹¹ Plaintiff, on the other hand, was simply "'an individual whose living [was] based on his job.'"¹² All of these comments were clearly inappropriate. However, the Eleventh Circuit did not reverse "because [the comments] did not seriously affect the fairness, integrity, or public reputation of the proceeding."¹³

The Eleventh Circuit's decision in United States v. Cano¹⁴ demonstrates the precision necessary for objections. In Cano defendant contended that the trial court improperly allowed a detective to decipher symbols or "hieroglyphics" that had been used as a simple code.¹⁵ Defendant objected on the ground that this testimony constituted expert testimony, that the detective had not been qualified as an expert, and, in any event, the prosecution had not given the required notice that the detective would testify as an expert.¹⁶ However, the Eleventh Circuit concluded that the detective's testimony "was not based on 'scientific, technical or otherwise specialized knowledge'"¹⁷ and therefore "did not constitute expert testimony within the meaning of Rule 702."¹⁸ Defendant also argued that if the testimony was not expert testimony, then it had to be lay testimony and, as lay testimony, was inadmissible under Rule 701, which requires, among other things, "that the [lay] witness' testimony be 'based on the perception of the witness.'"¹⁹ The Eleventh Circuit agreed.²⁰ When he deciphered the hieroglyphics, the detective did not testify based on his perception; he simply took facts already in evidence and drew inferences from those facts.²¹ In effect, he "delivered a jury argument from the witness stand."²² However, defendant did not object on the ground that the testimony was improper lay opinion testimony, and thus, this issue was subject to the plain error standard of review.²³ Because there was overwhelming evidence of defendant's guilt, the Eleventh Circuit concluded that defendant could not meet the rigorous plain error standard.²⁴

The Eleventh Circuit's decision in United States v. Hall²⁵ illustrates the Hobson's choice a defendant may face as the result of a trial court's pretrial rulings. In Hall the prosecution sought to bolster its child pornography charges against defendant by introducing a videotaped interview ofa four-year-old girl who said that defendant had engaged in sexual conduct with her.²⁶ The government contended that the tape was admissible pursuant to Rule 404(b)²⁷ and Rule 807.²⁸ Prior to trial, the district court ruled that the videotape was admissible to demonstrate defendant's intent, knowledge, and lack of mistake or accident in the event defendant raised such defenses. Weighing the gain of raising those defenses against the horrific prejudice if jurors saw the videotape, defendant chose not to put up any evidence and formally informed the court that he would not raise defenses such as intent or mistake. After his conviction, defendant appealed to the Eleventh Circuit and sought to challenge the district court's decision admitting the videotape. Defendant argued that the court's decision forced him to forego valid defenses and thus impinged his constitutional rights. The government responded that because the tape was never introduced, the issue was not appropriate for appeal.²⁹ This precise issue raised a question of first impression in the Eleventh Circuit.³⁰ Although the United States Supreme Court previously held in Luce v. United States³¹ that a pretrial ruling permitting the admission of prior conviction evidence under Rule 609 is not reviewable if the defendant does not testify and the evidence therefore is not used, the Court had not addressed this issue in the context of Rule 404(b).³² other circuits, however, had held that the principle applied to a Rule 404(b) ruling.³³ The Eleventh Circuit concluded that there was no logical reason not to apply Luce to a Rule 404(b) ruling.³⁴ Because the videotape was never introduced into evidence, there was not a sufficient development of the record to provide any meaningful review of the district court's pretrial decision.³⁵

III. Article IV: Relevancy

Ifone were to look for a single indicator that the Eleventh Circuit has dramatically lowered its level of scrutiny on evidentiary issues, the court's treatment of appeals involving Federal Rule of Evidence 403 would be a good candidate. 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.³⁶ At one time, the court frequently invoked Rule 403 in criminal cases to reverse convictions on the ground that prejudicial evidence should not have been admitted.³⁷ 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, the Eleventh Circuit's decision in United States v. Bowman,³⁸ demonstrates there are still situations in which Rule 403 can and should play a role.

In Bowman the government charged defendant, the international president of a motorcycle club, with various offenses, including racketeering and conspiracy to murder. During trial, the government sought to admit the motorcycle club's constitution. Among other things, the constitution provided that membership in the club was limited to whites. Defendant asked the court to redact the whites-only provision on the ground that it was not relevant. The court admitted the document, and when the government displayed portions of the document on an overhead projector, the whites-only provision was visible to the jury. on appeal, defendant contended that this provision was so unfairly prejudicial and its probative value was so slight that it should have been excluded under

Rule 403.³⁹ The Eleventh Circuit agreed and sent a strong message on the subject.⁴⁰

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