Evidence - Marc T. Treadwell

• Publication year: 1999

Evidence

Marc T. Treadwell*

I. Introduction

Daubert¹ inspired appeals again occupied much of the Eleventh Circuit's time during the survey period. As discussed in detail below, the Eleventh Circuit held in Carmichael v. Samyang Tire, Inc.² that Daubert applies only to witnesses claiming scientific expertise, a decision which sent parties scrambling as they sought to avoid or to invoke Daubert. However, after the survey period, the Supreme Court reversed the Eleventh Circuit's decision in Carmichael. In Kumho Tire Co. v. Carmichael,³ the Supreme Court held that Daubert applies to all expert testimony and is not limited to "scientific" testimony. The Court also held that all four Daubert factors (testing, peer review, error rates, and scientific acceptability) need not be satisfied for expert testimony to be admissible. Rather, district courts, in performing their gatekeeping analysis of the reliability of expert testimony, are entitled to great flexibility and their inquiry will be determined by the particular facts of the case.

II. Presumptions in Civil Actions and Proceedings

In a case of first impression, the Eleventh Circuit considered in Horton v. Reliance Standard Life Insurance Co.,⁴ whether the common law presumption against suicide should apply in an action brought under the Employment Retirement Income Security Act ("ERISA").⁵ In Horton plaintiff's husband, who died in a private plane crash, brought suit against two insurance carriers that issued life insurance policies to the husband's employer as a part of the employer's benefit plans. The insurance companies claimed that the husband committed suicide.⁶ The court first noted that although ERISA does not provide for presumptions, courts are free "to develop a body of federal common law to govern issues in ERISA actions not covered by the Act itself⁷ A court may fashion such common law rules if the rule furthers ERISA's scheme of protecting "the interests of employees and their beneficiaries in employment benefit plans" and ERISA's goal of "uniformity in the administration of employee benefits plans . . . ."⁸ The court concluded that the common law presumption against suicide met this standard.⁹ Although the court recognized that the presumption favored beneficiaries over the interests of employee benefit plans and insurance companies, the court concluded, after reviewing the history of the common law presumption against suicide, that the presumption was "grounded in tested observations of human behavior and in American legal history."¹⁰ In addition, the court reasoned Congress was presumably aware of this well-established common law rule, and, under such circumstances, the court felt free to apply the rule unless '"a statutory purpose to the contrary is evident.'"¹¹ Finding no conflict with ERISA's statutory purpose, the court held that the district court properly applied the common law presumption against suicide.¹²

III. Relevancy

Rule 404 of the Federal Rules of Evidence is the principal rule of evidence addressing the admissibility of "extrinsic act evidence" or evidence of acts and transactions other than the one at issue. Rule 404 primarily bars the introduction of evidence of prior misconduct offered to prove that a party is more likely to have committed the charged offense or engaged in the conduct at issue because of that prior misconduct.¹³ Although extrinsic act evidence is not admissible to prove a party's propensity to engage in misconduct, it is admissible "for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident."¹⁴ The Eleventh Circuit applies a three-part test, often called the Beechum test, to determine the admissibility of extrinsic act evidence.¹⁵ First, the extrinsic act evidence must be relevant to an issue other than the defendant's character. Second, the prosecution must prove the defendant committed the extrinsic act. Third, the evidence must survive a Rule 403¹⁶ balancing test, that is, the probative value of the extrinsic act evidence must not be outweighed by its prejudicial effect.¹⁷ In recent years, the author has speculated that the Eleventh Circuit has dramatically lowered its level of scrutiny of evidentiary issues. The Eleventh Circuit's treatment of extrinsic act evidence offers support for this speculation. In its more activist days, or at least when it was more active with regard to evidentiary issues, the Eleventh Circuit frequently engaged in micro-Rule 404(b) analysis and often concluded that the district courts abused their discretion in admitting extrinsic act evidence. In more recent years, however, Rule 404 has been much less a factor in Eleventh Circuit decisions. This trend continued during the current survey period.

In United States v. Mills,¹⁸ defendants, a husband and wife who owned a Medicare services provider, were convicted of making false statements, mail fraud, Medicare fraud, and witness tampering. On appeal, the wife claimed that the district court improperly admitted evidence that she concealed items from customs inspectors years before the charged offense. The district court concluded that the evidence was admissible under Rule 404(b) because it showed the wife's "'propensity' to conceal facts and was thus relevant to [her] intent."¹⁹ On appeal, picking up on this ruling, the Government argued that the customs incident was admissible because it demonstrated the wife's willingness to deceive government agents for personal financial gain. The Eleventh Circuit made short work of the district court's conclusion and the Government's argument.²⁰

Restated, the Government's asserted relevant inference is that we can gather from the customs incident that Margie is disposed to lie to the government; therefore, being a liar, she must have intended to lie [with

regard to the acts leading to the charged offenses]. This inference is precisely the one that Rule 404(b) prohibits: it makes an element of the crime (intent to lie) more probable because of the defendant's character (liar).²¹

Thus, the Eleventh Circuit concluded that the district court abused its discretion when it admitted the extrinsic act evidence.²² This, however, did not require reversal.²³ Because there was overwhelming evidence that the wife intentionally engaged in the conduct giving rise to the charged offenses, the court held the error was harmless.²⁴

Judge Hatchett, in dissent, disagreed with the majority's conclusion that the error was harmless.²⁵ Reviewing the evidence, he concluded there was scant evidence of the wife's specific intent to commit the charged offenses.²⁶

Without the improper character evidence, the government's proof of intent to falsify was essentially limited to [the wife's] business conduct. The customs inspector's testimony, however, vastly expanded the scope of [the wife's] untruthfulness to a context more familiar to the jury than First American. In my view, jurors were much more likely to understand lying to a customs inspector than failing to document travel on a company airplane. At the very least, the customs inspector's testimony uncomfortably invited a jury to connect with, interpret and act upon the notion that [the wife] was liar in general.²⁷

Thus, because the Government's evidence of intent was weak, the extrinsic act evidence was likely prejudicial.²⁸

Judge Hatchett's point, insofar as it relates to improperly admitted extrinsic act evidence, is well taken. However, the fact that the Government's case is weak actually makes it more likely that extrinsic act evidence will be admissible. In United States v. Calderon,²⁹ the Eleventh Circuit acknowledged that the connection between the extrinsic act and the charged offense was remote. However, the court was unwilling to hold that the district court abused its discretion in admitting the testimony.³⁰ With regard to the third prong of the Beechum test, whether the probative value of the evidence is substantial- ly outweighed by unfair prejudice, the court noted it was appropriate to consider the Government's need for the evidence.³¹ "As we have explained, 'if the government can do without such evidence, fairness dictates that it should; but if the evidence is essential to obtain a conviction, it may come in. This may seem like a "heads I win; tails you lose" proposition, but it is presently the law.'"³² Thus, the weaker the Government's case, the stronger its argument that shaky extrinsic act evidence is admissible.³³

In United States v. McLean,³⁴ the Eleventh Circuit reaffirmed that evidence "inextricably intertwined" with the charged offense is not extrinsic act evidence for purposes of Rule 404(b). In McLean the court agreed with the Government's contention that the evidence at issue was vital to an understanding of the context of the Government's case and thus, was evidence of the charged offense rather than extrinsic act evidence.³⁵ This holding was critical because the Government had failed to provide notice of its intent to introduce extrinsic act evidence as required by Rule 404(b), and thus, if the evidence was extrinsic, it could not be admitted.

When character evidence is admissible, Rule 405 provides the methods for proving character.³⁶ In Schafer v. Time, Inc.,³⁷ plaintiff contended that the district court improperly admitted evidence of his prior acts of misconduct in the trial of his libel claim against Time. The Eleventh Circuit disagreed.³⁸ Under Georgia law, a party who claims his reputation has been injured by libelous statements necessarily places his character in issue.³⁹ Rule 405(b) provides that "[i]n cases in which character or a trait of character of a person is an essential element of a charge, claim, or defense, proof may also be made of specific instances of [that person's] conduct."⁴⁰ Thus, the Eleventh Circuit held that the district court did not err in admitting evidence of plaintiff's prior misconduct.⁴¹

IV. Witnesses

Rule...