Evidence - Marc T. Treadwell

• Publication year: 2007

Evidenceby Marc T. Treadwell^*

I. Introduction

Several amendments to the Federal Rules of Evidence became effective December 1, 2006. Rule 404,¹ which governs the use of character evidence offered to prove conduct, has been amended to clarify that character evidence is generally not admissible in civil cases.² Apparently at the behest of the Criminal Division of the Department of Justice, Rule 408,³ which addresses the admissibility of evidence of conduct and statements made in settlement negotiations, has been amended to expand the use of settlement evidence in criminal cases.⁴ This change will be particularly relevant to Eleventh Circuit criminal law practitioners in light of the court's decision in United States v. Arias,⁵ which was discussed in last year's survey.⁶ The logic of the proposed amendment is questionable. First, statements made during settlement discussions, accompanied as they often are by puffing and grandstanding, are dubious evidence of fault. It is reasonable to question why those statements would be more probative in a criminal case than in a civil case. Second, the amendment to Rule 408 runs counter to Rule 408's effort to further public policy favoring compromise.

Rule 606(b)⁷ broadly bars the admission of jurors' testimony about their verdicts.⁸ The previous version of Rule 606(b) provided two exceptions: jurors could testify regarding "extraneous prejudicial information . . . improperly brought to the jury's attention or whether any outside influence was improperly brought to bear upon any juror."⁹ Amended Rule 606 now contains a third exception, which allows jurors to testify on the issue of "whether there was a mistake in entering the verdict onto the verdict form."¹⁰

Rule 609¹¹ governs the use of convictions to impeach a witness's credibility. Prior to the amendment of Rule 609, a witness could be impeached with a conviction if the crime "involved dishonesty or false statement."¹² Amended Rule 609 permits the admission of a conviction to impeach a witness's credibility "if it readily can be determined that establishing the elements of the crime required proof or admission of an act of dishonesty or false statement by the witness."¹³ Although the difference in language is subtle, the amendment purports to resolve a conflict among the circuits regarding how to determine whether a conviction involves dishonesty or false statement.¹⁴ Specifically, the conflict is whether, in determining if the offense involves dishonesty or false statement, the court is limited to examination of the strict elements of the crime.¹⁵ Amended Rule 609(a)(2) makes clear that courts are not so limited.

The Advisory Committee on Evidence Rules has proposed a new rule, Rule 502,¹⁶ regarding waiver of the attorney-client privilege.¹⁷ This proposed rule was discussed in last year's survey,¹⁸ but it has been substantially revised since then.¹⁹ Revised proposed Rule 502(a) provides that "the waiver by disclosure of an attorney-client privilege or work product protection extends to an undisclosed communication or information concerning the same subject matter only if that undisclosed communication or information ought in fairness to be considered with the disclosed communication or information."²⁰ Subdivision (b) provides that an inadvertent disclosure does not constitute a waiver "if the holder of the privilege or work product protection took reasonable precautions to prevent disclosure and took reasonably prompt measures, once the holder knew or should have known of the disclosure, to rectify the error . . . ."²¹

Subdivision (c), titled "Selective waiver," may well excite the most comment and controversy because it can be argued that the rule will unnecessarily erode the attorney-client privilege. Subdivision (c) provides that disclosure of privileged information "to a federal public office or agency in the exercise of its regulatory, investigative, or enforcement authority—does not operate as a waiver of the privilege or protection in favor of non-governmental persons or entities."²² Thus, a client can disclose privileged communications to a governmental agency without waiving the attorney-client privilege as to other parties or entities. The concern is that an across-the-board selective waiver rule will make it difficult for clients facing possible prosecution to resist the government's request for a grant of selective waiver. To the extent that the selective waiver rule facilitates the ability of investigators to obtain privileged information, clients' confidence that their communications with their attorneys are privileged will be diminished. The harm is exacerbated by the fact that the Rule does not bar the government from sharing the information it obtains pursuant to a selective waiver with other entities.

Subdivision (d) makes clear that information disclosed in accordance with a confidentiality order does not constitute a waiver both as to parties and nonparties to the action.²³ Subdivision (e), on the other hand, provides that agreements between or among parties concerning nonwaiver, while binding on the parties to the agreement, are not binding on nonparties unless the agreement is approved by the court.²⁴ For example, if during the course of a deposition the parties agree that a witness can testify about a particular matter and that his testimony will not constitute a waiver of the attorney-client privilege or work product protection, the parties presumably would have to stop the deposition and get court approval of the agreement if they want their agreement to apply to nonparties.

II. Article I. General Provisions

Federal Rule of Evidence 103²⁵ provides that an appealing party cannot complain about a district court's erroneous evidentiary rulings unless that party objected to the admission of the evidence or, in the case of a ruling excluding evidence, made an offer of proof—that is, informed the district court of the substance of the excluded evidence.²⁶ Though easily stated, Rule 103 does not address every situation in which parties may sometimes find themselves. For example, if a district court rules that the prosecution can impeach the defendant with evidence of a prior conviction if the defendant testifies, then that defendant, for tactical reasons, might not take the stand. In that event, the conviction would not be admitted. But what if the defendant, after being convicted, wants to appeal the district court's decision to admit evidence of the conviction, arguing that the ruling erroneously prevented him from testifying? Addressing this situation in Luce v. United States,²⁷ the United States Supreme Court held that a pretrial ruling permitting the admission of prior conviction evidence under Rule 609 if the defendant testifies is not reviewable if the defendant does not, in fact, testify.²⁸

In United States v. Hall,²⁹ discussed in a prior survey,³⁰ the Eleventh Circuit applied Luce to evidence ruled admissible under Rule 404(b).³¹ In Hall, a child pornography case, the district court ruled that a videotaped interview of a four-year-old girl who said that the defendant had engaged in sexual conduct with her was admissible pursuant to Rule 404(b) to demonstrate the defendant's intent, knowledge, and lack of mistake or accident. Weighing the benefit of raising those defenses against the horrific prejudice if jurors saw the videotape, the defendant chose not to put up any evidence, stipulating that he would not raise defenses such as intent or mistake. After his conviction, the defendant sought to appeal the district court's order that the tape could be admitted at trial.³² Applying Luce, the Eleventh Circuit held that the defendant could not appeal that ruling because the tape was never admitted.³³

During the current survey period, the Eleventh Circuit in United States v. LeCroy³⁴ applied Luce in the context of trial court rulings involving the admissibility of expert testimony.³⁵ After his conviction, and during the sentencing phase of his trial, the defendant sought to offer opinion testimony regarding his mental health. The district court ruled that if the defendant presented this testimony, the prosecution would be allowed to present rebuttal evidence, including an evaluation of the defendant's mental status prepared by a government expert. This evaluation had been sealed, but the defendant's attorney had been allowed to examine the report. Apparently, the defendant's attorney was so concerned about the content of the report that he elected not to introduce the opinion testimony of his experts. The defendant then sought to appeal the district court's ruling that the government could introduce its expert's report if the defendant presented opinion testimony.³⁶ Applying Luce, the Eleventh Circuit held that the defendant had nothing to appeal.³⁷ Because the defendant's experts did not testify and the government's expert report was not admitted, the court reasoned that it would be required to speculate twice: once as to the testimony of the defendant's experts and again with regard to the testimony of the government's expert.³⁸ Accordingly, "[i]t would be improper for this court to engage in such speculation, and thus we decline to reach the merits of this issue."³⁹

III. Article IV. Relevancy and Its Limits

Rule 403⁴⁰ allows a district court, under some circumstances, to exclude relevant evidence, most notably when the danger of unfair prejudice substantially outweighs the probative value of the evidence.⁴¹ When the Author first began surveying Eleventh Circuit evidentiary decisions in 1986, Rule 403 was fertile ground for appeals and the Eleventh Circuit did not hesitate to immerse itself deeply in minute factual examinations to determine whether district courts properly admitted or excluded evidence. Most frequently, the Eleventh Circuit employed Rule 403 to reverse convictions in criminal cases on the ground that prejudicial evidence should not have been admitted. In recent years...