Evidence - Marc T. Treadwell

• Citation: Vol. 56 No. 4
• Publication year: 2005

Evidenceby Marc T. Treadwell^*

I. Introduction

This year's survey must begin, as have most recent surveys, with a lament over the decreasing number of noteworthy Eleventh Circuit decisions addressing evidentiary issues.¹ In stark contrast to the days when the Eleventh Circuit rigorously examined district court evidentiary decisions and freely reversed those decisions, the Eleventh Circuit now studiously defers to district court judges.² The abuse of discretion standard, which has always been the standard of review of a district court's evidentiary rulings, has become the standard of review in practice as well as in name.³

However, the Eleventh Circuit's decision in Bearint v. Dorel Juvenile Group, Inc.⁴ illustrates a facet of the abuse of discretion standard of review that is not always appreciated. In Bearint the Eleventh Circuit noted that although the abuse of discretion standard governs all evidentiary appeals, a district court, per se, abuses its discretion when the district court bases an evidentiary ruling on an erroneous interpretation of law.⁵ A district court's determinations of law are subject to a de novo standard of review.⁶ Thus, the difficulty of satisfying the abuse of discretion standard can effectively be avoided if a party can prove thatthe district court, when it admitted disputed evidence, relied on an erroneous interpretation of law.⁷

II. Proposed Amendments to the Federal Rules of Evidence

Several amendments to the Federal Rules of Evidence are scheduled to become effective December 1, 2006. At the time of publication, the proposed Rules were pending before the Advisory Committee. Current information on the status of the proposed Rules can be found at the United States Courts' website.⁸

Rule 404(a),⁹ which governs the use of character evidence offered to prove conduct, will be amended to clarify that character evidence is generally not admissible in civil cases.¹⁰

Apparently, at the behest of the Criminal Division of the Department of Justice, Rule 408,¹¹ which addresses the admissibility of evidence of conduct and statements made in compromise negotiations, will be amended to expand the use of settlement discussions in criminal cases.¹² The logic of the proposed amendment is questionable, especially if one accepts that statements made during settlement discussions, accompanied as they often are by puffing and grandstanding, are dubious evidence of fault. In any event, public policy favors compromise; therefore, statements made during compromise negotiations should not be admissible. It is reasonable to question why those statements would be more probative in a criminal case than in a civil case.

Current Rule 606(b)¹³ broadly bars the admission of juror testimony about jury verdicts.¹⁴ The Rule allows two exceptions: jurors may testify regarding "[(1)] extraneous prejudicial information. . . improperly brought to the jury's attention or [(2)] whether any outside influence was improperly brought to bear upon any juror."¹⁵ The proposed amendment would also allow jurors to testify on the issue of "whether the verdict recorded is the result of a clerical mistake."¹⁶

Rule 609¹⁷ governs the use of convictions to impeach a witness's credibility. Currently, a witness can be impeached with a conviction if the crime "involved dishonesty or false statement."¹⁸ The proposed amendment would require the admission of a conviction to impeach a witness's credibility if the conviction was for a crime "that readily can be determined to have been a crime of dishonesty or false statement."¹⁹ Although the difference in language is subtle, the proposed amendment purports to resolve the conflict of how to determine whether a conviction involves dishonesty or false statement.²⁰ Specifically, the conflict is whether the court is limited to examination of the elements of the crime or whether the court must admit a conviction, even though the specific elements of the crime do not require proof of deceit.²¹ The Committee opted to expand Rule 609(a)(2) to permit automatic impeachment "if the underlying act of deceit can be determined from information such as the charging instrument."²²

III. Article II: Judicial Notice

Children of all ages, particularly those acquainted with the wildly popular Dippin' Dots, will appreciate the Eleventh Circuit's decision in Dippin' Dots, Inc. v. Frosty Bites Distribution, LLC.²³ In Dippin' Dots, plaintiff Dippin' Dots contended that defendant Frosty Bites had unlawfully infringed on its product and logo design. Among other things, Dippin' Dots contended that the district court improperly took judicial notice that the color of ice cream indicates its flavor.²⁴

Pursuant to Rule 201,²⁵ a court may take judicial notice of facts that are not subject to reasonable dispute.²⁶ A fact is not subject to reasonable dispute if "it is either (1) generally known within the territorial jurisdiction of the trial court or (2) capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned."²⁷ While the court cautioned that judicial notice of factsshould be a '"highly limited process'" because it bypasses traditional evidentiary rules, it nevertheless determined that judicial notice relating to certain facts about ice cream is appropriate.²⁸

Dippin' Dots fate was likely sealed by honest, but harmful, concessions made by its attorney:

The COURT: — would you agree that I could take judicial notice that chocolate ice cream is, generally speaking, brown, vanilla is white, strawberry is pink?

[Counsel]: I think you could do that, I think you could, sir, but I think it would be appropriate to acknowledge that sometimes it's not. Chocolate can be white. I mean, that's not an uncommon occurrence. Certainly with M&M's, chocolate comes sometimes in a blue color. The court: I'm just talking about ice cream.

[Counsel]: Yes, sir.

The COURT: Ice cream is, generally speaking, chocolate is brown, vanilla is white, and strawberry is pink.

[COUNSEL]: That's correct, sir, but it's not necessarily so.²⁹

Clearly, in the "territorial jurisdiction of the trial court," the district court concluded, and the Eleventh Circuit affirmed, that the color of ice cream clearly suggests its flavor.³⁰

IV. Article IV: Relevancy and Its Limits

Rule 404³¹ is the principal rule of evidence governing the admissibility of "extrinsic act evidence" or evidence of acts and transactions other than the one at issue. Rule 404 is primarily intended to bar the introduction of propensity evidence, or evidence of misconduct on other occasions, offered to prove that a party is more likely to have engaged in the conduct at issue simply because of what he did on another occasion.³² 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."³³

Extrinsic act evidence is a favorite weapon of prosecutors. For example, prosecutors frequently introduce evidence of a defendant's prior drug conviction to prove his intent to commit a subsequent drug offense.As the Eleventh Circuit has lowered its scrutiny of district court evidentiary decisions, defendants are rarely successful in their challenge to the prosecution's use of evidence regarding their prior bad acts. This survey year, however, saw a rare exception—the Eleventh Circuit held in two cases that district courts erroneously refused to admit extrinsic act evidence offered by defendants.³⁴

In United States v. Stephens,³⁵ defendant claimed the district court improperly prevented him from introducing evidence of an informant's other drug transactions.³⁶ Defendant in Stephens, who had no prior criminal record, was charged with selling drugs after a series of unsuccessful attempts by law enforcement officers to catch him actually selling drugs on video and audiotape. The sting transactions were attempted after the arrest of a career criminal, Robinson, to whom defendant had become a father figure. Notwithstanding defendant's many attempts to help Robinson over the years, Robinson, apparently in an effort to avoid lengthy prison time, claimed that defendant had sold him drugs. Robinson agreed to cooperate with law enforcement by becoming a confidential informant against defendant. A series of almost comical attempts followed where Robinson would somehow manage to thwart efforts to catch defendant dealing drugs on tape.³⁷ Reading the Eleventh Circuit's opinion, one gets the impression that defendant was not selling drugs and that Robinson was simply "playing" the Georgia Bureau of Investigation ("GBI").

During the last attempt, Robinson opened the hood of his car to block a camera's view of Robinson and defendant. In response, agents rushed to the scene and found marked money and drugs in defendant's possession. Defendant claimed he had just found the money and drugs on the ground outside his house.³⁸

At trial, defendant attempted to prove that Robinson set him up to avoid a lengthy prison term. In his opening statement, defendant's attorney claimed he would adduce evidence of Robinson's other drug transactions to demonstrate how Robinson could have had access to drugs, which he could have then planted on defendant. The district court, however, ruled that this extrinsic evidence was inadmissible.³⁹

The Eleventh Circuit's Rule 404(b) discussion is surprisingly short. It noted that Rule 404(b) only bars the use of extrinsic act evidence when it is offered "to prove the character of a person in order to show action in conformity" with the extrinsic acts.⁴⁰ The Eleventh Circuit held that defendant was not offering the evidence to show conformity with the prior conduct but rather "to show that Robinson could have obtained the methamphetamine he turned over to the Government from a source other than [defendant]."⁴¹ Because the evidence was offered for...