Evidence - Marc T. Treadwell

• Citation: Vol. 48 No. 4
• Publication year: 1997

Evidence by 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 to district court judges' evidentiary decisions. This recent trend can be contrasted with the activism displayed by Eleventh Circuit judges in decisions discussed in earlier survey articles.¹ The effects of this more recent trend are fewer cases in which the Eleventh Circuit devotes extensive examination of evidentiary issues and, when evidentiary issues are addressed, marked deference to district court judges. Although this trend appeared to continue during the current survey period,² two decisions stand in contrast. The Eleventh Circuit's Rule 404(b) analysis in United States v. Utter,³ recalls the days when the Eleventh Circuit frequently, and seemingly routinely, reversed convictions because of the improper admission of Rule 404(b) evidence. In Joiner v. General Electric Co. ,⁴ the Eleventh Circuit intensively scrutinized a district court's reasons for excluding expert testimony pursuant to the Supreme Court's recent decision in Daubert v. Merrell Dow Pharmaceuticals, Inc.,⁵ and concluded that this reasoning did not pass muster.

II. Article I: General Provisions

Rule 101 provides that the Federal Rules of Evidence "govern proceedings in the courts of the United States."⁶ However, this rule of general application is subject to exceptions, particularly in diversity cases or other cases in which state law provides the rule of decision. In some cases, the Rules themselves provide express exceptions. Rule 302 provides that the effect of presumptions of fact in civil actions governed by state law must be determined in accordance with that state's law.⁷ Similarly, privilege and competency issues are resolved by the law of the state providing the rule of decision.⁸

Even in the absence of express exceptions, the Rules sometimes must yield to state law. In diversity actions, substantive issues are decided in accordance with state law and procedural issues are governed by federal procedural law. Thus, the admissibility of evidence, because it is a procedural matter, is governed by the Federal Rules of Evidence.⁹ However, the Rules do not apply to every evidentiary issue in diversity cases. A state rule of evidence may apply if it concerns a matter of "substantive law." For example, the parol evidence rule and issues relating to burden of proof are considered substantive, and thus governed by state law.¹⁰ Similarly, res ipsa loquitur, although a rule of evidence, is also a matter of substantive law, and thus must be followed by a district court in a diversity action.¹¹ Unfortunately, the determination of whether a state rule of evidence is substantive or procedural is not always easy.

The dividing line can be said to be the point at which evidentiary rules reflect state policy. For example, the Tenth Circuit has held that a state law prohibiting the admission of evidence of failure to use a seat belt is not simply a rule of evidence which "we could then ignore," but rather is a statement of substantive law "'concerned with the channelling of behavior outside the courtroom, and where, as in this case, the behavior in question is regulated by state law rather than by federal law, state law should govern even if the case happens to be in federal court.'"¹²

It is beyond the scope of this Article to discuss in depth the many difficult issues raised by conflicts between state evidentiary rules and the Federal Rules of Evidence. It is, however, appropriate to note the difficulty the Eleventh Circuit, and district courts within the Eleventh Circuit, have faced with regard to one particular area of conflict—legislation modifying state rules of evidence to accomplish "tort reform." At least two Alabama district courts, one of which was affirmed by the Eleventh Circuit without opinion, have held that collateral source rules (rules determining whether a jury may be told that a plaintiff has received payment from "collateral sources," e.g., health insurance), which arguably are substantive to the extent they affect the scope of recoverable damages, are really rules of evidence, and thus inapplicable in diversity actions.¹³ However, when a third Alabama district court held that the state legislature's tort reform motivated modification of the collateral source rule was procedural, and thus not applicable in federal court, the Eleventh Circuit, in Bradford v. Bruno's, Inc.,¹⁴ reversed, holding that collateral source rules are substantive law and must be applied in diversity cases.¹⁵

During the current survey period, the Eleventh Circuit revisited Bradford¹⁶ to address plaintiff's motion for rehearing in which plaintiff asked the court to hold its opinion in abeyance pending the outcome of state court litigation attacking the constitutionality of the modification of the collateral source rule. As it turned out, the Alabama Supreme Court held the statute unconstitutional.¹⁷ Accordingly, the Eleventh Circuit withdrew its opinion. In a substituted opinion, the court held that the district court's decision not to apply the new collateral source rule was correct even though its reasoning was not and, therefore, affirmed the district court.¹⁸

Notwithstanding the Eleventh Circuit's substitute opinion, it would appear that the Eleventh Circuit has quelled the Northern District of Alabama's revolt. Thus, for the moment at least, district courts are bound to apply state collateral source rules. However, this raises more questions than it answers. For example, the Georgia rule governing the admissibility of subsequent remedial measures differs from Rule 407, the Federal Rules provision governing the admissibility of subsequent remedial measures.¹⁹ Given the policy concerns undergirding the question of whether evidence of subsequent remedial measures should be admitted, it certainly could be argued that Georgia's decision to allow or not allow such evidence is "substantive." Similarly, Rule 409 flatly prohibits the admission of evidence that a party paid or offered to pay medical, hospital, or similar expenses, but Georgia law, although currently in a state of some confusion, arguably allows the admission of such evidence in some circumstances as an admission of liability.²⁰ Again, Georgia's rule is based on policy intended to "channel behavior," that is, to encourage, or at least not discourage, citizens to compensate those they have injured. Practitioners should be aware of the issues, and opportunities, presented by conflicts between the Federal Rules of Evidence and state evidentiary rules.

Rule 106, sometimes called the "rule of completeness," permits a party to insist on the introduction of an entire document when the adverse party has introduced only a portion of the document.²¹ Although Rule 106 mentions documents only, the same standard applies to conversations.²² In United States v. Range,²³ defendant contended that the district court improperly barred him from cross-examining the arresting officer to establish that defendant stated to the arresting officer that a codefendant had committed certain acts. Defendant argued that because the government introduced a portion of his statement through the arresting officer's testimony, he should have been allowed, pursuant to Rule 106, to introduce the remaining portion. The Eleventh Circuit disagreed, concluding that the remainder of the defendant's statements were not relevant.²⁴ The Eleventh Circuit also noted that the admission of the remainder of the statement would have deprived the codefendant of his Sixth Amendment right to confront the witnesses against him.²⁵ This dilemma, the Eleventh Circuit noted, restricts the scope of Rule 106.²⁶ "When multiple defendants are involved and statements have been redacted to avoid Bruton problems, the 'rule of completeness' is 'violated only when the statement in its edited form . . . effectively distorts the meaning of the statement or excludes information substantially exculpatory of the nontestifying defendant.'"²⁷ The Eleventh Circuit concluded that the portion of defendant's statement admitted by the district court did not distort defendant's statement in its entirety and, therefore, Rule 106 did not require the admission of the remainder of the statement.²⁸

III. Article III: Presumptions in Civil Actions and Proceedings

Federal common law recognizes the presumption that an item properly mailed was received by the addressee. In Konst v. Florida East Coast Railway,²⁹ the Eleventh Circuit addressed the issue of whether this presumption could be invoked in the context of the claims procedures for filing claims against rail carriers. In Konst, plaintiffs claimed that they filed their claim for damages to their belongings against the railroads transporting the belongings within the nine-month statute of limitations. The railroads contended they never received the claim. They contended, and the district court agreed, that the presumption of receipt is not applicable because the "applicable federal regulation requires that claims be filed with the carrier."³⁰ Thus, the railroads and the district court distinguished "filing" from "receipt." However, the Eleventh Circuit noted that the regulations imposed requirements on the railroads based upon the receipt of the claim: "[h]aving determined that the governing regulations contemplate receipt as the trigger for processing a claim, we see no reason that the presumption of receipt should not apply in this case."³¹ Although the court acknowledged that some courts had held that the presumption of receipt could not be implied in cases involving filing requirements, the Eleventh Circuit found those cases distinguishable on their facts, and thus reversed the district court.³²

Federal common law also recognizes the adverse inference presumption in civil cases when witnesses invoke their Fifth...