Evidence - W. Randall Bassett, Geoffrey M. Drake, and Madison H. Kitchens

• Publication year: 2012

Evidence

by W. Randall Bassett* Geoffrey M. Drake** and Madison H. Kitchens***

I. Introduction

The 2011 term of the United States Court of Appeals for the Eleventh Circuit did not signal any new trends in the interpretation and application of the Federal Rules of Evidence,¹ which comes as no surprise given that the Rules have been in effect since 1975.² The 2011 term, however, did include a case of first impression for the court and several cases applying well-established law to new and unique factual scenarios. Several of these cases resulted in unpublished opinions bearing no precedential weight but, nevertheless, offering guidance to the practitioner in future cases.³

While the admissibility of hearsay testimony was not the subject of any groundbreaking decisions this past year, arguably the year's biggest evidence blockbuster concerned the Confrontation Clause,⁴ in which the en banc court construed a defendant's right to probe a witness's bias. The court addressed the admissibility of lay opinion testimony under

* Partner in the firm of King & Spalding LLP, Atlanta, Georgia. The Citadel (B.S., 1989); University of Georgia School of Law (J.D., cum laude, 1992).

** Associate in the firm of King & Spalding LLP, Atlanta, Georgia. University of Virginia (B.A., 2002); Vanderbilt University Law School (J.D., 2005).

*** Associate in the firm of King & Spalding LLP, Atlanta, Georgia. Duke University (B.A., magna cum laude, 2004); Harvard Law School (J.D., cum laude, 2010).

1. For analysis of Eleventh Circuit evidence law during the prior survey period, see W. Randall Bassett & Susan M. Clare, Evidence, Eleventh Circuit Survey, 62 Mercer L. Rev. 1163 (2011).

2. See Act to Establish Rules of Evidence for Certain Courts and Proceedings, Pub. L. No. 93-595, 88 Stat. 1926 (1975).

3. See 11th Cir. App. P. 36-2, 11th Cir. I.O.P. 7.

4. U.S. Const. amend. VI.

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Rule 701⁵ in several cases, including two involving convictions for materially aiding terrorist plots, two involving mortgage fraud, and one involving the testimony of a plaintiff's physicians in a product liability action. Although issues relating to the admissibility of expert opinion testimony under Rule 702⁶ and Daubert v. Merrell Dow Pharmaceuticals, Inc.⁷ were less prominent on the circuit's docket than in years past, the court did address such issues in two tort cases. As always, Rule 403's⁸ balancing of probative value and potential prejudice was a frequent source of dispute in cases before the Eleventh Circuit this past year. Less commonly invoked evidentiary rules, ranging from authentication requirements to juror misconduct, also consumed the court's attention in 2011, particularly in two high-profile cases involving a former Alabama governor and actor Wesley Snipes.

Notably, last year also witnessed a restyling of the Federal Rules of Evidence, which became effective on December 1, 2011.⁹ The purpose of the restyling was "to make the rules clearer and easier to read, without changing substantive meaning."¹⁰ In other words, the Amendments should not impact Supreme Court and Eleventh Circuit precedents, though time will tell whether changed wording leads to changed interpretations.

II. Prosecutorial Misconduct: Improper Questioning

This year's Survey begins by examining an interesting case of first impression, one requiring the court to pass judgment on a persuasive line of prosecutorial questioning: so-called "were-they-lying" questions. The defendant in United States v. Schmitz¹¹ was convicted of mail fraud and federal-funds theft after she allegedly "abused her position as state legislator to obtain employment" with a federally funded program for at-risk youths.¹² On appeal, defendant Suzanne Schmitz contended

5. Fed. R. Evid. 701.

6. Fed. R. Evid. 702.

7. 509 U.S. 579 (1993).

8. Fed. R. Evid. 403.

9. See Letter from John G. Roberts to John A. Boehner & Joseph R. Biden, Jr. (Apr. 26, 2011), available at http://federalevidence.com/pdf/2011/04-Apr/FRE.Restyling.4-26-11SCT.pdf. Pursuant to the Rules Enabling Act, the Supreme Court traditionally promulgates the Federal Rules of Evidence. See 28 U.S.C. § 2072 (2006), as enacted by Pub. L. No. 100-702, 102 Stat. 4648 (1988).

10. Report of the Judicial Conference, Committee on Rules of Practice and Procedure 27 (Sept. 2010), available at http://federalevidence.com/downloads/Restyle_Rules/2010-09-Standing.Committee.Report.to.the.Judicial.Conference.September.2010.pdf.

11. 634 F.3d 1247 (11th Cir. 2011).

12. Id. at 1251.

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that, during her cross-examination, the prosecution impermissibly demanded her to opine on the truthfulness of previous witnesses. Specifically, when Schmitz attempted to explain various discrepancies between her testimony and the testimony provided by a dozen other witnesses, the prosecutor asked her whether the other witnesses had lied.¹³ The prosecutor later referred to this line of questioning in closing arguments, suggesting to the jury the improbability that the defendant was the only person telling the truth in the face ofnumerous contradicting accounts.¹⁴

The Eleventh Circuit concluded that the district court erred in allowing the prosecutor to pose the "were-they-lying" questions.¹⁵ Although acknowledging that Federal Rule ofEvidence 608(a)¹⁶ permits a witness to testify about another witness's general reputation for truthfulness or dishonesty,¹⁷ the court stated that the rule does not allow a witness to declare that another witness is lying in a particular instance.¹⁸ The court further pronounced that "were-they-lying questions have little or no probative value because they seek an answer beyond the personal knowledge ofthe witness," in contravention ofRule 602.¹⁹ Moreover, the court concluded that such questions run afoul of

13. The court provided a representative example:

Q. (by the prosecutor:) [L]et's get a list going of everybody you say is lying, okay? Seth Hammett. He's a liar?

A. I said I-what I answered was my answer is different from his. I never called him a liar.

Q. Did he tell the truth when he said that you came to him and asked him to put money in the budget to fund your job? A. No, he did not.

Q. He lied?

A. I never used the word "lie."

Q. Why not?

A. I just don't like the word.

Q. So he didn't tell the truth. Does that make you feel better? Id. at 1267 (alteration in original).

14. Id. at 1267-68.

15. Id. at 1268.

16. Fed. R. Evid. 608(a).

17. Id. Rule 608(a) provides: "A witness's credibility may be attacked or supported by testimony about the witness's reputation for having a character for truthfulness or untruthfulness, or by testimony in the form of an opinion about that character. But evidence of truthful character is admissible only after the witness's character for truthfulness has been attacked." Id.

18. Schmitz, 634 F.3d at 1268.

19. Id. Rule 602 provides, in relevant part, that "[a] witness may testify to a matter only if evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter." Fed. R. Evid. 602.

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Rule 401's²⁰ relevancy requirement²¹ because "one witness's opinion that another person has or has not lied does not make it more or less likely that the person actually lied."²²

The court articulated other prudential concerns militating against the admission of were-they-lying questions. For example, the court declared that "were-they-lying questions invade the province of the jury, as credibility determinations are to be made by the jury, not the testifying witness."²³ In addition, such questions put testifying defendants in a "no-win situation," in which "[t]he defendant must either accuse another witness of lying or undermine his or her own version of events."²⁴ Although this might constitute an effective prosecutorial strategy, it may also mask alternative explanations for testimonial inconsistencies, such as "lapses in memory, differences in perception, or a genuine misunder-standing."²⁵

Lastly, the court characterized were-they-lying questions as argumentative because "often their primary purpose is to make the defendant appear accusatory."²⁶ It is often immaterial how the defendant responds, the court suggested, because the prosecutor has already achieved the "predominate purpose" of "mak[ing] the defendant look bad."²⁷ In clearly denouncing these types of questions by prosecutors in criminal cases, the court did not suggest whether the same reasoning would lead the court to the same decision in a civil case.

Although the Eleventh Circuit held that "it is improper to ask a testifying defendant whether another witness is lying," it nevertheless

20. Fed. R. Evid. 401.

21. "Evidence is relevant if: (a) it has any tendency to make a fact more or less probable than it would be without the evidence; and (b) the fact is of consequence in determining the action." Id.

22. Schmitz, 634 F.3d at 1269.

23. Id.

24. Id.

25. Id. In this regard, other courts have distinguished were-they-lying questions from similar questions that ask the defendant to appraise another witness's veracity. See United States v. Gaines, 170 F.3d 72, 81-82 (1st Cir. 1999) (stating that prosecutor can permissibly ask defendant if another witness is "'wrong,'" so long as he avoids using "the 'L' word"); United States v. Gaind, 31 F.3d 73, 77 (2d Cir. 1994) ("Asking a witness whether a previous witness who gave conflicting testimony is 'mistaken' highlights the objective conflict without requiring the witness to condemn the prior witness as a purveyor of deliberate falsehood, i.e., a 'liar.'").

26. Schmitz, 634 F.3d at 1269.

27. Id. Notably, the court did not discount the possibility that were-they-lying questions might be appropriate in other contexts, such as when a defendant has already opened the door to such line of questioning "'by testifying on direct that another witness was lying.'" Id. at 1270 (quoting United States v. Harris, 471 F.3d 507, 512 (3d Cir....