Retrospective: Ten Key Evidence Issues In 2008

2008 Galendar

A variety of evidence issues were considered in 2008, ranging from a new privilege rule, Confrontation Clause issues, and more.

As the 2008 year concludes, we look back on some of the key evidence developments and issues. There were some significant evidence matters on a number of areas, including on privilege issues, Confrontation Clause, expert testimony, legislation and more.

Here is the list of Federal Evidence Review’s Ten Key Evidence Issues From 2008, which are discussed further below:

Federal Evidence Review's Ten Key 2008 Evidence Issues


  1. New Rule: FRE 502 (Attorney-Client Privilege And Work-Product Doctrine)
  2. Supreme Court: Underscoring Primary Role Of Trial Court In Making Initial Evidence Rulings: Sprint/United Management Co. v. Mendelsohn
  3. Supreme Court: Giles v. California Confrontation Clause Forfeiture By Wrongdoing Decision
  4. Expert Testimony: What Are The Limits Of An Expert’s Reliance On Inadmissible Or Other Materials Under FRE 703?
  5. Legislation: Forestalling The Attorney Client Privilege Protection Act
  6. Pending Open Issue: Whether Admitting Business Records Certified Under FRE 902(11) May Violate The Confrontation Clause?
  7. Expert Testimony: Explaining Online Behavior
  8. Developing Consensus: Bruton Is Inapplicable In Bench Trials
  9. Legislation: Reporter Shield Law
  10. Developing Consensus: Enforcing Plea Proffer Waivers Under FRE 410

Ten Key Evidence Issues - 2008

1. New Rule: FRE 502 (Attorney-Client Privilege And Work-Product Doctrine)

On September 19, 2008, FRE 502, a new evidence rule concerning the attorney-client privilege and work-product doctrine, was enacted. See Pub. L. No. 110-322, 122 Stat. 3537. As has been noted, "Other than the general privilege rule, FRE 501, this is the first rule addressing privilege issues enacted by the Congress since the FRE were enacted thirty-three years ago." Lead Story: "Understanding New FRE 502 (Attorney-Client Privilege And Work-Product Doctrine)," 5 Fed. Evid. Rev. 1454, 1454 (Oct. 2008). One pending question is how will the courts apply the new rule? Only a few initial cases have been issued, most of them unpublished.

Given the significance of the new rule and its various subdivisions, the Federal Evidence Review has launched a FRE 502 Resource Page, which provides background and links to key documents and will track future cases and developments concerning the new rule.

2. Supreme Court: Underscoring Primary Role Of Trial Court In Making Initial Evidence Rulings: Sprint/United Management Co. v. Mendelsohn

In a unanimous decision, the Supreme Court emphasized the trial court’s essential role in determining FRE 401 and FRE 403 issues, in Sprint/United Management Co. v. Mendelsohn, 522 U.S. _, 128 S.Ct. 1140 (2008).

The case involved an age discrimination action. The employer sought to exclude the testimony of other employees who claimed age discrimination but did not work in the same group or with the plaintiff, or under the same supervisors. The trial court excluded the evidence of "discrimination against employees not similarly situated to plaintiff." The Tenth Circuit decided the trial court erred and proceeded to conduct its own FRE 401/FRE 403 analysis. The Supreme Court held that the Tenth Circuit should have remanded the case to the trial court to make these preliminary evidentiary rulings. The Supreme Court emphasized the primary role of the trial court on evidence matters:

"[Q]uestions of relevance and prejudice are for the District Court to determine in the first instance. Rather than assess the relevance of the evidence itself and conduct its own balancing of its probative value and potential prejudicial effect, the Court of Appeals should have allowed the District Court to make these determinations in the first instance, explicitly and on the record."
For more information on the case, see Trial Court Essential Role In FRE 401/403 Determination.

3. Supreme Court: Giles v. California Confrontation Clause Forfeiture By Wrongdoing Decision

In the landmark Crawford v. Washington Confrontation Clause ruling, the Supreme Court recognized and accepted the doctrine of forfeiture by wrongdoing, which allows hearsay statements of an unavailable witness to be introduced if a party’s wrongful act caused the unavailability of the witness. See Crawford v. Washington, 541 U. S. 36, 62 (2004) ("For example, the rule of forfeiture by wrongdoing (noting "the rule of forfeiture by wrongdoing (which we accept) extinguishes confrontation claims on essentially equitable grounds; it does not purport to be an alternative means of determining reliability"). In the latest Confrontation Clause ruling, the Supreme Court held that the forfeiture by wrongdoing exception requires "a showing that the defendant intended to prevent a witness from testifying." Giles v. California, 554 U.S. _, 128 S.Ct. 2678, 2684 (2008).

This type of evidence typically arises in domestic violence cases or cases involving intimidation or obstruction of justice. For more information, see Supreme Court Clarifies Forfeiture By Wrongdoing Exception Under The Confrontation Clause; Other Giles Blog Posts.

4. Expert Testimony: What Are The Limits Of An Expert’s Reliance On Inadmissible Or Other Materials Under FRE 703?

A few cases in 2008 tested the boundaries of FRE 703, which provides that an expert may rely on any information so long as the facts used are the sort reasonably relied upon by experts in the particular field for forming an opinion. Under this rule, an expert may rely on hearsay statements or unauthenticated evidence as long as it is reasonably used by experts in forming an opinion.

One issue concerns a test under the Confrontation Clause, which will be considered in the pending Supreme Court decision in Luis E. Melendez-Diaz v. Massachusetts, (No. 07-591). For more information, see The Supreme Court’s Oral Argument In Melendez-Diaz; Melendez-Diaz Prior Blog Posts.

For two case examples, among others, addressing the Confrontation Clause issue, see:

There were also non-constitutional tests concerning the boundaries of FRE 703. For example, a divided Seventh Circuit sitting en banc recently reversed a prior panel decision and held that a terrorism and counterterrorism expert could rely on unauthenticated web postings to show that an organization was responsible for a murder. See Boim v. Holy Land Foundation for Relief and Development, __ F.3d __ (7th Cir. Dec. 3, 2008) (en banc); Limits To Relying On Internet Materials And Information In Court (Part IV(b)) (Boim en banc) This area of evidence law continues to be ripe for testing the boundaries of admissible expert testimony.

5. Legislation: Forestalling The Attorney Client Privilege Protection Act

In the last Congress, legislative momentum was developing for the enactment of the Attorney Client Privilege Protection Act. The legislation would generally bar federal attorneys in criminal and civil enforcement actions from requesting or using communications protected by the Attorney-Client privilege or materials covered by the work product doctrine. The legislation was, in part, a culmination of a national debate over the past several years on what guidelines should apply in criminal cases involving corporations. On November 13, 2007, the U.S. House of Representatives passed H.R. 3013, the Attorney-Client Privilege Protection Act. See 153 Cong. Rec. H13562-13564 (Nov. 13, 2007)). The focus shifted to the Senate. On June 20, 2008, several former prosecutors had come out in support of the legislation. See Letter to the Honorable Patrick Leahy Chair, Judiciary Committee (dated June 20, 2008); see also New Support For Attorney-Client Privilege Legislation.

In July and August 2008, the U.S. Department of Justice was able to forestall any further congressional action on the legislation. Attorney General Michael Mukasey testified before the Senate Judiciary Committee and indicated that Deputy Attorney General Mark Filip was reviewing a possible revision of the department guidelines. See More On The Attorney General’s Testimony Regarding Likely Revision Of The McNulty Memo. On August 28, 2008, the new guidelines were issued. See U.S. Attorney’s Manual §§ 9-28.000 to 9-28.1300 ; see also Revised DOJ Corporate Prosecution Guidelines Issued.

Questions remain whether the department modifications satisfied proponents of legislative reform or merely delayed inevitable legislative enactment. Given the attention on corporate prosecutions over the past decade, this issue likely will continue to be debated in the foreseeable future.

6. Pending Open Issue: Whether Admitting Business Records Certified Under FRE 902(11) May Violate The Confrontation Clause?

Business records are often admitted under FRE 902(11), which provides for the self-authentication of business records by certification through a custodian of records. FRE 902(11) was adopted as part of a 2000 amendment to the business records rule, under FRE 803(6), and allows business records to be admitted without a foundational witness. The D.C. Circuit noted an open issue whether admission of self-authenticated, certified business records may violate the Confrontation Clause. See United States v. Hemphill, 514 F.3d 1350 (D.C. Cir. 2008); Can Self-Authenticated, Certified Business Records Violate The Confrontation Clause? As the opinion noted, only a few circuits have considered this issue. If certified records are subject to challenge under the Confrontation Clause, then witnesses may be necessary in admitting business records.

7. Expert Testimony: Explaining Online Behavior

In a case to watch, the Second Circuit remanded on other grounds a conviction involving the use of the Internet to solicit sexual activity with a person the defendant believed to be a minor. In doing so, a majority suggested that the expert testimony of a professor of clinical sexuality concerning online "fantasy characters" and role-playing in chat rooms should be admitted. The trial court had excluded the expert testimony. See United States v. Joseph, 542 F.3d 13 (2d Cir. 2008); see also Expert Can Testify About "Role-Playing In ... Sexually Explicit Conversations On The Internet". Given the increasing evidence obtained online, the case may expand the role of experts to explain online behavior to juries. The dispute between the majority, dissent and trial court centered on whether this type of expert testimony was helpful to the jury under FRE 702.

8. Developing Consensus: Bruton Is Inapplicable In Bench Trials

As part of a developing consensus, the Third Circuit was the latest to hold that Bruton does not apply in bench trial. See Bruton v. United States, 391 U.S. 123, 135-37 (1968) (holding that the admission of a co-defendant’s confession implicating the defendant is reversible error where the codefendant did not testify and the co-defendant and defendant are jointly tried). The Third Circuit joined the First, Fifth, Sixth, Seventh, and Ninth Circuits. See Johnson v. Tennis, _ F.3d _ (3d Cir. 2008); see also Third Circuit Holds Bruton Is Inapplicable In Bench Trials. No circuits have taken a contrary position.

9. Legislation: Reporter Shield Law

Congress came fairly close to enacting a Reporter Shield law, which would protect a reporter from legal processes that would compel the reporter to produce documents and to provide testimony or identify confidential informants. On October16, 2007, the House of Representatives overwhelmingly passed "The Free Flow of Information Act of 2007," by a vote of 398-21. See H.R. 2102. On October 4, 2007, the Senate Judiciary Committee approved a similar measure by a 15-2 vote and the measure died in the Senate. See S. 2035.

The question remains whether this is the high water mark for the legislation or a base for further legislative action. For more information, see No Reporter Shield Law Expected In This Congress; Recent Senate Testimony On Creating A Reporter's Privilege.

10. Developing Consensus: Enforcing Plea Proffer Waivers Under FRE 410

Under FRE 410, pleas, plea discussions, and related statements under certain circumstances are generally inadmissible. The objective of Rule 410 is to encourage open discussions and promote settlement in criminal cases. However, a defendant may waive the protections under the rule. Waiver typically occurs during proffer meetings with the government. A few circuits have held that proffer agreements containing waiver terms are enforceable. The Third Circuit was the latest to join this group. For more information, see United States v. Hardwick, 544 F. 3d 565, 569-74 (3rd Cir. 2008); see also Third Circuit Joins Four Other Circuits In Enforcing Plea Proffer Waivers Under FRE 410.



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