Retrospective: Ten Key Evidence Issues In 2010

With the conclusion of 2010, we take this opportunity to review some of the significant evidence issues during the past year. While it is challenging to offer a definitive list, we offer the following ten key evidence issues from 2010, which are not ranked in any particular order.

Once again the application of the Confrontation Clause and the state secrets privilege remain important issues. Over the past year, the circuit courts have been applying new limits on interlocutory appeals under the Mohawk Industries case. The courts have begun recommending new model jury instructions to address the realities of jurors having access to electronic devices. Among other issues, two new rules were adopted on December 1, 2010, one concerning the expert disclosure rule in civil cases and the other concerning declarations against interest under FRE 804(b)(3). These and other issues are discussed further below.

On Thursday, we will look forward and consider what might be the ten most significant evidence issues in 2011.

Key Evidence Issues During 2010

1. Supreme Court Watch: Briscoe v. Virginia – Confrontation Clause – No New Guidance On Forensic Laboratory Analysis
2. Impact Of Mohawk Industries – Supreme Court: Applying New Limits On Interlocutory Review
3. Courts Wrestling With Application Of The State Secrets Privilege
4. Seventh Circuit Eliminates Inextricable Intertwinement Theory
5. New Rule: Amendment: Fed. R. Civ. P. 26: Expert Disclosure
6. New Rule: Amendment: FRE 804(b)(3) on Declarations Against Interest
7. Model Jury Instruction Recommended To Deter Juror Use Of Electronic Communication Technologies During Trial
8. Electronic And Internet Evidence Issues
9. Congress Watch: Reporter Shield Legislation Stalls
10. Guidance On Using Dual Lay And Expert Law Enforcement Testimony

1. Supreme Court Watch: Briscoe v. Virginia – Confrontation Clause – No New Guidance On Forensic Laboratory Analysis: Questions remain pending concerning the admission of forensic laboratory analysis under the Confrontation Clause.


Certainly, the Supreme Court resolved some of the issues about the admissibility of forensic analysis test results in Melendez-Diaz v. Massachusetts, 557 U. S. _ (2009), holding that forensic lab affidavits reporting the type of drug substance and quantity seized by law enforcement are testimonial statements and may not be admitting as a substitute for testimony at trial. However, other related issues remain.

Last Term, a significant Confrontation Clause case was pending in Briscoe v. Virginia (07-11191). The question presented was:

If a state allows a prosecutor to introduce a certificate of a forensic laboratory analysis, without presenting the testimony of the analyst who prepared the certificate, does the state avoid violating the Confrontation Clause of the Sixth Amendment by providing that the accused has a right to call the analyst as his own witness?

However, the Supreme Court did not directly address this issue. On January 25, 2010, it vacated and remanded the case “for further proceedings not inconsistent with the opinion in Melendez-Diaz v. Massachusetts, 557 U. S. _ (2009).” Briscoe v. Virginia, 559 U. S. _ (2010) (per curiam) (07-11191). It remains unclear why the Court decided to hear the Briscoe case originally, particularly since certiorari review in Briscoe was granted four days after the decision in Melendez-Diaz.

While the case was remanded, questions remain concerning the constitutionality of some state statues and procedures which provide the defendant a right to call the forensic analyst before trial but without actually requiring the analyst to testify about the test results. It remains unclear whether the Court will decide to address this issue in another case. Another question is as the Court composition has changed, whether there is continued support for Melendez-Diaz and its Confrontation Clause analysis, particularly since the case was decided by a five to four margin.



For more on the Briscoe v. Virginia case, see Supreme Court Watch: Impact From Briscoe v. Virginia Remand; Supreme Court Watch: Summary Of Briscoe Oral Argument; Supreme Court Watch: Certiorari Granted In Briscoe v. Virginia: Confrontation Clause Case Set For 2010 Supreme Court Term. For more on the Melendez-Diaz case, see the Melendez-Diaz Resource Page.


2. Impact Of Mohawk Industries – Supreme Court: Applying New Limits On Interlocutory Review: In Mohawk Industries, Inc. v. Carpenter, 558 U.S. 100, 130 S.Ct. 599 (2009) (No. 08-678), the Supreme Court resolved a circuit split and unanimously held that interlocutory appellate review of an adverse attorney-client privilege ruling is not available under the Cohen collateral order doctrine (based on Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 546-47 (1949)). The Court sought to limit and narrow the class of interlocutory appeals. See Mohawk Industries, 558 U.S. at __, 130 S.Ct. at 609 (“[W]e reiterate that the class of collaterally appealable orders must remain ‘narrow and selective in its membership.’”). What has been the impact of this decision?


As noted in a recent survey of circuit court decisions, during the past year since the decision was issued, the circuits have largely narrowed the class of interlocutory appeals. Many of the cases have foreclosed appellate review under the collateral order doctrine. Some have considered the appeal under a petition for writ of mandamus. Some of the cases have also noted but not resolved some open issues. For example, one open issue is whether Mohawk Industries applies to nonparties. For more on the recent cases, see Review Of Mohawk Industries Cases Decided During The Past Year. For more on the Mohawk Industries case, see Supreme Court Watch: Mohawk Industries Case Limits Interlocutory Review Of Attorney-Client Privilege Rulings.

3. Courts Wrestling With Application Of The State Secrets Privilege. The courts continue to address the application and scope of the state secret evidentiary privilege. Some of the key issues include what threshold showing must be made for a valid assertion of the privilege and the role of the court in reviewing the claim.


The courts are divided on the application and scope of the privilege. Perhaps the closeness of the issues and current division is best illustrated by the recent the Mohamed v. Jeppesen Dataplan, Inc.. This was a civil action in which the plaintiffs, foreign nationals, alleged that they had been subjected to an “‘extraordinary rendition program’ to gather intelligence by apprehending foreign nationals suspected of involvement in terrorist activities and transferring them in secret to foreign countries for detention and interrogation by United States or foreign officials.” The program included “interrogation methods that would [otherwise have been] prohibited under federal or international law.” Mohamed v. Jeppesen Dataplan, Inc., 563 F.3d 992, 997 (9th Cir.), amended, 579 F.3d 943, 949 (9th Cir. Aug. 31, 2009) (No. 08-15693).

The district court originally dismissed the action after considering the state secrets privilege. A three-judge Ninth Circuit panel reversed and remanded to reinstate the action in Mohamed v. Jeppesen Dataplan, Inc., 563 F.3d 992 (9th Cir.), amended, 579 F.3d 943, 955 (9th Cir. Aug. 31, 2009) (No. 08-15693); see also Ninth Circuit Asserts Broad Judicial Review On Whether State Secret Privilege Applies. In doing so, the panel asserted a broad role for the judiciary in assessing whether the state secrets privilege applies. In June 2009, the U.S. Department of Justice successfully sought en banc review of the three-judge panel in its petition for rehearing or rehearing en banc. See also DOJ Requests Rehearing Or En Banc Review Of Recent State Secret Privilege Ruling.. In a six to five ruling, the Ninth Circuit en banc agreed with the district court and dismissed the civil action. See Mohamed v. Jeppesen Dataplan, Inc., 614 F. 3d 1070 (9th Cir. 2010) (en banc) (08-15693). The American Civil Liberties Union has has filed a petition for certiorari review in the U.S. Supreme Court. See Mohamed v. Jeppesen Dataplan, Inc. (No. 10-778); see also Petition For Certiorari Review Filed In State Secrets Privilege Case; Docket Sheet..

As another example, the Second Circuit approved of the district court’s ex parte and in camera review of the state secrets privilege before dismissing the action. The Second Circuit acknowledged the “frustration” of parties since neither the plaintiffs nor the public participated in the process. See Doe v. Central Intelligence Agency, 576 F.3d 95 (2d Cir. Aug. 5, 2009) (No. 07-0797-cv); see also Second Circuit Affirms Dismissal Of Civil Action Based On Government’s Claim Of State Secret Privilege. In its ruling, the Second Circuit distinguished the Ninth Circuit three-judge panel ruling in Mohamed v. Jeppesen Dataplan, Inc., 563 F.3d 992 (9th Cir. 2009), as the case did not present the issue “whether and to what extent the government could validly refuse to grant the plaintiffs the access they sought to discuss, view, or record classified information not properly covered by an assertion of the state-secrets privilege.” Doe, 576 F.3d at 104.

Over the past few years, all three branches of government have been active on the state secrets privilege issue. For the executive branch, on September 23, 2009, Attorney General Eric Holder issued new guidelines concerning the use of the privilege. See Attorney General’s Policies and Procedures Governing Invocation of the State Secrets Privilege; ; see also New Administration Procedures On The State Secrets Privilege Receives Initial Mixed Reception.

Congress has also seriously considered legislation. In the 111th Congress, which just concluded, on November 5, 2009, the House Judiciary Committee reported out of committee the State Secret Protection Act of 2009. See House Judiciary Committee Amends And Passes H.R. 984 (State Secret Protection Act). The legislation would establish procedures for the assertion and review of a claim of privilege.

The scope and application of the state secret privilege will certainly continue to be the subject of debate. In addition to the merits of any particular case, core issues involve striking the proper balance to consider national security and other competing interests. For more information, see State Secret Privilege Blog Posts..

4. Seventh Circuit eliminates “inextricable intertwinement” theory: After recent criticism of the “inextricable intertwinement” theory (or “inextricably intertwined” doctrine), the Seventh Circuit removed this theory of admissibility.



The “inextricably intertwined” doctrine is an important exception to admitting evidence under FRE 404(b). In addition to serving as an independent basis to admit evidence, the pretrial notice required under FRE 404(b) need not be satisfied for inextricably intertwined or intrinsic evidence. See, e.g., United States v. Watkins, 591 F.3d 780, 786 (5th Cir. 2009) (While FRE 404(b) requires pretrial notice in criminal cases, no pretrial notice was required since the evidence was admissible as intrinsic evidence; “If evidence is intrinsic, it simply does not implicate the requirements of Rule 404(b)”); see also United States v. Conner, 583 F.3d 1011, 1018 (7th Cir. 2009) (“In other words, evidence admitted under this doctrine lie[s] outside the purview of the Rule 404 character/propensity prohibition, and is not subject to its constraints regarding the manner in which the evidence may be used.”) (internal quotation marks and citations omitted) (alteration in original). As a general matter, “Evidence of bad acts is ‘intrinsic’ to a charged crime when the evidence of the other act and evidence of the crime charged are ‘inextricably intertwined’ or both acts are part of a ‘single criminal episode’ or the other acts were ‘necessary preliminaries’ to the crime charged.” Id. at 784.

Virtually every circuit has supported the inextricably intertwined theory of admissibility. However, over the past few years, the Seventh Circuit has criticized this theory. Finally, in United States v. Gorman, 613 F.3d 711 (7th Cir. 2010), the Seventh Circuit overruled this doctrine. As the Seventh Circuit explained:

We recognize, however, that we do not write on a clean slate. There traditionally have been subtle distinctions between direct evidence of a charged crime, inextricable intertwinement evidence, and Rule 404(b) evidence, … but our case law has not often focused on these fine distinctions. We have often lumped together these types of evidence, see, e.g., United States v. Diaz, 994 F.2d 393, 394-95 (7th Cir. 1993) (“[W]e have said that [direct] evidence is ‘intricately related’ to the occurrence of the charged offense . . . .”); United States v. Hargrove, 929 F.2d 316, 320 (7th Cir. 1991) (affirming the admission of direct evidence under the intricately related doctrine), and this has only served to further cloud the already murky waters of the inextricable intertwinement doctrine.

There is now so much overlap between the theories of admissibility that the inextricable intertwinement doctrine often serves as the basis for admission even when it is unnecessary. Thus, although this fine distinction has traditionally existed, the inextricable intertwinement doctrine has since become overused, vague, and quite unhelpful. To ensure that there are no more doubts about the court’s position on this issue — the inextricable intertwinement doctrine has outlived its usefulness. Henceforth, resort to inextricable intertwinement is unavailable when determining a theory of admissibility.

Gorman, 613 F.3d at 718-19 (footnote omitted).


Only a few months after deciding Gorman, the Seventh Circuit took up its attack on the use of the inextricable intertwinement theory again. In a “pay to play” bribery and mail fraud trial, the circuit rejected the government’s argument based on application of the disapproved theory. In United States v. Boone , __ F.3d __ (Dec. 27, 2010) (No. 09-1960) the Seventh Circuit explained the history behind the Gorman decision, reconfirmed its applicability and explained how the Boone case “illustrates the concerns that caused us in Gorman to reject the inextricable intertwinement doctrine.” Boone, __ Fed. 3d at __.

For more on the Gorman case, see Seventh Circuit Overturns “Inextricable Intertwinement Doctrine” And Creates Conflict With Other Circuits.

5. New Rule: Amendment: Fed. R. Civ. P. 26: Expert Disclosure: On December 1, 2010, a new amendment was adopted which amends Fed. R. Civ. P. 26 concerning expert discovery.

The primary changes under the amendment include:

  • Fed. R. Civ. P. 26(a)(2) is amended so that disclosure required of the expert witness includes all “facts or data considered by the witness in forming” his or her opinion. This disclosure standard is stricter than the current standard that the expert disclose “data or other information” used in forming an opinion. This change would “alter the outcome in cases that have relied on the 1993 formulation [of Rule 26] in requiring disclosure of all attorney-expert communications and draft reports.” ACN Proposed Rule 26 Amendment.
  • Fed. R. Civ. P. 26(b)(4) is amended so that the change in Rule 26(a)(2) would provide that work-product protection to discovery of draft reports and disclosures or attorney-expert communications, regardless of the form of the communications (oral, written, electronic, or otherwise), subject to three exceptions. In adding a new Rule 26(b)(4)(C), the change protects counsel’s work product and ensure that lawyers may interact with retained experts and not fear exposing those communications to discovery. The three exceptions include matter that (1) “relate to compensation for the expert’s study or testimony”; (2) “identify facts or data that the party’s attorney provided and that the expert considered in forming the opinions to be expressed”; or (3) “identify assumptions that the party’s attorney provided and that the expert relied upon in forming the opinions to be expressed.” See Proposed Fed. R. Civ. P. 26(b)(4)(C)(i), (ii), and (iii).

The amendment was adopted under the Rules Enabling Act, under which the Supreme Court decides whether to transmit the amendment which was recommended on September 15, 2009 by the Judicial Conference of the United States. The Supreme Court “transmit[s] to the Congress not later than May 1” of the year in which the proposed amendment is to take effect. See 28 U.S.C. §§ 2074(a), 2075.

For more background information on the amendment, see Proposed Amendment to Fed. R. Civ. P. 26 Would Change Civil Expert Witness Disclosure And Discovery Requirements ; see also Fed. R. Civ. P. 26 Amendment Excerpt From The Report Of The Judicial Conference Committee On Rules Of Practice And Procedure To The Chief Justice Of The United States And Members Of The Judicial Conference Of The United States ; and Report of the Civil Rules Advisory Committee

6. New Rule: Amendment: FRE 804(b)(3) (Declarations Against Interest): An amendment to FRE 804(b)(3) was also adopted on December 1, 2010 under the Rules Enable Act. The amendment clarifies that the corroborating circumstances requirement applies to statements against penal interest introduced by the government. This requirement currently applies to statements admitted by the defendant. This requirement previously applied to statements admitted by the defendant.

For more information on the amendment, see the FRE 804(b)(3) Amendment Legislative History Page; and Other Blog Posts.

7. Electronic And Internet Evidence Issues: Electronic and internet evidence continue to become more a common and important in civil and criminal cases. Some of the issues considered during the past year include:

For more information, see other blogs posts on Electronic Evidence, and Internet Evidence.

8. Model Jury Instructions Concerning The Use Of Electronic Communication Technologies During Trial: The courts have begun wrestling with the practical realities of electronic devices in the courtroom including the necessity of admonishing jurors not to use them during the proceedings or deliberations.

The concern has become pervasive and courts have found it necessary to give specific guidance. One recent model instruction recommends in part at the close of all of the evidence:

During your deliberations, you must not communicate with or provide any information to anyone by any means about this case. You may not use any electronic device or media, such as a telephone, cell phone, smart phone, iPhone, Blackberry or computer; the internet, any internet service, or any text or instant messaging service; or any internet chat room, blog, or website such as Facebook, My Space, LinkedIn, YouTube or Twitter, to communicate to anyone any information about this case or to conduct any research about this case until I accept your verdict.

Juror Use Of Electronic Communication Technologies, Proposed Model Jury Instruction, United States Judicial Conference Committee on Court Administration and Case Management (December 2009).

For some of the model jury instructions issued during the past year, consider:

For more information on jury instructions, including model federal jury instructions that are available for each circuit, see the Federal Jury Instructions Resource Page.

9. Congress Watch: Reporter Shield Legislation Stalls: Has the high water mark been reached on Reporter Shield legislation?

Congress took some concrete steps toward the enactment of a Reporter Shield Law but was unable to adopt the measure in both houses. In general, the measure would establish a qualified privilege which would prohibit compelling a covered media person to testify or produce documents to the government unless a court determined a proper showing was made under a new balancing test.

In the 111th Congress, which just concluded, the House of Representatives passed the Free Flow of Information Act (H.R. 985) on a voice vote on March 31, 2009. The measure ws identical to one which overwhelmingly passed the House in the prior Congress on October 16, 2007 by a vote of 398-21. See H.R. 2102. The House measure was sent to the Senate for consideration.

On December 10, 2009, the Senate Judiciary Committee approved an amended version of the Free Flow of Information Act of 2009 (S. 448), by a vote of 14 to 5. The measure was referred to the full Senate but was not considered. Some media reports blamed the administration for the failure to enact a measure, including the New York Times and Washington Post. It remains to be seen whether the differences can be reconciled for consideration of the measure in the new Congress.

For more information on these measures, see the Free Flow of Information Act Legislative History Page and the Reporter Shield Law Blog Posts.

10. Guidance On Using Dual Lay And Expert Law Enforcement Testimony: The courts have recognized that drawing the line between lay testimony under FRE 701 and expert testimony under FRE 702 can be a challenge. Special concerns are raised when the same law enforcement witness provides lay and expert testimony in criminal cases. In addressing this recurring issue, a Fourth Circuit case reviewed the practice in other circuits and highlighted some recommended steps to avoid error.

The evidence rules recognize that the same witness can provide both lay and expert testimony. See, e.g., FRE 701 ACN (2000 Amendment) (noting “it is possible for the same witness to provide both lay and expert testimony in a single case”). However, as a prior Ninth Circuit case has summarized, five potential problems can arise in the use of a dual lay and expert law enforcement witness:

First, by qualifying as an expert, the witness attains unmerited credibility when testifying about factual matters from first-hand knowledge. Second, it is possible that expert testimony by a fact witness or case agent can inhibit cross-examination . . . [because a] failed effort to impeach the witness as expert may effectively enhance his credibility as a fact witness. Third, when the prosecution uses a case agent as an expert, there is an increased danger that the expert testimony will stray from applying reliable methodology and convey to the jury the witness’s sweeping conclusions about appellants’ activities, deviating from the strictures of Rules 403 and 702. Fourth, a case agent testifying as an expert may lead to juror confusion because [s]ome jurors will find it difficult to discern whether the witness is relying properly on his general experience and reliable methodology, or improperly on what he has learned of the case. Finally, “when a case agent/expert strays from the scope of his expertise, he may impermissibly rely upon and convey hearsay evidence. In doing so, the witness may also run afoul of the Sixth Amendment Confrontation Clause.

United States v. Freeman, 498 F.3d 893, 904 (9th Cir. 2007) (citing United States v. Dukagjini, 326 F.3d 45 (2d Cir. 2003); other citations and quotation marks omitted)).

The Fourth Circuit in United States v. Baptiste, 596 F.3d 214 (4th Cir. Feb. 26, 2010) (No. 07-4493), reviewed the practices in other circuits and highlighted some suggestions which can safeguard against the problems in using a dual lay and expert witness. Some of the suggested practices included:

  1. The trial court can give a cautionary instruction to the jury to remind them that they can give whatever weight they determine is appropriate to the testimony;
  2. The defense can challenge the expert opinions through cross-examination;
  3. An adequate foundation for the expert testimony should be established;
  4. Proper questioning can demarcate the expert opinion testimony from the lay testimony.

Baptiste, 596 F.3d at 224-25. The circuit noted the role of the trial court to ensure that the line between lay and expert testimony is properly drawn “clearly in order to prevent juror confusion and to prevent jurors from giving undue weight to” the witness’s lay testimony. Baptiste, 596 F.3d at 225. As the circuit suggested:

[W]e note that district courts should take steps to ensure that there is a clear demarcation in the jury’s mind between a witness’s lay and expert roles. This may be accomplished, for example, by cautionary warnings or instructions, by requiring the witness to take separate trips to the stand in each capacity, or by ensuring that counsel makes clear when he is eliciting lay versus expert testimony. While the means of ensuring the demarcation between the lay and expert roles of the witness lie within the discretion of the district court, jurors should be made to understand that they may not give the witness’s lay testimony additional weight simply because of his dual-role as an expert.

Baptiste, 596 F.3d at 225 n.9. Ultimately, the circuit concluded there was no plain error in the presentation of the testimony in the case.

In addressing this issue, the factors noted in Baptiste and related cases can provide useful guidance. See also United States v. Anchrum, 590 F.3d 795, (9th Cir. 2009) (affirming use of law enforcement lay and expert testimony where the trial court divided the testimony in phases and provided a jury instruction advising that the jurors were the ultimate fact finders). For other blog posts considering this issue, see Dual Fact and Expert Law Enforcement Witness Issues.

Further Comments Welcome

We welcome further views and comments, including other evidence issues. Are there other key cases or issues you would add to the list for 2010? Please let us know.

For the past Top Ten Retrospective and Prospective Key Evidence Issues:





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