Prospective: Ten Key Evidence Issues For 2010

On Monday, we reviewed ten significant evidence issues from 2009. See Retrospective: Ten Key Evidence Issues In 2009. Today, we look forward at potential evidence issues in the year ahead. These issues, which are not necessarily ranked in any order, are discussed below: Many involve Congressional recognition or changes to privileges, such as a new qualified reporter privilege or clarifications to the application of the state secret and attorney-client privileges. Other issues concern the application of the Confrontation Clause, and circuit splits on the selective waiver doctrine and the application of the former testimony hearsay exception to exculpatory grand jury testimony.

Federal Evidence Review's Likely Key 2010 Evidence Issues

  1. Briscoe - Confrontation Clause – Supreme Court: January Argument
  2. Congress Watch: Reporter Shield Law
  3. Congress Watch: Attorney-Client Privilege Protection Act
  4. Circuit Split: Selective Waiver Doctrine
  5. Fed. R. Civ. P. 26 Expert Disclosure Amendment
  6. Congress Watch: State Secret Privilege
  7. Pending Rule Amendment: FRE 804(b)(3) (Declarations Against Interest)
  8. Pending Circuit Split Under FRE 804(b)(1)
  9. Future Rule Amendment: “Restyling” The Federal Rules of Evidence
  10. Cameras In The Courtroom? Impact on Evidence?
Ten Prospective Key Evidence Issues - 2010

1. Briscoe - Confrontation Clause – Supreme Court: January Argument: In the new year, the Supreme Court will likely reveal whether Confrontation Clause analysis will continue on a consistent path, as marked under Crawford v. Washington, 541 U. S. 36 (2004), or embark on a new direction?

On June 29, 2009, fourt days after the Supreme Court announced its decision in Melendez-Diaz v. Massachusetts, the Supreme Court also granted certiorari review in Briscoe v. Virginia (No. 07-11191). The question presented is:

“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?”

In Melendez-Diaz, the Court held 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. Next Monday, January 11, 2010, the Supreme Court will hear the argument in the Briscoe case. One key issue to watch is whether the Crawford majority will hold now that Justice David Souter has retired and Justice Sonia Sotomayer is on the Court? For more on the case, see Supreme Court Watch: Certiorari Granted In Briscoe v. Virginia: Confrontation Clause Case Set For 2010 Supreme Court Term.

2. Congress Watch: Reporter Shield Law: Will 2010 be the year for enactment of a new Reporter Shield law? 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.

On March 31, 2009, the House of Representatives passed the Free Flow of Information Act (H.R. 985) on a voice vote. The measure is 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.

After being held up in the Senate Judiciary Committee for several weeks, on December 10, 2009, the Senate Judiciary Committee approved by a vote of 14 to 5 an amended version of the Free Flow of Information Act of 2009 (S. 448). While similar legislation died in the Senate in the last Congress, it remains to be seen whether the measure may be approved in the Senate and then reconciled with the House bill.

For more information on these measures, see Reporter Shield Law Blog Posts.

3. Congress Watch: Attorney-Client Privilege Protection Act: The past few years, Congress has held hearings and considered legislation concerning the operation of the attorney-client privilege in federal investigations.

The Attorney-Client Privilege Protection Act, which 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. In the current Congress, the Attorney-Client Privilege Protection Act has been introduced in the Senate and House. See Attorney-Client Privilege Protection Act of 2009 Is Introduced In the Senate (S. 445); Congress Watch: New House Measure Suggests Growing Support for the Attorney-Client Privilege Protection Act.

In the last Congress, the U.S. House of Representatives passed H.R. 3013, the Attorney-Client Privilege Protection Act, on November 13, 2007. See 153 Cong. Rec. H13562-13564 (Nov. 13, 2007)). The measure died in the Senate after the U.S. Department of Justice adopted new guidelines. See U.S. Attorney’s Manual §§ 9-28.000 to 9-28.1300; see also Revised DOJ Corporate Prosecution Guidelines Issued.

One central question concerns the position of the new administration on the Attorney-Client Privilege Protection Act, which was strongly opposed by the last administration. Legislative support for the measure appears to be growing.

4. Circuit Split: Selective Waiver Doctrine: Under the selective waiver doctrine, a corporation may provide the government with otherwise privileged material without waiving the Attorney-Client privilege or work product doctrine to subsequent third parties. In other words, a limited waiver of covered communications to the government does not waive the privilege to other third parties.

Presently, the circuits are split on the application of the selective waiver doctrine. See, e.g., In re: Qwest Communications International Inc., Securities Litigation, 450 F.3d 1179 (10th Cir. 2006) (discussing circuit split); see also In re Columbia/HCA Healthcare Corp. Billing Practices Litigation, 293 F.3d 289, 314 (6th Cir. 2002) (Boggs, J., dissenting) (noting that the “public interest in easing government investigations” provides support for a rule in which waiver does not require disclosure to provide parties when disclosure is made to government agencies of information covered by the attorney-client privilege or work product protection).

A recent case in the District of Columbia highlighted this issue. A company entered into a deferred prosecution agreement and cooperated with the government. Materials were provided to the government with the understanding that the company was not waiving “any privilege as to any party other than the United States, and” the production “will not be considered a waiver as to any other subject or issue.” After other defendants were subsequently charged, they sought production of the confidential materials the company provided to the government, which the government and company opposed. The district court ordered production. On appeal, the circuit remanded the case for the district court to determine which documents were material to the defendant’s defense “and to protect against the public disclosure of material documents in a manner consistent with Thompson’s right to a fair trial.” See United States v. Thompson, 562 F. 3d 387, 390 (D.C. Cir. 2009); see also Defendant Compels Production Of Company Records Provided To Earlier Government Investigation.

The courts are unlikely to resolve the circuit split. Language providing for a selective waiver provision under FRE 502 was abandoned during consideration by the Judicial Conference. See, e.g., Selective Waiver Absent From New FRE 502. Some measures in Congress seek to encourage corporations from voluntarily providing otherwise protected information to the government. However, these provisions will be without any meaningful force unless a selective waiver provision is included.

For more on the selective waiver issue, see Selective Waiver Under The Attorney-Client Privilege Protection Act; Peter K. Vigeland, Robert W. Trenchard, Daniel C. Richenthal, Michelle E. Kanter, Selective Waiver: Changes in policy and the law alter the calculus in weighing a client's cooperation, N.Y.L.J. (Dec. 1, 2008).

5. Fed. R. Civ. P. 26 Expert Disclosure Amendment: To what extent should the work product doctrine cover expert witnesses who may not be called to testify at trial? Presently before the Supreme Court is a proposed amendment from the Judicial Conference, approved in September 2009, which would amend Fed. R. Civ. P. 26 concerning expert discovery.

In sum, Rule 26 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. Also, the rule would be amended so that disclosure required of the expert witness include all “facts or data considered by the witness in forming” his or her opinion.

Under the Rules Enabling Act, if the Supreme Court decides to transmit the amendment to the Congress, and if Congress does not take action, the proposed amendment would become effective on December 1, 2010. For more background information about this amendment, see: Proposed Amendment Fed R Civ. P. 26 Would Change Expert Witness Disclosure And Discovery; and Report of the Civil Rules Advisory Committee (revised June 15, 2009).

6. Congress Watch: State Secret Privilege: Under what circumstances should courts consider claims of the government secret privilege? What should be the role of the courts? The courts have been wrestling with these issues the past few years. Congress is considering legislation which would address these questions.

Presently there are two separate measures for the State Secret Protection Act of 2009, H.R. 984 in the House of Representatives, and S. 147 in the Senate.

On November 5, 2009, the House Judiciary Committee reported out the State Secret Protection Act (H.R. 984) on a 18 to 12 vote. See House Judiciary Committee Amends And Passes State Secret Protection Act (H.R. 984). For more information, see State Secret Privilege Blog Posts.

7. Pending Rule Amendment: FRE 804(b)(3) (Declarations Against Interest): An amendment to FRE 804(b)(3) has been recommended for enactment in December 2010. Under the Rules Enabling Act, the Supreme Court will decide 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.

The proposed amendment would clarify that the corroborating circumstances requirement under the rule applies to statements against penal interest introduced by the government. This requirement already applies to statements admitted by the defendant. See Proposed FRE 804(b)(3) Amendment. For more information on the proposed rule, see Public Comment Period Opens On FRE 804(b)(3) Amendment; Public Comments Pending On Proposed FRE 804(b)(3) (Declarations Against Interest) Amendments (Part IV).

8. Pending Circuit Split Under FRE 804(b)(1): The circuits are split on the application of the former testimony hearsay exception for an unavailable witness under FRE 804(b)(1). Can grand jury testimony that is favorable to the accused by admitted under the rule? Specifically, does the government have a sufficient similar motive to develop exculpatory evidence during investigative grand jury proceedings as it would at trial?

We previously noted this circuit split in reviewing the Ninth Circuit case in United States v. McFall, 558 F.3d 951 (9th Cir. March 9, 2009) (No. 07-10034). See Circuit Split On "Similar Motive And Opportunity" Element For FRE 804(b)(1) Former Testimony.

This issue was also recently considered in a memorandum of Fordham University School of Law Professor Daniel J. Capra to the Advisory Committee on Evidence Rules (dated Oct. 16, 2009). He concluded that an amendment was not recommended at this time, pending possible Supreme Court resolution of the issue. The McFall case notes the recent conflict. At what point will the Supreme Court step in to resolve the conflict?

9. Future Rule Amendment: “Restyling” The Federal Rules of Evidence: Since 2006, the Advisory Committee on Evidence Rules has undertaken an effort to “restyle” the Federal Rules of Evidence. Non-substantive modifications have been proposed to the rules. The effort to restyle the Federal Rules of Evidence has advanced with a possible enactment date in December 2011.

In August 2009, the Committee On Rules of Practice and Procedure released the entire package of draft style amendments for public comment, under the Rules Enabling Act, 28 U.S.C. §§ 2071-77. Public comments are due by February 16, 2010. See Memorandum to the Bench, Bar, and Public on Proposed Style Amendments to the Federal Rules of Evidence. Presently, after the public comment period and further review by judicial committees, the Supreme Court will decide whether to issue the proposed rules by May 1, 2011. If the Supreme Court issues the amendments, they may take effect on December 1, 2011, unless Congress otherwise acts. One key issue is what constitutes a mere “restyling” versus a substantive change to the rules. See Report of the Advisory Committee on Evidence Rules, at 2. For more information on the restyling effort, see past Restlyling FRE Blog Posts.

10. Cameras In The Federal Courtroom? Impact on Evidence? Is momentum gaining to allow cameras in the federal courtroom, at least to a limited extent?

As we recently noted, the Judicial Council of the Ninth Circuit recently approved a pilot program for the “video recordings in civil non-jury matters only”. Legislation has also been introduced in the House and Senate to allow televised recordings under limited circumstances. One interesting question is whether recorded proceedings might affect the standard of review on evidence issues. For example, on many evidence issues, including credibility findings, the court of appeals applies a deferential abuse of discretion standard of review the trial court ruling. If a video record is made of the proceedings, would a reviewing court be inclined to review the record itself, with less deference to the trial court? Also, if cameras were permitted in the courtroom, would participants change their courtroom behavior? For more information, see Recent Action In Two Circuits Highlights Issue Of Cameras In The Federal Courtroom.

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.

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