As the year 2009 concluded, we take this opportunity to review some key evidence issues that were considered during the past year. While it is challenging to offer a definitive list, we offer the following ten key evidence issues from the past year, which are not ranked in any particular order. Some of these issues involved the attorney-client privilege and whether interlocutory appeals may be taken from adverse rulings; the Confrontation Clause; the ability of a court to consider a constitutional challenge concerning jury deliberations; electronic and Internet evidence; cases construing FRE 502, involving attorney-client privilege issues, the most recent amendment to the rules; corporate prosecution issues; and more.
Federal Evidence Review's Ten Key 2009 Evidence Issues
- Supreme Court: Mohawk Industries Attorney-Client Privilege Interlocutory Appeal Decision
- Supreme Court: Melendez-Diaz Confrontation Clause Decision
- Reviewing Jury Deliberations: The Constitution vs. FRE 606(b)
- Role Of The Court In Reviewing State Secret Privilege Claims
- Compelling Production Of Corporate Records Provided To The Government
- New Rule: FRE 502 (Attorney-Client Privilege And Work-Product Doctrine)
- Applying Federal Law On Spoliation Issues
- Electronic And Internet Evidence Issues
- Limits To Non-Hearsay Background And Context Doctrine
- Standard For Access To Grand Jury Testimony
Ten Key Evidence Issues - 2009
1. Supreme Court: Mohawk Industries Attorney-Client Privilege Interlocutory Appeal Decision: When a court orders disclosure of materials which a party believes are covered by the attorney-client privilege, what remedies are available? Can an immediate, interlocutory appeal be taken? These issues were considered in the first opinion authored by Justice Sonia Sotomayor.
The Supreme Court unanimously held that interlocutory appellate review of an adverse attorney-client privilege ruling is not available under the Cohen collateral order doctrine (Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 546-47 (1949)), particularly since “[e]ffective appellate review can be had by other means.” Mohawk Industries, Inc. v. Carpenter, 558 U.S. 100, 130 S.Ct. 599 (2009) (No. 08-678). The opinion underscores the role of the final judgment rule which avoids piecemeal appeals. See 28 U.S.C. § 1291 (final judgment rule). The opinion noted the “institutional costs” which result from “successive, piecemeal appeals of all adverse attorney-client rulings” including the “unduly delay [of] the resolution of district court litigation and needlessly burden the Courts of Appeals.” Mohawk Industries, 130 S.Ct. at 608.
If any exceptions should be made to the policy interests supporting the final judgment rule, the Court noted they should be considered under the rulemaking process for the Rules Enabling Act, which authorizes the Court to “prescribe rules” concerning interlocutory appeals. See 28 U.S.C. § 2072(c). One question is whether the Judicial Conference will consider this portion of the opinion an invitation to revisit this issue under the Rules Enabling Act? For more on the case, see Supreme Court Watch: Mohawk Industries Case Limits Interlocutory Review Of Attorney-Client Privilege Rulings.
2. Supreme Court: Melendez-Diaz Confrontation Clause Decision: On June 25, 2009, the Supreme Court rendered by five to four its most recent Confrontation Clause decision in Melendez-Diaz v. Massachusetts, 557 U.S. __ (2009) (No. 07–591). The issue presented in the case was whether “affidavits reporting the results of forensic analysis which showed that material seized by the police and connected to the defendant was cocaine” are “‘testimonial,’ rendering the affiants ‘witnesses’ subject to the defendant’s right of confrontation under the Sixth Amendment.” Melendez-Diaz, 557 U.S. at __; see also Question Presented. Justice Antonin Scalia, who authored the majority opinion, wrote: “There is little doubt that the documents at issue in this case fall within the ‘core class of testimonial statements’” described in the landmark decision in Crawford v. Washington, 541 U.S. 36, 51-52 (2004). Melendez-Diaz, 557 U.S. at __. Since the analyst did not testify at trial subject to cross-examination, the Confrontation Clause was violated by admitting the affidavits as a substitute for testimony.
An immediate question concerning the Melendez-Diaz decision is how long will the five to four majority persist in applying the Crawford Confrontation Clause analysis, particularly since Justice David Souter retired from the Court and Justice Sonia Sotomayor is a new member? See also Supreme Court Watch: Initial Questions Raised By The Melendez-Diaz Confrontation Clause Opinion. The Crawford Confrontation Clause analysis, announced in 2004, marked a landmark change in the constitutional jurisprudence of nearly a quarter of a century, under the prior standards announced in under Ohio v. Roberts, 448 U.S. 56, 66 (1980). This Term initial answers to this question may emerge as the Court hears argument in Briscoe v. Virginia (Nos. 07-0815, 07-0817), which presents the question:
“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?”Briscoe v. Virginia Docket (Nos. 07-0815, 07-0817); See also Supreme Court Watch: Certiorari Granted In Briscoe v. Virginia: Confrontation Clause Case Set For 2010 Supreme Court Term.
Another persisting question concerns the definition of “testimonial” statements, an issue that was expressly left unresolved in the Crawford decision? See Crawford, 541 U.S. at 68 n.10 (leaving “for another day any effort to spell out a comprehensive definition of ‘testimonial’” even recognizing that “our refusal to articulate a comprehensive definition in this case will cause interim uncertainty”). Since the Melendez-Diaz decision involved the core aspects of testimonial statements, what majority will support more peripheral versions of testimonial statements?
For more information on the Confrontation Clause case, including decisions applying it, see the Federal Evidence Review Melendez-Diaz Resource Page, which includes links to briefs and key materials and will follow cases applying the decision; and prior Melendez-Diaz Blog Posts.
3. Reviewing Jury Deliberations: The Constitution vs. FRE 606(b): The First Circuit decided a significant case involving a clash between the Constitution and the Federal Rules of Evidence and the ability to peer into the jury deliberative process.
FRE 606(b) prohibits a juror from testifying in a case in which the juror sits as a trier of fact. Generally, FRE 606(b) is designed to protect and promote candid deliberations during the jury process. The Sixth Circuit has explained the rationale for the rule:
“[T]he very purpose behind Rule 606(b) is to preserve one of the most basic and critical precepts of the American justice system: the integrity of the jury. Rule 606(b) allows for a system in which jurors may engage in deliberations with the utmost candor, performing in an uninhibited way the fact-finding duties with which they are charged. In this manner, the Rule provides jurors with an inherent right to be free from interrogation concerning internal influences on the decision-making process.”United States v. Logan, 250 F.3d 350, 379-80 (6th Cir.) (citations omitted), cert. denied, 534 U.S. 895 (2001).
Are there circumstances in which the Constitution may allow a court to hear evidence concerning juror deliberations, notwithstanding the policy bar under FRE 606(b)? This issue was considered in United States v. Villar, 586 F.3d 76 (1st Cir. Nov. 10, 2009) (No. 08-1154). After the defendant was convicted by the jury of committing bank robbery, one juror sent an email message to defense counsel noting that another juror stated: “I guess we’re profiling but they cause all the trouble.” The trial court denied the defense motion to inquire into the jury deliberations concerning possible “ethnically biased statements” under FRE 606(b).
The First Circuit reversed and remanded the case, holding that although FRE 606(b) bars juror testimony on matters expressed during jury deliberations, the Fifth Amendment Due Process Clause or the Sixth Amendment Right to an Impartial Jury permits juror testimony. As the First Circuit noted:
“While the issue is difficult and close, we believe that the rule against juror impeachment cannot be applied so inflexibly as to bar juror testimony in those rare and grave cases where claims of racial or ethnic bias during jury deliberations implicate a defendant’s right to due process and an impartial jury.”Villars, 586 F.3d at 87. Will constitutional claims (distinct from claims under FRE 606(b)) to inquire into jury deliberations be “rare” or will they permit a court to hold hearings on what transpired in the jury room? For more on the interesting case, see First Circuit Notes Conflict Between The Constitution And FRE 606(b) (Barring Inquiry into Validity of Jury’s Verdict).
4. Role Of Court In Reviewing State Secret Privilege Claims: In the past year, the parameters and application of a state secret privilege was the subject of several cases. The tension highlighted in the cases concerns what showing must be made for a valid assertion of the state secret privilege and the role of the court in reviewing the claim. Based on the cases this past year, these issues will continue to resonate in the foreseeable future.
- First, in the Mohawk Industries, Inc. v. Carpenter case, the Solicitor General had argued that an interlocutory appeal should lie from some governmental privileges, including the Presidential communications privilege and State secrets privilege, which implicate constitutional matters. See, e.g., Oral Argument Transcript, at 42. The Court summarily stated: “We express no view on that issue.” Mohawk Industries, 558 U.S. at __ n.4, 130 S.Ct. at 609 n.4.
- A Ninth Circuit case showed how the use of classified information in an immigration proceeding violated due process limits, in Kaur v. Holder, __ F.3d __ (9th Cir. April 1, 2009) (No. 06-71048). While Federal Rules of Evidence do not apply in immigration proceedings, reversing denial of asylum claim where secret classified evidence was considered which failed to comport with Fifth Amendment due process and regulatory standards (under 8 C.F.R. § 1240.33(c)(4)). The circuit concluded that the “use of the secret evidence without giving Kaur a proper summary of that evidence was fundamentally unfair and violated her due process rights.”
- The Second Circuit noted the process for government assertion of the state secrets privilege. The circuit held the defendant was not entitled to disclosure of classified information regarding whether she or other co-defendants were surveilled by the National Security Agency (NSA) based on the government’s invocation of the state-secrets privilege since “details of the NSA’s operations ... implicate national security and are among ‘the nation’s most guarded secrets.” In noting that the state-secrets privilege “applies to criminal cases,” the circuit indicated that the trial court can assess if the privilege “give[s] way under some circumstances to a criminal defendant’s right to present a meaningful defense.” In considering the privilege, the trial court should consider (1) in camera and ex parte whether the allegedly privileged information is relevant; if relevant, (2) if the assertion of the state-secrets privilege is colorable, and if colorable, then the court can consider if (3) the information sought to be disclosed is material to the defense. See United States v. Stewart, __ F.3d __ (2d Cir. Nov. 17, 2009) (As Amended: Dec. 23, 2009) (Nos. 06-5015-cr (L), 06-5031-cr (con), 06-5093-cr (con), 06-5131-cr (con), 06-5135-cr (con), 06-5143-cr (con)) (Amended opinion withheld pending en banc decision in United States v. Cavera, 550 F.3d 180 (2d Cir. Dec. 4 2008).
- In another case, 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 circuit acknowledged the “frustration” of the 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). For more on the case, see Second Circuit Affirms Dismissal Of Civil Action Based On Government’s Claim Of State Secret Privilege.
- A pending Ninth Circuit case will shed light on the role of the court to review claims of privilege. Originally, a panel decision of the Ninth Circuit reviewed the “extraordinary rendition program,” and reversed the dismissal of the civil action based on the third party government intervenor’s claim of state secrets privilege. The panel held that the judicial role, premised on < cite>Marbury v. Madison, should allow for court determination on the application of the privilege on a case by case basis. See Mohamed v. Jeppesen Dataplan, Inc., 563 F.3d 992 (9th Cir. April 28, 2009) (No. 08-15693), amended, (9th Cir. Aug. 31, 2009). The case is presently the subject of en banc review. See 586 F.3d 1108 (9th Cir. Oct. 27, 2009) (Order Taking Case En Banc); see also Petition for Rehearing or Rehearing En Banc. The case was heard for argument and submitted on December 15, 2009. A decision is expected in the new year.
- On September 23, 2009, U.S. Attorney General Eric Holder announced “new Department of Justice policies and administrative procedures that will provide greater accountability and reliability in the invocation of the state secrets privilege in litigation.” For more on the new policy and procedures, see “New” Administration Procedures On The State Secrets Privilege Receives Initial Mixed Reception.
5. Compelling Production Of Corporate Records Provided To The Government: When a company decides to cooperate with the government in an investigation and shares confidential documents with the understanding that the government will not disclose the records to any third parties, can a defendant who is later indicted obtain the records based on constitutional rights and the discovery rules?
The issue of whether a company may selectively waive material covered by the attorney-client privilege to the government but to no others continues to resonate in the courts. 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. 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).
Last year, the D.C. Circuit suggested that the defendant may be entitled to records that the company thought would not be disclosed. See United States v. Thompson, 562 F.3d 387 (D.C. Cir. April 17, 2009) (No. 08-5203) In opposing the defense motion to compel production of the records, the government argued that the company had not waived its rights to any third parties and the government had agreed to these terms. The district court granted the motion to compel and ordered the government to “produce to defendant all materials disclosed to the Government by [the company] pursuant to [the company’s] cooperation with the federal investigations that resulted, ultimately, in the indictment of the defendant, Scott Thompson.” Thompson, 562 F.3d at 396. After the district court denied a request to stay the ruling, the circuit granted an emergency motion for a stay. On appeal, in remanding case, the D.C. Circuit ordered the district court to identify material documents “and to protect against the public disclosure of material documents in a manner consistent with [the defendant]’s right to a fair trial.” Thompson, 562 F.3d at 390.
As the circuit directed:
“It remains for the district court on remand to determine which of the documents at issue are material to Thompson’s ability to prepare his defense, and upon identifying those documents to afford appropriate protection to WPC against public disclosure in a manner that is consistent with Thompson’s right to a fair trial and the government’s confidentiality agreement with WPC. Given the scope of the confidentiality agreement, WPC cannot preclude discovery by Thompson of the documents it produced to the government as are material to Thompson’s defense, but Brady and Rule 16 contemplate a role for the district court.… Because the government’s criminal investigation was far broader than WPC and its employees and did not focus on Thompson alone, discovery by Thompson must proceed in a manner that avoids a fishing expedition, as the district court’s order of production suggests. Upon remand the district court can flesh out the details as to which documents must be disclosed because material to Thompson’s preparation of a defense and determine whether a protective order should be issued with respect to any of those documents.”Thompson, 562 F.3d at 397. For more on the case, see Defendant Compels Production Of Company Records Provided To Earlier Government Investigation.
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. However, the legislation does not address the selective waiver issue.
For more on the Attorney-Client Privilege Protection Act, see Legislative History Page for the Attorney-Client Privilege Protection Act. Additionally, the Corporate Prosecution Guidelines Resource Page has further information concerning the Department of Justice standards which impact attorney-client privilege issues.
6. New Rule: FRE 502 (Attorney-Client Privilege And Work-Product Doctrine): On September 19, 2008, FRE 502, concerning the attorney-client privilege and work-product doctrine, was enacted and represent the last amendment to the Federal Rules of Evidence. See Pub. L. No. 110-322, 122 Stat. 3537. The past year provided the first real opportunity for the courts to apply the new rule.
The objectives of the new rule included promoting uniformity and certainty and reducing the costs associated with inadvertent disclosure. FRE 502 contains seven key provisions, ranging from inadvertent disclosures, disclosures made in a state proceeding, and controlling the effect of an order made under the rule.
In 2009, a few published district court cases have applied the new rule. No published circuit cases have reviewed and discussed the new rule in an extensive manner. Of all the subprovisions of the rule, the published case law has focused on one provision: FRE 502(b), concerning whether an inadvertent disclosure of protected communications constitutes a waiver. Many of the cases also involve electronic discovery, although the rule applies to records not maintained in electronic form. See generally FRE 502 Key Cases. Another question concerns what factors should apply to determine inadvertent disclosure since the ACN elected not to designate factors to retain flexibility. Will the courts agree on a uniform set of factors or apply disparate factors?
For more information, see the FRE 502 Resource Page, which provides background and links to key cases and documents and will track future cases and developments concerning the new rule; “Understanding New FRE 502 (Attorney-Client Privilege And Work-Product Doctrine),” 5 Fed. Evid. Rev. 1454 (Oct. 2008) and FRE 502 Blog Posts. < /p>
7. Electronic And Internet Evidence Issues: Electronic and Internet evidence is becoming more commonly used in cases as more records are made or stored on computers or the Internet. The Federal Rules of Evidence do not expressly refer to electronic evidence or electronically stored information. Nonetheless, the rules are regularly used to admit these forms of evidence.
Cases from the last year are illustrative, including the following examples:
- One challenging issue continues to be distinguishing between lay and expert testimony on forensic issues. See, e.g., Drawing The Line Between Expert And Lay Testimony On Peer-To-Peer File Sharing Program; Drawing The Line On Computer Forensic Expert And Lay Testimony (Part II).
- Courts are considering sanctions for spoliation of electronic evidence. See, e.g., Adverse-Inference Allowed Based On Spoliation Of Electronic Evidence.
- In criminal cases, will the government be able to compel access to computer records? See, e.g., Compelling Access To Encrypted Laptop.
- Computer-Generated records are often admitted in court. See, e.g., Computer-Generated Summaries As Business Records Authenticated Under FRE 901(b)(9)
- Courts will need to consider how to guide the jury’s consideration of electronic evidence. See, e.g., Guiding The Jury’s Use Of Evidence In Electronic Format During Their Deliberations.
- Authenticating Internet records or demonstrating sufficient proof is a recurring issue. See, e.g., Authenticating Internet Chat Communications With A Witness Familiar With The Records (Part II); [Sufficient Showing That Defendant Made Uncharged Internet Chats Under FRE 404(b)
- The courts are taking judicial notice, where appropriate, of information on the Internet. See, e.g., Circuit Takes Judicial Notice Of Federal Agency Web Site Records.
- Internet and electronic evidence is being considered as other acts evidence. See, e.g., In Fraudulent Charity Website Case, Uncharged Website Was Not Extrinsic Evidence And Was Admissible Under FRE 404(b).
- The courts have recognized that steps are necessary to preserve broken links for Internet materials cited in Opinions. See, e.g., Judicial Conference Encourages Preservation Of Internet Materials Cited In Opinion (Part II).
8. Limits To Non-Hearsay Background And Context Doctrine: Some cases last year noted some concern in misusing the rule permitting non-hearsay to provide background and context.
As an overview, it is well-accepted that statements offered to explain the background or context may be admitted as non-hearsay, under FRE 801(c). See, e.g., Beech Aircraft Corp. v. Rainey, 488 U.S. 153, 173 n.18 (1988) (statement was not hearsay where “it was offered to prove what Rainey had said about the accident six months after it happened, and to contribute to a fuller understanding of the material the defense had already placed in evidence”).
In criminal cases, non-hearsay background testimony is often used to explain how the investigation commenced or how investigators responded to unfolding events. See, e.g.,. United States v. Price, 458 F.3d 202, 208 (3d Cir. 2006) (“The non-hearsay evidentiary function of testimony about a police radio call is to provide a ‘background’ explanation for the testifying officer's actions-that is, to explain what the officer was doing at the scene.”); United States v. Mejia, 909 F.2d 242, 247 (7th Cir. 1990) (Non-hearsay “[e]vidence about the tip the DEA received was relevant to show something other than the tip's truth. That evidence was relevant to show why the DEA was watching Mejia's home, a fact that in no way depended on the tip's truth.”); United States v. Love, 767 F.2d 1052, 1063 (4th Cir. 1985) (“[A]n out of court statement is not hearsay if it is offered for the limited purpose of explaining why a government investigation was undertaken.”), cert. denied, 474 U.S. 1081 (1986).
Statements may also be admitted as non-hearsay to provide background and context to a conversation. See, e.g., United States v. Dupre, 462 F.3d 131, 136-37 (2d Cir. 2006) (in wire fraud prosecution, e-mails from investors demanding information about defendant’s fraudulent scheme were not hearsay when offered not for truth of the assertion that the scheme was fraudulent, but to provide context for the defendant’s message sent in response and to rebut defendant’s argument that she did not know scheme was fraudulent); United States v. Gajo, 290 F.3d 922, 929-30 (7th Cir. 2002) (informant’s recorded “statements are not hearsay to the extent they are offered for context and not for the truth of the truth of the matter asserted”; non-conspirator's statements admitted to provide context to responses; court redacted non-germane and prejudicial comments; noting statements were admitted as non-hearsay “to provide context to a coconspirator's statements properly admitted under Rule 801. It is well settled that such an approach is appropriate because statements are not hearsay to the extent they are offered for context and not for the truth of the truth of the matter asserted. “) (citing other cases), cert. denied, 537 U.S. 938 (2002).
When testimonial statements are offered for a non-hearsay purpose, no Confrontation Clause issues are raised. See, e.g., Tennessee v. Street, 471 U.S. 409, 413-14 (1985) (non-hearsay admission of confession for rebuttal purposes to prove what happened when the defendant confessed, not what happened at the murder scene, did not violate Confrontation Clause where sheriff testified about the statement; “The nonhearsay aspect of Peele's confession-not to prove what happened at the murder scene but to prove what happened when respondent confessed-raises no Confrontation Clause concerns.”); see also Crawford v. Washington, 541 U.S. 36, 57 n.9 (2004) (“The Clause also does not bar the use of testimonial statements for purposes other than establishing the truth of the matter asserted.”).
Last year, two Tenth Circuit cases noted the limits to using non-hearsay background testimony and warned about misuse of this type of evidence. In both cases, the judgments were not changed because the error was either harmless or did not rise to the level of plain error. However, the circuit was strong in its admonition about the misuse of non-hearsay evidence.
The first case involved a methamphetamine distribution trial in which a detective testified about hearing the defendant’s name mentioned by a cooperating witness as the supplier of the drugs in a controlled buy. See United States v. Hinson, 585 F.3d 1328 (10th Cir. Nov. 3, 2009) (No. 08-3086). The Tenth Circuit held the testimony was inadmissible hearsay because it was offered for its truth that the defendant was a drug supplier and “was entirely unnecessary to explain the context of the police investigation” and “the only purpose … was to bolster the government’s claim that Hinson was, in fact, Pingry’s drug supplier.” The issue was reviewed for plain error since no trial objection was made and none was found. However, the Tenth Circuit described “the ‘apparently widespread abuse’ of the background exception to the hearsay rule.” Hinson at 1037.
The second case involved the recorded interrogation of a defendant concerning an investigations involving explosions at a school and two apartment buildings. See United States v. Collins, 575 F.3d 1069 (10th Cir. Aug. 4, 2009) (No. 08-3119) The Tenth Circuit questioned the admissibility of many of the investigators’ statements:
“We are skeptical of the government’s argument that all of [Wichita Police Department Detective] Hamilton’s and [ATF Special Agent] Heiert’s statements in the recording provide meaningful context for Collins’ statements. Ad hominem attacks, accusations of lying, and general posturing may be standard in police interrogations, but they have little evidentiary value unless the government intended for the jury to believe the truth of those statements. Perhaps more problematically, Hamilton’s and Heiert’s statements in the recording unequivocally corroborated evidence that had just been presented to the jury and vouched for the credibility of individuals who had just testified. Invoking the word ‘context’ does not permit an end-run around the hearsay rules such that the government may smuggle into evidence all interviewer statements. We view such evidence with a particularly jaundiced eye when, as here, the officers’ statements regularly overwhelm the defendant’s.”Collins, 575 F.3d at 1073-74. Nonetheless, on the facts of the case, the circuit concluded any error was harmless based on the evidence of guilt.
These cases, and the strong admonitions in the opinions, serve as a warning about the misuse of non-hearsay evidence.
9. Standard For Access To Grand Jury Testimony: Normally, access to grand jury testimony is barred under Fed. R. Crim. P. 6. Grand jury testimony represents an important category of evidence as it often memorializes key statements during the investigative phase of the case. Statements made by witnesses during the investigation may be significant later during the trial.
A divided panel of the First Circuit considered the circumstances in which a grand jury witness may obtain access to their grand jury testimony. See In re: Grand Jury Appeal from the United States District Court for the District of Massachusetts, 566 F.3d 12 (1st Cir. 2009) (No. 08-1880). The district court had denied the witness request for access to his grand jury transcript based on a failure to demonstrate a particularized need under Fed. R. Crim. P. 6(e)(3)(E)(i). Instead the majority adopted “a less demanding requirement of particularized need applies when a grand jury witness demands access to a transcript, rather than a copy of the transcript.” In re: Grand Jury Appeal, 566 F.3d at 18. According to the majority, the new standard did not apply to notetaking and copying of grand jury testimony; “a strong showing of particularized need” governed “the notetaking context.” In re: Grand Jury Appeal, 566 F.3d at 21.
The majority concluded that the new access standard was met in the case based on “the abusive warnings of the prosecutors [concerning perjury] during testimony and the complexity of the appellant's testimony.” In re: Grand Jury Appeal, 566 F.3d at 22. The majority noted that it borrowed from but did not adopt a different standard applied by the D.C. Circuit in decision in In re Grand Jury, 490 F.3d 978, 990 (D.C. Cir. 2007), which permits grand jury witnesses access to review transcripts of their own grand jury testimony.
Circuit Judge Howard dissented, noting that in his view “the majority’s conclusion is contrary to our precedent, unwise as a matter of policy, and insupportable on this record.” In re: Grand Jury Appeal, 566 F.3d at 24 (dissent). Given the importance of grand jury testimony, the policy of secrecy applied to grand jury investigations as adopted in Fed. R. Crim. P. 6, and different standards applied in the circuits, this issue is likely to be revisited in future cases.
For more on the case, see First Circuit Reverses Denial Of Witness Request For Access To His Grand Jury Transcript.
10. Applying Federal Law On Spoliation Issues: In our parallel federal and state systems of government, a recurring issue concerns the application of federal or state law. For example, should federal or state law apply in imposing sanctions for the spoliation of evidence? The Sixth Circuit was in conflict with other circuits which applied federal law. An en banc panel of the Sixth Circuit reconciled the conflict and clarified that federal law should apply. As the circuit explained:
“Applying federal law in this evidentiary realm makes good sense. Federal courts generally apply their own evidentiary rules in both diversity and federal question matters, and therefore federal law should govern whether a district court abused its discretion in declining to apply spoliation sanctions.”Adkins v. Wolever, 554 F.3d 650, 652 (6th Cir. Feb. 4, 2009) (en banc) (No. 07-1421). For more on the case, see Sixth Circuit En Banc Resolves Federal Spoliation Law Question.
Further Comments Welcome
We welcome further views and comments, including other evidence issues. Are there other cases or items you would add to the list? Please let us know.
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