Prospective: Ten Key Evidence Issues For 2011

On Monday, we reviewed ten significant evidence issues from 2010. See Retrospective: Ten Key Evidence Issues In 2010.

As the year begins, we consider some potential evidence issues that may arise. We present the Federal Evidence Review’s Ten Key Evidence Issues for 2011. These issues, which are not necessarily ranked in any order, are discussed further below:



  1. Supreme Court: Michigan v. Bryant - Confrontation Clause: Decision Pending
  2. Supreme Court: Bullcoming v. New Mexico - Confrontation Clause: March Argument
  3. Reconciling The Confrontation Clause and FRE 703
  4. Supreme Court: States Secrets Privilege: Separation of Powers
  5. Pending Rule Amendment: “Restyling” The Federal Rules of Evidence
  6. FRE 609 & Constitutional Balance Of The Right To Testify With The Right To Remain Silent
  7. FRE 606(b) And Racial Prejudice
  8. Another Round On The Reporter Shield Legislation
  9. Stability Of The Federal Rules Of Evidence Based On Electronic Evidence
  10. More Efforts In Support Of Cameras In The Federal Courtroom

1. Supreme Court: Michigan v. Bryant - Confrontation Clause: Decision Pending:

Since the decision in Davis v. Washington, 547 U.S. 813, 822 (2006), in which the Supreme Court held that statements provided to meet an “ongoing emergency” are non-testimonial, a pending question concerns at what point statements may become “testimonial” during police questioning in response to the emergency.

On October 5, 2010, the Supreme Court heard argument in a Confrontation Clause case which considers whether the "primary purpose" of police questioning of a victim who had been shot was "to meet an ongoing emergency," rendering the statements in response non-testimonial and admissible at trial. See Michigan v. Bryant (No. 09–150). A decision by the Supreme Court is expected in 2011.

The specific issue presented in the case is:

Should certiorari be granted to settle the conflict of authority as to whether preliminary inquiries of a wounded citizen concerning the perpetrator and circumstances of the shooting are non-testimonial because "made under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency," that emergency including not only aid to a wounded victim, but also the prompt identification and apprehension of an apparently violent and dangerous individual?


During the oral argument, a number of Justices queried about how the line should be drawn between non-testimonial statements obtained during an “ongoing emergency” and testimonial statements obtained for prosecution purposes. See Supreme Court Watch: Michigan v. Bryant Oral Argument Reviews Scope Of "Ongoing Emergency". Justice Elena Kagan recused herself from the case since she had signed the amicus curiae brief filed by the United States in support of the Petitioner. In the event that the decision is divided four-to-four, then the Michigan Supreme Court judgment, reversing and remanding the case for retrial, would be affirmed.

For more information on the case, including the briefs filed in the case and other background materials, see the Michigan v. Bryant Resource Page, and prior blog posts on the case.

2. Supreme Court: Bullcoming v. New Mexico - Confrontation Clause:

On March 2, 2011, the Supreme Court will hear argument in an important case concerning forensic expert testimony under the Confrontation Clause. In Bullcoming, the following question is presented:

Whether the Confrontation Clause permits the prosecution to introduce testimonial statements of a non testifying forensic analyst through the in-court testimony of a supervisor or other person who did not perform or observe the laboratory analysis described in the statements.
The Supreme Court granted the certiorari petition on September 28, 2010, and the oral argument has been calendared for February 22, 2011. See Docket Sheet.


In sum, the petitioner’s brief contends that the state violated the Confrontation Clause by using a surrogate analyst witness to introduce the testimonial statements contained in a forensic report of a non-testifying analyst. The testifying “analyst who did not perform or observe any of the laboratory tasks or analysis described in the statements.” Under a particular-witness rule of the Confrontation Clause:

if the prosecution wishes to introduce a witness’s testimonial statements, then the defendant is entitled to be confronted with that particular witness. Confrontation of a particular witness serves four primary purposes: (1) it enables cross-examination concerning the witness’s factual assertions, his believability, and his character; (2) it guarantees that the witness gives his testimony under oath; (3) it allows the trier of fact to observe the witness’s demeanor; and (4) it ensures that the witness testifies in the presence of the defendant. Confrontation with what might be called a 'surrogate witness' thwarts all four of these objectives.
Petitioner’s Brief, at 10. The respondent's brief on the merits is due next week, on January 10, 2011. See Docket Sheet.

For more information on the Bullcoming case, see Supreme Court Watch: New Confrontation Clause Case Added To Calendar Concerning Statements Of A Nontestifying Forensic Analyst; Bullcoming v. New Mexico Resource Page.

3. Reconciling The Confrontation Clause and FRE 703:

In a related issue, the circuit courts have been trying to resolve the admission of expert testimony which relies on the analysis of non-testifying experts or witnesses under FRE 703 with the Confrontation Clause. See Reconciling The Confrontation Clause and FRE 703 (listing recent cases).

It is not clear that this issue will be directly considered or resolved in Bullcoming v. New Mexico (No. 09-10876), noted above. In Bullcoming, the forensic report of the non-testifying analyst was admitted as a business record and deemed non-testimonial by the trial court, and the supervisor testified about the contents and conclusions of the report prepared by the non-testifying analyst and did not provide his own independent conclusions. See New Mexico v. Bullcoming, 147 N.M. 487 (Feb. 12, 2010) (No. 2010-NMSC-007). Consequently, the testimony of the testifying analyst was used to introduce the results of a non-testifying forensic analyst. The testifying analyst did not perform any tests in the case.

If this issue is not confronted in Bullcoming, the need for guidance in this area involving expert testimony and the Confrontation Clause has been demonstrated in the cases. As we noted recently, until the Supreme Court clarifies this area, the reliance of testifying expert testimony on non-testifying expert analysis will continue to present a challenge in the courts. See Reconciling The Confrontation Clause and FRE 703. This will continue to be an important evidence issue in 2011 and perhaps beyond.

4. Supreme Court: States Secrets Privilege: Separation of Powers:

The Supreme Court has been asked to address the separation of powers questions raised by the assertion of the State Secrets Privilege. The application and scope of the privilege continues to be an important issue which many courts have wrestled with the past few years.

On January 18, 2011, the Supreme Court will hear argument in an important State Secrets Privilege case involving the termination of a multi-billion dollar contract for a stealth aircraft. The Court consilidated two cases, The Boeing Company v. United States (No. 09-1302) and General Dynamics Corp. v. United States (No. 09-1298). In the Boeing case, the question presented is:

Whether the Due Process Clause of the Fifth Amendment permits the Government to maintain a claim while simultaneously asserting the state secrets privilege to bar presentation of a prima facie valid defense to that claim.

In the General Dynamics case, the question presented is:

Whether the government can maintain its claim against a party when it invokes the state-secrets privilege to completely deny that party a defense to the claim.

Last month, the American Civil Liberties Union also filed a petition for certiorari seeking U.S. Supreme Court review of a closely divided Ninth Circuit en banc ruling which affirmed the dismissal of the action under the state secrets privilege in Mohamed v. Jeppesen Dataplan, Inc., 614 F. 3d 1070 (9th Cir. 2010) en banc) (08-15693), petition filed, (No. 10-778). See also Petition For Certiorari Review Filed In State Secrets Privilege Case; Docket Sheet.

It remains to be seen whether the Court will consider the Mohamed case. For more information on the Mohamed case, see Petition For Certiorari Review Filed In State Secrets Privilege Case, and DOJ Requests Rehearing Or En Banc Review Of Recent State Secret Privilege Ruling. For other posts, see the State Secrets Privilege Blog Posts.

5. Pending Amendment: “Restyling” The Federal Rules of Evidence:

The recommendation to “restyle” the FRE is now pending before the Supreme Court. While action by the Supreme Court and then Congress remains pending, the final changes are expected to take effect in December 2011.

The effort to restyle the evidence rules is part of a larger project to restyle all of the federal rules. Since 2006, the Advisory Committee on Evidence Rules began an effort to “restyle” the Federal Rules of Evidence. As part of the rules amendment process under the Rules Enabling Act, the Committee On Rules of Practice and Procedure released the proposal for public comment in August 2009, which were due by February 16, 2010. After the public comments were received and modifications were made by judicial committees, on September 14, 2010, the U.S. Judicial Conference recommended that the restyled rules be approved and transmitted to the U.S. Supreme Court. Under the Rules Enabling Act, the Supreme Court will have until May 1, 2011 to decide whether to transmit the proposed amendments to Congress for its consideration. See 28 U.S.C. § 2074(a). Unless Congress otherwise acts, the restyled rules would take effect on December 1, 2011.

One key issue is what constitutes a mere “restyling” versus a substantive change to the rules. The committee applied the following “working principle” to discern and avoid substantive changes:

A change is "substantive" if

  1. Under the existing practice in any circuit, it could lead to a different result on a question of admissibility (e.g., a change that requires a court to provide either a less or more stringent standard in evaluating the admissibility of a certain piece of evidence); or
  2. Under the existing practice in any circuit, it could lead to a change in the procedure by which an admissibility decision is made (e.g, a change in the time in which an objection must be made, or a change in whether a court must hold a hearing on an admissibility question), or
  3. 3.
  4. It changes the structure of a rule so as to alter the way in which courts and litigants have thought about, and argued about, questions of admissibility (e.g, merging Rules 104(a) and 104(b) into a single subdivision); or
  5. It changes … [so-called a] "sacred phrase" – "phrases that have become so familiar as to be fixed in cement.’”
Report of the Advisory Committee on Evidence Rules, at 2 (May 12, 2008).

.

6.FRE 609 & Constitutional Balance Of The Right To Testify With The Right To Remain Silent:

One issue that has recently attracted attention from academia is the balance between the constitutional right to remain silent and the right to testify, which is implicated by FRE 609 governing impeachment of witnesses with prior evidence of conviction. The rule often discourages a defendant from testifying at trial in his or her own defense. In the words of one commentator, the rule represents a "mix of incentives and disincentives” in a “zero-sum game” between the right to testify and the right to remain silent. Game Over: A Proposal to Reform Federal Rule of Evidence 609, Edward Roslak, Seton Hall L. Rev. 695 (2009 Comment). In the past year there have been an increasing number of law review articles addressing aspects of the FRE 609 balance between the right to testify and the right to silence, including:

This increased attention to FRE 609 in the scholarly literature may suggest that time is becoming ripe for a reconsideration of the rule and its effect.

7. FRE 606(b) & Hidden Race Prejudice:

It may be time to re-examine the circuit split concerning FRE 606(b) and impeachment of a jury verdict because of a juror's undisclosed racial or ethnic prejudice. This circuit split was previously noted by the Federal Evidence Blog. See First Circuit Notes Conflict Between The Constitution And FRE 606(b) (Barring Inquiry into Validity of Jury’s Verdict). On one side, the First Circuit concluded that FRE 606(b) “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” under the Fifth and Sixth Amendments. United States v. Villar, 586 F.3d 76 (1st Cir. Nov. 10, 2009) (No. 08-1154). While not clearly in the First Circuit's corner, there is authority in at least two other circuits that would allow penetration of FRE 606(b)'s preclusion of juror testimony, and authority in another two circuits that would not allow juror testimony:

  • Ninth Circuit: United States v. Heller, 785 F.2d 1524, 1527 (11th Cir. 1986) (the “religious prejudice [anti-Semitic comments] displayed by the jurors ... is so shocking to the conscience and potentially so damaging to public confidence in the equity of our system of justice, that we must act decisively to correct any possible harmful effects on this appellant” despite FRE 606(b))
  • Seventh Circuit: Shillcutt v. Gagnon, 827 F.2d 1155, 1158 (7th Cir. 1987) (FRE 606(b) “cannot be applied in such an unfair manner as to deny due process” as to preclude inquiry into whether juror said regarding the black defendant that “he sees a seventeen year old white girl—I know the type”; but noting that FRE 606(b) precludes review of evidence of racial slurs during jury deliberations since “[w]e cannot expunge from jury deliberations the subjective opinions of jurors, their attitudinal expositions, or their philosophies”)
  • Third Circuit: Williams v. Price, 343 F.3d 223, 237 (3d Cir. 2003) (opinion by Judge and later Justice Alito noting that FRE 606(b) “categorically bar[s] juror testimony ‘as to any matter or statement occurring during the course of the jury’s deliberations’ even if the testimony is not offered to explore the jury’s decisionmaking process in reaching the verdict.”; characterizing the Ninth Circuit's Henley argument for admitting juror testimony to prove racial prejudice during deliberations as dicta) (Alito, J.)
  • Tenth Circuit: United States v. Benally, 546 F.3d 1230, 1236-38 (10th Cir. 2008) (reinstating defendant's conviction upon concluding FRE 606(b) exceptions did not apply and Sixth Amendment right to an impartial jury was not violated; Tenth Circuit notes circuit split on whether allegations of juror misconduct on dishonesty during voir dire may be considered)

The dispute over FRE 606(b) highlights the simmering tension between a policy which bars inquiring into and questioning of jury deliberations and the circumstances in which inquiry may be permitted to vindicate constitutional values. As with the courts, academia has begun to examine FRE 606(b) and its exceptions. In the last year, at least four publications have become available on the issue, including:

The cases and academic analysis serves to focus a complex mix of constitutional and statutory issues, such as whether a defendant can use a juror affidavit relating racist statements made during deliberation, to show that other jurors lied or does the Constitution compel admission of statements showing racial bias in jury deliberations?) The application of FRE 606(b) may have reached the point where questions such as these can be best resolved in the rule amendment process, under the Rules Enabling Act.

8. Another Round On The Reporter Shield Legislation?:

In the 2010 Retrospective, we identified the stalling of the Reporter Shield legislation during the last session of Congress. In more than a decade of consideration, the legislation went farther than it had before. However, defeat in the last Congress may not preclude Congressional efforts to 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.

We noted that in the just-concluded 111th Congress, the House of Representatives passed the Free Flow of Information Act (H.R. 985) on a voice vote on March 31, 2009." The bill was identical to one which overwhelmingly passed the House during the prior Republican-dominated Congress on October 16, 2007 by a vote of 398-21. Under either Democratic or Republican Speakerships, the House appears favorably inclined to establishing the shield.

On the Senate side, indications remain guarded for movement on the bill. At the close of last year, 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 never received consideration by the full Senate. The New York Times and Washington Post reported that it was not the Senate, but rather the administration, that was slowing the progress of the bill. Whether the post 2010-election landscape will make for a friendlier Senate will be seen in the next few weeks and it could be that opposition by the administration may result in enough votes by Republicans and disaffected Democrats to buck the Administration's reservations to the bill. Coverage of the past actions and identification of future trends in this area is available at the "Free Flow of Information Act Legislative History Page":/node/593 and the Reporter Shield Law Blog Posts.

9. Stability Of The Federal Rules Of Evidence Based On Electronic Evidence

In the 2010 Evidence Issue Retrospective on Monday, we noted the new model jury instructions addressing the fact that electronic communication technologies are readily available to jurors during the trial. Of course, the past decade has seen a marked change in evidence as well -- and now so much more evidence introduced in the federal courts is electronic in nature. Has this this change in the form of evidence proffered in court triggered proposals for significant accommodations in the Federal Rules of Evidence? It appears unlikely that a whole-sale change is in the making, judging from the lack of proposals at the Rules Committee at this time, as well as the views of many commentators that, except for minor amendment, the FRE are completely equal to the process of bringing electronic evidence to court.

It is true - there have been occasional calls for changes in the FER to accommodate the new electronic communications technologies. See, e.g., Jonathan L. Moore, Time for an Upgrade: Amending the Federal Rules of Evidence to Address the Challenges of Electronically Stored Information in Civil Litigation, 50 Jurimetrics J. 147-193 (2010) (assessing approaches courts take to admission of electronic evidence and proposing specific amendments to the FER to guide courts and litigants on admissibility of electronically stored evidence at trial); Paul R. Rice, Electronic Evidence: Law and Practice 492 (2d ed. 2008) (the “new evidentiary problems" faced by the courts today as a result of the growth of electronic evidence "have been directly addressed in few, if any, of the[ ] evidence codes”).

But the voices expressing skepticism about the need for wholesale revisions to the FER to accommodate the proffer of electronic evidence seem most dominant in the few years, including:

  • Randy Wilson, Admissibility of Web-Based Data, 52 The Advoc. (Texas) 31 (2010) (In a symposium article, a judge notes that while "[a]t first blush, the decades-old evidence rules would seem ill-suited for the task of establishing admissibility of electronic evidence. Yet, these rules have proven to be surprisingly flexible in meeting twenty-first century evidentiary challenges.")
  • Jeffrey W. Stempel, Refocusing Away From Rules Reform And Devoting More Attention To the Deciders, 87 Denv. U. L. Rev. 335 (2010) (noting that no drastic revisions are necessary for the existing rules governing authentication because they provide an adequate analytical framework to determine the admissibility)
  • Paul W. Grimm, Back To The Future: Lorraine v. Markel American Ins. Co. and New Findings On the Admissibility of Electronically Stored Information, 42 Akron L. Rev. 357 (2009) (federal judge notes "the existing law of evidence must be applied to the admissibility of electronic evidence, and courts that have been asked to do so have expressed no significant concerns about the adequacy of those rules to accomplish this task")
  • Steven Goode, The Admissibility of Electronic Evidence, 29 Rev. Litig. 1 (2009) (assesses how courts have and should address the objections most commonly raised to electronic evidence, particularly on the basis of authentication, hearsay, and best evidence challenges; notes that the current framework provided by the FRE is adequate to the task)

In balance, the prospects for wholesale changes or adjustments in the Federal Rules of Evidence to accommodate the recent influx of electronic-based evidence are unlikely. There seems to be little movement toward a change in the Rules because of the newer forms of evidence. The general view in academia and on the bench is that the FRE is currently adequate and fully capable of guiding the court and counsel through the challenges posed by electronic-based evidence.

10. More Efforts In Support Of Cameras In The Federal Courtroom:

In 2010, substantial activity and continuing debate took place on whether cameras should be permitted in federal courts at all levels. This debate is expected to continue in 2011 and beyond.

One part of this debate concerns what changes may result by the introduction of cameras in the federal courtroom. First, there is a question about whether the behavior of the court participants may change by the presence of cameras (including witnesses, counsel and the judge). For example, would it be more difficult for a victim to testify, even in a civil case, knowing that the proceedings are being broadcast?

On a second level, another question concerns the impact of reviewing the recorded trial record. Presently, under established standards of review, the courts of appeal normally give deference to the trial court on matters of fact including credibility determinations. However, with a video record of the proceedings, would an appellate court encroach upon this traditional deference and conclude it can independently review credibility and other matters with less deference?

The activity started in January 2010, a divided majority of the U.S. Supreme Court stayed lower court rulings to broadcast the federal bench trial in the California Proposition 8 case (involving a constitutional challenge to the ballot proposition which amended the California Constitution to declare that “[o]nly marriage between a man and a woman is valid or recognized in California”). See Hollingsworth v. Perry, 558 U. S. __, 130 S.Ct. 705, 175 L.Ed.2d 657 (2010) (per curiam). The majority took note of the “national debate” on “whether courtroom proceedings should be broadcast” and “[r]easonable minds differ on the proper resolution of that debate and on the restrictions, circumstances, and procedures under which such broadcasts should occur.” Without addressing the merits of broadcasting courtroom proceedings, the majority decided “a narrow legal issue: whether the District Court’s amendment of its local rules to broadcast this trial complied with federal law.” Hollingsworth, 558 U.S. at __, 130 S. Ct. at __; see also Supreme Court Watch: No Broadcast Of Proposition 8 Bench Trial After Supreme Court Stay. After the district court ruling, the Ninth Circuit offered a broadcast of the appellate argument in December. See Ninth Circuit To Televise Upcoming Oral Argument On Proposition 8 Appeal.

More activity is anticipated. On September 14, 2010, the U.S. Judicial Conference agreed to launch a pilot program permitting the use of cameras in U.S. District Courts. See also Judicial Conference Approves Pilot Project To Evaluate Cameras In The Federal District Courts; Third Branch Summary Article.

Last year, the Ninth Circuit began providing video broadcast of its en banc proceedings to remote courthouse locations and also began providing “video oral arguments” on its web site. See Ninth Circuit Court of Appeals to Offer Remote Viewing of En Banc Proceedings (Dec. 13, 2010) (June 15, 2010). The Ninth Circuit also has guidelines and an application form for media organizations requesting permission to broadcast, photograph or record in the courtroom.

On a related issue, in October 2010, the U.S. Supreme Court began making audio recordings of arguments available the week of argument. The audio files are available on the Supreme Court website. See Supreme Court Notice. It may be more difficult to forestall the release, and ultimate broadcast, of video recordings. If audio can be publicly available, why not video? At some point, are any distinctions between audio and video release material anymore?

As in the past, members of Congress may also continue to support the broadcasting of federal court proceedings. While Senator Arlen Specter, who has been a key sponsor of legislation to televise Supreme Court proceedings, will no longer serve in the Senate, he raised the issue in his farewell address to the Senate (which he termed as a “closing argument”):

Congress could at least require televising the Court proceedings to provide some transparency to inform the public about what the Court is doing since it has the final word on the cutting issues of the day. Brandeis was right when he said that sunlight is the best disinfectant…. Congress has the authority to legislate on this subject, just as Congress decides other administrative matters such as what cases the Court must hear, time limits for decisions, number of Justices, the day the Court convenes, and the number required for a quorum. While television cannot provide a definitive answer, it could be significant and may be the most that can be done consistent with life tenure and judicial independence.
155 Cong. Rec. S10854 (Dec. 21, 2010). Last year, the Senate Judiciary Committee reported out legislation that would authorize cameras in federal courts. See Senate Judiciary Committee Approves Measures Authorizing Cameras In The Supreme Court And Other Federal Courts. For more information on this issue, see Cameras in the Federal Courtroom blog posts.

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 2011? Please let us know.

Past Top Ten Retrospective and Prospective Key Evidence Issues:

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