Prospective: Ten Key Evidence Issues For 2014

Last week, we reviewed significant evidence issues from 2013. See Retrospective: Ten Key Evidence Issues In 2013. As the New Year begins, we highlight a number of potential evidence issues that may arise in 2014 touching on Confrontation Confrontation Clause, Fourth Amendment, new amendments, recent circuit splits, and other evidence issues.

On Friday, we reviewed ten evidence issues of significance from 2013. Today we look forward at some key evidence issues that may arise in 2014.

The ten top issues for 2014 fall into several broad categories: First, three deal with defining the scope of the Sixth Amendment Confrontation Clause (e.g., No. 1 on clarifying Williams v. Illinois for expert witnesses, No. 2 on the right to cross-examine a translator regarding the proffered translated statements, and No. 7 which anticipates about more "notice and demand" procedures as suggested in Melendez-Diaz). Second, issues concerning the Conduct of the Jury appear poised for resolution (e.g., No. 5 - on responding to racial bias expressed by jurors in deliberations or concerning the truthfulness of potential jurors during voir dire and No. 8 which specifically seeks to change FRE 801(d)(1)(B) to eliminate "confusing jury instructions" that typically arise in the witness rehabilitation process).

A third area involves evidentiary privileges (No. 6 on a media shield privilege and No. 4 providing a mechanism for appealing adverse privilege determinations during the course of a trial). Of course, we always welcome your comments, views and suggestions of what we should have included as a major evidence issue for 2014.

Key Evidence Issues For 2014

Use these jump links to view specific issues below:

    1. Supreme Court Watch: Sixth Amendment (Confrontation Clause): Continuing Confusion On Expert Testimony Following Williams v. Illinois
    2. Circuit Split: Sixth Amendment (Confrontation Clause): Division under the Confrontation Clause on “Language Conduit” Theory for Interpreters
    3. Supreme Court Watch: Is An Analytical Shift Coming for Fourth Amendment Analysis on the Search and Seizure of Digital Evidence?
    4. Open Issue: Emerging Tension and Division Surrounding Mohawk Industries Which Had "Narrow[ed]" the "Class Of Collaterally Appealable Orders"
    5. Circuit Splits: Challenging A Verdict Based On Claims of Juror Racial Bias During Deliberations Or Claims of Juror Dishonesty During Voir Dire
    6. Legislation: Will Congress Enact a New Media Shield Privilege?
    7. Rule Amendment: Sixth Amendment (Confrontation Clause): More Notice and Demand Rules?
    8. Rule Amendment: FRE 801(d)(1)(B): Encouraging the Use and Consideration Of Court-Appointed Experts
    9. Rule Amendment: FRE 803(6) (Business Records), FRE 803(7) (Absence of Business Records), and FRE 803(8) (Public Records)
    10. Considering the Role of Cameras in the Courtroom


    Summary Of Ten Key Evidence Issues For 2014

    1. Supreme Court Watch: Sixth Amendment (Confrontation Clause): Continuing Confusion On Expert Testimony Following Williams v. Illinois

    The lower courts continue to wrestle with the application of the Confrontation Clause to expert testimony. As recently noted in the Federal Evidence Blog:

    It is not a matter of "if" but "when" the Supreme Court will reconsider the application of the Confrontation Clause to expert testimony that is based on statements of others who do not testify.

    Supreme Court Watch: Is The Application Of The Confrontation Clause To Expert Testimony Issue Ripening For Review?

    The confusion in the courts results from the plurality opinion in Williams v. Illinois, 567 U.S. _, 132 S.Ct. 2221, 2333 (2012) (Alito, J., plurality opinion). The issue presented in the case was: "Whether a state rule of evidence allowing an expert witness to testify about the results of DNA testing performed by non-testifying analysts, where the defendant has no opportunity to confront the actual analysts, violates the Confrontation Clause." In June 2012, a Supreme Court plurality concluded that the defense may cross-examine the expert "about any statements that are offered for their truth" but "[o]ut-of-court statements that are related by the expert solely for the purpose of explaining the assumptions on which that opinion rests are not offered for their truth and thus fall outside the scope of the Confrontation Clause." Williams, 132 S.Ct. at 183. In Williams, in affirming the admission of the challenged expert testimony, the Supreme Court issued the following opinions:

    • Justice Samuel Anthony Alito, Jr. announced the judgment of the Court and wrote a plurality opinion, concluding that the Confrontation Clause was not violated for "two independent reasons" as (a) the testimony was nonhearsay offered "for the purpose of explaining the assumptions on which that opinion rests" and (b) was not "testimonial" as the lab report "was not prepared for the primary purpose of accusing a targeted individual." His opinion was joined by Chief Justice John G. Roberts, Jr., and Justices Anthony M. Kennedy and Stephen G. Breyer.
    • Justice Clarence Thomas agreed with the plurality that the expert testimony was not "testimonial" (but for different reasons than the plurality) yet agreed with the dissent that the plurality non-hearsay basis represented "flawed analysis".
    • Justice Stephen G. Breyer concurred, noting that he joined the plurality opinion but would have the case reargued to address the issue: "How does the Confrontation Clause apply to the panoply of crime laboratory reports and underlying technical statements written by (or otherwise made by) laboratory technicians?"
    • Justice Elena Kagan dissented, and was joined by Justices Antonin Scalia, Ruth Bader Ginsburg, and Sonia Sotomayor. The dissent concluded the Confrontation Clause was violated when the defendant was deprived the chance to cross-examine the analyst who prepared the lab report.

    Normally, "[w]hen a fragmented Court decides a case and no single rationale explaining the result enjoys the assent of five Justices, the holding of the Court may be viewed as the position taken by those members who concurred in the judgments on the narrowest grounds." Marks v. United States, 430 U.S. 188, 193 (1977) (internal quotation marks omitted). However, the "narrowest grounds" have not been discernible as a number of courts have noted. The following cases highlight the current confusion in applying the Confrontation Clause to expert testimony:

    • Second Circuit: United States v. James, 712 F.3d 79, 95-96 (2d Cir. March 28, 2013) ("No single rationale disposing of the Williams case enjoys the support of a majority of the Justices. ") (citations and footnote omitted)
    • Fifth Circuit: United States v. Duron-Caldera, _ F.3d _ (5th Cir. Dec. 16, 2013) (noting "the plurality’s test in Williams would not be controlling under Marks")
    • Seventh Circuit: United States v. Turner, 709 F.3d 1187, 1189 (7th Cir. March 4, 2013) ("We begin by noting that the 4-1-4 division of the Justices in Williams, with one Justice — Justice Thomas — concurring in the result but no portion of the plurality’s reasoning, makes it somewhat challenging to apply Williams to the facts of this case. As the dissenting opinion in Williams observes, the divergent analyses and conclusions of the plurality and dissent sow confusion as to precisely what limitations the Confrontation Clause may impose when an expert witness testifies about the results of testing performed by another analyst, who herself is not called to testify at trial.") (citing Williams 132 S. Ct. at 2277 (Kagan, J., dissenting) (footnote omitted)
    • D.C. Court of Appeals: Jenkins v. United States, 75 A.3d 174, 184-89 (D.C. 2013) ("We now hold that the splintered decision in Williams, which failed to produce a common view shared by at least five Justices, creates no new rule of law that we can apply in this case.")).

    Other commentators have noted the resulting confusion sown by the plurality ruling. See Memorandum To: Advisory Committee on Evidence Rules, From: Daniel Capra, Reporter, Re: Federal Case Law Development After Crawford v. Washington — and After the Confusion of Williams v. Illinois, at 2 (April 1, 2013) (noting "the splintered opinions in Williams create confusion not only for how and whether experts may use testimonial hearsay, but more broadly about how some of the hearsay exceptions square with the confrontation clause bar on testimonial hearsay").

    Some recent certiorari petitions have presented the issue. See, e.g., Turner v. United States Petition For A Writ Of Certiorari (No. 13-127); Brewington v. North Carolina Petition For A Writ Of Certiorari (No. 13-504); Ortiz-Zape v. North Carolina Petition For A Writ Of Certiorari (No. 13-633); Maxwell v. United States Petition For A Writ Of Certiorari (No. 13-7394). Here is how the amicus brief for the North Carolina Advocates For Justice in Support of the Petitioner in Ortiz-Zape v. North Carolina recently summarized the issue:

    This Court should erase the confusion that has engulfed the lower courts that have tried to apply the fractured decision in Williams v. Illinois, 132 S. Ct. 2221 (2012). This outgrowth from Williams primarily resulted from a plurality opinion with only four votes for its rationale, a dissenting opinion of four votes for a diametrically opposite rationale, and a fifth concurring opinion agreeing only with plurality’s result but which also concurred with much of the dissent’s constitutional analysis. This disagreement among the members of this Court as to the proper interpretation and application of the Confrontation Clause has left the lower courts in disarray.

    When the Supreme Court exercises its discretion to grant a petition for certiorari review, it remains to be seen whether the positions of the Justices will change since the plurality ruling in Williams. However, until the Supreme Court revisits this area, the confusion under current case law will continue. Will 2014 be the year that the Court reconsiders the application of the Confrontation Clause to expert testimony?

    In the meantime, for more information on the Williams case (including copies of the briefs in the case and other related materials), see the Williams v. Illinois Resource Page, which includes Key Briefs and Other Materials, and coverage in the Federal Evidence Blog.

    2. Circuit Split: Division under the Confrontation Clause on “Language Conduit” Theory for Interpreters

    One of the circuit splits noted last year in the Federal Evidence Blog involves the application of the Confrontation Clause to the statements of an interpreter. Last year, the circuits took contrary positions on whether the Confrontation Clause requires the interpreter to testify concerning the statements of another witness including the defendant. For example, when the statements of a defendant are admitted through a non-testifying interpreter, does the Confrontation Clause require that the defendant be permitted to cross-examine the interpreter about the statements? Last year, the division in the courts on this issue was reinforced.

    Some courts, such as the Fourth Circuit, have concluded that there is no Confrontation Clause issue since "[t]he interpreter was nothing more than a language conduit." United States v. Shibin, 722 F.3d 233 (4th Cir. July 12, 2013) (No. 12-4652); see also United States v. Romo-Chavez, 681 F.3d 955, 961 (9th Cir. 2012) (concluding that since a translator acted as a "mere[ ] ... conduit" for the defendant's statements there was no right to cross-examine the translator); United States v. Hieng, 679 F.3d 1131, 1139 (9th Cir. 2012) ("A defendant and an interpreter are treated as identical for testimonial purposes if the interpreter acted as a 'mere language conduit' or agent of the defendant."); see also The Confrontation Clause and Admission Of Statements Involving A Non-Testifying Interpreter. A few weeks after the Fourth Circuit decision in Shibin, the Eleventh Circuit rejected the "language conduit" approach in United States v. Charles, 722 F.3d 1319 (11th Cir. July 25, 2013) (No. 12-14080). Circuit Judge Stanley Marcus specially concurred in the judgment of the case, concluding that "it [was] unnecessary to decide a novel and difficult question of constitutional law in an area where the Supreme Court’s jurisprudence is still evolving." Charles, 722 F.3d at 1332 (Marcus, J., specially concurring).

    Generally, statements provided to an interpreter during a criminal investigation are "testimonial" under the Confrontation Clause. The issue highlights the division of the courts in applying the Confrontation Clause under current case law.

    3. Supreme Court Watch: Is An Analytical Shift Coming for Fourth Amendment Analysis on the Search and Seizure of Digital Evidence?

    Recent cases highlight a debate over the application of the Fourth Amendment to digital or electronic evidence. Privacy takes on new significance in our digital era. The Fourth Amendment protects "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures...." Novel privacy interests are raised by data stored on computers, cell phones, the cloud and other media. See, e.g., United States v Jones, 565 U.S. _, 132 S. Ct. 945, 948, 181 L. Ed. 2d 911 (2012) (opinion highlighting different approaches on "whether the attachment of a Global-Positioning-System (GPS) tracking device to an individual's vehicle, and subsequent use of that device to monitor the vehicle's movements on public streets, constitutes a search or seizure within the meaning of the Fourth Amendment").

    Some of the challenging issues were previewed in Jones. For example, Justice Sonia Sotomayor suggested new analysis was required concerning Supreme Court precedent on obtaining third party records:

    More fundamentally, it may be necessary to reconsider the premise that an individual has no reasonable expectation of privacy in information voluntarily disclosed to third parties. E.g., Smith [v. Maryland], 442 U.S. [735,] 742 [(1979)]; United States v. Miller, 425 U.S. 435, 443 (1976). This approach is ill suited to the digital age, in which people reveal a great deal of information about themselves to third parties in the course of carrying out mundane tasks. People disclose the phone numbers that they dial or text to their cellular providers; the URLs that they visit and the e-mail addresses with which they correspond to their Internet service providers; and the books, groceries, and medications they purchase to online retailers. Perhaps, as Justice Alito notes, some people may find the “tradeoff” of privacy for convenience “worthwhile,” or come to accept this “diminution of privacy” as “inevitable,” post, at 10, and perhaps not. I for one doubt that people would accept without complaint the warrantless disclosure to the Government of a list of every Web site they had visited in the last week, or month, or year. But whatever the societal expectations, they can attain constitutionally protected status only if our Fourth Amendment jurisprudence ceases to treat secrecy as a prerequisite for privacy. I would not assume that all information voluntarily disclosed to some member of the public for a limited purpose is, for that reason alone, disentitled to Fourth Amendment protection. See Smith, 442 U.S., at 749 (Marshall, J., dissenting) (“Privacy is not a discrete commodity, possessed absolutely or not at all. Those who disclose certain facts to a bank or phone company for a limited business purpose need not assume that this information will be released to other persons for other purposes”); see also Katz [v. United States], 389 U.S. [347,] 351–352 [(1967)] (“[W]hat [a person] seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected”).

    Resolution of these difficult questions in this case is unnecessary, however, because the Government’s physical intrusion on Jones’ Jeep supplies a narrower basis for decision. I therefore join the majority’s opinion.

    Jones, 132 S. Ct. at 957 (Sotomayor, J., concurring).

    In Jones, Justice Samuel Alito, Jr., concurred in the judgment, but not concerns about the prolonged surveillance under the Fourth Amendment:

    But the use of longer term GPS monitoring in investigations of most offenses impinges on expectations of privacy. For such offenses, society’s expectation has been that law enforcement agents and others would not—and indeed, in the main, simply could not—secretly monitor and catalogue every single movement of an individual’s car for a very long period. In this case, for four weeks, law enforcement agents tracked every movement that respondent made in the vehicle he was driving. We need not identify with precision the point at which the tracking of this vehicle became a search, for the line was surely crossed before the 4-week mark. Other cases may present more difficult questions. But where uncertainty exists with respect to whether a certain period of GPS surveillance is long enough to constitute a Fourth Amendment search, the police may always seek a warrant.11 We also need not consider whether prolonged GPS monitoring in the context of investigations involving extraordinary offenses would similarly intrude on a constitutionally protected sphere of privacy. In such cases, long-term tracking might have been mounted using previously available techniques.

    Jones, 132 S. Ct. at 964 (Alito, J., concurring in the judgment).

    In another case from last year, the First Circuit highlighted a circuit split on whether the search incident to arrest doctrine may apply to information on a cell phone possessed by an arrestee. See Circuit Split: Courts Divided On Search Of Cell Phones Incident To Arrest. While the First Circuit judges disagreed on the application of the search incident to arrest doctrine, two of them (Chief Judge Sandra L. Lynch and Judge Jeffrey R. Howard) suggested the Supreme Court should decide the issue. Chief Judge Lynch noted that "[t]he decision in this case creates a circuit split with respect to the validity of warrantless searches of cell phones incident to arrest." As Judge Howard framed the issue:

    Clearly, cell phones sit at the intersection of several different Fourth Amendment doctrines, and I suspect that each new case will result in a slightly different interpretation of how to treat these searches. Given this likely outcome, I welcome speedy resolution from the Supreme Court, and see no need to delay by reconsidering this case.

    United States v. Wurie, 724 F.3d 255 (1st Cir. 2013) (order denying rehearing en banc).

    The questions raised in these and other cases suggest that new analytical approaches may be emerging concerning the application of the Fourth Amendment to privacy interests concerning digital data. Any new standards will necessarily impact the collection and availability of digital evidence in court. [To be sure, other novel constitutional issues are being considered involving electronic evidence. For example, as noted in the Federal Evidence Blog, the courts are addressing the issue of the application of the Fifth Amendment Self-Incrimination Clause to encrypted computer data. See prior blog posts for cases addressing this issue.]

    4. Open Issue: Emerging Tension and Division Surrounding Mohawk Industries Which Had "Narrow[ed]" the "Class Of Collaterally Appealable Orders"

    In Mohawk Industries, Inc. v. Carpenter, 558 U.S. 100 (2009) (No. 08-678), the Supreme Court resolved a circuit split and unanimously held that interlocutory appellate review of an attorney-client privilege ruling ordering disclosure of privileged information was unavailable under the Cohen collateral order doctrine, Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 546-47 (1949). The Court noted that “[e]ffective appellate review can be had by other means.” The Court “reiterate[d] that the class of collaterally appealable orders must remain narrow and selective in its membership.” See also Supreme Court Watch: Mohawk Industries Case Limits Interlocutory Review Of Attorney-Client Privilege Rulings .

    However, instead of limiting appellate review on privilege issues, some courts have suggested there may be other avenues that permit appellate review. Some disagreement has emerged in the lower courts since the Mohawk Industries decision. For example, can a non-party, or litigant on the non-party’s behalf, pursue an interlocutory appeal after Mohawk Industries? Other courts have noted open issues following Mohawk Industries. The Tenth Circuit recently noted the developing division:

    We express no opinion as to whether, given subsequent case law development, see Mohawk Indus., Inc. v. Carpenter, 558 U.S. 100, 103 (2009) (holding disclosure orders adverse to attorney‐client privilege not immediately appealable), an order denying a client’s motion to quash a subpoena directed to his attorney, when the client is already under indictment or a party to litigation, would still be immediately appealable today. See, e.g., United States v. Copar Pumice Co., 714 F.3d 1197, 1208 n.5 (10th Cir. 2013) (collecting cases); In re Grand Jury, 705 F.3d 133, 144‐46 (3d Cir. 2012) (holding Perlman exception remains viable after Mohawk in case where privilege‐holder is a grand jury subject); Holt‐Orsted v. City of Dickson, 641 F.3d 230, 238 (6th Cir. 2011) (“[T]he Mohawk decision has altered the legal landscape related to collateral appeals of discovery orders adverse to the attorney‐client privilege and narrowed the category of cases that qualify for interlocutory review. . . . “[W]here the privilege holder is a party to the litigation with recourse in a post‐judgment appeal, we conclude that Perlman no longer affords jurisdiction to hear this interlocutory appeal.”); United States v. Krane, 625 F.3d 568, 570 (9th Cir. 2010) (Perlman survives Mohawk in context of case where privilege‐holder is non‐party); Wilson v. O’Brien , 621 F.3d 641, 643 (7th Cir. 2010) (“Mohawk Industries calls Perlman and its successors into question, because, whether the order is directed against a litigant or a third party, an appeal from the final decision will allow review of the district court’s ruling. Only when the person who asserts a privilege is a non‐litigant will an appeal from the final decision be inadequate.”)

    United States v. Punn, 737 F.3d 1, n.8 (2d Cir. Dec. 6, 2013) (No. 13-2780-CR). Other courts have also noted the tension on the scope of appellate review after Mohawk Industries:

    • In re Grand Jury Subpoena, 709 F.3d 1027, 1030 (10th Cir. March 1, 2013) (No. 12-1330) (“We recognize that this circuit reads Perlman more narrowly than the great majority of the other circuits, which generally allow a third party to appeal the denial of a motion to quash without any showing that the person subpoenaed is likely to comply with the subpoena.”) (footnote omitted).
    • Sandra T.E. v. South Berwyn School Dist. 100, 600 F.3d 612, 617-18 (7th Cir. Mar 30, 2010) (No. 08-3344) (noting without deciding open issue whether Mohawk Industries applies to a non-party who may lack appellate review upon a final judgment)
    • Perry v. Schwarzenegger , 591 F.3d 1147, 1154 (9th Cir. Jan 4, 2010) (Nos. 09-17241, 09-17551) (noting open issue after Mohawk “whether the collateral order doctrine applies to discovery orders denying claims of First Amendment privilege” but relying on mandamus review to consider “extraordinarily important questions of first impression concerning the scope of a privilege")

    While the Supreme Court tried to "narrow" the avenues of appeal of collateral orders involving privilege issues inMohawk Industries, some division is arising concerning the application of the ruling. At some point, the Supreme Court may need to revisit and clarify these issues.

    5. Circuit Splits: Challenging A Verdict Based On Claims of Juror Racial Bias During Deliberations Or Claims of Juror Dishonesty During Voir Dire

    Two evidence issues from last year concern the ability to consider evidence to challenge or question a jury verdict based on claims of juror bias or dishonesty.

    Claims Of Juror Racial Bias

    As recently noted in the Federal Evidence Blog, last year the circuits highlighted a division on whether evidence may be considered that a juror's racial bias was noted during jury deliberations. The issue strikes at the central role of the jury process and the ability to encourage frank and candid discussions during jury deliberations. As a general rule, FRE 606(b) limits juror testimony concerning an inquiry into the validity of the verdict. Three narrow exceptions to this general rule are recognized under FRE 606(b)(2). The exceptions include consideration of "extraneous prejudicial information was improperly brought to the jury’s attention" or "an outside influence was improperly brought to bear on any juror" or "a mistake was made in entering the verdict on the verdict form". As the Sixth Circuit has observed, “the 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). The Sixth Amendment also provides for an impartial jury and the Fifth Amendment provides for a fair trial. How do these constitutional rights square with the limitations under FRE 606(b) where allegations of juror racial bias during deliberations are raised?

    Last year, the Ninth Circuit noted the division on this issue: "We have not decided, as some courts have, whether Rule 606(b) prevents us from considering evidence that a juror's racial bias was expressed during deliberations." United States v. Hayat, 710 F.3d 875, 886 (9th Cir. March 13, 2013) (No. 07-10457) (citing a split between the First Circuit, which would allow "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," and the Tenth Circuit, which would not). The First Circuit position is 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, 87 (1st Cir. 2009) (No. 08-1154); see also First Circuit Notes Conflict Between The Constitution And FRE 606(b) (Barring Inquiry into Validity of Jury’s Verdict). In contrast, the Tenth Circuit has held that FRE 606(b) does not permit an exception to consider claims of juror racial bias. United States v. Benally, 546 F.3d 1230, 1236–39 (10th Cir. 2008) (holding that FRE 606(b) contains no exception for racially biased statements made during jury deliberations and expressing skepticism about whether constitutional concerns can ever override the rule); see also Claims Of Jury Racial Bias Were Unreviewable Under FRE 606(b). The Third and Seventh Circuits have reached a similar result. United States v. Shalhout, 507 Fed. Appx. 201, 205-07 (3d Cir. 2012) (allegations of juror racial bias was barred by FRE 606(b)); Shillcutt v. Gagnon, 827 F.2d 1155, 1156 (7th Cir. 1987) ("We are asked to decide whether a racial comment uttered by a juror during jury deliberations violates a criminal defendant's constitutional right to an impartial jury. Because, under the facts of this case, we hold that the rule prohibiting impeachment of verdicts sufficiently protects the petitioner's constitutional right, we affirm the district court's denial of the petition for habeas corpus."); see also United States v. Sotelo, 97 F.3d 782, 797 (5th Cir. 1996) (FRE 606(b) did not bar consideration of claims of racial bias before a verdict was provided; "Since the problem was brought to the court's attention prior to verdict, 606(b) does not impact the availability of juror testimony in resolving the factual issues raised."). This issue raises questions about the role of the jury process, finality, constitutional rights and appropriate scope of FRE 606(b).

    Claims Of Juror Dishonesty DuringVoir Dire

    Another circuit split noted last year in the Federal Evidence Blog involves claims of juror dishonesty during voir dire. Presently the Third, Eighth and Tenth Circuits disallow juror statements regarding juror dishonesty to be used to challenge a verdict. The Fifth and Ninth Circuits have taken contrary positions. See Warger v. Shauers, 721 F.3d 606, 611 (8th Cir. July 24, 2013) (No. 12-1846) ("Although juror testimony can be used to show dishonesty during voir dire for the purpose of contempt proceedings against the juror, there is a split among the circuits as to whether such testimony may be used to challenge a verdict."); see generally Circuit Split: Whether Juror Affidavits Can Be Used To Show Juror Dishonesty During Voir Dire And Contest A Jury Verdict.

    This issue is cast differently than the prior one. The focus is not on juror statements made during the jury deliberation but on statements made during the voir dire process. However, the statements are used to challenge the jury verdict.

    6. Legislation: Will Congress Enact a New Media Shield Privilege?

    Given increasing interest in a new media shield privilege in 2013, will Congress enact this media shield privilege in 2014?

    Last year, controversy arose over the use of subpoenas to obtain telephone records of reporters. See Congress Watch: Renewed Focus On Reporter Shield Law Following Use Of Subpoenas For Reporters' Telephone Records; see also New DOJ Guidelines Impose Higher Restrictions To Obtain Evidence From Members Of The Media.

    The courts do not agree on whether a reporter's privilege applies or on the scope and manner of invoking any privilege. See, e.g., Division Among The Courts On Recognition And Scope Of Reporter's Privilege. For example, a divided panel on the Fourth Circuit declined to recognize application of the privilege in United States v. Sterling, 724 F.3d 482 (4th Cir. July 19, 2013); see also Continued Controversy Over Reporter's Privilege Highlighted In Fourth Circuit Opinion.

    In the past, the primary legislative obstacle to passage has been in the Senate. The "Free Flow Of Information" Act has twice passed the house, including in 2009 (by voice vote) and 2007 (by a vote of 398 to 21). Comparable legislation has been reported out of the Senate Judiciary Committee, including in 2007, 2009 and 2013, but has yet to be approved by the full Senate. Given the heightened focus on adopting a reporter's privilege earlier in 2013, will legislation pass both houses of Congress in 2014?

    The legislation has its critics. For example, Michael B. Mukasey, former U.S. Attorney General and U.S. District Judge for the Southern District of New York, questions the ability of federal judges to assess national security issues:

    What is or isn’t in the public interest, how grave may be the national-security threat from letting a reporter shield a confidential source, and determining what is “essential” to an investigation is left to the unguided discretion of each judge who hears such a case. Judges—who are neither trained to assess national-security threats nor generally responsible for such assessments—thus supplant executive officials who have the training and the responsibility.

    Michael B. Mukasey, A Press Shield Law's Strange Bedfellows, Wall Street Journal (Dec. 1, 2013).

    For more information on these measures, see the Reporter Shield Law Blog Posts, and the Free Flow of Information Act Legislative History Page for 2009.

    7. Rule Amendment: Sixth Amendment (Confrontation Clause): More Notice and Demand Rules?

    As recently noted in the Federal Evidence Blog, on December 1, 2013, FRE 803(10) (Absence of a Public Record) was amended to include a "notice and demand" requirement. The new requirement allows a prosecutor to provide written notice to use a certification, instead of a witness, to establish the absence of a record. The defendant may demand that the witness testimony. If not, the certification is admitted without any witness. The amendment is based on the approval of the "notice and demand" process by the Supreme Court in Melendez-Diaz v. Massachusetts, 557 U.S. 305, 129 S. Ct. 2527 (2009). The "notice and demand" process satisfies the requirements of the Confrontation Clause. In Melendez-Diaz, the Supreme Court cited to other examples from state statutes and procedural notification requirements under the federal rules for discovery and notice of alibi witnesses:

    In their simplest form, notice-and-demand statutes require the prosecution to provide notice to the defendant of its intent to use an analyst’s report as evidence at trial, after which the defendant is given a period of time in which he may object to the admission of the evidence absent the analyst’s appearance live at trial. See, e.g., Ga. Code Ann. § 35–3–154.1 (2006); Tex. Code Crim. Proc. Ann., Art. 38.41, § 4 (Vernon 2005); Ohio Rev. Code Ann. § 2925.51(C) (West 2006). Contrary to the dissent’s perception, these statutes shift no burden whatever. The defendant always has the burden of raising his Confrontation Clause objection; notice-and-demand statutes simply govern the time within which he must do so. States are free to adopt procedural rules governing objections. See Wainwright v. Sykes, 433 U.S. 72, 86–87 (1977). It is common to require a defendant to exercise his rights under the Compulsory Process Clause in advance of trial, announcing his intent to present certain witnesses. See Fed. Rules Crim. Proc. 12.1(a), (e), 16(b)(1)(C); Comment: Alibi Notice Rules: The Preclusion Sanction as Procedural Default, 51 U. Chi. L. Rev. 254, 254–255, 281–285 (1984) (discussing and cataloguing State notice-of-alibi rules); Taylor v. Illinois, 484 U.S. 400, 411 (1988); Williams v. Florida, 399 U.S. 78, 81–82 (1970). There is no conceivable reason why he cannot similarly be compelled to exercise his Confrontation Clause rights before trial. See Hinojos-Mendoza v. People, 169 P.3d 662, 670 (Colo. 2007) (discussing and approving Colorado’s notice-and-demand provision). Today’s decision will not disrupt criminal prosecutions in the many large States whose practice is already in accord with the Confrontation Clause.

    Melendez-Diaz, 129 S. Ct. at 2541 (footnote omitted).

    Given the approval by the Supreme Court, and the recent amendment, should this procedure be applied to other rules of evidence? For example, the process could be used for certified public records, among other rules and issues. Could this procedure also be used for expert testimony (to address the first issue under Williams v. Illinois, for example, where multiple analysts process evidence but only one expert testifies about the lab results?

    8. Rule Amendment: FRE 801(d)(1)(B) (Prior Consistent Statement)

    In September 2013, the Judicial Conference of the United States approved two amendment areas involving the FRE. The first involves FRE 801(d)(1)(B) (Prior Consistent Statement).

    Under the proposed amendment to 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, at 29 (Sept. 2013) explained the proposal:

    [FRE 801(d)(1)(B)] would be amended to provide that prior consistent statements are admissible under the hearsay exemption whenever they are admissible to 1) rebut an express or implied charge that the witness recently fabricated testimony or acted from a recent improper influence or motive in so testifying; and 2) rehabilitate the declarant’s credibility when attacked on another ground.... The advisory committee proposed that Rule 801(d)(1)(B) be amended to provide that prior consistent statements are admissible under the hearsay exemption whenever they would otherwise be admissible to rehabilitate the witness’s credibility. The amendment is intended to eliminate confusing jury instructions on the permissible use of prior consistent statements. Judge Fitzwater emphasized that this amendment would preserve the rule of Tome v. United States, 513 U.S. 150 (1995). Under that case, a prior consistent statement is not hearsay only if it was made prior to the time when the motive to fabricate arose.

    A member of the Standing Committee observed that if a witness was in court and available to be cross-examined, there seemed little reason to exclude prior consistent statements on any basis. The advisory committee’s reporter observed that this current amendment represented a small step in that direction.

    Under the Rules Enabling Act, the Supreme Court must act on the proposal by May 1, 2014. After Supreme Court action, the amendment becomes law if Congress does not enact legislation to reject, modify, or defer the rules by December 1, 2014. See 28 U.S.C. §§ 2074, 2075. With transmittal to the Supreme Court, the proposed amendment is the sixth step in the rules amendment process.

    For more information on the pending amendment to FRE 801(d)(1)(B), see the background materials at the FRE 801(d)(1)(B) Amendment Legislative History Page, which includes various reports on the amendment, and the prior coverage in the Federal Evidence Blog.

    9. Rule Amendment: FRE 803(6) (Business Records), FRE 803(7) (Absence of Business Records), and FRE 803(8) (Public Records)

    The second area recommended for amendment by the Judicial Conference of the United States in September 2013 concerns the trustworthiness requirement for FRE 803(6) (Business Records), FRE 803(7) (Absence of Business Records), and FRE 803(8) (Public Records). These rules provide that the records are admissible once the proponent satisfies the requirements of the applicable rule “unless the source of information or the method or circumstances of preparation indicate lack of trustworthiness.” The current language of the rules do not clarify which party bears the burden to show untrustworthiness.

    As 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, at 31 (Sept. 2013) explained the proposal:

    Most courts impose the burden of proving untrustworthiness on the opponent, but a few require the proponent to prove that a record is trustworthy.... [The proposed amendments] would clarify that the opponent has the burden of showing that the proffered record is untrustworthy.

    For more information on the pending amendments , see the background materials on the FRE 803(6), FRE 803(7), and FRE 803(8) Amendments Legislative History Page, which includes various reports on the amendments, and the prior blog posts in the Federal Evidence Blog discussing the amendments to FRE 803(6), FRE 803(7), and FRE 803(8).

    10. Considering the Role of Cameras in the Courtroom

    In 2014, the Judicial Conference of the United States will evaluate the pilot project that began in September 2010 permitting the use of cameras in some civil cases in fourteen U.S. District Courts. See Judicial Conference Extends Pilot Project To Evaluate Cameras In The Federal District Courts; see also Summary of the History of Cameras in the Federal Courts. The review will raise the issue again about whether and to what extent cameras should be allowed in federal court proceedings.

    Practitioners disagree on whether the presence of a camera may influence court proceedings. See, e.g., Judges, Attorneys Debate Cameras in the Courtroom, Blog of the Legal Times (March 28, 2012) (judges noting "the resistance to taped proceedings, especially in criminal trials, came from a fear that witnesses would feel intimidated and decide not to testify").

    A separate issue concerns whether cameras should be used to televise or record oral argument in the Supreme Court. Legislation has again been introduced to permit these recordings. See H.R. 96, 113th Cong., 1st Sess. (Jan. 3, 2013) (to permit the televising of Supreme Court proceedings); S. 1207, 113th Cong., 1st Sess. (June 20, 2013) (to permit the televising of Supreme Court proceedings); see also Letter of Assistant Majority Leader, Senator Richard J. Durbin to Chief Justice John G. Roberts, Jr. (June 18, 2013) (urging the Court to "permit live video broadcasts"). In the prior Congress, the Senate Judiciary Committee approved a measure to televise Supreme Court proceedings, without further action by the Senate. However, members of the Court remain opposed to televised proceedings, as noted again last year during congressional hearings. Supreme Court Watch: Justices Note Continued Reservations Over Cameras In the Supreme Court.

    For more information on this issue, see Federal Trial Courts Pilot Program Table (collecting key court materials) and other materials on the Cameras And Electronic Devices In The Federal Courtroom Resource Page.


    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 2014? If so, please let us know. We welcome constructive comments.

    Past Top Ten Retrospective and Prospective Key Evidence Issues


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