Retrospective: Ten Key Evidence Issues From 2013

The end of 2013 provides an opportunity to reflect and highlight some of the noteworthy evidence issues over the past year. We offer the following ten key evidence issues from 2013, which are not ranked in any particular order. The first six issues review the Supreme Court cases touching on evidence matters that were issued in 2013. Other issues involve the new FRE amendment and recent cases suggesting court-appointed experts should be used. Also, noted is the recurring challenge of jurors conducting Internet research during the trial and recent cases dealing with Internet and electronic evidence

During 2013, the Supreme Court issued six opinions touching on a variety of constitutional and evidence issues. Two of the Court's cases involved the Fifth Amendment Self-Incrimination Clause. Other cases included the collection of DNA samples from arrestees under the Fourth Amendment, who bears the burden to establish a withdrawal from a conspiracy under the Fifth Amendment Due Process Clause, the evidence necessary to show damages to obtain class action certification, and the exclusion of extrinsic evidence about the victim and limits of federal courts to set aside a conviction based on the exclusion of evidence. Of the six cases, two were decided by five to four margins, one was decided by a plurality opinion and three were unanimously decided. One case (Nevada v. Jackson) was decided without oral argument.

Other issues of note include the new "notice and demand" amendment to FRE 803(10) (Absence of a Public Record); recent cases encouraging the use of court-appointed experts under FRE 706; challenges in addressing juror Internet research during trials; and new cases concerning electronic and Internet evidence issues.

In our Prospective: Ten Key Evidence Issues For 2012, we highlighted the Circuit Split: Admission Of Pre-Miranda Silence. At the time, we noted: "Given the importance this evidence can have at trial, the division in the circuits may be ripe for review by the Supreme Court." As noted below, the Supreme Court considered this issue in Salinas v. Texas in a plurality opinion.

As in the past, we welcome comments and other suggestions. Next week we will provide our annual Prospective: Ten Key Evidence Issues For 2014.

Key Evidence Issues During 2013

Use these jump links to view specific issues below:

    1. Supreme Court Watch: Fifth Amendment (Self-Incrimination Clause): Kansas v. Cheever: Allowing The Government To "Follow" Where The Defense Leads On Defense Expert Mental State Evidence
    2. Supreme Court Watch: Fifth Amendment (Self-Incrimination Clause): Salinas v. Texas: Splintered Ruling Fails To Provide Guidance On Prearrest Contacts With Law Enforcement
    3. Supreme Court Watch: Fourth Amendment (Search and Seizure Clause): Maryland v. King: Divided Court Upholds DNA Sample Collection From Arrestees For A "Serious” Crime Without A Search Warrant
    4. Supreme Court Watch: Fifth Amendment (Due Process Clause): Smith v. United States: Unanimous Conspiracy Withdrawal Ruling
    5. Supreme Court Watch: Fed. R. Civ. P. 23 (Class Actions); FRE 702 (Testimony By Expert Witnesses): Comcast v. Behrend: Clarifying The Preliminary Evidentiary Showing For Class Certification
    6. Supreme Court Watch: Sixth Amendment (Right to Present a Defense) (Confrontation Clause); FRE 608(b) (Specific Instances of Conduct): Nevada v. Jackson: No Constitutional Right To Present Extrinsic Evidence For Impeachment Purposes
    7. Addressing Juror Internet Research During Trials
    8. Electronic And Internet Evidence Issues
    9. FRE 706: Encouraging The Use And Consideration Of Court-Appointed Experts
    10. Rule Amendments: FRE 803(10) (Absence of a Public Record)

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    Summary Of The Ten Key Evidence Issues During 2013

    1. Supreme Court Watch: Fifth Amendment (Self-Incrimination Clause): Kansas v. Cheever: Allowing The Government To "Follow" Where The Defense Leads On Defense Expert Mental State Evidence

    A few weeks ago, the Supreme Court addressed an issue concerning the application of the Fifth Amendment privilege against self-incrimination during a court-ordered psychological examination after the defense offers defense expert testimony concerning the defendant's mental state. In an opinion authored by Justice Sonia Sotomayor, the Court unanimously held that "where a defense expert who has examined the defendant testifies that the defendant lacked the requisite mental state to commit a crime, the prosecution may offer evidence from a court-ordered psychological examination for the limited purpose of rebutting the defendant's evidence" without violating the defendant's Fifth Amendment rights. Kansas v. Cheever, _ U.S. _, 134 S.Ct. 596 (Dec. 11, 2013) (No. 12-609).

    As the Court explained, “Any other rule would undermine the adversarial process, allowing a defendant to provide the jury, through an expert operating as proxy, with a one-sided and potentially inaccurate view of his mental state at the time of the alleged crime.” Cheever, _ S.Ct. at _ (citation omitted). The ruling was largely an extension of prior precedent. The Court “reaffirm[ed]” its decision in Buchanan v. Kentucky, 483 U. S. 402, 422 (1987), which permitted the government to introduce rebuttal evidence based on an examination of the defendant after the defendant “presents psychiatric evidence.” Consequently, "the State permissibly followed where the defense led. Excluding this testimony would have undermined Buchanan and the core truth-seeking function of the trial." Cheever, _ S.Ct. at _.

    The opinion noted but did not address another issue that may arise in the case on remand or in other cases. The defendant raised a scope of rebuttal issue contending that the rebuttal expert testimony exceeded Fifth Amendment limits. The Court "decline[d] to address this issue" since the state court had not yet done so, including its application of any relevant state evidence rules. Cheever, _ S.Ct. at _ n.4.

    For more information on the Kansas v. Cheever case, see the Key Briefs and Other Materials (scroll to the bottom), Oral Argument Transcript and Audio, Case Docket Sheet, and coverage in the Federal Evidence Blog.

    2. Supreme Court Watch: Fifth Amendment (Self-Incrimination Clause): Salinas v. Texas: Splintered Ruling Fails To Provide Guidance On Prearrest Contacts With Law Enforcement

    On June 17, 2013, in a plurality opinion, the Supreme Court held that the Fifth Amendment privilege against self-incrimination does not automatically apply to silence in the precustodial setting during questioning by law enforcement. The plurality concluded that since the Fifth Amendment privilege "generally is not self-executing," must be "expressly invoke[d] ... in response to the officer’s question." Salinas v. Texas, 570 U.S. _, 133 S.Ct. 2174 (June 17, 2003) (No. 12-246).

    The Supreme Court had previously noted but left open this issue. See Jenkins v. Anderson, 447 U.S. 231, 236 n.2 (1980) ("Our decision today does not consider whether or under what circumstances prearrest silence may be protected by the Fifth Amendment."). The Supreme Court has held that after a defendant testifies, "the Fifth Amendment is not violated by the use of [a defendant’s] prearrest silence to impeach [his] credibility." 447 U.S. at 238.

    However, the splintered 2013 ruling fails to provide clarity on this constitutional question. There was no majority opinion issued as the Court could not agree on the application of the Fifth Amendment to resolve the question. Instead, three opinions were issued. First, Justice Samuel Alito, Jr. announced the judgment of the Court in a plurality opinion which was joined by Chief Justice John G. Roberts, Jr. and Justice Anthony Kennedy. Second, Justice Clarence Thomas filed an opinion concurring in the judgment which was joined by Justice Antonin Scalia. Finally, Justice Stephen G. Breyer wrote the dissent and was joined by Justices Ruth Bader Ginsburg, Sonia Sotomayor, and Elena Kagan.

    It is difficult to discern the "narrowest grounds" which support a rationale from this case. See Marks v. United States, 430 U.S. 188, 193 (1968) ("When 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 that position taken by those Members who concurred in the judgments on the narrowest grounds.") (internal quotation omitted). Given the plurality opinion and strong differences among the Justices concerning the scope and application of the Fifth Amendment, further cases will likely test the boundaries of the application of the Fifth Amendment during law enforcement prearrest contacts.

    For more information on the Salinas v. Texas case, see the Key Briefs and Other Materials (scroll to the bottom), Oral Argument Transcript and Audio, Case Docket Sheet, and coverage in the Federal Evidence Blog.

    3. Supreme Court Watch: Fourth Amendment (Search and Seizure Clause): Maryland v. King: Divided Court Upholds DNA Sample Collection From Arrestees For A "Serious” Crime Without A Search Warrant

    On June 3, 2013, in a 5 to 4 decision, the Supreme Court held that the Fourth Amendment permits law enforcement to obtain a DNA sample from any person arrested for a “serious” crime without a search warrant: “When officers make an arrest supported by probable cause to hold for a serious offense and they bring the suspect to the station to be detained in custody, taking and analyzing a cheek swab of the arrestee’s DNA is, like fingerprinting and photographing, a legitimate police booking procedure that is reasonable under the Fourth Amendment.” Maryland v. King, 569 U.S. _, 133 S.Ct. 1958 (June 3, 2013) (No. 12-207).

    The case reinforces the continued collection and use of DNA samples from federal and state arrestees for serious offenses. The federal government and most states have enacted statutes which provide for the collection of DNA (deoxyribonucleic acid) of arrestees for certain offenses. King, 133 S.Ct. at 1968 ("Twenty-eight States and the Federal Government have adopted laws similar to the Maryland Act authorizing the collection of DNA from some or all arrestees.").

    However, in resolving an open issue at the Supreme Court under Fourth Amendment analysis, the opinion raises more questions on whether this precedent may be extended to other areas. By considering the "special needs of law enforcement" in the context of the collection of a DNA sample to an arrestee, will this holding be applied to other law enforcement circumstances to assess the reasonableness of a search?

    For more information on the Maryland v. King case, see the Key Briefs and Other Materials (scroll to the bottom), Oral Argument Transcript and Audio, Case Docket Sheet, and coverage in the Federal Evidence Blog. For further information on the use of DNA evidence, see prior posts concerning DNA Evidence.

    4. Supreme Court Watch: Fifth Amendment (Due Process Clause): Smith v. United States: Unanimous Conspiracy Withdrawal Ruling

    In Smith v. United States, 568 U.S. _, 133 S.Ct. 714 (Jan. 9, 2013) (No. 11-8976), the Supreme Court issued a unanimous decision clarifying the burden of proof to establish withdrawal from a conspiracy. In a decision authored by Justice Antonin Scalia, the Court held that the defendant holds the burden to prove withdrawal and the government does not bear any burden to disprove withdrawal under the Fifth Amendment (Due Process Clause).

    Prior to the unanimous opinion, the circuits were divided on this issue. Circuit jury instructions on the withdrawal issue are being updated to reflect the burden and proof issues in the ruling. See, e.g., More Jury Instructions Modified After Smith v. United States; Seventh Circuit Issues Revised Conspiracy Withdrawal Instructions Following Smith v. United States.

    The unanimous opinion also reinforced long-standing conspiracy law principles. For example, the Court emphasized "the established proposition that a defendant’s membership in the conspiracy, and his responsibility for its acts, endures even if he is entirely inactive after joining it." Smith, 133 S.Ct. at 721 (citing Hyde v. United States, 225 U.S. 347, 369-70 (1912) (“As he has started evil forces he must withdraw his support from them or incur the guilt of their continuance.”)) (emphasis in original).

    For more information on the Smith v. United States case, see the Key Briefs and Other Materials (scroll to the bottom), Oral Argument Transcript and Audio, Case Docket Sheet, and coverage in the Federal Evidence Blog. For other jury instructions, see the Federal Jury Instructions Resource Page.

    5. Supreme Court Watch: Fed. R. Civ. P. 23 (Class Actions); FRE 702 (Testimony By Expert Witnesses): Comcast v. Behrend: Clarifying The Preliminary Evidentiary Showing For Class Certification

    On March 27, 2013, in a 5 to 4 ruling, the Supreme Court held that trial courts must employ a “rigorous analysis” to determine whether class action plaintiffs have shown “that damages could be measured on a class wide basis" including adequate proof about a common methodology for measuring damages. In the antitrust action, the class was improperly certified under Fed. R. Civ. P. 23(b)(3) as the proposed class produced only a general theory, based on expert testimony, about alleged monopolistic overcharges. Absent any more detailed information on the impact of the specific antitrust allegation in the lawsuit on the proposed class of plaintiffs, sufficient commonality was not shown for purposes of class certification. The Court noted that “a model purporting to serve as evidence of damages in this class action must measure only those damages attributable to that theory. If the model does not even attempt to do that, it cannot possibly establish that damages are susceptible of measurement across the entire class for purposes of [Fed. R. Civ. P.] Rule 23(b)(3).” Comcast v. Behrend, 569 U.S. _, 133 S.Ct. 1426, 185 L. Ed. 2d 515 (March 27, 2013) (No. 11-864).

    The case clarifies and raises the bar on the evidentiary proof required early in the class action to obtain class certification. In many class action cases, the proof will require expert testimony as it did in the Comcast antitrust class action case. Given the new standards, district courts will now be required to apply the "rigorous analysis" on the threshold determination whether there is sufficient proof to support classwide damages. See generally Considering The Initial Impact Of The Recent Supreme Court Comcast Ruling On Class Certifications (noting the initial application of the case to pending class actions).

    For more information on the Comcast v. Behrend case, see the Key Briefs and Other Materials (scroll to the bottom), Oral Argument Transcript and Audio, Case Docket Sheet, and coverage in the Federal Evidence Blog.

    6. Supreme Court Watch: Sixth Amendment (Right to Present a Defense) (Confrontation Clause); FRE 608(b) (Specific Instances of Conduct): Nevada v. Jackson: No Constitutional Right To Present Extrinsic Evidence For Impeachment Purposes

    On June 3, 2013, in a per curiam decision, the Supreme Court reversed a Ninth Circuit opinion that a defendant was deprived of the right to present a defense during his Nevada rape trial by the exclusion of extrinsic evidence about the victim. The Confrontation Clause also does not "entitle[] a criminal defendant to introduce extrinsic evidence for impeachment purposes." The state evidence rule, which was comparable to FRE 608(b), focuses the jury on the central facts and avoids "minitrials on collateral issues.” Nevada v. Jackson, 569 U.S. _ , 133 S.Ct. 1990 (June 3, 2013) (per curiam) (No. 12-694).

    The case illustrates that the right of confrontation does not necessarily include the right to use extrinsic evidence. Other evidence rules may bar extrinsic evidence as a matter of other evidence policies, such as FRE 608(b). Additionally, the case also underscores the limited role of federal habeas review concerning the application of state evidence rules.

    For more information on the Nevada v. Jackson case, see the Key Briefs and Other Materials (scroll to the bottom), Oral Argument (none held), Case Docket Sheet, and coverage in the Federal Evidence Blog.

    7. Addressing Juror Internet Research During Trials

    With the pervasive use of social media and the ability to connect to the Internet from most places most of the time, courts continue to wrestle with the issue of preventing and mitigating juror Internet research during trial including during jury deliberations. As noted in a September 2013 ruling, the consequences of juror Internet research can force the court to order a new trial. United States v. Rand, _ F.Supp.2d _ (WDNC Sept. 6, 2013) (No. 10 CR 00182) (two jurors conducted Google searches concerning the meaning of the term "reasonable doubt" during jury deliberations resulting a new trial); see also Juror Google Research Results In Granting Motion For A New Trial.

    A model jury instruction is recommended to highlight this issue early in the trial and to discourage juror Internet research or exposure to extraneous information. We have previously noted examples from the Judicial Conference Committee on Court Administration and Case Management:

    After the trial court and parties learn about juror internet research during the trial, the trial court can act quickly to assess the impact of any exposure and decide whether a new trial is warranted. Generally, FRE 606(b) limits juror testimony concerning an inquiry into the validity of the verdict. However, FRE 606(b)(2) recognizes three limited exceptions to considering juror statements to (such as "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"). If a juror has been exposed to extraneous information, a rebuttable presumption of prejudice applies under Remmer v. United States, 347 U.S. 227, 229 (1954) (a presumption of prejudice is used whenever extra-record materials or communications with jurors happens during the criminal trial).

    As the Second Circuit has noted in reviewing the denial of a motion for a new trial following juror Internet research, the trial court can take steps to assess: "(1) the nature of the information or contact at issue, and (2) its probable effect on a hypothetical average jury." United States v. Farhane, 634 F.3d 127, 169 (2d Cir. 2011) (after a juror used Google and learned that a co-conspirator "had pleaded guilty to unspecified charges and then communicated that fact to other jurors", the trial court properly denied the motion for a mistrial since the presumption of prejudice from exposure to extra-record evidence was rebutted by a showing that the information was harmless); see also Rebutting The Presumption Of Prejudice From Juror's Google Search.

    Concerns about juror research have always been a concern, long before the Internet. However, this new challenge for the courts is a product of the pervasiveness and accessibility of the Internet. While preventative measures, such as jury instructions and education, are preferred, the courts will have to take steps to make a sufficient inquiry and record while respecting the rules which generally prohibit inquiry into juror statements to protect the jury process. For other case examples confronting this issue, consider Juror Internet Research Leads To Reversal; No Reversal Despite Juror Exposure To Internet Information, Media Accounts And E-mail.

    8. Electronic And Internet Evidence Issues

    As in the past, electronic and internet evidence continue to present some of the more important and interesting evidence issues in civil and criminal cases. Some of the issues considered during the past year include:

    For more information, see other coverage in the Federal Evidence Blog on Electronic Evidence, and the Internet Evidence.

    9. FRE 706: Encouraging The Use And Consideration Of Court-Appointed Experts

    Some courts during the past year have again encouraged the use of court-appointed expert testimony to assist the finder of fact in understanding and deciding the issues. FRE 706(a) allows a court to appoint an expert witness in the case.

    The rule, which is frequently invoked, can be applied to a variety of matters. For example, only a few weeks ago, the Seventh Circuit suggested that the trial court and parties consider using FRE 706 in a challenge to a state statute which limits abortions to doctors who have admitting privileges to a hospital within 30 miles of the clinic where the abortion is performed. Planned Parenthood of Wisconsin, Inc. v. Van Hollen, _ F.3d _ (7th Cir. Dec. 20, 2013) (NO. 13-2726). In upholding the preliminary injunction, but anticipating a trial for a permanent injunctions, the court suggested a court-appointed expert may be necessary to address technical medical issues in a strongly contested proceeding:

    And so the district judge’s grant of the injunction must be upheld. But given the technical character of the evidence likely to figure in the trial—both evidence strictly medical and evidence statistical in character concerning the consequences both for the safety of abortions and the availability of abortion in Wisconsin—the district judge may want to reconsider appointing a neutral medical expert to testify at the trial, as authorized by Fed. R. Evid. 706, despite the parties’ earlier objections. Given the passions that swirl about abortion rights and their limitations there is a danger that party experts will have strong biases, clouding their judgment. They will still be allowed to testify if they survive a Daubert challenge, but a court‐appointed expert may help the judge to resolve the clash of the warring party experts. And the judge may be able to procure a genuine neutral expert simply by directing the party experts to confer and agree on two or three qualified neutrals among whom the judge can choose with confidence in their competence and neutrality. If either side’s party experts stonewall in the negotiations for the compilation of the neutral list, the judge can take disciplinary action; we doubt that will be necessary.

    Van Hollen, _ F.3d at _.

    Court-appointed experts under FRE 706 have been used in a variety of cases. See, e.g., Monolithic Power Systems, Inc. v. O2 Micro Intern. Ltd., _ F.3d _ (Fed. Cir. August 13, 2013) (No. 2012-1221) (in patent infringement case, noting that "the district court appointed its own technical expert under Federal Rule of Evidence 706 to assist with infringement and invalidity determinations"); Khan v. Fatima, 680 F.3d 781 (7th Cir. May 4, 2012) (No. 12-1692) (in International Child Abduction Remedies Act case, suggesting "on remand" that "the judge to whom the case is assigned appoint a child psychologist to interview" a four year old child pursuant to FRE 706); see also In Re High Fructose Corn Syrup Antitrust Litigation, 295 F.3d 651 (7th. Cir. 2002) (No. 01-3565) (suggesting that the use of FRE 706 court-appointed experts could play a role in sharpening the "absorptive capacities of judges and juries," in complex cases).

    A prior judicial survey and report by the Federal Judicial Center (FJC), the research arm of the federal judiciary, examined the views of judges on using FRE 706 to appoint experts and why these appointments occurred “so infrequently.” Court-Appointed Experts: Defining the Role of Experts Appointed Under Federal Rule of Evidence 706, Joe S. Cecil &: Thomas E. Willging, Federal Judicial Center (1993). In the appropriate case, court-appointed experts can be an appropriate and useful measure as contemplated by the drafters of the FRE.

    For more information, see coverage in the Federal Evidence Blog.

    10. Rule Amendment: FRE 803(10) (Absence of a Public Record)

    On December 1, 2013, the Federal Rules of Evidence were modified by an amendment to FRE 803(10) (Absence of a Public Record). The amendment (reproduced below with the accompanying Advisory Committee Note) provides a new written "notice and demand" requirement.

    Under the new amended rule, "a prosecutor who intends to offer a certification" must "provide written notice of that intent at least 14 days before trial. If the defendant does not object in writing within 7 days of receiving the notice, the prosecutor would be permitted to introduce a certification that a diligent search failed to disclose" a public record or statement. In complying with the amended rule, the government would not have to produce a witness to testify about the absence of the record.

    As noted in the Advisory Committee Note (reproduced below), the amendment was explicitly drafted to conform with the "notice and demand" process approved by the Supreme Court in Melendez-Diaz v. Massachusetts, 557 U.S. 305, 129 S. Ct. 2527 (2009). In that case, the Supreme Court held that certificates of forensic analysis are "testimonial" and "the Sixth Amendment does not permit the prosecution to prove its case via ex parte out-of-court affidavits." Melendez-Diaz, 129 S. Ct. at 2542. The holding called into question under the Sixth Amendment Confrontation Clause the admission of certificates to prove the absence of a public record to be used at a criminal trial. In Melendez-Diaz, the Supreme Court noted that “notice and demand” statutes satisfy Confrontation Clause concerns. Given the Supreme Court blessing on the "notice and demand" procedure, one question is whether this approach be used for other evidence rules in the future?

    For more information on the amendment, see the background materials at the FRE 803(10) Amendment Legislative History Page, and coverage in the Federal Evidence Blog.


    Text Of Amended Rule

    The text of the FRE 803(10), effective December 1, 2013, and the accompanying Advisory Committee Note, follow:

    - - - - - - - - - -


    Federal Rule Of Evidence 803(10) As Amended December 1, 2013


    strike out indicates deletion; underline indicates insertion

    Rule 803. Exceptions to the Rule Against Hearsay — Regardless of Whether the Declarant Is Available as a Witness

    The following are not excluded by the rule against hearsay, regardless of whether the declarant is available as a witness:

    * * *

    (10) Absence of a Public Record. Testimony — or a certification under Rule 902 — that a diligent search failed to disclose a public record or statement if the testimony or certification is admitted to prove that:

    (A) the testimony or certification is admitted to prove
    that

    (A i) the record or statement does not exist;
    or
    (B ii) a matter did not occur or exist, if a public office regularly kept a record or statement for a matter of that kind; and
    (B) in a criminal case, a prosecutor who intends to offer a certification provides written notice of that intent at least 14 days before trial, and the defendant does not object in writing within 7 days of receiving the notice — unless the court sets a different time for the notice or the objection.


    Advisory Committee Note

    Rule 803(10) has been amended in response to Melendez-Diaz v. Massachusetts, 557 U.S. 305 (2009). The Melendez-Diaz Court declared that a testimonial certificate could be admitted if the accused is given advance notice and does not timely demand the presence of the official who prepared the certificate. The amendment incorporates, with minor variations, a “notice-and-demand” procedure that was approved by the Melendez-Diaz Court. See Tex. 36 Code Crim. P. Ann., art. 38.41.

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    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 2013? If so, please let us know. We welcome constructive comments.

    Past Top Ten Retrospective and Prospective Key Evidence Issues

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