Reviewing Circuit Splits On Evidence Issues During 2013

During the past year, a number of circuit splits have been identified involving evidence issues. A survey of these circuit splits highlights division on a range of issues, including the Confrontation Clause involving interpreter statements, claims involving juror bias under FRE 606(b), the admissibility of a prior possession conviction under FRE 404(b), the presence of a defendant during a playback of recorded evidence, and the requirements to admit a party-opponent statement under FRE 801(d)(2)(A)

During 2013, the Federal Evidence Blog noted a number of interesting circuit splits involving evidence issues. A few of these issues may ultimately require Supreme Court review and resolution. However, given the challenges in obtaining discretionary review by the Supreme Court, some of these splits highlight areas in which the jurisdiction may make a difference on whether or not certain evidence gets into federal court.

Use these jump links to view the specific issues below:

    1. Whether an interpreter must testify about his or her translation under the Confrontation Clause?
    2. Whether claims of juror racial bias during deliberations may be used to challenge the verdict under FRE 606(b)?
    3. Whether juror affidavits can be used to show juror dishonesty during voir dire to challenge the verdict, also under FRE 606(b)?
    4. Whether a prior conviction for possessing a drug is admissible in a case involving the distribution of drugs under FRE 404(b)?
    5. Whether the defendant must be present during the playing back of recorded evidence to the jury?
    6. Whether party-opponent statements include a requirement that the statement be contrary or inculpatory?
    7. Whether a cell phone may be searched incident to arrest?

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    The following circuit splits on evidence issues were highlighted during the past year:

    [1] Whether An Interpreter Must Testify About The Translation Under The Confrontation Clause?

    • Issue: In admitting foreign language transcripts prepared by a non-testifying interpreter, does the Confrontation Clause require the individual who provided the translation to testify? Alternatively, can a "language conduit" theory, recognized by some courts, apply to interpreter statements to avoid any Confrontation Clause issues?
    • Key Cases: United States v. Curbelo, 726 F.3d 1260, 1273 n.9 (11th Cir. Aug. 9, 2013) (No. 10-14665) (in noting circuit split on whether a "language conduit" theory may be applied under the Confrontation Clause, concluding there was no violation under the Confrontation Clause since one of the participants to the recorded conversations testified about the accuracy of the transcript); United States v. Charles, 722 F.3d 1319 (11th Cir. July 25, 2013) (No. 12-14080) (holding that the Confrontation Clause requires an interpreter to testify before the defendant's statements made to the interpreter may be admitted); United States v. Shibin, 722 F.3d 233 (4th Cir. July 12, 2013) (No. 12-4652) (since the interpreter was only a "language conduit" for the statements, there was no Confrontation Clause issue)
    • Blog Posts: (1) Circuit Split: Division Noted Again On "Language Conduit" Theory For Interpreters Under Confrontation Clause ; (2) see also Rejecting "Language Conduit" Theory For Interpreters Under The Confrontation Clause ; (3) Prior Inconsistent Statements Provided Through An Interpreter Were Admissible Under The Confrontation Clause
    • Current Division Among the Circuits: Eleventh Circuit notes: "Two of our sister circuits [citing to the Fifth and Ninth Circuits] have applied the 'language conduit' rule to conclude that an oral interpreter’s statements are really statements of the speaker for purposes of the Confrontation Clause." Curbelo, 726 F.3d at 1273 n.9 (citations omitted).
    • Ramifications: The issue applies to testimonial statements of an interpreter who does not testify concerning the interpretation of recorded conversations or witness interviews involving a foreign language.

    [2] Whether Claims Of Juror Racial Bias During Deliberations May Be Used To Challenge The Verdict?

    • Issue: While FRE 606(b) generally bars juror testimony concerning an inquiry into the validity of the verdict, can claims of alleged juror racial bias during deliberations be used in order to challenge the verdict?
    • Key Cases: United States v. Hayat, 710 F.3d 875 (9th Cir. March 13, 2013) (No. 07-10457) (noting circuit split); United States v. Villar, 586 F.3d 76 (1st Cir. Nov. 10, 2009) (No. 08-1154) (“While the issue is difficult and close, we believe that the rule against juror impeachment cannot be applied so inflexibly as to bar juror testimony in those rare and grave cases where claims of racial or ethnic bias during jury deliberations implicate a defendant’s right to due process and an impartial jury.”); 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); 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.")
    • Blog Post: (1) Circuit Split: Ensuring Racial Bias Is Not A Basis For The Jury's Deliberations ; (2) Claims Of Jury Racial Bias Were Unreviewable Under FRE 606(b) ; (3) First Circuit Notes Conflict Between The Constitution And FRE 606(b)
    • Current Division Among the Circuits: Ninth Circuit notes: "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." Hayat, 710 F.3d at 886 (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).
    • Ramifications: 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"). The circuit division concerns whether alleged juror racial bias during jury deliberations should also be recognized as an exception to the rule.

    [3] Whether Juror Affidavits Can Be Used To Show Juror Dishonesty During Voir Dire To Challenge The Verdict?

    • Issue: While FRE 606(b) generally bars juror testimony concerning an inquiry into the validity of the verdict, can juror affidavits be used to show juror dishonesty during the voir dire process to challenge the verdict?
    • Key Case: Warger v. Shauers, 721 F.3d 606 (8th Cir. July 24, 2013) (No. 12-1846)
    • Blog Post: Circuit Split: Whether Juror Affidavits Can Be Used To Show Juror Dishonesty During Voir Dire And Contest A Jury Verdict
    • Current Division Among the Circuits: Eighth Circuit notes: "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." Warger, 721 F.3d at 611 (citation omitted). Eighth Circuit joins with the Third and Tenth Circuits in barring juror statements regarding juror dishonesty to be used to challenge a verdict, and noting that the Fifth and Ninth Circuits have taken contrary positions.
    • Ramifications: As noted in for the second circuit split above, 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"). The circuit division concerns whether alleged juror dishonesty should also be recognized as an exception to the rule.

    [4] Whether A Prior Conviction For Possessing A Drug Is Admissible In A Case Involving The Distribution Of Drugs Under FRE 404(b)?

    • Issue: In August 2013, the Third and Seventh Circuits vacated convictions after holding that the admission of prior conviction for possessing a drug (or for personal use not distribution) under FRE 404(b) was reversible error; the cases also highlighted a circuit split.
    • Key Cases: United States v. Lee, 724 F.3d 968, 980 n.2 (7th Cir. Aug. 1, 2013) (No. 12-1718) ("the mere fact of his conviction for possession reveals nothing about how Lee came to possess the cocaine or what his purpose was"); United States v. Davis, 726 F.3d 434 (3d Cir. Aug. 9, 2013) (No. 12–1486) ("We join other circuits in declaring that a possession conviction is inadmissible to prove intent to distribute."; noting "a past intent to possess drugs simply is not probative of a future intent to distribute")
    • Blog Post: Circuit Split: On Using Prior Possession Convictions Under FRE 404(b)
    • Current Division Among the Circuits: According to the Third Circuit, the Sixth, Seventh and Ninth Circuits join in disallowing this evidence, while the Fifth, Eighth, and Eleventh Circuits permit it. Davis, 726 F.3d at 445.
    • Ramifications: The issue largely turns on whether a possession offense is similar to a distribution offense. The courts disagree on whether a logical inference may be made by the possession offense to show intent or whether the possession conviction is propensity evidence normally barred under FRE 404.

    [5] Whether The Defendant Must Be Present During The Playing Back Of Recorded Evidence To The Jury?

    • Issue: When the jury requests a playback of recorded evidence, does the defendant have a right to be present? The First Circuit identified a circuit split on this issue under the Confrontation Clause and Due Process Clause.
    • Key Case: United States v. Monserrate-Valentín, 729 F.3d 31 (1st Cir. Sept. 6, 2013) (Nos. 10-1526, 10-2164) (noting that "[t]here seems to be a circuit split on this issue" and citing cases)
    • Blog Post: Circuit Split: On Procedure To Replay Recordings To The Jury
    • Current Division Among the Circuits: According to the First Circuit, the Fourth and Ninth Circuits have concluded that the defendant has a right to be present during a play back and individuals should not be sent to the jury room for a playback, while the D.C. Circuit has taken a "contrary" position. Monserrate-Valentín, 729 F.3d at 58.
    • Ramifications: The First Circuit recognized the potential that "in certain circumstances a defendant's due process rights and his right to a fair trial may be jeopardized if the district court fails to take adequate precautions during the playback of the recordings."

    [6] Whether Party-Opponent Statements Include A Requirement That The Statements Be Contrary Or Inculpatory?

    • Issue: Whether a statement admitted against a party opponent under FRE 801(d)(2)(A) "must be contrary to that party's position at the time of the trial”
    • Key Case: United States v. Ciavarella, 716 F.3d 705 (3d Cir. May 24, 2013) (No. 11-3277)
    • Blog Post: Circuit Split: Whether Party-Opponent Statements Include A Requirement That The Statement Be Contrary Or Inculpatory
    • Current Division Among the Circuits: Third Circuit notes conflict with the Seventh Circuit and other courts. Ciavarella, 716 F.3d at 725 n.9 (citing case).
    • Ramifications: The Third Circuit seems to recognize that its position is contrary to the rule and other circuit case law, concluding that "we need not address whether to relax our limitation on the admissibility of a party opponent's statements." Ciavarella, 716 F.3d at 725 n.9.

    [7] Whether a cell phone may be searched incident to arrest?

    • Issue: Whether a cell phone may be searched incident to arrest, and without a search warrant, under the Fourth Amendment?
    • Key Case: United States v. Wurie, 728 F.3d 1 (1st Cir. May 17, 2013) (divided panel reverses denial of suppression motion, vacates conviction and remands case; decision creates a split with other circuits); see also United States v. Wurie, 724 F.3d 255 (1st Cir. 2013) (Lynch, C.J., Howard, J., statements on denial of rehearing en banc).
    • Blog Post: Circuit Split: Courts Divided On Search Of Cell Phones Incident To Arrest
    • Current Division Among the Circuits: The federal and state courts are divided on whether cell phone evidence may be seized without a warrant following an arrest. The Fourth, Fifth and Seventh Circuits along with the Georgia, Massachusetts, and California Supreme Courts have upheld the seizure of this evidence. The First Circuit and Florida and Ohio Supreme Courts have not. The Eleventh Circuit has noted an open issue. See Circuit Split: Courts Divided On Search Of Cell Phones Incident To Arrest (collecting cases).
    • Ramifications: Judges on the First Circuit have urged the Supreme Court to consider the case and issue. United States v. Wurie, 724 F.3d 255 (1st Cir. 2013) (Lynch, C.J., Howard, J., statements on denial of rehearing en banc).

    Additional Evidence Splits

    In addition to these circuit splits, if you are aware of other noteworthy circuit splits during the past year, please let us know. We welcome constructive comments.

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