Retrospective: Ten Key Evidence Issues From 2012

The conclusion of 2012 offers a chance to highlight some of the noteworthy evidence issues over the past year. While it remains a challenge to offer a definitive list, we offer the following ten key evidence issues from 2012, which are not ranked in any particular order. As in the past, we welcome comments and other suggestions.

The Supreme Court underscored the role of juries to consider and decide evidence issues, including in determining the reliability of eyewitness identification evidence and in deciding facts which are used to increase a criminal fine beyond the maximum statutory amount. The need for guidance and clarity from the Supreme Court on Confrontation Clause and expert testimony issues continues. A Seventh Circuit case suggests that depositions of an unavailable witness obtained in proceedings with a civil agency may be used against the government in criminal proceedings. A Fourth Circuit case indicates that the use of email communications at work may waive confidential privileged communications. The circuits continue to note the issue whether a settlement privilege should be recognized and remain divided on this issue. While there are few cases considering the circumstances in which access to encrypted information may be compelled under the Fifth Amendment, two cases were decided in the past year. Cases continued to note the need avoid juror confusion by the use of dual lay And expert law enforcement testimony. Finally, an assessment of the "restyled" FRE shows that the purpose in the amendments has largely been attained. In a few days, we will provide our annual Prospective: Ten Key Evidence Issues For 2013.

Key Evidence Issues During 2012

Use these jump links to view specific issues below:

    1. Supreme Court Watch: Confrontation Clause: Williams v. Illinois: Still Seeking Guidance On Expert Testimony Issues
    2. Supreme Court Watch: Perry v. New Hampshire: The Reliability Of Eyewitness Identification Evidence Is Determined By Juries, Not Judges
    3. Supreme Court Watch: Sixth Amendment: Southern Union Company v. United States: Extending The Role Of Juries To Criminal Fines
    4. Seventh Circuit Concludes Civil Agency Deposition Of Unavailable Witness Is Admissible Against The Government In A Criminal Case
    5. Email Waiver Of Claimed Privilege Communications
    6. Open Issue: Whether To Recognize A Settlement Privilege?
    7. When Are Business Records “Testimonial” Under The Confrontation Clause?
    8. Compelling Access To Encrypted Information Under The Fifth Amendment
    9. Avoiding Juror Confusion By Dual Lay And Expert Law Enforcement Testimony
    10. Rule Amendments: Attaining The Objectives Of The “Restyled” Federal Rules of Evidence


    Summary Of The Ten Key Evidence Issues During 2012

    1. Supreme Court Watch: Confrontation Clause: Williams v. Illinois: Still Seeking Guidance On Expert Testimony Issues

    As we have previously noted, over the past few years, the lower courts have wrestled with the application of the Confrontation Clause to expert testimony. To what extent can a testifying expert rely on the testimonial reports and results of non-testifying experts under the Confrontation Clause? For example, when forensic evidence is offered, can a supervisor testify about the results obtained by other analysts? How many witnesses may be necessary to establish forensic expert testimony? The admissibility of this type of expert testimony continues as a significant, lingering open issue which ultimately will require guidance and clarification from the Supreme Court.

    This issue was also highlighted a year and a half ago in a concurring opinion in Bullcoming v. New Mexico, 564 U.S. _, 131 S.Ct. 2705, 2722 (2011), Justice Sonia Sotomayor noted the open issue involving expert testimony under the Confrontation Clause. In particular, she “emphasize[d] the limited reach of the Court’s opinion,” by noting that the Bullcoming decision was not addressing “a case in which the person testifying is a supervisor, reviewer, or someone else with a personal, albeit limited, connection to the scientific test at issue” and was not considering “a case in which an expert witness was asked for his independent opinion about underlying testimonial reports that were not themselves admitted into evidence. See question presented 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.

    See also Supreme Court Watch: Preliminary Questions Raised In the New Williams Confrontation Clause Case Involving Expert Testimony.

    However, when the plurality opinion was issued on June 18, 2012, numerous questions were raised. The Supreme Court plurality held that the expert testimony did not violate the Sixth Amendment. See Williams v. Illinois, 567 U.S. _, 132 S.Ct. 2221, 183 L.Ed.2d 89 (June 18, 2012) (No. 10-8505); see also Supreme Court Watch: Williams Plurality Opinion Raises More Questions About The Admissibility Of Expert Testimony.

    Justice Samuel Alito, Jr.'s plurality opinion, joined by Chief Justice John G. Roberts, Jr., and Justices Anthony Kennedy and Stephen G. Breyer), concluded that the out of court statement about the results from another lab was (1) not offered to prove the truth of the matter but to explain the testifying expert’s assumptions for the opinion, and (2) not “testimonial” under the Sixth Amendment. Justice Clarence Thomas concurred in the judgment only, concluding that the outside laboratory statements were not “testimonial”because they lacked the “formality and solemnity” of testimonial statements under the Confrontation Clause. In a concurring opinion, Justice Breyer suggested that the case should be set for reargument. He joined the plurality opinion which was “basically consistent with” his conclusion that the expert testimony was not “testimonial”. Justice Elena Kagan’s dissent, which was joined by Justices Antonin Scalia, Ruth Bader Ginsburg, and Sonia Sotomayor, believed that the challenged statements, offered through the expert testimony, violated the Confrontation Clause because they were testimonial and offered for the truth of the matter asserted.

    As the dissent questioned, no position by the Court garnered majority support, raising more doubt about the guidance in this important area:

    What comes out of four Justices’ desire to limit Melendez-Diaz and Bullcoming in whatever way possible, combined with one Justice’s one-justice view of those holdings, is—to be frank—who knows what. Those decisions apparently no longer mean all that they say. Yet no one can tell in what way or to what extent they are altered because no pro¬posed limitation commands the support of a majority.

    Williams v. Illinois, 567 U.S. at _, 132 S.Ct. at 2252. Until the Supreme Court addresses the issue, the lower courts will continue to wrestle with the application of expert testimony under the Confrontation Clause. The plurality opinion also raises questions about the direction of the Confrontation Clause analysis and whether changes may be underway.

    For more information on the 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. Supreme Court Watch: Perry v. New Hampshire: The Reliability Of Eyewitness Identification Evidence Is Determined By Juries, Not Judges

    In Perry v. New Hampshire, 565 U.S. __, 132 S.Ct. 716 (Jan. 11, 2012) (No. 10-8974), the Supreme Court held, in an eight to one ruling, that the Due Process Clause does not require judicial review concerning the reliability of eyewitness identification which was not unduly suggestive as a result of police involvement. Like other evidence, the jury determines the reliability of eyewitness evidence. See Supreme Court Watch: Perry v. New Hampshire And The Jury's Role In Assessing Identification Evidence. For many years, commentators and some courts had questioned the reliability of eyewitness identification testimony. Perry, 565 U.S. at _ n.4, 132 S.Ct. at 723 n.4 (noting lower court split over the past few decades on the issue “whether the Due Process Clause requires a trial judge to conduct a preliminary assessment of the reliability of an eyewitness identification made under suggestive circumstances not arranged by the police”).

    The Court noted five specific "protections" or "safeguards" in the judicial process in which the reliability of eyewitness identification evidence can be tested. These protections include "[1] the presence of counsel at post indictment lineups, [2] vigorous cross-examination, [3] protective rules of evidence, and [4] jury instructions on both the fallibility of eyewitness identification and [5] [jury instructions on] the requirement that guilt be proved beyond a reasonable doubt." Perry, 565 U.S. at _, 132 S.Ct. at 721. In our adversary process, counsel will ultimately use these tools to convince the jury about the reliability of eyewitness identification evidence.

    For more information on the case, see the Perry v. New Hampshire case, see prior coverage in the Federal Evidence Blog, which includes key briefs and other materials, and model federal and state eyewitness identification jury instructions.

    3. Supreme Court Watch: Sixth Amendment: Southern Union Company v. United States: Extending The Role Of Juries To Criminal Fines

    In a June 21, 2012 case emphasizing the Constitution's role for juries in the criminal justice process, the Supreme Court decided that a jury, not a judge, must determine facts which are used to increase a criminal fine beyond the maximum statutory amount under the Sixth Amendment. The Court, in a 6 to 3 ruling, extended to criminal fines the rule in Apprendi v. New Jersey, 530 U. S. 466, 490 (2000) (“[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.”). See Southern Union Co. v. United States, 567 U.S. _, 132 S.Ct. 2344, 183 L.Ed.2d 318 (June 21, 2012) (No. 11-94).

    Under Southern Union, the Supreme Court notes that the Sixth Amendment “guards against … judicial factfinding that enlarges the maximum punishment a defendant faces beyond what the jury’s verdict or the defendant’s admissions allow.” Southern Union, 567 U.S. at _, 132 S.Ct. at 2352. As the Court explained, under the Sixth Amendment:

    [R]equiring juries to find beyond a reasonable doubt facts that determine the fine’s maximum amount is necessary to implement Apprendi’s “animating principle”: the “preservation of the jury’s historic role as a bulwark between the State and the accused at the trial for an alleged offense.”

    Southern Union, 567 U.S. at _, 132 S.Ct. at 2351 (quoting Oregon v. Ice, 555 U. S. 160, 168 (2009)).

    For more on the case, see prior posts in the Federal Evidence Blog.

    4. Seventh Circuit Concludes Civil Agency Deposition Of Unavailable Witness Is Admissible Against The Government In A Criminal Case

    When can a deposition of an unavailable witness obtained during a separate civil agency investigation be admitted against the government in a subsequent criminal case? FRE 804(b)(1) provides for the admission of former testimony of an unavailable witness “at a trial, hearing, or lawful deposition” if it “offered against a party who had — or, in a civil case, whose predecessor in interest had — an opportunity and similar motive to develop it by direct, cross-, or redirect examination.” Last August, the Seventh Circuit ventured into this issue, noting “[t]here is very little law on the question whether two government agencies, or as in this case the United States and a subsidiary agency, should be considered as different parties for litigation purposes, or if they are both merely agents of the United States.” See United States v. Sklena, 692 F.3d 725 (7th Cir. Aug. 23, 2012) (No. 11-2589).

    In Sklena, the circuit reversed a criminal commodity fraud convictions based on the exclusion of a deceased co-defendant’s civil deposition before the Commodity Futures Trading Commission (CFTC) as evidence of his innocence. The circuit concluded that the CFTC and Department of Justice were the same party and had a “similar motive” to develop the civil deposition testimony under FRE 804(b)(1). The Seventh Circuit identified relevant factors to consider: “Whether the motive of the United States, acting through a civil enforcement agency, is similar enough to its interests when it engages in criminal enforcement depends on a number of factors, including the substantive law that each is enforcing, the factual overlap between the two proceedings, the type of proceeding, the potential associated penalties, and any differences in the number of issues and parties.”
    Sklena, 692 F.3d at 732.

    Whether the Sklena holding will be applied in other parallel civil and criminal cases involving government agencies, remains to be seen. For more on the case, see the prior posts in the Federal Evidence Blog.

    5. Email Waiver Of Claimed Privilege Communications

    As we recently noted, the Fourth Circuit has considered the application of the marital privilege communication using emails from a work computer. The decision, if applied to other privileges, could have a broader reach concerning the waiver of a privilege based on the email privacy policies of employers and others providing email use. See United States v. Hamilton, _ F.3d _ (4th Cir. Dec. 13, 2012) (No. 11-4847).

    The case involved an older Supreme Court case that had determined the presumption afforded a marital communication by a husband to his wife was waived in the case by its "voluntary disclosure" "to a third person, his stenographer." See Wolfle v. United States, 291 U.S. 7, 14 (1934). The Fourth Circuit concluded, by analogy, that “email has become the modern stenographer…. But just as spouses can ‘conveniently communicate without’ use of a stenographer, they can also ‘conveniently communicate without’ using a work email account on an office computer.” Hamilton, _ F.3d at _ (quoting Wolfle, 291 U.S. at 16). The circuit concluded that a subsequent computer policy which was adopted by the defendant-husband’s employer stated that users held "no expectation of privacy in their use of the Computer System" and "[a]ll information created, sent[,] received, accessed, or stored in the . . . Computer System is subject to inspection and monitoring at any time." Hamilton, _ F.3d at _. Under these circumstances, the circuit concluded that the email communications by the defendant to and from his wife were not protected by the privilege.

    While it remains to be seen if the holding will be applied to other email communications which allegedly are privileged, the case highlights the application of a privilege to emails and underscores that email communications may not be always be private when considering the scope of privileged discussions.

    6. Open Issue: Whether To Recognize A Settlement Privilege?

    Courts continued to consider and note whether a federal settlement privilege should be recognized. While FRE 408 (Compromise Offers and Negotiations) and FRE 410 (Pleas, Plea Discussions, and Related Statements) limit the admissibility of settlement evidence in civil and criminal cases, they do not confer privileged status on settlement communications which can be used to bar their discoverability. While few courts have recognized a privilege, the issue arose this year in a Federal Circuit Case, In re MSTG, Inc., 675 F.3d 1337 (Fed. Cir. April 9, 2012) (No. Misc. 996) (“we hold that settlement negotiations related to reasonable royalties and damage calculations are not protected by a settlement negotiation privilege”); see also Federal Circuit Examines Evolution Of The Privilege To Promote Settlement. . Earlier treatments of the privilege are found in other circuits, including:

    • Sixth Circuit: Goodyear Tire & Rubber Co. v. Chiles Power Supply, Inc., 332 F.3d 976, 980, 983 (6th Cir. 2003) (“Viewed ‘in the light of reason and experience,’ we believe a settlement privilege serves a sufficiently important public interest, and therefore should be recognized.”; "any communications made in furtherance of settlement are privileged")
    • Seventh Circuit: In re General Motors Corp. Engine Interchange Litigation, 594 F.2d 1106, 1124 n.20 (7th Cir. 1979) (declining to recognize a settlement privilege)
    • Eighth Circuit: Government of Ghana v. ProEnergy Services, LLC, 677 F.3d 340, 344 n.3 (8th Cir. May 1, 2012) (noting open issue on whether a “settlement privilege” may be recognized under FRE 501; while the circuit concludes that it was unnecessary to resolve the issue now); see also Jaffee v. Redmond, 518 U.S. 1, 9-10 (1996) (a privilege may be recognized under “common law principles . . . in the light of reason and experience”). It remains to be seen how other circuits will address this issue and whether the Supreme Court will address the circuit split at some point.

      7. When Are Business Records “Testimonial” Under The Confrontation Clause?

      FRE 803(6) admits business records as an exception to the rule excluding hearsay. Generally, since the Crawford decision announced the new Confrontation Clause analysis, business records have not been treated as “testimonial.” Crawford v. Washington, 541 U.S. 36, 56 & n.7 (2004) (“Most of the hearsay exceptions covered statements that by their nature were not testimonial —for example, business records or statements in furtherance of a conspiracy.”); Crawford, 541 U.S. at 76 (Rehnquist, J., dissenting) (“To its credit, the Court’s analysis of ‘testimony’ excludes at least some hearsay exceptions, such as business records and official records. To hold otherwise would require numerous additional witnesses without any apparent gain in the truth-seeking process.”) (citation omitted).

      There is some emerging tension on whether business records may be considered similar to other statements as to whether they are “testimonial” or not. A recent example in the past year comes from the divided First Circuit decision in United States v. Cameron, _ F.3d _ (1st Cir. Nov. 14, 2012) (No. 11-1275). The case considered the admissibility of Internet records under the Confrontation Clause. See First Circuit Considers Admissibility Of Internet Records Under The Confrontation Clause.

      The majority noted that "even if the records at issue here are business records, ... we must still determine whether or not they are testimonial." Some Internet account activity records (including Yahoo! Account Management Tool, Login Tracker data and Google Hello Connection Logs) were non-testimonial business records and did not implicate the Confrontation Clause. However, Child Pornography Reports, which were "created in the ordinary course of Yahoo!'s business," were testimonial and could not be admitted unless the defendant had an "opportunity to cross-examine the Yahoo! employees who prepared the CP Reports." Cameron, _ F.3d at _. As the majority explained:

      Our holding today does not mean that non-testimonial business records somehow become testimonial simply because the government seeks to use them as evidence against a criminal defendant. However, if business records are testimonial, then a defendant must be given an opportunity to confront the authors of those records.

      Cameron, _ F.3d at _.

      In his dissent, Circuit Judge Jeffrey R. Howard did not disagree that "evidence does not escape testimonial hearsay status under the Confrontation Clause simply because it may otherwise bear the characteristics of a business record," however, he did "not believe that the location link displayed in the Yahoo! reports amounts to a testimonial statement under current Supreme Court precedent or under our own cases." Cameron, _ F.3d at _ (Howard, J., dissenting).

      Whether the presumption that business records are not testimonial will lose its status remains to be seen.

      8. Compelling Access To Encrypted Information Under The Fifth Amendment

      The courts continue to grapple with the circumstances in which the government may compel access to encrypted information under the Fifth Amendment. There have been very few published cases on this issue. Some significant cases on this issue were decided last year with different results.

      The Eleventh Circuit reversed an order compelling production of unencrypted computer contents after holding that the “decryption and production of the hard drives’ contents would trigger Fifth Amendment protection because it would be testimonial, and that such protection would extend to the Government’s use of the drives’ contents.” See In Re: Grand Jury Subpoena Duces Tecum Dated March 25, 2011, 670 F.3d 1335 (11th Cir. Feb. 23, 2012) (Nos. 11-12268, 11-15421).

      Also, last year, a District Court in the District of Colorado granted the government’s application to provide the government “with an unencrypted copy of” a hard drive which was seized from the defendant’s bedroom after a warranted search. The government had shown that it was aware “of the existence and location of the computer files” and the absence of knowledge about the “specific content of any specific documents is not a barrier to production.” United States v. Ramona Camelia Fricosu, 841 F.Supp.2d 1232 (D.CO. Jan. 23, 2012) (No. 10-CR-00509-REB).

      Given the importance of information stored on encrypted media, and the increasing use of encryption, this issue will continue to evolve. For more information, see the Federal Evidence Review articles by a federal prosecutor and defense attorney who took opposite positions in the Eleventh Circuit case: Chet Kaufman, "Decryption As Privileged Testimony Under The Fifth Amendment," 9 Fed. Evid. Rev. 801-08 (Aug. 2012); James Silver, "Decoding Encryption for Litigators," 9 Fed. Evid. Rev. 809-14 (Aug. 2012), as well as coverage in the Federal Evidence Blog.

      9. Avoiding Juror Confusion By Dual Lay And Expert Law Enforcement Testimony

      The courts continue to express concern over the use of dual lay and expert testimony by law enforcement witnesses absent precautionary steps to mitigate potential prejudice.

      The rules of evidence acknowledge that the same witness can provide both lay and expert testimony. See FRE 701 ACN (2000 Amendment) (noting “it is possible for the same witness to provide both lay and expert testimony in a single case”). However, when a law enforcement official testifies as both a lay and expert witness, under FRE 701 and FRE 702, special concerns arise.

      In one “borderline” case, the Seventh Circuit noted some “proper precautions to minimize
      potential prejudice” that the trial court can take:

      “to ensure the jury understands its function in evaluating this evidence. The jury needs to know when an agent is testifying as an expert and when he is testifying as a fact witness.” The “dual testimony” situation “places an especially heavy burden on the district court to ensure that the jury understood its function in evaluating the evidence,” particularly where the conduct at question may appear innocent. To take the necessary precautions, the court can give an appropriate cautionary instruction and require examination of the witness in such a way as to make clear when the witness is testifying to fact and when he is offering his opinion as an expert. Other precautions include the government establishing the proper foundation for the witness's expert opinions and the district court allowing rigorous cross-examination.

      Christian, 673 F.3d at 702, 712-13 (2012) (quoting United States v. York, 572 F.3d 415, 425 (7th Cir. July 15, 2009) (07-2032) (internal citations omitted); United States v.Farmer, 543 F.3d 363, 370 (7th Cir. 2008)); see also Overcoming Potential Prejudice In The Dual Fact/Expert Law Enforcement Witness (on York case); Problem Of Dual Expert and Fact Law Enforcement Testimony Avoided By Steps Taken In Drug Trial" (on Farmer case).

      For other cases considering this issue, see prior coverage in the Federal Evidence Blog.

      10. Amended FRE: Attaining The Objectives Of The “Restyled” Federal Rules of Evidence

      On December 1, 2011, the amendments to “restyle” the FRE became effective. The amendments were intended to make the rules easier to use and were not intended to result in substantive changes. As we recently noted, a review of cases applying the “restyled” amendments shows that the primary purpose of clarifying the rules and their application has largely been attained. See Restyling FRE: Looking Back One Year Later (Part XV); see also Evidence Viewpoints: Questions and Answers on the Recently Restyled Federal Rules of Evidence, 9 Fed. Evid. Rev. 225, 227 (March 2012) (questions and answers with U.S. District Judge Robert L. Hinkle, the Chair of the Advisory Committee on Evidence Rules).

      The Federal Evidence Review has provided a number of resource materials on the Restyled FRE at, including:


      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 2012? Please let us know.

      Past Top Ten Retrospective and Prospective Key Evidence Issues


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