Retrospective: Ten Key Evidence Issues In 2011

With the conclusion of 2011, we take this opportunity to review some of the noteworthy evidence issues during the past year. While it is challenging to offer a definitive list, we offer our ten key evidence issues from 2011, which are not ranked in any particular order. The issues ranged from amendments to the FRE, areas of circuit consensus, the Confrontation Clause, and more.

Once again the Confrontation Clause was an important issue as the Supreme Court decided two important cases in Bullcoming v. New Mexico and Michigan v. Bryant. However, important questions remain about the admission of forensic expert testimony under the Sixth Amendment; hopefully the Court will provide needed guidance on these matters in 2012. Important amendments to the FRE were issued last month as the rules were “restyled” to make them clearer and easier to use. These and other issues are discussed further below.

Key Evidence Issues During 2011


Use these jump links to view specific issues below:

  1. Supreme Court Watch: Michigan v. Bryant - Confrontation Clause: “Primary Purpose Of The Interrogation”
  2. Supreme Court Watch: Bullcoming v. New Mexico - Confrontation Clause and Forensic Expert Testimony
  3. Supreme Court Watch: Continuing Need to Reconcile the Confrontation Clause and FRE 703
  4. Amended Rules: “Restyling” The Federal Rules of Evidence
  5. Expert Testimony and the “Fit” Principle: Rejecting Standard Rule of Thumb to Measure Patent Damages
  6. Circuit Consensus: Admitting Business Records Under FRE 902(11) Consistent with the Confrontation Clause
  7. Circuit Consensus: Noting Veracity Boundary in Cross-Examining the Defendant
  8. Circuit Consensus: Admitting Withdrawn Guilty Plea During the Government's Case In Chief
  9. Electronic And Internet Evidence Issues
  10. Cameras In The Courtroom: Several Efforts Underway at the Trial and Circuit Court Levels.

Summary Of The Ten Key Evidence Issues During 2011

1. Supreme Court Watch: Michigan v. Bryant - Confrontation Clause: “Primary Purpose Of The Interrogation”

On February 28, 2011, the Supreme Court issued an opinion addressing the circumstances when statements made to law enforcement during an emergency may implicate the Confrontation Clause. The Court clarified the standard for determining whether the “primary purpose of the interrogation” by law enforcement was “to meet an ongoing emergency” under the Confrontation Clause. In an opinion written by Justice Sonia Sotomayor, the Court held:

that the circumstances of the interaction between [the victim] ... and the police objectively indicate that the “primary purpose of the interrogation” was “to enable police assistance to meet an ongoing emergency.” Therefore, [the victim's] ... identification and description of the shooter and the location of the shooting were not testimonial statements, and their admission at Bryant’s trial did not violate the Confrontation Clause."
Michigan v. Bryant, 562 U.S. _, 131 S.Ct. 1143, 1167 (2011) (quoting Davis v. Washington, 547 U.S. 813, 822 (2006)). The case highlights factors to determine whether statements given to law enforcement are testimonial under the Confrontation Clause. For more information on the case, see the Michigan v. Bryant Resource Page, which includes Key Briefs and Other Materials, and coverage in the Federal Evidence Blog.

2. Supreme Court Watch: Bullcoming v. New Mexico - Confrontation Clause and Forensic Expert Testimony

On June 23, 2011, in a 5 to 4 opinion authored by Justice Ruth Bader Ginsburg, the Supreme Court held that under the Confrontation Clause, the surrogate testimony of a second forensic analyst, who did not observe or review the original blood alcohol content results, was inadmissible; specifically, the defendant has the right "to be confronted with the analyst who made the certification, unless that analyst is unavailable at trial, and the accused had an opportunity, pretrial, to cross-examine that particular scientist." Bullcoming v. New Mexico, 564 U.S. __, 131 S.Ct. 2705 (2011) (No. 09-10876).

In underscoring the right to confront analysts about testimonial statements in their reports, the opinion raises important questions about the admission of forensic expert testimony which may involve multiple analysts. Other questions remain following the decision. For example, in a concurring opinion, Justice Sonia Sotomayor, one of four Justices in the five-member majority, separately highlighted four “factual circumstances” which were not presented in the case and likely would make a difference. For example, among other issues, the Court did not consider the testimony of an expert who provides an opinion which is based in part on testimonial statements contained in the report. For more information on the case, see the Bullcoming v. New Mexico Resource Page, which includes Key Briefs and Other Materials, and coverage in the Federal Evidence Blog.

3. Supreme Court Watch: Continuing Need to Reconcile the Confrontation Clause and FRE 703

One noteworthy issue we highlighted last year involved the admission of expert testimony which relies on the analysis of non-testifying experts or witnesses under FRE 703 under the Confrontation Clause. A number of cases had noted the conflict between the rule and the Sixth Amendment. See Reconciling The Confrontation Clause and FRE 703 (listing recent cases).

The decision in Bullcoming v. Mew Mexico, 564 U.S. __, 131 S.Ct. 2705 (2011) did not address this issue. In a concurring opinion, in which Justice Sotomayor “emphasize[d] the limited reach of the Court’s opinion,” she noted that Bullcoming “is not 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 Fed. Rule Evid. 703 (explaining that facts or data of a type upon which experts in the field would reasonably rely in forming an opinion need not be admissible in order for the expert’s opinion based on the facts and data to be admitted).” Bullcoming, 113 S.Ct. at 2722 (Sotomayor, J., concurring).

On June 28, 2011, five days after the Bullcoming decision was issued, the Supreme Court granted certiorari review in Williams v. Illinois (No. 10-8505) which presents the question:

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. The Supreme Court heard oral argument in the case on December 6, 2011. See Supreme Court Watch: Review Of Oral Argument In Williams v. Illinois Confrontation Clause Case. For more information on the case, see the Williams v. Illinois Resource Page, which includes Key Briefs and Other Materials, and coverage in the Federal Evidence Blog.

4. Amended Rules: “Restyling” The Federal Rules of Evidence

On December 1, 2011, the amendments to “restyle” the FRE became effective. The newly amended rules are the product of a multi-year effort to make the rules simpler to understand while not changing their substantive meaning. The rules were adopted under the Rules Enabling Act. See 28 U.S.C. § 2074(a).

The Federal Evidence Review has provided a complimentary PDF of the Text Of The Restyled Federal Rules Of Evidence, which includes direct links to the legislative history of the FRE, jump links to specific rules, and is searchable. For more information and background materials concerning the restyled FRE, see the Restyled FRE Legislative History Page.

5. Expert Testimony and the “Fit” Principle: Rejecting Standard Rule of Thumb to Measure Patent Damages

For many years, a “25 percent rule of thumb” was typically used as a baseline to determine a royalty rate for damages in patent infringement cases. Last year, in a large, ongoing patent infringement dispute between Uniloc and Microsoft, the Federal Circuit resolved an open issue and held that “[e]vidence relying on the 25 percent rule of thumb” is inadmissible under Daubert and FRE 702 “because it fails to tie a reasonable royalty base to the facts of the case at issue.” See Uniloc USA, Inc. v. Microsoft Corp., 632 F.3d 1292, 1315 (Fed. Cir. Jan. 4, 2011) (Nos. 2010-1035, 2010-1055). The Federal Circuit noted three primary criticisms of this rule: “First, it fails to account for the unique relationship between the patent and the accused product…. Second, it fails to account for the unique relationship between the parties.… Finally, the rule is essentially arbitrary and does not fit within the model of the hypothetical negotiation within which it is based.”

In sum, the case underscores the necessity of the “fit” between the expert testimony or theory and the facts of the case. The “fit” principle was noted by the Supreme Court in Daubert, and measures how well the expert testimony is tied to the facts of the particular case. See Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 591-92 (1993) (describing the “fit” requirement as “whether expert testimony proffered in the case is sufficiently tied to the facts of the case that it will aid the jury in resolving a factual dispute”) (citation omitted). For more on the Uniloc case, see "25 Percent Rule Of Thumb" To Estimate Patent Damages Found Inadmissible Under Daubert And FRE 702.

6. Circuit Consensus: Admitting Business Records Under FRE 902(11) Consistent with the Confrontation Clause

The admission of business records is common in many cases. FRE 902(11) provides for the admission of business records without a custodian's testimony as long as pretrial notice is given and the business record requirements are met. The courts have been considering whether business record certifications under the rule satisfy the Confrontation Clause. Thus far, the circuits have reached a consensus that they do and therefore a business record custodian is not required to testify at trial.

For example, last year the Tenth Circuit resolved an open issue concerning the admission of certified records of telephone calls made and received by co-conspirators, which were admitted as FRE 902(11) certificates. The circuit held that neither the record nor the certificates were testimonial under the Confrontation Clause. See United States v. Yeley-Davis, 632 F.3d 673 (10th Cir. Jan. 20, 2011) (No. 10-8000), cert. denied, 131 S.Ct. 2172 (2011). In doing so, the circuit joined with three other circuits (including the Fifth, Seventh and Ninth Circuits) which had reached similar conclusions. See FRE 902(11) Certification For Telephone Records Was Not Testimonial Under The Confrontation Clause (noting cases).

However, later in the year, the Seventh Circuit noted the possibility that the Confrontation Clause may be violated by the admission of a certified business record. See United States v. Green, 648 F.3d 569 (7th Cir. Aug. 9, 2011) (No. 09-3098, 09-3482, 09-3681). See also Noting Potential Confrontation Clause Problems With Business Records Under FRE 902(11). In the meantime, the circuits have generally concluded that FRE 902(11) business certificates do not pose a Confrontation Clause issue.

7. Circuit Consensus: Noting Veracity Boundary in Cross-Examining the Defendant

The Eleventh Circuit noted a substantial circuit consensus on limitations in cross-examining the defendant. The Eleventh Circuit joined with six other circuits (including the First, Second, Third, Fifth, Seventh, and Ninth Circuits) to prohibit cross-examination of the defendant on whether other witnesses testified truthfully. See United States v. Schmitz, 634 F.3d 1247 (11th Cir. March 4, 2011). Four primary reasons were noted: (1) this cross-examination was not permitted under the FRE; (2) the questions invaded the province of the jury in determining credibility; (3) the questions disregarded other possible reasons for inconsistent testimony; and (4) the questions were argumentative. See also Circuit Consensus On Impropriety Of Cross-Examining Defendant As To Veracity Of Other Witnesses (collecting cases).

8. Circuit Consensus: Admitting Withdrawn Guilty Plea During the Government's Case In Chief

FRE 410 generally bars the admission against a defendant of “any statement made in the course of plea discussions" with the prosecutor "which do not result in a plea of guilty or which result in a plea of guilty later withdrawn.” The Supreme Court has held that plea agreement statements may be waived and admissible for impeachment under FRE 410 during rebuttal. See United States v. Mezzanatto, 513 U.S. 196 (1995) (recognizing that statements barred under FRE 410 may be waived).

Last year, the Tenth Circuit resolved an open issue and joined with three other circuits (including the Fifth, Eighth and D.C. Circuits) which had permitted the introduction of plea agreement statements during the government’s case-in-chief based on a FRE 410 waiver. See United States v. Mitchell, 633 F.3d 997 (10th Cir. Feb. 3, 2011) (No. 09-4141). The circuit concluded that there was “no analytical distinction between Rule 410’s application to impeachment waivers and case-in-chief waivers.” See also Plea Agreement Waiver Permitted Introduction Of Withdrawn Plea Agreement During Case-In-Chief Under FRE 410.

9. Electronic And Internet Evidence Issues

Electronic and internet evidence continue to present important issues in civil and criminal cases. Some of the issues considered during the past year include:

For more information, see other blogs posts on Electronic Evidence, and the Internet Evidence.

10. Cameras In The Courtroom: Several Efforts Underway at the Trial and Circuit Court Levels

In the past year, the federal courts launched a three-year pilot program in fourteen districts to permit video recordings in civil trial court proceedings where the parties and the court consent. The program was originally approved on September 14, 2010 by the U.S. Judicial Conference “to evaluate the effect of cameras in federal district courtrooms and the public release of digital video recordings of some civil proceedings.” See Judicial Conference Approves Pilot Project To Evaluate Cameras In The Federal District Courts.

On June 18, 2011, the U.S. Judicial Conference announced that the following fourteen courts, which volunteered, were selected to participate in the pilot program: (1) Middle District of Alabama; (2) Northern District of California; (3) Southern District of Florida; (4) District of Guam; (5) Northern District of Illinois; (6) Southern District of Iowa; (7) District of Kansas; (8) District of Massachusetts; (9) Eastern District of Missouri; (10) District of Nebraska; (11) Northern District of Ohio; (12) Southern District of Ohio; (13) Western District of Tennessee; and (14) Western District of Washington. See also Third Branch Summary Article. More than 70 videos have been posted for viewing on the US Courts website.

The Judicial Conference Committee on Court Administration and Case Management issued Guidelines for the pilot project. The Guidelines include a model local rule which can be used to amend the local rules in the participating districts. See Guidelines § 1(b). No more than four cameras will be permitted in the courtroom. Id. § 3(a)(1). The court will be able to stop the recording and since the proceedings will not be simulcast, the court can decide not to post the recording for public view. Id. § 3(a)(4). No recording may be permitted of privileged communications, jurors and the jury selection process. Id. § 4(b). The court may also “refuse, limit, or terminate the recording of an entire case, portions thereof, or testimony of particular witnesses: in the interests of justice; to protect the rights of the parties, and witnesses, and the dignity of the court; to assure the orderly conduct of proceedings; or for any reason considered necessary or appropriate by the presiding judge.” Id. § 4(a).

Several districts have also promulgated model request forms to participate in the program. Copies of many of the model forms and General Orders are collected at the Federal Trial Courts Pilot Program Table.

Among the questions the pilot program may answer include whether the behavior of the court participants may change by the presence of cameras (including witnesses, counsel and the judge). Another issue concerns the impact of reviewing the recorded trial record. Presently, under established standards of review, the courts of appeal normally give deference to the trial court on matters of fact including credibility determinations. However, with a video record of the proceedings, would an appellate court encroach upon this traditional deference and conclude it can independently review credibility and other matters with less deference? Some state courts which record proceedings require that the video record be certified with the record on appeal.

On the appellate level, two courts of appeals have adopted guidelines allowing video recording of appellate arguments, including the Second and Ninth Circuits. The Ninth Circuit has continued to provide video broadcasts of its en banc and other proceedings to remote courthouse locations. The Ninth Circuit also offers “video oral arguments” on its web site. See, e.g., Ninth Circuit Court of Appeals to Offer Remote Viewing of En Banc Proceedings (Dec. 13, 2010) (Dec. 7, 2011).

For more information, visit the Cameras And Electronic Devices In The Federal Courtroom Resource Page, which contains a library of documents including judicial conference policies, judicial guidelines, legislation and hearings, cases and other articles of interest.

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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 2011? Please let us know.

Past Top Ten Retrospective and Prospective Key Evidence Issues:

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