Prospective: Ten Key Evidence Issues For 2012

On Tuesday, we reviewed ten significant evidence issues from 2011. As the New Year begins, we highlight some potential evidence issues that may arise in the coming months. As with our retrospective, Confrontation Clause issues are likely to remain a significant subject of discussion, particularly with a key decision expected by the Supreme Court involving expert testimony and the Sixth Amendment. Some significant circuit splits are identified and may be ripe for resolution. The evidence issues, which are not necessarily ranked in any order, are discussed further below:



Prospective Evidence Issues For 2012


Use these jump links to view specific issues below:

  1. Supreme Court Watch: Williams v. Illinois: Confrontation Clause - Pending Decisions
  2. Confrontation Clause: More Notice and Demand Rules?
  3. Supreme Court Watch Open Issue: Confrontation Clause - Resolving An Open Issue on the Scope Of Dying Declarations
  4. Circuit Split: Waiving An Objection to a Stipulation Under the Confrontation Clause
  5. Circuit Split: Admission Of Pre-Miranda Silence
  6. Circuit Split: Whether the Rule of Completeness Allows Inadmissible Evidence to be Admitted?
  7. More Judicial Criticism of the “Inextricable Intertwinement" Theory
  8. Rule Amendments: “Restyling” Federal Rules of Evidence
  9. Pending Rule Amendment: FRE 803(10) - Absence of Public Record
  10. Cameras In The Courtroom: Increasing Requests for Televising Supreme Court Proceedings


Ten Anticipated Evidence Developments For 2012


Use the jump links above to view specific issues below:

1. Supreme Court Watch: Williams v. Illinois: Confrontation Clause: Pending Decision

In 2012, the Supreme Court is expected to issue an important decision concerning expert testimony and the Confrontation Clause.

On December 6, 2011, the Supreme Court heard oral argument 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.

One key issue raised by the case concerns how many witnesses may be necessary to establish forensic expert testimony? A decision by the Supreme Court is expected by the end of the Term in July. For more information on the case, see the Williams v. Illinois Resource Page, including Key Briefs and Other Materials, and coverage in the Federal Evidence Blog.

2. Confrontation Clause: More Notice and Demand Rules?

In recent Confrontation Clause cases, the Supreme Court has approved of “notice and demand” procedural rules, which “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.” Melendez-Diaz v. Massachusetts, 557 U. S. _, 129 S. Ct. 2527, 2541 (2009).

Given the approval of “notice and demand” rules by the Supreme Court, will greater emphasis be placed on this procedural device to address the concerns of multiple forensic or expert witnesses in the future? For more on this issue, see Confrontation Clause Trend Toward More “Notice And Demand” Rules?

3. Supreme Court Watch: Confrontation Clause: Resolving an Open Issue on the Scope Of Dying Declarations

On a couple of occasions, the Supreme Court has noted an open issue concerning the application of the dying declaration exception under the Confrontation Clause.

Last year, the Supreme Court once again noted the issue and that it had not been properly preserved. See Michigan v. Bryant, 562 U.S. _ n.1, 131 S.Ct. 1143 (2011) (“Because of the State’s failure to preserve its argument with regard to dying declarations, we similarly need not decide that question here.”). Since 2004, the Court has twice before noted this issue. See Crawford v. Washington, 541 U. S. 36, 56 n.6 (2004) (“We need not decide in this case whether the Sixth Amendment incorporates an exception for testimonial dying declarations. If this exception must be accepted on historical grounds, it is sui generis.”); see also Giles v. California, 554 U. S. 353, 358–59 (2008) (parties agreed that dying declaration exception was not applicable). It seems that if the issue is properly preserved and presented, the Court may be ready to address this open issue.

4. Circuit Split: Waiving An Objection to a Stipulation Under the Confrontation Clause

What Confrontation Clause issues are raised when a defense attorney and the prosecutor agree to sign a trial stipulation concerning chemist testimony but the defendant objects? Must the defendant demonstrate “a clear waiver of their Sixth Amendment right” before a stipulation can be entered? In considering this issue, the Fourth Circuit noted a split in the circuits in United States v. Williams, 632 F.3d 129 (4th Cir. Jan. 21, 2011) (No. 09-4049).

Most circuits (including the First, Second, Fifth, Seventh, Ninth and Tenth Circuits) have held that the right of confrontation may be waived under a stipulation where the defendant does not object and the decision is considered as a legitimate trial tactic or strategy. Two circuits (the Sixth and Eighth Circuits) require a defendant’s express waiver before the stipulation can be given without violating the Confrontation Clause. For more on the case, see Reversing Conviction Based on Stipulation Signed By Counsel But Objected To By The Defendant.

5. Circuit Split: Admission Of Pre-Miranda Silence

In Doyle v. Ohio, 426 U.S. 610, 619 (1976), the Supreme Court held that the Fourteenth Amendment Due Process Clause was violated by the use of a defendant's post-arrest silence against him after he received Miranda warnings. Under what circumstances can the pre-arrest, pre-Miranda silence of a defendant be used in the government's case-in-chief?

In December, the Fifth Circuit highlighted a division in the circuits on this issue in United States v. Ashley, 664 F. 3d 602 (5th Cir. Dec. 12, 2011) (No. 10–50717), cert. denied, _ U.S. _, 132 S.Ct. 1651 (2012). As the opinion surveyed, three circuits (including the Fourth, Ninth and Eleventh Circuits) allow this silence to be admitted as substantive evidence. Four Circuits (including the First, Sixth, Seventh, and Tenth Circuits) do not. The issue remains open in the Fifth Circuit.

Given the importance this evidence can have at trial, the division in the circuits may be ripe for review by the Supreme Court. For more on this issue, see Fifth Circuit Clarifies Circuit Split On Admission Of Pre-Miranda Silence.

6. Circuit Split: Whether the Rule of Completeness Allows Inadmissible Evidence to be Admitted?

FRE 106 provides that a party “may require the introduction” of a writing or recorded statement introduced by another party “that in fairness ought to be considered at the same time.” Does this rule allow inadmissible evidence to be admitted?

The circuits are split on this issue. Some circuits (including the Second, Fourth, Sixth, Eighth, and Ninth Circuits) disallow the introduction of inadmissible evidence under FRE 106. Other circuits (including the First and D.C. Circuits) take a contrary view. For more on this issue, see Can The FRE 106 Rule Of Completeness Admit Otherwise Excluded Evidence?; see also More On Rendering Otherwise Inadmissible Evidence Admissible Under FRE 106; Can Rule Of Completeness Render Otherwise Inadmissible Evidence Admissible?

7. More Judicial Criticism of the “Inextricable Intertwinement" Theory

Nearly every circuit has recognized the "inextricable intertwinement" theory (or “inextricably intertwined” doctrine). Several circuits have cautioned about admission of uncharged evidence in a case as part of the "inextricably intertwined" exception to FRE 404(b). Recently, this doctrine has come under increasing judicial criticism.

Under this theory, the court considers whether the uncharged evidence is intrinsic or extrinsic to the charged offenses or claims. As an example, in the Fifth Circuit:

Evidence of acts other than conduct related to the offense is intrinsic when the evidence of the other act and the evidence of the crime charged are inextricably intertwined or both acts are part of a single criminal episode or the other acts were necessary preliminaries to the crime charged.
United States v. Freeman, 434 F.3d 369, 374 (5th Cir. 2005) (internal quotations, citation and footnote omitted). This theory often provides an independent basis to admit uncharged evidence independent of FRE 404(b). For example, the reasonable notice requirement for FRE 404(b) does not apply to inextricably intertwined evidence.

Last year, we noted that the Seventh Circuit removed this theory of admissibility. See United States v. Gorman, 613 F.3d 711 (7th Cir. 2010) (“[T]he inextricable intertwinement doctrine has since become overused, vague, and quite unhelpful. To ensure that there are no more doubts about the court’s position on this issue — the inextricable intertwinement doctrine has outlived its usefulness. Henceforth, resort to inextricable intertwinement is unavailable when determining a theory of admissibility.”); see also Seventh Circuit Overturns “Inextricable Intertwinement Doctrine” And Creates Conflict With Other Circuits.

More judicial criticism has recently surfaced. In a concurring opinion, Tenth Circuit Judge Harris Hartz “suggest[ed] that the court should abandon the use of the intrinsic/extrinsic dichotomy in analyzing whether evidence of uncharged misconduct is admissible. The notion of intrinsic evidence is helpful only in determining whether the government must give the defendant notice under Fed. R. Evid. 404(b) that it intends to offer the evidence.” United States v. Irving, _ F.3d _ (10th Cir. Nov. 29, 2011) (Hartz, J., concurring). He cited to other cases critical of the doctrine. See United States v. Green, 617 F.3d 233, 248 (3d Cir. 2010) (“the inextricably intertwined test is vague, overbroad, and prone to abuse”); United States v. Bowie, 232 F.3d 923, 927 (D.C. Cir. 2000) (“[I]t is hard to see what function the [intrinsic/extrinsic] interpretation of Rule 404(b) performs.”); Saltzburg, Martin and Capra, Federal Rules of Evidence Manual, Paragraph 404.02[12] (10th ed. 2012) (discussing issue at length and concluding, “The ‘inextricably intertwined’ exception substitutes a careful analysis with boilerplate jargon.”). For more on the Gorman case, see More Criticism Of The "Intrinsic Evidence" Theory.

8. Rule Amendments: “Restyling” The Federal Rules of Evidence

The FRE were “restyled” by amendments effective December 1, 2011. The amendments were intended to make the rules easier to use and were not intended to result in substantive changes. As the restyled rules are applied, one question will be whether language differences in the new version result over time in substantive modifications.

During the drafting of the proposed “restyled” rules, the Advisory Committee on Evidence Rules applied a “working principle” to discern and avoid substantive changes:

A change is"‘substantive" if 1. Under the existing practice in any circuit, it could lead to a different result on a question of admissibility (e.g., a change that requires a court to provide either a less or more stringent standard in evaluating the admissibility of a certain piece of evidence); or 2. Under the existing practice in any circuit, it could lead to a change in the procedure by which an admissibility decision is made (e.g, a change in the time in which an objection must be made, or a change in whether a court must hold a hearing on an admissibility question), or 3. It changes the structure of a rule so as to alter the way in which courts and litigants have thought about, and argued about, questions of admissibility (e.g, merging Rules 104(a) and 104(b) into a single subdivision); or 4. It changes … [so-called a] "sacred phrase" – "phrases that have become so familiar as to be fixed in cement.”
Report of the Advisory Committee on Evidence Rules, at 2 (May 12, 2008).

Whether a change is substantive or not can be subject to reasonable disagreement. For example, some of the public comments offered to the restyled FRE raised the issue of whether the re-wording had created a substantive change. See, e.g., Jeffrey Bellin, Assistant Professor of Law, Southern Methodist University Dedman School of Law, Jan. 7, 2010) (commenting on restyling of FRE 609 as lending itself to a "plausible reading" that "a district court ‘must’ allow the impeachment if the balancing test is satisfied, and may allow the impeachment, in its discretion, if the test is not satisfied.”); Professor Roger C. Park, Hastings College of the Law, Feb. 16, 2010 (“I think that restyled Rule 104(a) arguably makes a substantive change. Restyled Rules 103(c) and 401 do not make substantive changes, but I think that they shorten the existing rules in ways that make them less clear.”); Professor James J. Duane, Regent University School of Law, Feb. 16, 2010 (commenting on various evidence rules including “substantive changes that were unintentionally made by the revisers”; highlighting redundancies and “many archaic, awkward, and ungrammatical phrases and cross-references”). Of course, these fears of the restyled FRE as embodying unintended but substantive change, as reflected by these comments from academia, may also be confirmed as the courts and bar put them into practice.


For more information and background materials concerning the restyled FRE, see the Restyled FRE Legislative History Page. The Federal Evidence Review has also 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.

9. Pending Rule Amendment: FRE 803(10)

Under FRE 803(10), the absence of public records may be admitted to show “the record or statement does not exist” or “a matter did not occur or exist, if a public office regularly kept a record or statement for a matter of that kind.” An amendment to FRE 803(10) has been proposed to address Confrontation Clause concerns. The amendment, proposed on June 2011 by the Committee on Rules of Practice and Procedure, has been published for public comment which are due by February 15, 2012.

For more on the proposal, see Proposed Notice And Demand Amendment Advances For FRE 803(10) (Part I); Public Comment Sought On Proposed Notice And Demand Amendment For FRE 803(10) Part II).

10. Cameras In The Courtroom: Increasing Requests for Televising Supreme Court Proceedings

Increasing requests have been made to televise Supreme Court proceedings, including of the historic argument in March 2012 on the constitutional challenge to the Patient Protection and Affordable Care Act.

A recent Gallop Poll showed that seventy-two percent of those polled support televising the argument. In November, Chief Justice John G. Roberts, Jr. was asked to televise the Supreme Court proceedings of the upcoming oral argument on the constitutional challenge to the Patient Protection and Affordable Care Act (health care law), including by Senator Charles E. Grassley (R-IA) and CSPAN.

Hearings were recently held on legislation to authorize televised proceedings. See Congress Watch: Senate Committee Hearing On New Bill Permitting Televised Supreme Court Proceedings (S. 1945). One issue raised at the hearing was whether the Court should be compelled by legislation to televise proceedings or whether the Court should be allowed to move in this direction on its own. In October 2010, the U.S. Supreme Court began making audio recordings of arguments available the week of argument. The audio files are available on the Supreme Court website. See Supreme Court Notice; see also Supreme Court Audio Site. As we have suggested before, it may be more difficult to forestall the release, and ultimate broadcast, of video recordings. If audio can be publicly available, why not video? What is the distinction between audio and video release in terms of the constitutional or practical operation of the Court?

Televised proceedings in trial and appellate courts could have an impact on how evidence is considered. As we have previously noted, at the appellate level, 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?

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 on this matter.

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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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