Prospective: Ten Key 2013 Evidence Issues

Last Wednesday, we reviewed significant evidence issues from 2012. See Retrospective: Ten Key Evidence Issues In 2012. With the New Year underway, we look ahead at some potential evidence issues that may arise in the coming months as we present the Federal Evidence Review’s Ten Key Evidence Issues For 2013.

During the coming year, three key Supreme Court cases will impact evidence issues. As in the past, we note these cases and then identify some noteworthy circuit splits which appear to present issues ripe for review and resolution by the Supreme Court. We also highlight one pending and a few proposed amendments to the Federal Rules of Evidence. As with the 2012 Retrospective, we offer the following ten key evidence issues for 2013, which are not ranked in any particular order.

Ten Key Evidence Issues For 2013

Use these jump links to view specific issues below:

  1. Supreme Court Watch: Comcast v. Behrend: The Necessity Of Admissible Evidence, Including Expert Testimony, In Certifying A Class Action - Decision Pending
  2. Supreme Court Watch: Smith v. United States: Proving Conspiracy Withdrawal Before The Statute Of Limitations Has Run - Decision Pending
  3. Supreme Court Watch: Maryland v. King: Collecting DNA Samples From Arrestees Under The Fourth Amendment - Oral Argument Pending
  4. Circuit Split: What Showing Is Required To Trigger The Crime Fraud Exception To The Attorney-Client Privilege?
  5. Circuit Split: Are Autopsy Reports Nontestimonial Under The Confrontation Clause?
  6. Circuit Split: Whether A Rebuttable Presumption Of Prejudice Applies To Juror Unauthorized Use Of The Internet Or Other External Influences
  7. Circuit Split: Standard Of Review On Hearsay Testimony
  8. Pending Rule Amendment: FRE 803(10) (Absence of a Public Record)
  9. Proposed Rule Amendment: FRE 801(d)(1)(B) (Prior Consistent Statement)
  10. Proposed Rule Amendments: FRE 803(6) (Records of a Regularly Conducted Activity), FRE 803(7) (Absence of a Record of a Regularly Conducted Activity), FRE 803(8) (Public Records)

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Summary Of Ten Key Evidence Issues For 2013

1. Supreme Court Watch: Comcast v. Behrend: The Necessity Of Admissible Evidence, Including Expert Testimony, In Certifying A Class Action - Decision Pending

This year the Court will likely follow up on a bit of unfinished business from its 2011 examination of class action certification procedures in Wal-Mart Stores, Inc. v. Dukes, 564 U.S. _, 131 S.Ct. 2541 (2011). In Comcast v. Behrend, (No. 11-864), the Court considers whether a trial judge can consider and resolve class action issues that go to the merits of the case, while at the same time, the court uses the merits decision to certify the class that has yet to present the plaintiffs' case on the merits. The specific question presented in the case is:

Whether a district court may certify a class action without resolving whether the plaintiff class has introduced admissible evidence, including expert testimony, to show that the case is susceptible to awarding damages on a class-wide basis.

As we have previously noted, there are a range of possible ways to apply the Daubert standard at the class certification stage of a case. The approach that the majority of courts take rule is to apply Daubert at class certification. The lower courts differ, however, as to how carefully they enforce its standards. However, this application of FRE 702 and Daubert provides little forward development in evidence doctrine. Oral argument in the case was heard on November 5, 2012. Given the role of class certifications, the opinion, expected later this year, will hopefully clarify the applicable evidence standards for class certification.

2. Supreme Court Watch: Smith v. United States: Proving Conspiracy Withdrawal Before The Statute Of Limitations Has Run - Decision Pending

As we recently noted, the Supreme Court will decide an important issue about proof of a withdrawal from a conspiracy before the statute of limitations has run in Smith v. United States, 567 U.S. _ (June 18, 2012) (No. 11-8976).

Among the issues raised in the case are what proof may be necessary under the the burden of persuasion and who bears the burden to establish withdrawal from a conspiracy prior to the statute of limitations. The circuits are evenly split. During oral argument, questions were raised about how the government would disprove withdrawal and whether, as Justice Ruth Bader Ginsburg asked, the government would essentially have to prove the defendant's membership in the conspiracy twice, first in establishing the conspiracy elements, and again after the defendant claimed to have withdraw prior to the statute of limitations. Oral argument was held on November 6, 2012 and the decision remains pending.

3. Supreme Court Watch: Maryland v. King: Collecting DNA Samples From Arrestees Under The Fourth Amendment - Oral Argument Pending

DNA (deoxyribonucleic acid) evidence can be among the most important to connect an individual to a crime or acquit an accused. On February 26, 2013, the Supreme Court will hear oral argument in Maryland v. King, No. 12-207 (Nov. 9, 2012), which presents the question: "Does the Fourth Amendment allow the States to collect and analyze DNA from people arrested and charged with serious crimes?"

The courts are divided on this issue. See Lower Court Division On Collection Of DNA Samples From Arrestees; see also DNA Evidence Collection Conflict Noted by Chief Justice Opinion In Chambers. Given the importance of DNA evidence in many cases, the resolution in this case may impact whether this type of evidence is available for analysis in appropriate cases. For more on the Maryland v. King case, see coverage in the Federal Evidence Blog.

4. Circuit Split: What Showing Is Required To Trigger The Crime Fraud Exception To The Attorney-Client Privilege?

As we recently noted, the Third Circuit has identified a division among the circuits on the quantum of proof necessary to establish a prima facie showing to trigger the crime fraud exception to a communication otherwise protected by the attorney-client privilege. See In re Grand Jury, 705 F.3d 133 (3d Cir. Dec. 11, 2012) (Nos. 12-1697, 12-2878) (citing Clark v. United States, 289 U.S. 1, 14 (1933) (“There must be a showing of a prima facie case sufficient to satisfy the judge that the light should be let in.”)). As the Third Circuit agreed,

“Prima facie" is among the most rubbery of all legal phrases; it usually means little more than a showing of whatever is required to permit some inferential leap sufficient to reach a particular outcome.

In re Grand Jury, 705 F.3d at _ (quoting In re Grand Jury Proceedings, 417 F.3d 18, 22–23 (1st Cir. 2005) (citing Black’s Law Dictionary 1228 (8th ed. 2004)).

The circuits are split on what satisfies the required prima facie showing, applying the following standards:

  • Four Circuits (including the First, Second, Sixth and Ninth Circuits): “probable cause or a reasonable basis to suspect or believe that the client was committing or intending to commit a crime or fraud and that the attorney-client communications were used in furtherance of the alleged crime or fraud.” In re Grand Jury, 705 F.3d at _ (citing cases).
  • Two Circuits (including the Fifth and Seventh Circuits): “evidence sufficient to compel the party asserting the privilege to come forward with an explanation for the evidence offered against the privilege.” In re Grand Jury, 705 F.3d at _ (citing cases).
  • Three Circuits (including the Fourth, Eleventh and D.C. Circuits): “a showing of evidence that, if believed by a trier of fact, would establish that some violation was ongoing or about to be committed and that the attorney-client communications were used in furtherance of that scheme.” In re Grand Jury, 705 F.3d at _ (citing cases).

The Third Circuit joined the majority “reasonable basis” position. The Third Circuit noted that the Supreme Court has yet to clarify this issue: “When the Supreme Court last addressed the crime-fraud exception, it did little to clarify the necessary evidentiary showing.” In re Grand Jury, 705 F.3d at _. Given the division among the circuits, and the importance of the privilege and this exception, this issue appears ripe for resolution by the Supreme Court.

5. Circuit Split: Are Autopsy Reports Nontestimonial Under The Confrontation Clause?

Last year, a circuit split was highlighted on whether autopsy reports and related testimony are “testimonial” under the Confrontation Clause. If so, the report and testimony would be barred absent testimony by the author. In light of more recent Supreme Court cases, there is more doubt on whether autopsy and similar reports may be non-testimonial. However, the issues is far from clear, particularly given the plurality opinion in Williams v. Illinois, 567 U.S. _, 132 S.Ct. 2221, 183 L.Ed.2d 89 (June 18, 2012) (No. 10-8505). In fact, cases from the First and Eleventh Circuits noted that further guidance was anticipated in Williams. However, the guidance has not come.

This issue has broader ramifications for other records as the circuits have treated autopsy reports as business or public records. The issue may also implicate expert testimony issues as testimony about the autopsy report may rely on testimonial statements of non-testifying witnesses. See, e.g., Supreme Court Watch: Williams Plurality Opinion Raises More Questions About The Admissibility Of Expert Testimony. Can a challenge to the admission of autopsy reports and expert testimony present a vehicle to seek clarity on these pending Confrontation Clause issues before the Supreme Court?

Some of the recent cases reflecting the division in the circuits include:

  • First Circuit: United States v. De La Cruz, 514 F.3d 121, 133-34 (1st Cir. 2008) (“An autopsy report is made in the ordinary course of business by a medical examiner who is required by law to memorialize what he or she saw and did during an autopsy. An autopsy report thus involves, in principal part, a careful and contemporaneous reporting of a series of steps taken and facts found by a medical examiner during an autopsy. Such a report is, we conclude, in the nature of a business record, and business records are expressly excluded from the reach of Crawford.”), cert. denied, _ U.S. _, 129 S.Ct. 2858 (2009); see also Nardi v. Pepe, 662 F.3d 107, 111-12 (1st Cir. 2011) (on federal habeas review of a state first-degree murder conviction, the admission of expert medical testimony concerning the cause of the victim’s death which was based in part on an autopsy report written by a non-testifying witness did not violate the Confrontation Clause based on “clearly established” law as applied at the time of the state court decision; noting that while “the law has continued to evolve and no one can be certain just what the Supreme Court would say about that issue today”).
  • Second Circuit: United States v. Feliz, 467 F.3d 227, 237 (2d Cir. 2006) (autopsy reports, indicating the cause of death, were not “testimonial” and did not raise Confrontation Clause concerns; in adopting a per se approach, holding a statement admitted as a business record “cannot be testimonial because a business record is fundamentally inconsistent with … the defining characteristics of testimonial evidence”); see also Vega v. Walsh, 669 F.3d 123, 128 (2d Cir. 2012) (in denying petition for writ of habeas corpus, noting the state court conclusion that testimony about an autopsy report did not violate the Confrontation Clause was not unreasonable; noting also that "although autopsies are often used in criminal prosecutions, they are also prepared for numerous other reasons—including the determination of cause of death when there is no anticipation of use of the autopsy in any kind of court proceeding")
  • Eleventh Circuit: United States v. Ignasiak, 667 F.3d 1217, 1231 (11th Cir. Jan. 19, 2012) (“Applying the reasoning of Crawford, Melendez-Diaz, and Bullcoming, we conclude that the five autopsy reports admitted into evidence in conjunction with Dr. Minyard's testimony, where she did not personally observe or participate in those autopsies (and where no evidence was presented to show that the coroners who performed the autopsies were unavailable and the accused had a prior opportunity to cross-examine them), violated the Confrontation Clause.”) (footnote omitted); see also Admission Of Autopsy Reports Violated Confrontation Clause.
  • District of Columbia Circuit: United States v. Moore, 651 F.3d 30, 69-74 & n.16 (D.C. Cir. 2011) (autopsy reports were testimonial; "Certain duties imposed by the D.C. Code on the Office of the Medical Examiner demonstrate, the government suggests, that autopsy reports are business records not made for the purpose of litigation. It is unnecessary to decide as a categorical matter whether autopsy reports are testimonial, and, in any event, it is doubtful that such an approach would comport with Supreme Court precedent.") (citations omitted), cert. granted, _ U.S. _ (June 18, 2012) (No. 11-8976); see also Application Of Recent Bullcoming Confrontation Clause Case To Autopsy And Chemist Reports.

While recent Supreme Court cases suggest autopsy reports may be testimonial, the issue is far from certain. The issue appears to be ripening for resolution by the Supreme Court. For more information on the use of autopsy reports, see coverage in the Federal Evidence Blog.

6. Circuit Split: Whether A Rebuttable Presumption Of Prejudice Applies To Juror Unauthorized Use Of The Internet Or Other External Influences

As we have noted before, the courts continue to grapple with protecting against jury use of social media during trial and jury deliberations. See, e.g., Revised Model Federal Jury Instruction Issued On The Use Of Social Media By Jurors. This issue has increased with the more pervasive use of social media by jurors.

In underscoring the jury process, Fed. R. Evid. 606(b) generally insulates review of the jury deliberation process. Rule 606(b)(1) provides: “During an inquiry into the validity of a verdict or indictment, a juror may not testify about any statement made or incident that occurred during the jury’s deliberations; the effect of anything on that juror’s or another juror’s vote; or any juror’s mental processes concerning the verdict or indictment. The court may not receive a juror’s affidavit or evidence of a juror’s statement on these matters.” See generally FRE 606(b) ACN (“The mental operations and emotional reactions of jurors in arriving at a given result would, if allowed as a subject of inquiry, place every verdict at the mercy of jurors and invite tampering and harassment.”). However, Rule 606(b)(2) contains three limited exceptions allowing jury testimony “about whether: (A) extraneous prejudicial information was improperly brought to the jury’s attention; (B) an outside influence was improperly brought to bear on any juror; or (C) a mistake was made in entering the verdict on the verdict form.” Defendant’s also have a Sixth Amendment Right to a Fair Trial.

Against these standards, the Fourth Circuit has identified some circuit splits on two issues concerning review of improper juror influences. United States v Lawson, 677 F.3d 629, 634 (4th Cir. 2012) (in illegal animal fight promotion case, a juror's misconduct in making an unauthorized Wikipedia search for the definition of an element of the charged offense was presumed prejudicial absent a showing by the prosecution that the error was not harmful to the defendant's substantial rights; "hold[ing] that the juror's misconduct violated Lawson's right to a fair trial" and "vacat[ing] the convictions for violating the animal fighting statute").

First, there is division on whether a "rebuttable presumption” of prejudice continues to apply to alleged juror misconduct based on recent Supreme Court cases:

  • Six Circuits (including the Second, Fourth, Seventh, Ninth, Tenth and Eleventh Circuits) continue to apply a rebuttable presumption. Lawson, 677 F.3d at 643 (citing cases).
  • Four Circuits (including the Fifth, Sixth, Eighth and D.C. Circuits) do not automatically apply a rebuttable presumption of prejudice based on their construction of recent Supreme Court authority. Lawson, 677 F.3d at 643-44 (citing cases).

Second, the Fourth Circuit noted another circuit split and “an issue of first impression” in the Fourth Circuit: “[W]hether the presumption [of prejudice] is applicable in cases involving a juror's unauthorized use of Wikipedia” or other research tools, or whether only a more severe form of misconduct, such as third party efforts to tamper or influence the jury would trigger the rebuttable presumption:

  • Five Circuits (including the Third, Fourth, Ninth, Tenth, and Eleventh Circuits) apply a rebuttable presumption of prejudice. Lawson, 677 F.3d at 645 (citing cases).
  • Three Circuits (including the Sixth, Eighth and D.C. Circuits) do not apply a rebuttable presumption. Lawson, 677 F.3d at 645 (citing cases).

Since juror reliance on external sources may result in the vacating of the jury's verdict, resolution of these circuit splits and construction of Supreme Court case law remains important. For more on the Lawson case, see prior posts Circuit Split On Application Of Remmer Juror Misconduct Presumption, Circuit Split: Does Juror Use Of Wikipedia Create Presumption Of Prejudicial Misconduct?, and Rebutting A Remmer Presumption Of Prejudice.

For more on judicial efforts taken to discourage juror use of social media during deliberations, see the model jury instructions concerning the use of electronic evidence by jurors on the Federal Jury Instructions Resource Page.

7. Circuit Split: Standard Of Review On Hearsay Testimony

As we noted last year, a divided panel of the Ninth Circuit noted an open issue in the circuit and circuit split on "whether construction of a hearsay rule is a matter of discretion or a legal issue subject to de novo review.” Wagner v. County of Maricopa, 673 F.3d 977, 980 (9th Cir. 2012) (comparing United States v. Stinson, 647 F.3d 1196, 1210-11 (9th Cir. 2011) (“We review a district court's evidentiary rulings for abuse of discretion. This includes the exclusion of evidence under a hearsay rule.”) (citations omitted), with United States v. Ortega, 203 F.3d 675, 682 (9th Cir. 2000) (“We review de novo whether the district court correctly construed a hearsay rule. And we review exclusion of evidence under a hearsay rule for abuse of discretion.”)). The majority ultimately determined that it was unnecessary to "resolve the ambiguity here because our conclusions would be the same under either standard.” Wagner, 973 F.3d at 980.

Subsequently, the circuit's initial opinion in Wagner at 673 F.3d 977, was withdrawn and superseded on denial of rehearing, by an opinion at 701 F.3d 583 (Nov. 16, 2012). However, the superseding opinion contained little change in the circuit's discussion of, and division upon, the appropriate standard of review. Circuit Judge Norman Randy Smith dissent in the case and provided a bit fuller description of the standard of review issue:

This circuit's case law is not entirely clear regarding whether we review de novo a district court's decision that a statement is or is not hearsay. Compare United States v. Stinson, 647 F.3d 1196, 1210 (9th Cir. 2011) (“We review a district court's evidentiary rulings for abuse of discretion.”), and United States v. Tran, 568 F.3d 1156, 1162 (9th Cir. 2009) (applying an abuse of discretion standard in determining whether a statement is hearsay under Rule 801), with Mahone v. Lehman, 347 F.3d 1170, 1173–74 (9th Cir. 2003) ( “We review the district court's construction of the hearsay rule de novo....” (quoting Orr v. Bank of Am., NT & SA, 285 F.3d 764, 778 (9th Cir. 2002))), United States v. Collicott, 92 F.3d 973, 978–82 (9th Cir. 1996) (holding that the district court erred, because the statements at issue were hearsay and not admissible under Rule 801(d)(1)(B), never mentioning whether the district court abused its discretion, but rather seems to have reviewed the hearsay determination de novo), and United States v. Warren, 25 F.3d 890, 894–95 (9th Cir. 1994) (held that the statements at issue were admissible under Rule 801(d)(2)(A) because they were not hearsay, with no mention of an abuse of discretion).

The Second Circuit and Sixth Circuit have held that a district court's determination whether a statement is hearsay is reviewed de novo. United States. v. Ferguson, 653 F.3d 61, 86 (2d Cir. 2011); Biegas v. Quickway Carriers, Inc., 573 F.3d 365, 378–381 (6th Cir. 2009). But see Trepel v. Roadway Exp., Inc., 194 F.3d 708, 716–17 (6th Cir. 1999) (“Therefore, in disregard of our heretofore well-settled precedent that hearsay evidentiary rulings are reviewed de novo, we shall review the district court's ruling for an abuse of discretion.” (citation omitted))

Wagner, 701 F.3d 583, 591 (9th Cir. 2012). Of course, the applicable standard of review can make a difference on close questions, particularly on whether to give deference to the trial court or review the matter without any deference. Whether the Supreme Court will need to resolve or clarify this issue remains to be seen.

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

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.

At its annual meeting, on September 11, 2012 session, the U.S. Judicial Conference approved the proposed amendment to FRE Rule 803(10), and agreed to transmit it to the Supreme Court for consideration and recommended that it be adopted by the Court and transmitted to Congress. The approval by the Judicial Conference is the fifth of seven key steps identified by the Administrative Office of the Courts in the adoption of an amendment under the Rules Enabling Act. Under Section 2074 of the Rules Enabling Act, the Supreme Court has until May 1, 2013 to transmit the amendment to Congress, which will become effective on December 1, 2013 unless Congress otherwise provides by law.

The language of the pending amendment “would permit a prosecutor who intends to offer a certification to 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. Under this approach, the government would not have to produce a witness to testify about the absence of the record. The proposed amendment conforms with the "notice and demand" approach approved by the Supreme Court’s in Melendez-Diaz v. Massachusetts, 557 U.S. 305 (2009), which called into question under the Confrontation Clause the admission of certificates to prove the absence of a public record to be used at a criminal trial. As we have previously noted, 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? See Confrontation Clause Trend Toward More “Notice And Demand” Rules?

For more on the pending amendment, see the FRE 803(10) Legislative History Page, and coverage in the Federal Evidence Blog.

9. Proposed Rule Amendment: FRE 801(d)(1)(B) (Prior Consistent Statement)

FRE 801(d)(1)(B) provides that a prior consistent statement may be introduced as a rehabilitative means to rebut a charge of recent fabrication, influence or motive as long as the statement was made prior to the alleged fabrication, influence or motive. Under FRE 801(d)(1)(B), the prior statement as non-hearsay is admitted as substantive evidence.

A proposed amendment to the rule would allow for the use of a prior consistent statement to “otherwise rehabilitate[] the declarant’s credibility as a witness.” On June 11, 2012, the Judicial Conference Committee on Rules of Practice and Procedure approved the draft amendment for publication and public comment. The public comment period begins August 15, 2012, and ends on February 15, 2013. See Preliminary Draft Of Proposed Amendments to the Federal Rules of Appellate, Bankruptcy, and Criminal Procedure, and the Federal Rules of Evidence (August 2012). Comments can be submitted via email to: Rules_Comments@ao.uscourts.gov.

For more information on the pending amendment to FRE 801(d)(1)(B), see the background materials at the FRE 801(d)(1)(B) Amendment Legislative History Page, which includes various reports on the amendment, and the prior coverage in the Federal Evidence Blog.

10. Proposed Rule Amendments: FRE 803(6) (Records of a Regularly Conducted Activity), FRE 803(7) (Absence of a Record of a Regularly Conducted Activity), FRE 803(8) (Public Records)

FRE 803(6) and FRE 803(7) provide for the admission of business records. FRE 803(8) permits the introduction of public records. Each rule has a "trustworthiness requirement". A proposed amendment would clarify who holds the burden of proof to show lack of trustworthiness: once the proponent of the business or public record satisfies the requirements for admission, the opposing party would hold the burden to establish a lack of trustworthiness.

In June 2012, the U.S. Judicial Conference Committee on Rules of Practice and Procedure approved the proposed amendments for public comment which are due by February 15, 2013. Comments can be submitted via email to: Rules_Comments@ao.uscourts.gov.

For more information on the pending amendments , see the background materials on the FRE 803(6), FRE 803(7), and FRE 803(8) Amendments Legislative History Page, which includes various reports on the amendments, and the prior blog posts in the Federal Evidence Blog discussing the amendments to FRE 803(6), FRE 803(7), and FRE 803(8).

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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? Please let us know.

Past Top Retrospective and Prospective Key Evidence Issues

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