Supreme Court Watch: Summary Highlights Of Five Key Evidence Cases From The Concluded 2012 Term

In reviewing the recently concluded Supreme Court October 2012 Term, five key cases impacting evidence issues were decided by the Supreme Court; two cases were decided by a narrow 5 to 4 margin and one was decided by a plurality opinion; each case is summarized

The Supreme Court October 2012 Term, which began in October 2012 and concluded with the final opinions issued the last week in June 2013, addressed some significant evidence issues. In this post, the Federal Evidence Blog highlights five key cases impacting evidence matters. Summaries for each case are noted below.

The cases touch on a range of issues including conspiracy law, class action certification, the collection of DNA samples from arrestees under the Fourth Amendment, whether silence can be used to invoke the Fifth Amendment privilege against self-incrimination, and the exclusion of extrinsic evidence about the victim and limits of federal courts to set aside a conviction based on the exclusion of evidence. Of the five cases, two were decided by five to four margins, one was decided by a plurality opinion and two were unanimously decided. One case (Nevada v. Jackson) was decided without oral argument.

The five cases are listed in the order in which the opinions were released (by earliest date). Use these jump links to view a particular case summary below:

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United States v. Smith, 568 U.S. _, 133 S.Ct. 714, 184 L.Ed.2d 570 (Jan. 9, 2013) (No. 11-8976)

  • Holding: On January 9, 2013, in a unanimous ruling, the Supreme Court held that the defendant bears the burden to establish the affirmative defense of withdrawal and the government is not constitutionally required to disprove withdrawal.
  • Constitution: Fifth Amendment (Due Process Clause)
  • Majority/Dissent: Unanimous Opinion: Scalia
  • Question Presented: "Whether withdrawing from a conspiracy prior to the statute of limitations period negates an element of a conspiracy charge such that, once a defendant meets his burden of production that he did so withdraw, the burden of persuasion rests with the government to prove beyond a reasonable doubt that he was a member of the conspiracy during the relevant period -- a fundamental due process question that is the subject of a well-developed circuit split."; Link
  • Case Result: Affirming the judgment of the Court of Appeals for the D.C. Circuit in United States v. Moore, 651 F.3d 30, 90 (D.C. Cir. 2011) (per curiam)
  • Key Questions/Ramifications: Several circuit jury instructions on the withdrawal issue will need to be updated to reflect the burden and proof issues in the ruling; the Seventh Circuit revised its jury instructions in February 2013, a few weeks after the decision; the opinion also underscores long-established conspiracy proof and liability issues.
  • Blog Posts: Deciding Burden Of Proof On Conspiracy Withdrawal; See also Other Blog Posts
  • Oral Argument: Nov. 6, 2012: Oral Argument Transcript; Oral Argument Audio
  • Case Briefs: Link (scroll to bottom)
  • Docket Sheet: Link

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Comcast v. Behrend, 569 U.S. _, 133 S.Ct. 1426, 185 L.Ed.2d 515 (March 27, 2013) (No. 11-864)

  • Holding: On March 27, 2013, in a 5 to 4 ruling, the Supreme Court held that trial courts must employ a “rigorous analysis” to determine whether class action plaintiffs have shown “that damages could be measured on a class wide basis" including adequate proof about a common methodology for measuring damages. The class action was improperly certified under Fed. R. Civ. P. 23(b)(3) as the proposed class produced only a general theory, based on expert testimony, about alleged monopolistic overcharges. Absent any more detailed information on the impact of the specific antitrust allegation in the lawsuit on the proposed class of plaintiffs, sufficient commonality was not shown for purposes of class certification. The Court noted that “a model purporting to serve as evidence of damages in this class action must measure only those damages attributable to that theory. If the model does not even attempt to do that, it cannot possibly establish that damages are susceptible of measurement across the entire class for purposes of [Fed. R. Civ. P.] Rule 23(b)(3).”
  • Rules: Fed. R. Civ. P. 23 (Class Actions); FRE 702 (Testimony By Expert Witnesses)
  • Majority/Dissent (author underlined): Majority: Roberts (CJ), Scalia, Kennedy, Thomas, Alito; Dissent: Ginsburg, Breyer, Sotomayor, Kagan
  • Question Presented: Majority clarifies that the case presented the question whether “certification was improper because respondents had failed to establish that damages could be measured on a class wide basis.”; Compare QP During Briefing
  • Case Result: Reversing the judgment of the Court of Appeals for the Third Circuit (which had affirmed the class certification) in Behrend v. Comcast Corp., 655 F. 3d 182 (3d Cir. 2011)
  • Key Questions/Ramifications: In order to obtain class certification, proof of damages as "measured on a class wide basis,” which is commonly established through expert testimony, will have to be established early in the litigation; a number of class action cases remain subject to challenge under the new standard noted in the opinion.
  • Blog Posts: Comcast v. Behrend: Clarifying The Preliminary Evidentiary Showing For Class Certification; See also Other Blog Posts
  • Oral Argument : Nov. 5, 2012: Oral Argument Transcript; Oral Argument Audio
  • Case Briefs: Link (scroll to bottom)
  • Docket Sheet: Link

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Maryland v. King, 569 U.S. _, 133 S.Ct. 1958 (June 3, 2013) (No. 12-207)

  • Holding: On June 3, 2013, in a 5 to 4 decision, the Supreme Court held that the Fourth Amendment permits law enforcement to obtain a DNA sample from any person arrested for a “serious” crime without a search warrant: “When officers make an arrest supported by probable cause to hold for a serious offense and they bring the suspect to the station to be detained in custody, taking and analyzing a cheek swab of the arrestee’s DNA is, like fingerprinting and photographing, a legitimate police booking procedure that is reasonable under the Fourth Amendment.”
  • Constitution: Fourth Amendment: Unreasonable Search And Seizure Clause
  • Majority/Dissent (author underlined): Majority: Roberts (CJ), Kennedy, Thomas, Breyer, Alito; Dissent: Scalia, Ginsburg, Sotomayor, Kagan
  • Question Presented: "Does the Fourth Amendment allow the States to collect and analyze DNA from people arrested and charged with serious crimes?"; Link
  • Case Result: Reversing the judgment of the Court of Appeals of Maryland in King v. State, 425 Md.550, 555, 42 A.3d 549, 552 (2012)
  • Key Questions/Ramifications: Reinforces the continued collection and use of DNA samples from federal and state arrestees for serious offenses; in resolving an open issue at the Supreme Court under Fourth Amendment analysis, will it be extended to other law enforcement areas?
  • Blog Posts: DNA Evidence Collection From Arrestees Is Reasonable Under The Fourth Amendment; See also Other Blog Posts
  • Oral Argument: Feb. 26, 2013: Oral Argument Transcript; Oral Argument Audio
  • Case Briefs: Link (scroll to bottom)
  • Docket Sheet: Link

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Nevada v. Jackson, 569 U.S. _ , 133 S.Ct. 1990 (June 3, 2013) (per curiam) (12-694)

  • Holding: On June 3, 2013, in a per curiam decision, the Supreme Court reversed a Ninth Circuit opinion that a defendant was deprived of the right to present a defense during his Nevada rape trial by the exclusion of extrinsic evidence about the victim. The Confrontation Clause also does not "entitle[] a criminal defendant to introduce extrinsic evidence for impeachment purposes." The state evidence rule, which was comparable to FRE 608(b), focuses the jury on the central facts and avoids "minitrials on collateral issues.”
  • Constitution/FRE: Sixth Amendment (Right to Present a Defense) (Confrontation Clause); FRE 608(b) (Specific Instances of Conduct)
  • Majority/Dissent: Per Curiam
  • Question Presented: "The Antiterrorism and Effective Death Penalty Act (AEDPA) prohibits a federal court from granting habeas corpus relief to a state prisoner unless the state court determination on the merits ‘resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States.’ 28 U.S.C. § 2254(d)(1). This Court has established the general rule that a defendant has a constitutional right to present his defense, but has never held that a state abridges that right when it bars a defendant from introducing extrinsic evidence to support impeachment of a witness on a collateral matter. The question presented is as follows:

    Did the Ninth Circuit exceed its authority under AEDPA by granting habeas relief on the ground that the Nevada Supreme Court unreasonably applied ‘clearly established Federal law, as determined by’ this Court when it held that respondent’s right to present a defense was not violated by the exclusion of extrinsic evidence through which he sought to impeach a prosecution witness on a collateral matter?" (as framed in the petition for a writ of certiorari)

  • Case Result: Reversing the judgment of the Ninth Circuit Court of Appeals in Jackson v. Nevada, 688 F.3d 1091 (9th Cir. 2012)
  • Key Questions/Ramifications: Confirms limited role of federal habeas review of state court judgments on evidence issues; underscores limitations on admitting extrinsic evidence on collateral matters to impeach a victim.
  • Blog Posts: No Constitutional Right To Present Extrinsic Evidence For Impeachment Purposes; See also Other Blog Posts
  • Oral Argument : Not Applicable / Decided without argument as granted, reversed and remanded in a per curiam opinion
  • Case Briefs: Link (scroll to bottom)
  • Docket Sheet : Link

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Salinas v. Texas, 570 U.S. _, 133 S.Ct. 2174 (No. 12-246) (June 17, 2003)

  • Holding: On June 17, 2013, in a plurality opinion, the Supreme Court held that the Fifth Amendment privilege against self-incrimination does not automatically apply to silence in the precustodial setting during questioning by law enforcement; plurality concludes that since the Fifth Amendment privilege is "generally is not self-executing," it must be "expressly invoke[d] ... in response to the officer’s question."
  • Constitution: Fifth Amendment (Privilege Against Self-Incrimination)
  • Majority/Dissent (author underlined): Plurality: Roberts (CJ), Alito, Kennedy; Concurring in Judgment: Thomas, Scalia; Dissent: Breyer, Ginsburg, Sotomayor, Kagan)
  • Question Presented: "Whether or under what circumstances the Fifth Amendment's Self-Incrimination Clause protects a defendant's refusal to answer law enforcement questioning before he has been arrested or read his Miranda rights."; Link
  • Case Result: Affirming the judgment of the the Texas Court of Criminal Appeals in Salinas v. State, 369 S.W.3d 176 (Tex. Crim. App. 2012)
  • Key Questions/Ramifications: Given the plurality opinion and strong differences among the Justices concerning the scope and application of the Fifth Amendment, further cases will likely test the boundaries of the application of the Fifth Amendment during law enforcement contacts.
  • Blog Posts: Splintered Ruling On Fifth Amendment Privilege Applied In Pre-Custody Setting; See also Other Blog Posts
  • Oral Argument : April 17, 2013: Oral Argument Transcript; Oral Argument Audio
  • Case Briefs: Link (scroll to bottom)
  • Docket Sheet: Link

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