Evidence issues for 2012

Courtesy of federalevidence here is their list of potential significant evidence issues affecting criminal cases this coming year.

  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

On item 8., which will depend on how the President “adopts” the restyling.  Interesting that there may be issues surrounding implementation of the restyled rules.

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.

On item 7., on how 404(b) is applied.  This is an issue I frequently raise when the prosecution makes was is termed a ‘talismanic incantation,’ which lacks specificity to the offenses charged argument for admissibility.

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. . . .

SeeUnited 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.”)[.]

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.”).

See e.g., United States v. Peterson, 20 M.J. 806 (N.M.C.M.R. 1985)(We abhor the "shotgun" application of rule 404(b) and will not accept the "talismanic incantation" of the words motive, intent, plan or design, modus operandi, etc., with nothing more.); United States v. Jenkins, 48 M.J. 594 (A. Ct. Crim. App. 1998)(It is not necessary "that relevant evidence fit snugly into a pigeon hole provided by Mil. R. Evid. 404(b)." Nevertheless, the profferer should delineate the theories of admissibility, as occurred here, and not simply render a talismanic incantation of all the bases listed in the rule, as often occurs.)  And see United States v. Yammine, 69 M.J. 70 (C.A.A.F. 2010), in regard to Mil. R. Evid. 404(b) and 414.  ARTICLE: The Use of Evidence of an Accused’s Uncharged Misconduct to Prove Mens Rea: The Doctrines Which Threaten to Engulf the Character Evidence Prohibition, 51 Ohio St. L.J. 575 (1990).

And don’t forget that even though evidence might initially be admissible under Mil. R. Evid. 404(b), you still need to have the judge balance admissibility under Mil. R. Evid. 403.  See e.g. United States v. Ferguson, 29 M.J. 559 (A.F.C.M.R. 1989), pet. denied 32 M.J. 45 (C.M.A. 1990).

Here is a link to last years list.