Some evidence notes

Consistent with military law, the federal circuits generally follow the principle that evidentiary errors in a judge alone case are often nonprejudicial.  The basic theory being that judges are presumed to know and apply the law, and will ignore impermissible evidence even where there has been no objection.

The Seventh Circuit recently considered the different treatment in admitting evidence in a bench trial instead of a jury trial; the circuit applies a “presumption of conscientiousness” in reviewing evidence admitted in a bench trial; while any error was ultimately harmless, the circuit notes that “had the evidence come before a jury, we may have come to a different conclusion, but we presume that the court was not unduly influenced by this weak pattern evidence,” in United States v. Reed, _ F.3d _ (7th Cir. March 10, 2014) (No. 12–3701).

On a side note to this case, another caution regarding “talismanic incantations” of admissibility of other acts evidence.

[T]he court must carefully consider how the particular Rule 404(b) evidence will be used to prove intent, knowledge or lack of mistake and make certain that it is not through the use of a propensity inference.” Reed, _ F.3d at _ (citing United States v. Miller, 673 F.3d 688, 697 (7th Cir. 2012); see also United States v. Lee, 724 F.3d 968 (7th Cir. 2013)). In particular, the circuit had found in Miller, that the use of plastic bags to package crack cocaine was “far too generic in drug cases to make a pattern of two acts over eight years probative of anything beyond propensity.” Miller, 673 F.3d at 699 -700.

The Seventh is on a particular path to significant criticism of MRE 404(b) evidence.  The case above highlights.  See federalevidence review.  “As noted in the Federal Evidence Blog the past few years, the Seventh Circuit continues to criticize and closely scrutinize the admission of other act evidence under FRE 404(b). One aspect that has drawn criticism concerns “inextricably intertwined” evidence that may be admitted independent of FRE 404(b).”  See also their, Rule 404(b) -Ten Common Questions & Misconceptions.

How about prior inconsistent statements.  “Extrinsic evidence of a witness’s prior inconsistent statement is admissible only if the witness is given an opportunity to explain or deny the statement and an adverse party is given an opportunity to examine the witness about it, or if justice so requires.”

In considering the admission of a witness’s prior inconsistent statement under FRE 613(b), what process should be followed in asking the witness to confirm the prior statement? As the Eleventh Circuit recently noted, as long as “an opportunity to explain or deny the statement” was available, the rule does not required any particular time or any particular sequence in which this opportunity is made available, in United States v. Feliciano, _ F.3d _ (11th Cir. April 3, 2014) (No. 12-15341).

How do we tell if something is testimonial for Sixth Amendment confrontation purposes.  The Fifth reminds us.  Fifth Circuit reverses conviction after the government failed to meet its burden to show that an affidavit was non-testimonial under theConfrontation Clause under the Supreme Court’s “primary purpose” test; circuit also rejects proposed accusatory test as lacking support in precedent or in the text of the Sixth Amendment, in United States v. Duron-Caldera, _ F.3d _ (5th Cir. Dec. 16, 2013) (No. 12-50738)

When a statement is introduced from a non-testifying witness, the Supreme Court applies a primary purpose test under the Sixth Amendment to determine whether the statement is testimonial. See Davis v. Washington, 547 U.S. 813, 822 (2006) (adopting “primary purpose” test to determine testimonial nature of statements). The Fifth Circuit recently considered whether a forty-year old affidavit was admissible under the Confrontation Clause.

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