Supreme Court Watch: Williams v. Illinois: Confrontation Clause – Pending Decisions Confrontation Clause: More Notice and Demand Rules? Supreme Court Watch Open Issue: Confrontation Clause – Resolving An Open Issue on the Scope Of Dying Declarations Circuit Split: Waiving An Objection to a Stipulation Under the Confrontation Clause Circuit Split: Admission Of Pre-Miranda Silence Circuit Split: Whether the Rule of Completeness Allows Inadmissible Evidence to be Admitted? More Judicial Criticism of the “Inextricable Intertwinement” Theory Rule Amendments: “Restyling” Federal Rules of Evidence Pending Rule Amendment: FRE 803(10) – Absence of Public Record 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.

Here is an interesting piece on federal evidence review:

Motion for new trial on criminal extortion and bribery case denied, despite juror’s statement to newspaper after the verdict that because the defendants did not testify, the juror reasoned that “[if] they were innocent, they would have testified.’”; since members of the jury did not learn of the defendant’s failure to testify through improper channels, the evidence of their discussions was not admissible under FRE 606(b) as it was not an extrinsic influence, inUnited States v. Kelley, 461 F.3d 817 (6th Cir. Aug. 31, 2006) (Nos. 05-1361, 05-1435)

Two weeks ago, the Federal Evidence Blog reported a recent Ninth Circuit case in which the circuit remanded a conspiracy and arson conviction because the trial judge failed “to make adequate inquiries regarding news stories” that appeared during deliberations and their impact on juror’s deliberations; the judge erroneously failed to explore “whether any juror heard any of the information” and its impact on the jury. See “Trial Court’s Duty To Make ‘Adequate Inquiries’ About Extrinsic Influences On Jury” (Oct. 6, 2010). A contrasting and much more usual case is one in which a party learns of the influence of news reports after the trial concludes. For example, in United States v. Kelley,

United States v. Erickson, ___ F.3d ___ (8th Cir. July 12, 2010).

Trial counsel: LTC Witness, does a good Sailor commit burglary? No. Trial counsel: LTC Witness, does a good Sailor commit theft? No. Trial counsel: LTC Witness, does a good Sailor make false official statements? No. Trial counsel: Do those offenses change your opinion? Yes/No – the answer to this one doesn’t really matter.

OK, have a nice day . . . . NO, wait, wrong. Let’s try again.

Trial counsel: LTC Witness, does a good Sailor commit burglary? OBJECTION! And I object to any similar question. MJ: Members, I’m going to excuse you for a moment I need to talk to trial counsel about something. MJ: Trial counsel, are these questions related to the charges before the court, or are you referencing some other prior misconduct? TC: The charges your honor, we don’t have any information that there has been prior misconduct. MJ: Trial counsel I’m not going to let you ask questions using the current charges as your hypothetical.

On the facts set out above, which are the ones I usually see or read about in courts-martials, these questions are improper IMHO. They are what are called ‘guilt-assuming hypothetical’s or questions.’ These questions based on the charges before the court require the witness, and by implication the members, to assume the accused is guilty of the charges before the court.

Here is a starting point proffered by the good folks at Federal Evidence Review.

Developing Consensus: Rule 405 (Methods of Proving Character), 1 Fed. Evid. Rev., August 2004.

Under FRE 405 guilt-assuming hypothetical questions during the cross- examination of a character witness poses particular problems. Most Circuits interpret FRE 405 so that guilt-assuming hypothetical questions are not an appropriate vehicle for inquiry. In United States v. Shwayder, 312 F.3d 1109, 1120 (9th Cir. 2002), the Ninth Circuit joined the majority of other circuits in prohibiting the government from using guilt-assuming hypotheticals. In doing so, the circuit resolved an open issue concerning use of guilt assuming hypotheticals in cross-examining character witnesses.

Here’s another useful reference by the FER Blog.

United States v. Kellogg, 510 F.3d 188, 196 (3d Cir. 2007) (distinguishing between opinion character witnesses and reputation character witnesses and holding that “there is nothing inherent in guilt-assuming hypotheticals, in the abstract, that makes them unfairly prejudicial, let alone so prejudicial as to constitute a per se violation of due process”).

The Kellogg case, cited by the Ninth Circuit above, contains an instructive analysis of the positions of the circuits with regard to guilt-assuming hypotheticals. The Third Circuit noted in Kellogg, 510 F.3d at 193-95, that most of its sister-circuits “have broadly held such questions are improper” because “a guilt-assuming hypothetical impairs the presumption of innocence and thus violates the defendant’s due process rights.” However, a few courts “have also noted that an alternative basis for holding guilt-assuming hypotheticals are improper is that they are unfairly prejudicial to the defendant … which would indeed seem to follow necessarily from a conclusion that there had been a due process violation.”

In conspiracy to distribute controlled substances prosecution, physician-defendant could not assert that the medical records of his patients were subject to a doctor-patient privilege because the federal courts do not recognize this privilege under FRE 501, in United States v. Bek, 493 F.3d 790 (7th Cir. July 6, 2007) (No. 05-4198)

It is easy to overlook that the a physician-patient confidential communications privilege is not recognized in the trial of federal question matters. As adopted by Congress, the Federal Rules of Evidence fail to explicitly allow for this privilege.