CASE LAW DIVERGENCE FROM THE FEDERAL RULES OF EVIDENCE
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 Examples Of Case Law Development Where FRE And Committee Notes Are Silent

        Case Law Where Rule Is Silent: FRE Rule 104(a)
        Case Law Where Rule Is Silent: FRE Rule 301
        Case Law Where Rule Is Silent: FRE Rule 404(b)
        Case Law Where Rule Is Silent: FRE Rule 410
        Case Law Where Rule Is Silent: FRE Article VI
        Case Law Where Rule Is Silent: FRE Rule 615
        Case Law Where Rule Is Silent: FRE Rule 801(d)(1 )(B)
        Case Law Where Rule Is Silent: FRE Rule 803(3)
        Case Law Where Rule Is Silent: FRE Rule 803(18)
        Case Law Where Rule Is Silent: FRE Rule 1101

    Rule 104(a) states that preliminary questions "concerning the qualification of a person to be a witness, the existence of a privilege, or the admissibility of evidence shall be determined by the court. . . ." But the Rule is silent on who bears the burden of proof on admissibility questions, and it is also silent on what standard of proof is to be employed.

    The courts have developed a significant body of case law to answer these questions. Most importantly, in Bourjaily v. United States, 483 U.S. 171 (1987), the Court held that the party seeking to admit the evidence the proponent-generally has the burden of proving that the admissibility requirements set forth in the Federal Rules of Evidence are met. Furthermore, the Bourjaily Court held that the burden of proving an admissibility requirement under Rule 104(a) is by a preponderance of the evidence. The specific holding in Boujaily was that for a statement to be admissible under the coconspirator exception to the hearsay rule, the trial court must find that the prosecution has established by a preponderance of the evidence that the defendant and the hearsay declarant were members of the same conspiracy.

    The reasoning in Bourjaily has been extended to most other questions of admissibility under the Federal Rules of Evidence. See, e.g., Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 79 (1993) (proponent of expert testimony has the burden of showing that it is more likely than not reliable). So for example, a proponent who proffers a hearsay statement under the excited utterance exception has the burden of showing it more likely than not that the declarant was under the influence of a startling event when he spoke. See Miller v. Keating, 754 F.2d 507 (3d Cir. 1985) (proponent must establish admissibility of an excited utterance by a preponderance of the evidence).

    One important exception arises with privileges. Because privilege rules operate to exclude relevant and reliable evidence, they are not favored. Therefore, the party seeking to exclude proffered evidence on the ground that it is privileged bears the burden of showing, by a preponderance of the evidence, that a privilege applies. See generally United States v. Zolin, 491 U.S. 554 (1989).

Related FORECITE National™ Materials:

See FORECITE National™ 25.8.6 [Dying Declaration: View That No Instruction Should Be Given].

See also FORECITE National™ 26.4.2 [Preliminary Factual Finding As To Timing Of Prior Consistent Statement].

CASE LAW DIVERGENCE FROM THE FEDERAL RULES OF EVIDENCE

3.     Rule 301

    Rule 301 provides some guidance on the effect of a presumption. The Rule does not define the term "presumption"; it simply states that unless otherwise provided, "a presumption imposes on the party against whom it is directed the burden of going forward with evidence to rebut or meet the presumption, but does not shift to such party the burden of proof in the sense of the risk of nonpersuasion." The Rule specifically leaves it to substantive law to determine when proffered evidence establishes a presumption that a fact exists.

Generally speaking, presumptions are based on one or more of the following rationales:

    1.     One party has superior access to proof;

    2.     Social or economic policies warrant a presumption;

    3.     Experience indicates the high probability of a given conclusion from a given set of facts;

    4.     A presumption will promote efficiency and convenience.

    So, for example, it has been held that proof that a letter was mailed establishes a presumption that it was received. Anderson v. United States, 966 F.2d 487 (9th Cir. 1982) (in a taxpayer's suit for a refund, the government failed to rebut the common-law presumption of receipt that arose from the taxpayer's proof of mailing her return).

    Rule 301 is also silent on whether a party favored by a presumption is entitled to a peremptory instruction if the party against whom the presumption operates fails to offer any rebuttal evidence. For example, if a party proves that he mailed a letter, and the opponent provides no conflicting evidence, is the mailing party entitled to an instruction to the jury that the letter is to be deemed mailed? Courts have held that such an instruction must be given upon request. See, e.g., A. C. Aukerman Co. v. R.L. Chaides Constr. Co., 960 F.2d 1020, 1037 (Fed. Cir. 1992) (where presumption applies, the presumed fact "must be inferred, absent rebuttal evidence. '). See also C. Mueller & L. Kirkpatrick, Evidence 13 7 (1 st ed. 1995) ("[I]f the basic facts of a presumption are established, the presumption controls decision on the presumed fact unless there is counterproof that the presumed fact is not so. In jury-tried cases, the judge gives an appropriate instruction. In bench-tried cases, the judge must find the presumed fact.").

    Rule 404(b) provides that a person's uncharged acts of misconduct can be offered to prove something other than a persoifs character, such as intent or motive. Rule 404(b) imposes a notice requirement on the prosecution in criminal cases, which is intended to protect the accused from unfair surprise; it provides that "upon request by the accused, the prosecution in a criminal case shall provide reasonable notice in advance of trial, or during trial if the court excuses pretrial notice on good cause shown, of the general nature of any such evidence it intends to introduce at trial."

    What happens if the government gives pretrial notice of its intent to proffer a prior bad act and then subsequently discovers a different bad act that it wants to use as well? Or what if the government responds to a defense request by stating that it does not intend to use Rule 404(b) evidence and then uncovers a bad act committed by the defendant that it does intend to use? The notice requirement of Rule 404(b) does not state whether the prosecution has a continuing obligation to notify the defendant if it discovers Rule 404(b) evidence after an initial response to the defendant's request.

    It has been held, however, that the Rule imposes a continuing obligation of notice. See, e.g., United States v. Barnes, 49 E3d 1144, 1148 (6th Cir. 1995) (declaring that Rule 404(b) requires "a continuing obligation on the government to comply with the notice requirement ... whenever it discovers information that meets the previous defense request"; noting that a contrary reading "would force the defense to make numerous, periodic requests until the trial has been completed-surely a wasteful procedure.").

    The notice requirement of Rule 404(b) is conditioned on a request by the accused. The Rule does not state how specific the request must be to trigger the government's notice obligation. For example, is an omnibus motion for discovery sufficient to trigger the notice requirement?

    Courts have held that an omnibus motion is not sufficient to trigger the government's obligation to notify the defendant under the Rule. Rather, a request for notification, "at a minimum, must be sufficiently clear and particular, in an objective sense, fairly to alert the prosecution that the defense is requesting pretrial notification of the general nature of any Rule 404(b) evidence the prosecution intends to introduce " United States v. Tuesta-Toro, 29 F.3d 771, 774 (1st Cir. 1994) (notice not required where defense demanded outright pretrial disclosure of statements in any form, referring to the defendant in any way, without regard to their admissibility or the government's intention to introduce them). Compare United States v. Williams, 792 F Supp. 1120, 1133 (S.D. Ind. 1992) (notification required in response to detailed request reciting text of Rule 404(b)); United States v. Alex, 791 F Supp. 723, 728 (N.D. Ill. 1992) (notification required in response to request specifically referencing Rule 404(b)).

Related FORECITE National™ Materials:

See FORECITE National™ 26.5 [Uncharged Acts To Prove Issues Other Than Propensity].

See FORECITE National™ 25.13.7 [Uncharged Acts: Not Relevant To Show Bad Character Or Criminal Propensity Or That Defendant Committed The Charged Act].

See also FORECITE National™ 25.20.2 [Uncharged Acts Offered To Prove Propensity: Jury Must Find Defendant Guilty Of Charged Offense Beyond A Reasonable Doubt].

See also FORECITE National™ 26.1.6 [Limited Purpose Evidence: Scope And Purpose Of Instruction].

5.     Rule 410

    Rule 410 provides certain protections to criminal defendants during the process of plea bargaining. Rule 410 is silent, however, on whether its protections can be waived by a criminal defendant. In United States v. Mezzanatto, 513 U.S. 196 (1995), during guilty plea negotiations the defendant agreed that he could be impeached with statements made during the negotiations if he ultimately went to trial and testified inconsistently with those statements. The Supreme Court upheld the agreement, finding that the defendant had knowingly and voluntarily waived his right to the protection of Rule 410. The Court refused to hold that the Rule's silence on the matter meant that its protections could not be waived. Instead the Court presumed that any statutory right could be waived in the absence of a specific provision to the contrary, so long as the waiver was knowing and voluntary.

    The facts of Mezzanatto involved a waiver permitting the impeachment use of statements made during guilty plea negotiations. Neither Mezzanatto nor Rule 410 itself says anything explicitly about whether a defendant can waive the protections of the Rule so as to provide that the prosecution can admit his or her statements during plea negotiations as substantive evidence at trial, that is, as party admissions admissible even if the defendant does not testify. At least one court has relied on the rationale of Mezzanatto to uphold a waiver of Rule 410 protections that permitted the government to use the defendant's statements as substantive evidence in its case-in-chief. See United States v. Burch, 156 F.3d 1315 (D.C. Cir. 1998).

Related FORECITE National™ Materials:

See FORECITE National™ 19.4.2 [Jury Not To Consider The Guilty Plea Of An Accomplice Or Codefendant].

See also FORECITE National™ 26.2.3 [Witness Who Has Entered Guilty Plea: Limited Purpose Instruction].

See also FORECITE National™ 83.3.13.4 [Limiting Instruction When Prosecution Elicits Alleged Coconspirator’s Guilty Plea Or Conviction Of The Same Charge For Which The Defendant Is On Trial].

See also FORECITE National™ 270.2.14 [Improper To Instruct That Plea Of Not Guilty Constitutes A Denial Of Every Material Allegation In The Charges].

6.     Article VI

    Article VI governs treatment of testifying witnesses. The Article is silent about many of the common forms of impeachment, such as bias, contradiction, and mental capacity. There is, of course, a significant amount of case law dealing with impeachment matters on which Article VI is silent. Case law generally regulates the forms of impeachment not specifically covered by Article VI by using principles derived from Evidence FRE 402 and 403 -- such impeachment is permitted unless the probative value of the impeachment evidence is substantially outweighed by the risks of prejudice, confusion, and delay. See United States v. Abel, 469 U.S. 45 (1984) (impeachment for bias governed by FRE 403 principles). See generally S. Saltzburg, M. Martin & D. Capra, Federal Rules of Evidence Manual 939-70, 1139-48; 3 C. Mueller & L. Kirkpatrick, Federal Evidence 109-207, 327-470 (2d ed. 1994). See also lmwinkelreid, The Silence Speaks Volumes: A Brief Reflection on the Question of Whether It Is Necessary To Fill the Seeming Gaps in Article VI of the Federal Rules of Evidence, Governing the Admissibility of Evidence Logically Relevant to the Witness's Credibility, 1998 Univ. 111. L. Rev. 1013, 1036 (noting that Article VI is silent about most matters of impeachment, but concluding that "as a general proposition, there is little to be gained and much to be lost by initiating the process of revising Article VI").

    Rule 615 provides that at the request of a party, and with some exceptions, "the court shall order witnesses excluded so that they cannot hear the testimony of other witnesses, and it may also make the order of its own motion. ' The Rule specifically provides only for exclusion of witnesses from the courtroom. It is silent about whether a trial judge can order witnesses not to talk to each other outside the courtroom; it says nothing about a judge's power to order a potential witness to refrain from obtaining access to certain information, such as newspaper articles, that might taint the witness's testimony.

    The courts have held, however, that the trial court retains its common-law power to fashion a more far-reaching sequestration order appropriate to the circumstances of the case. See the extensive discussion in United States v. Sepulveda, 15 F.3d 1 1 61, 1175 (I st Cir. 1993) (Rule 615 "demarcates a compact procedural heartland, but leaves appreciable room for judicial innovation beyond the perimeters of that which the rule explicitly requires"). This common-law power includes the discretion to sequester witnesses before, during, and after their testimony (see Geders v. United States, 425 U.S. 80 (1976)), and to compel the parties to present witnesses in a prescribed sequence (see United States v. Machor, 879 F.2d 945, 954 (lst Cir. 1989)). As the court in Sepulveda stated, "Rule 615 neither dictates when and how this case-management power ought to be used nor mandates any specific extra-courtroom prophylaxis, instead leaving the regulation of witness conduct outside the courtroom to the district judge's discretion.'

Related FORECITE National™ Materials:

See FORECITE National™ 24.2.2.2 [Jury Must Not Consider Demeanor Of Witness While Not Testifying].

8.     Rule 801(d)(1 )(B)

    Rule 801(d)(1)(B) provides that a statement is not excluded as hearsay if the witness is subject to cross-examination and the statement is "consistent with the declarant's testimony and is offered to rebut an express or implied charge of recent fabrication') The hearsay exemption for prior consistent statements does not specifically provide that the prior consistent statement must precede the existence of the alleged motive to falsify in order to be admissible. However, the Supreme Court in Tome v. United States, 513 U.S. 150 (1995), held that a statement is not admissible under Rule 801 (d) (1) (B) unless it was made before the witness's alleged motive to falsify arose.

    Rule 801(d)(1)(B) is also silent on whether prior consistent statements can be admitted independently of the Rule, not for their truth but rather to rehabilitate the credibility of the witness. The courts have held that a consistent statement can be probative and admissible for rehabilitation purposes even if it is not admissible under the hearsay exemption. See, e.g., United States v. Brennan, 798 F.2d 581, 587 (2d Cir. 1986) (prior consistent statement was not admissible to rebut a charge of improper motive, but it was admissible to clarify an apparent inconsistency that had been brought out by defense counsel on cross-examination: "prior consistent statements may be admissible for rehabilitation even if not admissible under Rule 801(d)(1)(B). Accord United States v. Parodi, 703 F.2d 768 (4th Cir. 1983).

Related FORECITE National™ Materials:

See FORECITE National™ 25.14.1.5 [Instruction On Foundational Requirements For Adoptive Admissions].

See also FORECITE National™ 26.4.1 [Prior Consistent Statements: Purpose And Scope Of Instruction].

CASE LAW DIVERGENCE FROM THE FEDERAL RULES OF EVIDENCE

    Rule 803(3) provides a hearsay exception for statements of a declarant's state of mind. The Rule is silent, however, on whether a declarant's statement of intent can be used to prove the subsequent conduct of someone other than the declarant. When the victim says, "I am going to meet Frank tonight," is the statement admissible to prove that Frank and the victim actually met? Or is the statement admissible only to prove the future conduct of the declarant? The Committee Note refers to the Rule as allowing "evidence of intention as tending to prove the act intended."

    The case law is in conflict. Some courts have refused to admit a statement that the declarant intended to meet with a third party as proof that they actually did meet. See, e.g., Gual Morales v. Hernandez Vega, 579 F.2d 677 (lst Cir. 1978); United States v. Jenkins, 579 E2d 840 (4th Cir. 1978) (statements of intent can prove only the declaranes subsequent conduct). Other courts hold such statements admissible if the proponent provides corroborating evidence that the meeting took place. See, e.g., United States v. Delvecchio, 816 F.2d 59 (2d Cir. 1987). See C. Mueller & L. Kirkpatrick, Evidence 938 (I st ed. 1995) ("Some modern cases take the clearly correct position that the exception in its present form cannot justify use of statements of intent by themselves as proof of what others did. And yet a growing number of cases approve use of a statement to prove what the speaker and another did together if other evidence confirms what the statement suggests the other did.

CASE LAW DIVERGENCE FROM THE FEDERAL RULES OF EVIDENCE

    Rule 803(18) provides a hearsay exception for "statements contained in published treatises, periodicals, or pamphlets" if they are "established as a reliable authority" by the testimony or admission of an expert witness or by judicial notice. The Rule does not mention whether the learned treatise exception covers evidence presented in demonstrative form, such as a chart or film.

    But the Second Circuit has upheld the admission of an authoritative videotape under the learned treatise exception. See Costantino v. Herzog, 203 F.3d 164, 171 (2d Cir. 2000) (reasoning that it is "overly artificial to say that information that is sufficiently trustworthy to overcome the hearsay bar when presented in a printed learned treatise loses the badge of trustworthiness when presented in a videotape").

    Rule 1101 states that the Federal Rules of Evidence are generally applicable to all federal proceedings. Rule 1101 (d) lists certain proceedings to which the Rules are inapplicable, including grand jury and bail proceedings. Courts have found that the Federal Rules of Evidence are inapplicable to a number of proceedings that are not specifically mentioned as exempt in Rule 1101 (d). Examples include suppression hearings, proceedings to obtain a temporary restraining order, and proceedings seeking release from psychiatric commitment. See, e.g., United States v. Frazier, 26 E 3d 1101 (11th Cir. 1994) (Evidence Rules inapplicable in supervised release revocation proceedings); United States v. Schaefer, 87 F.3d 562 (lst Cir. 1996) (Evidence Rules inapplicable at suppression hearings); United States v. Palesky, 855 E2d 34 (Ist Cir. 1988) (Evidence Rules are not applicable in hearings held to determine whether a person will be committed to or released from a psychiatric facility).

    The courts establish these exemptions because they are within the spirit of Rule 1101 (d)-exempting from the Rules those proceedings that are less formal than a trial and in which the judge is the finder of fact. See, e.g., Government of Virgin Islands in Interest ofA.M., 34 F.3d 153,161 (3d Cir. 1994) (Evidence Rules do not apply in juvenile transfer proceedings, even though such proceedings are not specifically exempted in Rule 1101(d)(1); a juvenile transfer proceeding "is of a preliminary nature and is consequently not comparable to a civil or criminal trial.").

Related FORECITE National™ Materials:

See FORECITE National™ Chapter 11: Grand Jury.

See also FORECITE National™ 305.7.1 [Grand Jury].