Evidence Commons^™

Electronic Discovery, K. Alex Khoury

Mercer Law Review

The most significant developments in electronic discovery (E-Discovery) law in the Eleventh Circuit in 2015 were the latest amendments to the Federal Rules of Civil Procedure (Amendments), which went into effect on December 1, 2015. As with the last round of amendments in 2006, the 2015 Amendments primarily addressed the rapidly expanding and evolving practice of E-Discovery. Some of the amendments are minor tweaks to existing rules that will have little or no impact on current precedent. Other amendments introduce entirely new rules designed to give the courts and the parties new tools to corral the beast that is E-Discovery. …

Evidence, W. Randall Bassett, Val Leppert, Stephen A. Mccullers

Mercer Law Review

The 2015 term of the United States Court of Appeals for the Eleventh Circuit included precedential opinions on a variety of important evidentiary issues. Several Eleventh Circuit cases, as well as a key decision from the United States Supreme Court, further explored the contours of the Confrontation Clause. The Eleventh Circuit also considered a number of cases regarding the admissibility of expert testimony at trial. These cases seem to continue the Eleventh Circuit's recent trend of applying greater scrutiny to lower court decisions excluding expert evidence, while applying a more deferential standard when the lower court allowed expert evidence.

Also …

Evidence, John E. Hall Jr., W. Scott Henwood, Jacque Smith Clarke

Mercer Law Review

This year represents only the second full survey period in which the "new" Georgia Evidence Code, Official Code of Georgia Annotated (O.C.G.A.) title 24, takes effect. These new rules took effect on January 1, 2013. The rules conform in large part to the Federal Rules of Evidence and continue to change the face of evidence law in Georgia. This Survey highlights cases decided by the Georgia Court of Appeals and the Georgia Supreme Court between June 1, 2014 and May 31, 2015 that have made an impact on evidence law in Georgia. This year's Article provides insight into the courts' …

Evidence, W. Randall Bassett, Val Leppert, Stephen A. Mccullers

Mercer Law Review

The United States Court of Appeals for the Eleventh Circuit's 2014 term featured several interesting opinions addressing the admissibility of evidence. For example, the court tackled two issues of first impression analyzing constitutional rights against the admission of evidence. In one case, the Eleventh Circuit decided whether the Confrontation Clause applies to evidence used by a district court in determining jurisdiction over the offense in a pretrial hearing. In another case, the court developed a rule to determine when an adverse inference jury instruction is warranted after a nonparty invokes its Fifth Amendment right to remain silent in a civil …

Fisher V. Gala: O.C.Ga. § 9-11-9.1(E) Keeping Malpractice Claims Afloat, Kathryn S. Dunnam

Mercer Law Review

For over four decades, the Georgia General Assembly has sought to strike a balance between the need for competent medical care and the role of the judiciary in determining relief for those injured by improper medical treatment. In its effort, Georgia adopted measures to limit the number of frivolous lawsuits to protect its professionals while giving plaintiffs an efficient avenue for relief. One of these adopted measures is the Official Code of Georgia Annotated's (O.C.G.A.) expert affidavit requirement, section 9-11-9.1 (§ 9.1). The use of expert testimony in malpractice cases is "firmly entrenched" in Georgia's policy and crucial to professional …

Evidence, John E. Hall Jr., W. Scott Henwood, Jacque Smith Clarke

Mercer Law Review

This year represents the first full survey period' in which the "new" Georgia Evidence Code, title 24 of the Official Code of Georgia Annotated (O.C.G.A.), takes effect. These new rules took effect on January 1, 2013. The rules conform in large part to the Federal Rules of Evidence and have continued to change the face of evidence law in Georgia. Appellate cases are now providing guidance and direction on the courts' interpretation of the rules, and these cases affect litigants' strategies. This Survey highlights cases decided by the Georgia Court of Appeals and the Georgia Supreme Court between June 1, …

Evidence, W. Randall Bassett, Simon A. Rodell, Dmitry M. Epstein

Mercer Law Review

The 2013 term of the United States Court of Appeals for the Eleventh Circuit saw a number of precedential opinions dealing with a wide variety of evidentiary issues. Of particular interest to prosecutors and criminal defense attorneys are two Eleventh Circuit decisions applying the Sixth Amendment's Confrontation Clause and a unanimous United States Supreme Court decision dealing with the Fifth Amendment's' right against self-incrimination as applied to psychiatric evidence. A number of published Eleventh Circuit decisions involved non-constitutional issues under the Federal Rules of Evidence, including balancing probative value against prejudicial effect under Rule 403, authentication of audio and video …

Evidence, John E. Hall Jr., W. Scott Henwood, Alex Battey

Mercer Law Review

This year's Survey of evidence finds us in a unique position. The overhaul of the Georgia Evidence Code (Evidence Code) went into effect on January 1, 2013. Therefore, appellate cases continue to emerge that interpret and apply the former rules, providing insight and raising questions about how the new rules have changed the face of evidence in Georgia. This Survey highlights cases decided by the Georgia Court of Appeals and the Georgia Supreme Court between June 1, 2012 and May 31, 2013, that illustrate this tension between the old and new rules of evidence. These cases are presented alongside other …

Evidence, W. Randall Bassett, Susan M. Clare, Simon A. Rodell

Mercer Law Review

The 2012 term of the United States Court of Appeals for the Eleventh Circuit included precedential opinions providing helpful guidance on distinguishing the relevant from the irrelevant and on balancing the probative value of a criminal defendant's prior convictions with the potential for unfair prejudice. The 2012 term also included several unpublished decisions analyzing the admissibility of expert testimony under Federal Rule of Evidence 702 and the United States Supreme Court's opinion in Daubert v. Merrell Dow Pharmaceuticals, Inc. Although these unpublished decisions are not binding precedent, they can provide guidance to the practitioner on the Eleventh Circuit's view …

Federal Criminal Discovery Reform: A Legislative Approach, Bruce A. Green

Mercer Law Review

Suppose that federal prosecutors have conducted an investigation culminating in an indictment. Although the prosecutors believe that they have enough evidence to secure a conviction and are personally convinced that the defendant is guilty, some of the evidence they have collected is favorable to the defendant, because it tends to show that the defendant is innocent or that prosecution witnesses should not be believed. Must prosecutors disclose the favorable evidence to defense counsel to use in investigating, advising the defendant, plea negotiations, or trial? Under current federal law, the answer is generally "no." Unless favorable evidence falls within one of …

Williams V. Illinois: Confronting Experts, Science, And The Constitution, Natasha Crawford

Mercer Law Review

DNA evidence has revolutionized forensic science, making it the "single greatest advance in the search for truth.., since the advent of cross-examination." In Williams v. Illinois, the United States Supreme Court affirmed the Illinois Supreme Court's holding that there was no Confrontation Clause violation where experts based their testimony on another analyst's DNA report that was not admitted into evidence. The Court held an expert may assume the truth of certain facts-such as a DNA profile contained in a forensic report-to offer testimony based on those facts without testifying to the truth of the matter asserted. Until Williams, the …

The Proposed Fairness In Disclosure Of Evidence Act Of 2012: More Cons Than Pros With Proposed Disclosure Requirements In Federal Criminal Cases, Jacquelyn Smith

Mercer Law Review

The proposed Fairness in Disclosure of Evidence Act of 2012 (the Act) is a proposal of uniform standards for disclosing evidence in federal criminal cases that was introduced on March 15, 2012 by Senator Lisa Murkowski of Alaska.' The Act's stated purpose is: "To require the attorney for the Government to disclose favorable information to the defendant in criminal prosecutions brought by the United States, and for

Subverting Brady V. Maryland And Denying A Fair Trial: Studying The Schuelke Report, Bennett L. Gershman

Mercer Law Review

The Schuelke Report about the ill-fated federal prosecution of the late-Senator Ted Stevens is an extraordinary contribution to criminal procedure. No other official documentation or investigative study of a criminal prosecution, to my knowledge, has dissected and analyzed as carefully and thoroughly the sordid and clandestine actions of a team of prosecutors who zealously wanted to win a criminal conviction at all costs. In examining this Report, one gets the feeling that as the investigation and prosecution of Senator Stevens unfolded and the prosecution's theory of guilt unraveled, the prosecutors became indifferent to the defendant's guilt or innocence. They just …

Prosecutorial Disclosure Violations: Punishment Vs. Treatment, Kevin C. Mcmunigal

Mercer Law Review

Recent scholarship on prosecutorial disclosure violations proposes preventing violations through understanding and remedying the causes of violations, such as cognitive error. Scholars who adopt this view-what I call here the "treatment perspective"-often call for greater transparency and cooperation from prosecutors. A frequently unacknowledged tension exists between such a treatment perspective and a more traditional perspective-what I call here the "punishment perspective"-that seeks to deter disclosure violations through greater use of sanctions such as professional discipline.

The tension arises because increasing the certainty and severity of sanctions, as the punishment perspective urges, creates a powerful disincentive for individual prosecutors and prosecutor …

Georgia's New Evidence Code: After The Celebration, A Serious Review Of Anticipated Subjects Of Litigation To Be Brought On By The New Legislation, Matthew E. Cook, K. Todd Butler

Mercer Law Review

As January 1, 2013 approaches, the Georgia Bar is anticipating the new Georgia Evidence Code (GEC), House Bill 24, due to take effect on that day. Several authors have canvassed the particular changes the GEC brings to the existing Georgia Rules, of Evidence, as well as the differences between the new GEC and the Federal Rules of Evidence (FRE). Those articles are commended for your reading, as they drive not only lawyers' courtroom presentation but also their trial preparation. Rather than rehashing the changes the GEC brings, this Article will address the abbreviated history preceding the passage of House Bill …

Evidence, John E. Hall Jr., W. Scott Henwood, Alex Battey

Mercer Law Review

This year represents the last survey period in which the "old" Georgia Evidence Code, Official Code of Georgia Annotated title 24, reigns. The "new" Georgia Evidence Code, which amends the O.C.G.A. and conforms in large part to the Federal Rules of Evidence, takes effect January 1, 2013. Therefore, next year's survey will undoubtedly report the ways in which Georgia courts have coped with the extensive changes. For now, courts continue to apply the existing Georgia Rules of Evidence. Cases covered in this Article were published between June 1, 2011 and May 31, 2012, and speak to a variety of topics …

Evidence, W. Randall Bassett, Geoffrey M. Drake, Madison H. Kitchens

Mercer Law Review

The 2011 term of the United States Court of Appeals for the Eleventh Circuit did not signal any new trends in the interpretation and application of the Federal Rules of Evidence, which comes as no surprise given that the Rules have been in effect since 1975. The 2011 term, however, did include a case of first impression for the court and several cases applying well-established law to new and unique factual scenarios. Several of these cases resulted in unpublished opinions bearing no precedential weight but, nevertheless, offering guidance to the practitioner in future cases.

While the admissibility of hearsay testimony …

United States V. Diaz: The Gap Between Medication And Restoration, Bryson Mccollum

Mercer Law Review

In United States v. Diaz, the United States Court of Appeals for the Eleventh Circuit, in a case of first impression, determined whether the state met its burden in applying the United States Supreme Court's test articulated in Sell v. United States, to involuntarily medicate an incompetent, schizophrenic defendant. Based on the Sell test that was established in 2003, the court of appeals had to determine which evidentiary findings were sufficient to meet the clear and convincing evidence standard allowing the State of Georgia to forcibly medicate the appellant, Michael Diaz. The court of appeals found no clear …

Dancing With The Big Boys: Georgia Adopts (Most Of) The Federal Rules Of Evidence, David N. Dreyer, F. Beau Howard, Amy M. Leitch

Mercer Law Review

Georgia has become the forty-fourth state to model its new evidence rules on the Federal Rules of Evidence. The new code will go into effect on January 1, 2013, 150 years from when Georgia's first legal code was published. Passage of the 2013 Georgia Evidence Code did not come easy, but was a product of years of debate, compromise, and vetting from legislators, the judiciary, academia, and members and groups of the practicing bar. The new code is largely derived from the Federal Rules of Evidence, but Georgia has retained a significant amount of evidence rules from its prior code …

Evidence, John E. Hall Jr., W. Scott Henwood

Mercer Law Review

The biggest story in Georgia Evidence law this year is undoubtedly the Georgia General Assembly's decision to align Georgia's evidence code with the Federal Rules of Evidence. Proponents of House Bill 24 describe the former rules, many of which have been on the books for more than 150 years, as archaic and inconsistent. Paul S. Milich, professor of law at Georgia State University College of Law and the reporter for the State Bar of Georgia committee that proposed the new rules of evidence for Georgia, described the way the outdated rules impeded the modern practice of law in Georgia: "Our …

Evidence, W. Randall Bassett, Susan M. Clare

Mercer Law Review

Although the 2010 term of the United States Court of Appeals for the Eleventh Circuit had its share of controversial cases, the court's evidentiary rulings were few in number and moderate in scope. As it has in recent years, the court relied heavily on unpublished decisions to resolve cases without creating binding precedent; thus there were no major alterations to the law of evidence requiring practitioners to run to the nearest volume of the Federal Reporter. As explained in previous iterations of this Survey, the court cautions that its "[u]npublished opinions are not considered binding precedent." As a result,

The …

Functional Magnetic Resonance Detection Of Deception: Great As Fundamental Research, Inadequate As Substantive Evidence, Charles Adelsheim

Mercer Law Review

Essential to the law's pursuit of truth, justice, and the efficient resolution of conflict is assessing the veracity of statements made by individuals both in and out of court. In this judicial context, untruthful statements can be, and no doubt are, made regularly by plaintiffs, defendants, and other witnesses. Humans are generally very skilled at deceiving others, yet they are poor at detecting deception. Because of this disparity, there is a strong demand for reliable scientific techniques to detect deception. The most popular technique is currently the polygraph examination. However, polygraph-based evidence is inadmissible as substantive evidence in nearly all …

Serendipitous Timing: The Coincidental Emergence Of The New Brain Science And The Advent Of An Epistemological Approach To Determining The Admissibility Of Expert Testimony, Edward J. Imwinkelried

Mercer Law Review

This is an exciting time for students of the human brain. Worldwide there has never been such intense interest in and extensive research into the brain. Techniques for studying the brain are proliferating. By way of example, one group of scientists is employing electroencephalography (EEG) as a tool to investigate the brain's operations. Some of these researchers have utilized EEG to identify brain damage; others, including Dr. Lawrence Farwell of Brain Fingerprinting Laboratories, are endeavoring to adapt EEG technology to the detection of deception. Another group of scientists has focused its research on BOLD fMRI (Blood Oxygen Level Dependent functional …

Brain Scans As Evidence: Truths, Proofs, Lies, And Lessons, Francis X. Shen, Owen D. Jones

Mercer Law Review

This Brain Sciences in the Courtroom Symposium is both timely and important. Given recently developed and rapidly improving brain imaging techniques that enable non-invasive detection of brain activity, civil and criminal courts increasingly encounter attorneys proffering brain scans as evidence.' The reason is simple. In addition to caring about how people act-such as when they cause a person's death or sign a will-the legal system's inquiries frequently turn on determining what people were thinking, or were capable of thinking, when they acted.

In criminal law, for example, the same act can yield anything from mere probation to decades in …

Evidence, John E. Hall Jr., W. Scott Henwood

Mercer Law Review

As you may know, July 11, 2010, marked the fiftieth anniversary of Harper Lee's Pulitzer Prize-winning classic, To Kill A Mockingbird, which anecdotally inspired many in the South and beyond to enter the legal profession. Therefore, it is fitting to open this Article with Atticus Finch's oft-quoted closing statement:

The state has not produced one iota of medical evidence ... that the crime Tom Robinson is charged with ever took place ... ...

I am confident that you gentlemen will review without passion the evidence you have heard, come to a decision, and restore this defendant to his family. …

Evidence, Marc T. Treadwell

Mercer Law Review

I. INTRODUCTION

During the survey year from January 1, 2009 to December 31, 2009, the United States Court of Appeals for the Eleventh Circuit continued its recent trend of limiting the number of its published opinions, a trend discussed in more detail in a previous survey. This Survey will address several unpublished-yet noteworthy-decisions. However, readers should bear in mind Eleventh Circuit Rule 36-2, which provides that "[u~npublished opinions are not considered binding precedent, but they may be cited as persuasive authority." Also note that the court's internal operating procedures suggest an even more limited role for unpublished opinions:

The court …

No Witness? No Admission: The Tale Of Testimonial Statements And Melendez-Diaz V. Massachusetts, Jody L. Sellers

Mercer Law Review

In Melendez-Diaz v. Massachusetts, the United States Supreme Court held that the Massachusetts trial court's admission into evidence of forensic "certificates of analysis" violated the Confrontation Clause of the Sixth Amendment. Following Crawford v. Washington, the Supreme Court held that the accused has a right to be confronted with the forensic analysts at trial unless "the analysts [are] unavailable to testify at trial" and the accused "had a prior opportunity to cross-examine" the analysts. Melendez-Diaz will have an important impact on criminal evidence procedure, specifically in regard to the potential growth of notice-and-demand statutes.

Herring V. United States: The Continued Erosion Of The Exclusionary Rule, Robert W. Smith

Mercer Law Review

At its inception, the exclusionary rule was relatively straightforward: The use at trial of evidence obtained from a search or seizure that violated a defendant's Fourth Amendment rights was itself a violation of the defendant's constitutional rights. But throughout the exclusionary rule's history, its source, scope, purpose, and applicability have all seen changes, ultimately limiting the situations in which evidence obtained through a Fourth Amendment violation would be suppressed. The key to the limitation of the exclusionary rule was the United States Supreme Court's eventual conclusion that the use at trial of illegally seized evidence does not always violate the …

Evidence, Marc T. Treadwell

Mercer Law Review

Every Georgia attorney and trial court judge ought to set aside the time to read every Georgia appellate court opinion on the subject of evidence (or, for that matter, any other selected subject) rendered during a given period of a year. The feel that one acquires for the attitude of the appellate courts of Georgia is interesting. Most though, will not have the time for such projects, so that to read someone else's selections and comments may be of some benefit. It will not, however, give the "feel" that one acquires through an individual reading of the cases.

This was …

Evidence, Marc T. Treadwell

Mercer Law Review

The most significant news during the current survey period, as in the past several survey periods, continued to be the judiciary's struggles with "tort reform" legislation enacted by the Georgia General Assembly in 2005, most notably Official Code of Georgia Annotated (O.C.G.A.) § 24-9-67.1 which purports to adopt, more or less, the United States Supreme Court's decision in Daubert v. Merrell-Dow Pharmaceuticals, Inc. If the Daubert decisions discussed in this survey are any indication, Georgia's appellate courts are far from reaching a consensus on the proper application and interpretation of Georgia's Daubert statute.