Publication Date


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Survey Article


For seven consecutive years, the Mercer Law Review has been kind enough to ask the author to review Eleventh Circuit evidence decisions. While one may question the wisdom of the Review's annual return to the same well, seven years of reading every Eleventh Circuit decision involving evidentiary issues has allowed the author to note what may loosely be called "trends" in the Eleventh Circuit's decisions. No claim can be made that these observations are based on statistical or empirical data; they derive solely from the author's sense of the Eleventh Circuit's direction and predilections over the past seven years.

First, it seems that Federal Rule of Evidence 403, once a frequent determinative in appeals, has all but disappeared from the Eleventh Circuit's lexicon. Rule 403 permits a trial court to exclude evidence under certain circumstances, most notably when the danger of unfair prejudice substantially outweighs the probative value of the evidence. Rule 403 determinations are necessarily fact specific and, like all evidentiary determinations, are governed by the abuse of discretion standard.' Consequently, it would seem that the circumstances under which an appellate court would reverse a district court's Rule 403 determination would be rare. This, however, happened frequently in the mid and late 1980s. In more recent survey years, however, this has happened rarely, if at all.

In what is perhaps a related "trend", the level of scrutiny in Rule 404(b) determinations has decreased. Rule 404(b) prohibits the admission of extrinsic act evidence to prove a person's propensity to act in a particular way but allows such evidence for other purposes, "such as proof of motive, opportunity, intent, preparation, plan, knowledge, or absence of not been as marked as the disappearance of Rule 403, the Eleventh Circuit generally seems to be much more deferential to trial court determinations admitting extrinsic act evidence.

Another area of evidence law which has seen marked change in the last seven years is the interplay of hearsay evidence and the confrontation clause of the United States Constitution. As discussed below, the constitutional limitations on the use of hearsay evidence have been, as the result more of Supreme Court decisions than Eleventh Circuit decisions, substantially relaxed.

Finally, these three specific "trends" may be related to an apparent decrease in the number of appeals in which evidentiary issues are determinative. One could conclude that the Eleventh Circuit, perhaps because of an increased case load, is focusing less on procedural and evidentiary issues and more on substantive issues.

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