Publication Date


Document Type

Survey Article


The publication of this, article marks the tenth time the Mercer Law Review has honored the author by asking him to survey Eleventh Circuit evidence decisions. While some may argue the Review has returned to the same well entirely too many times, ten years of analyzing Eleventh Circuit evidence decisions cannot help but to give some perspective and, perhaps, even some insight into the court's decisions. In this regard, there can be no doubt that the Eleventh Circuit has dramatically reduced its level of scrutiny of evidentiary issues. In the late 1980s, it could be fairly said that the court often paid only lip service to the principle that district court evidentiary decisions could be reversed only for abuse of discretion. Thus, in early survey issues, we see the Eleventh Circuit minutely reviewing evidence to determine whether the district court ran afoul of Rule 403 which prohibits the admission of evidence if its prejudicial impact outweighs its probative value. Although, as discussed below, the Eleventh Circuit continues to apply the Rule 403 balancing test as a part of the test for admissibility of extrinsic act evidence under Rule 404(b), it is virtually unheard of for the court to spend any time discussing Rule 403 alone. Rule 404(b), which has probably received more attention from the Eleventh Circuit than any other single rule of evidence, has become a much less significant factor in appeals. Similarly, the admissibility of co-conspirators' statements under Rule 801(d)(2)(E) is now a routine matter rather than a fecund ground for reversal.

One can debate endlessly the reason for this trend. No doubt, some say that it is a consequence of the appointment of more conservative judges. However, the existence of the trend is unmistakable. In today's environment, the Eleventh Circuit clearly defers much more broadly to the evidentiary decisions of district court judges.

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