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Survey Article


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 The 2012 term also included several unpublished decisions analyzing the admissibility of expert testimony under Federal Rule of Evidence 702 and the United States Supreme Court's opinion in Daubert v. Merrell Dow Pharmaceuticals, Inc. Although these unpublished decisions are not binding precedent, they can provide guidance to the practitioner on the Eleventh Circuit's view of recurring evidentiary issues. The court's unpublished decisions may be of particular interest to practitioners who typically practice in Georgia state courts, which adopted a new Evidence Code-modeled after the Federal Rules-that became effective on January 1, 2013.

The term's two biggest evidence opinions involved constitutional limits on the use of evidence in criminal trials. In the first case, the court reversed a doctor's convictions for distributing controlled substances because the doctor's Confrontation Clause rights were violated when the district court allowed a government witness to testify about autopsy reports prepared by medical examiners whom the doctor did not have the opportunity to cross-examine. In the second case, the court reversed a civil contempt judgment against a person who invoked his Fifth Amendment9 privilege against self-incrimination and refused to decrypt hard drives sought in a grand-jury investigation into the dissemination of child pornography. This Survey describes all of these decisions to provide the practitioner with a brief overview of the evidentiary landscape in the Eleventh Circuit as it evolved in 2012.

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