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Survey Article


The 2016 term of the United States Court of Appeals for the Eleventh Circuit included important precedential opinions on a number of evidence topics. For example, in four cases the court considered what evidence constitutes "testimonial out-of-court statements" that are precluded by the Sixth Amendment's Confrontation Clause unless the declarant is unavailable and the defendant has a prior opportunity for cross-examination. The court also considered the interplay between a defendant's Sixth Amendment right to an effective cross-examination and the district court's authority to limit the scope of cross-examination.

The court issued two published opinions of importance regarding the Fifth Amendment right against self-incrimination: one addressed whether a defendant's pre-Miranda silence may be used as substantive evidence of guilt; the other considered the issue of first impression of whether a public employee may waive Fifth Amendment protections, which would allow statements made during an investigation to be used in a subsequent criminal case.

Regarding the admissibility of expert opinions, in the 2016 term the Eleventh Circuit continued the apparent trend (discussed in last year's evidence survey) of more closely scrutinizing exclusions of expert evidence. Similar to previous years, the circuit court affirmed four out of the five expert evidence cases it considered, with the single reversal being a case where the district court excluded the plaintiffs primary expert evidence and then granted summary judgment for the defendant.

The Eleventh Circuit also issued two published opinions addressing matters of first impression regarding the Federal Rules of Evidence's prohibition on character evidence. In one case involving a defendant's claim that he was entrapped by the government in a charge of coercing an underage girl into prostitution, the Eleventh Circuit held that the defendant should have been allowed to introduce evidence of specific conduct to rebut the government's claim that he was predisposed to seek out sex with minors. In another case of first impression, the court held that a conviction following a nolo contendere plea does not provide sufficient evidence such that it may be admitted to show the defendant committed a "prior bad act" under Rule 404(b) of the Federal Rules of Evidence. This Survey of the Eleventh Circuit's 2016 evidence opinions provides a concise summary of all of these rulings and provides the practitioner with a succinct overview of the most important evidence rulings by the Eleventh Circuit in 2016.

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