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Survey Article


In its 2021 term, the United States Court of Appeals for the Eleventh Circuit issued several important and precedential opinions on a number of evidentiary topics. For example, in two opinions, the court considered the totality of the evidence to determine whether admission of testimonial hearsay implicated the Sixth Amendment’s Confrontation Clause or was instead harmless error. The court also twice addressed whether a suggestion to the jury that a defendant’s silence was substantive evidence of his guilt violated the defendant’s Fifth Amendment rights.

Additionally, the Eleventh Circuit issued several opinions concerning lay witness and expert testimony. In two opinions this term, the court affirmed the district courts’ categorization of testimony as lay witness testimony and therefore admissible under Federal Rule of Evidence 701. Regarding the admissibility of expert opinions, the court in four cases followed its trend of deferring to the district courts on the use or exclusion of expert testimony, affirming all four in published opinions.

Lastly, the court also issued several opinions balancing Rule 401’s relevancy requirement against Rule 403’s grant of discretion to exclude relevant evidence where “its probative value is substantially outweighed” by, among other things, unfair prejudice or a likelihood of confusion. The court further addressed the prohibition against character evidence and hearsay in several opinions.10 This Survey summarizes all of these rulings and provides the practitioner with a concise overview of the most important developments in the law of evidence.

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