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I rise to give my opening statement. I stand tall and confidently before the jury, and I deliver the goods. The jury is with me. I explain my case, reciting what I believe the evidence will show. I sit down, satisfied that I have set the table properly for a just verdict—a verdict for my client. The parade of witnesses now begins. My first witness is on the stand. I am not five minutes into my examination, in the middle of a question, and then it comes. The word at first jolts me—“OBJECTION.” Of course, I have heard the word before. Of course, I know its import in this context; yet, I am frozen. I try to collect myself, but nothing comes. The judge says impatiently, “Mr. Greenaway, Mr. Greenaway.” I muster up the courage to say “Your Honor, . . . ” and then I wake up.
Most trial lawyers have experienced this dream, or a variation of it, at some point in their careers. Trial anxiety, to a certain extent, never subsides even with experience and comfort in the courtroom. There is so much to concern you. Despite the myriad concerns—logistics, witnesses, the judge, your adversary—trials and their outcomes generally come down to the rules of evidence. The rules are scary and difficult, and they continue to cause consternation and, yes, nightmares in lawyers, both young and seasoned.
Early in one’s career, it does no good to hear from experienced lawyers or even federal judges, like myself, that mastery of the rules will come in time. Young lawyers have a particularly difficult time with the rules of evidence because they do not know, and cannot easily discern, which rules can and must be mastered.
My objective here is straightforward: to identify, and provide a critical understanding of, some of the key rules of evidence that will provide you with an ability to use the rules to your advantage and, as a result, experience pleasant dreams. An all-encompassing and exhaustive exegesis on evidence this is not.
It All Starts with Hearsay
The study of evidence often seems to come down to an understanding of hearsay. To the uninitiated, it appears to be both complex and illogical. With study and the application of some simple thoughts, some of the anxiety it causes will be eased.
I start on our journey not with a rule but a set of concepts. Why do we have a hearsay rule? The answer is based both on our Constitution and on common sense.
As the history of jury trials developed, decision makers and, at some point, juries received evidence for which there was no indicia of credibility. John told Bill, who told Sally, who testified. The version of the facts Sally provided differed from John’s original recollection of an event, but without John, how could anyone be sure Sally’s recitation of the facts was accurate?
This concern is actually addressed in the Sixth Amendment of our Constitution:
In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.
The Confrontation Clause is the subject of many judicial decisions and learned commentary, but its essence is that an accused must be able to confront his accusers. In the absence of such confrontation, there must be specific and bona fide indicia of reliability, or constitutional anarchy results—the Sixth Amendment is violated.
The concerns regarding the right of confrontation and indicia of reliability are the linchpin of any analysis of hearsay.
The definition of hearsay is straightforward and requires all lawyers, experienced or not, literally to be at the edge of their seats at trial. An out-of-court statement offered for the truth of the matter strikes terror in the hearts and minds of the inexperienced: Will I miss the objection? What if I’m wrong? Will the judge think I’m an idiot if I object and he overrules my objection?
These are all legitimate concerns, but early on my most basic advice is to throw caution to the wind. Be ready to object any time a witness is recalling to the jury anything that witness said previously or heard, and is presently recounting on the stand. If you are not poised to act, you may lose your objection. Over time, you will learn that, aside from hearsay that is objectionable, there will be hearsay that, although objectionable, you will choose not to object to and allow the evidence to come in. Undoubtedly, recognizing and distinguishing such nuances will come one day, but as you read this article that day may not have come yet.
The stage is now set. The witness is on the stand. The background information that seems both inane and innocuous comes into evidence with nary a peep from you, and then you hear, “Mr. Smith, drawing your attention to the night of January 10 of this year, what happened?” Now the antennae must be up.
The question is, “What are you listening for and how do you process the information?” First, is the testimony focused on what the witness did or rather what he said or what was said to him? Many in our profession—both bench and bar—believe that when a witness is on the stand, subject to cross-examination, he may relate to the jury anything he may have said on a prior occasion. This is not correct. When a witness testifies regarding what he may have said on an earlier occasion, it must fall into the category of non-hearsay, i.e., not offered for the truth of the statement, or there must be an exception. Indeed, Rule 801(c) of the Federal Rules of Evidence defines hearsay as a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.
An example might be helpful. A witness to a car accident in a personal injury case might be asked: What happened at the intersection?
Witness: I turned to my girlfriend and said, “Oh, my gosh, have you ever seen someone go through a red light like that? Let’s see if those kids are hurt.”
In this type of case, this statement is in the first instance hearsay. It is an out-of-court statement offered for the truth of the matter. Is there an exception that applies? Several probably do—excited utterance and present sense impression might work—but suppose the statement by the witness does not easily fall within an exception, as in the following:
Witness: After I saw the accident, I went over to the driver and told him, “You are the worst driver of all time. You must be drunk. What is the matter with you?”
Of course, your first objection might be relevance, but this is an out-of-court statement. Even if the plaintiff’s counsel survived the relevance objection (more about relevance later), she still would have to provide an exception to the hearsay rule for the admission of the statement.
This concern regarding a witness on the stand and that witness’s earlier recollections and statements is not often discussed, but it exemplifies the conundrum of evidence generally—How do I know? Here’s where the rules come into play.
It Is All Relevant, Isn’t It?
It seems elementary, but relevancy is central to any discussion of the rules of evidence. The best way to think about relevancy is to envision the evidence you need to introduce as it relates to the complaint, the answer, or the indictment. But this is only half of the story. The journey to determine what is relevant and what is not also applies to your adversary. What is the evidence she will seek to produce and by what means or arguments is it relevant?
Rule 401 states that relevant evidence is “evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.”
Great words, but what do they mean? In building your case or in understanding your opponent’s case, you must make a simple determination: Is it relevant, and if so, how do I get it in or, if not, how do I keep it out? The place to start is at the very beginning—when your client walks in the door. The first time you hear your client’s story, the evidentiary analysis must begin. What is the nature of your client’s problem? Is there documentation relevant to the resolution of the case? Who are the players in the drama? How did each person your client mentions come to know the facts, i.e., have they lived the facts or were they told the facts?
You must determine why each piece of evidence is relevant to the issues the jury has to resolve. As you analyze your proofs, ask yourself where are the witnesses you anticipate calling, what are your exhibits, why is it relevant? Do these proofs speak to the jury’s task of determining whether a fact of consequence (a material fact) to the action more probably exists than not? How is this competent evidence to be introduced for the jury’s consideration?
Your primary focus must be the evidence you need to prove the elements of the claim or the defense you will seek to present to the jury. In my years on the bench, I have been shocked consistently by how, despite experience, lawyers fail to think about trial from the very start of their involvement in a case.
As a U.S. district judge, my initial contact with the lawyers was usually several months into the case, absent entreaties seeking injunctive relief. I loved to engage the lawyers in discussions about how they view their case—strengths and weaknesses, especially troublesome or ticklish evidentiary issues. On occasion, lawyers mentioned their reliance on a document or statement by a particular witness. Seemingly proud of themselves as they set out their bulletproof case, I asked to their horror how they expected to get that item or statement in evidence? I was met with “I hadn’t thought of that,” or “Judge, it’s relevant. I just assumed I could get it in.”
These exchanges point out the essential challenge of the rules of evidence: The rules are intertwined and can never be analyzed casually or in isolation. Relevance is merely the first step. The piece of evidence—whatever it is—must survive other potential impediments, such as assertions of prejudice, hearsay, and the like.
The important thing to remember about relevance is that it requires thoughtful consideration from the inception of your involvement in the litigation. The mere invocation of the claim that a piece of evidence is relevant will not necessarily carry the day and lead to a favorable ruling of admission by the judge. The relevance objection simply asks the judge to intervene when the interrelationship between the evidence and the theory or defense of the case is not apparent or when it is crystal clear but a legitimate basis for exclusion of the evidence also exists.
Of course, the X factor in this and every other evidentiary consideration is the judge. One piece of advice I learned early in my career that bears repeating now is “Know your judge.” A simple axiom, but one that is critical to your success. Your due diligence in learning all you can about the jurist who holds the keys to your client’s future requires that you know whether she is experienced or not, a trial maven in reality or in her mind, a buttinsky or not. Knowing this information will guide you, or at least give you an inkling of what is to come; specifically, the level of discourse on evidence, whether it is detailed and thorough or cursory and seat-of-the-pants.
As a young federal prosecutor, I learned that certain judges had reputations regarding their knowledge of, and facility with, the rules of evidence. Some judges took the view that the red face or smell test was their guide to admissibility because the jury would ultimately ferret it all out. Others, probably the majority, believed that their role as an evidence gatekeeper required them to be stern and exacting taskmasters who make the most narrow of rulings on evidentiary matters.
At times, relevance is a matter of nuance. Your fear is that you may be giving too much away to your adversary with a detailed explanation to the judge. My advice is to err on the side of too much because—to use a permutation of a now-hackneyed phrase—if it doesn’t get in, you cannot win.
What should you be prepared to do? If a pithy response at the time of the objection fails to allay the court’s concerns, ask for an opportunity to make an offer of proof (this is found in Rule 103). Any time a judge is uncertain about where you, as a strategic matter, are going, he will ask you for an offer of proof. Experienced lawyers will sometimes require offers of proof on every witness and regarding every potentially damaging piece of evidence; not because it is warranted, but to rattle you.
If pressed by the judge, be prepared to literally connect the strategic dots for him. Such an offer is not per usual, but you must be prepared to support your offer with a cogent explanation of how the evidence ties into your theory of the case and the interrelationship between that evidence and other evidence as well. This analysis is at the core of determining relevant evidence.
If you happen to survive the offer of proof and the relevance objection, be certain to be prepared to support the introduction of your evidence by deflecting any specter of prejudice.
Embrace Prejudice—Rule 403
Rule 403 is, next to hearsay, the most oft-cited rule of evidence. I always tell my trial practice students to embrace prejudice. Of course, they look at me askance because in our “politically correct” world, “prejudice” is taboo; however, in a trial lawyer’s world, we want to prejudice every juror—in our client’s favor, of course.
In criminal trials, prosecutors always know when they have a great piece of evidence because invariably the defense jumps up frantically, imploring the judge to keep a particular item of evidence out of the jury’s purview because it violates Rule 403. Rule 403 provides as follows:
Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue waste of time, or needless presentation of cumulative evidence.
Prejudice is almost entirely a judgment call left to the discretion of the court. It requires the classic balancing test. Does the danger of unfair prejudice substantially outweigh the probative value of the evidence? Although the issue is framed most often in terms of unfair prejudice, other considerations apply as well. The evidence may be excluded if confusion of the issues, misleading the jury, undue delay, or waste of time come into play.
Trying to ferret out what amounts to unfair prejudice is not without challenge. I always analyze the paradigm as whether the evidence changes the focal point of the jury from the issue they are required to resolve to actually creating bias. The best examples are graphic photographs of a murder scene or a particularly gory accident case. The issue at hand might be whether the prosecution has proven beyond a reasonable doubt that the defendant committed the crime. The photograph may induce the jurors to become transfixed by the emotion they feel about the victim’s plight, thus creating a foregone conclusion on the ultimate issue. In the accident case, the gory photographs may not speak to the ultimate issue of design defect in a products liability action.
In either case, the admission of the photographs could create a dangerous predisposition unrelated to the ultimate issues to be determined. At some point, even though the photographs are relevant, the prejudice could prove overwhelming and leave such an indelible impression that the jury could be irrevocably biased. This is the point where the court must step in.
The part of the 403 analysis that attracts less attention is the reference to applying the balancing test to confusion of the issues, misleading the jury, needless presentation of cumulative evidence, or waste of time. Almost every judge I know is focused on time. Is the jury waiting too long? Are sidebars too long? Does this legal argument need to be resolved now? Will the presentation of this marginally relevant evidence take an inordinate amount of time? Is direct too long? Is cross-examination too long? Attorneys are not helping their clients if they fail to consider the waste-of-time objection afforded by Rule 403.
Objections that refer to confusion of the issues or misleading the jury are potent arrows in the attorney’s quiver in all kinds of trials, whether complex commercial litigation or criminal trials. What is confusion in this context? How does it manifest itself? One can argue that any evidence that diverts the focus of the jury from the issues vital to the case may cause confusion.
As lawyers, we always believe that a curative instruction will save the day. To be sure, that is often the case, but undoubtedly there are occasions when it appears that it does more harm than good. Recently, during a criminal trial involving misuse and embezzlement of clients’ funds, the government sought to introduce evidence that the defendant had irregularities with his personal tax returns. The purported relevance was tenuous at best. More important, it was an attempt to lead the jury to conclude that if there were tax irregularities, then it was more likely that the defendant committed the charged crimes. Ultimately, I did not allow the items into evidence. This instance exemplifies the intersection of relevance and prejudice.
In the end, Rule 403 determinations are within the sole discretion of the district court. Appellate courts are loath to disturb these decisions. On either side of the issue, your most effective argument is how the evidence misdirects the jury in a manner that an instruction cannot cure. Indeed, losing a Rule 403 battle can leave you uncertain as to what the jury’s decision-making was really based on, which may leave you—stuck.
Propensity or Insight
The Rule 403 balancing test invokes serious consideration of Rule 404(b)—other crimes, wrongs, or acts. This rule is one of the most difficult rules to apply. On its face, it would appear that almost any use of 404(b) would prove, if effective, propensity. Of course, such a result is antithetical to the purpose of the rule. In the quest to permit only competent evidence before the jury, 404(b) suggests that examining prior activities of a defendant in a criminal case or either party in a civil case (or in rare instances a witness) may give or create insight into the resolution of the issues at hand, one of which is always credibility.
You would be hard-pressed to find two rules of evidence more inextricably intertwined than 404(b) and 403. Rule 404(b) is commonly invoked in criminal trials. The prosecutor will seek to introduce evidence that particular acts were engaged in or conducted in an identical manner on prior occasions. This evidence will show plan, preparation, or absence of mistake or accident. The classic example is a bank robbery case: The defendants wore particular outfits during the charged crimes—special sneakers, hats, and jackets. On prior occasions, in crimes uncharged in the current indictment, the charged bank robbers wore identical outfits. The Rule 403 argument by the defense is that prejudice substantially outweighs the probative value because the prosecutor’s argument is he did it then and he did it this time as well. The propensity argument, while articulable, may not carry the day. The similar modus operandi tells you all you need to know. On the other hand, is it evidence of common plan or preparation that can be imputed to the defendant regarding the crime charged?
In the civil context, 404(b) evidence might arise where a party claims to have been defrauded. Evidence exists of a prior scheme carried out in the same fashion. The defendant denies ever having engaged in similar conduct. The court has to determine admissibility.
The problem for the court on a 404(b) application is that despite admonishments to counsel and the jury, it is difficult to fathom that juries do not consciously or subconsciously use 404(b) for its unintended purpose, i.e., he did it then, and he did it this time.
The Witness’s Personal Knowledge
Rule 602 is one of my favorite rules. Our entire notion of relevant evidence, fairness, and hearsay is based on a witness’s personal knowledge or some indicia of reliability that allows a court to perceive or infer reliability. We cannot countenance instances where a party attempts to create corroboration based on impermissible inferences or hearsay. Rule 602, when properly invoked, helps keep the playing field level.
For example, Witness A testifies about something he perceived at a particular time, on a particular date. Witness B testifies to the same set of facts, as if she had also perceived it, when, in fact, her only basis for knowing the fact is a conversation with Witness A and reading a document that Witness A drafted. On the stand, it is apparent that Witness B did not perceive the fact. The 602 objection allows you to challenge Witness B and prevent her from providing further seemingly corroborative testimony on the subject. Your adversary wanted Witness B’s testimony as a backdoor way to corroborate Witness A and argue to the jury later that they need not rely merely on Witness A. Interestingly, if a Rule 602 objection is rejected by the court, you can consider a hearsay objection when it is apparent that a witness’s attestation to a fact is clearly based on what she was told (absent an exception) rather than what she perceived or experienced. Indeed, even if the court has an unusually expansive view of permissible hearsay, the objection of lack of personal knowledge becomes difficult to overcome.
The utility of this objection becomes apparent in instances when a supervisor is attempting to testify about knowledge she garnered from one of her reports. At trial, she may attest to the fact as though she has personal knowledge when in fact she only has knowledge of the fact as she learned it from one of her reports. Perhaps even more common is the instance where a party attempts to introduce a document through a witness who has no knowledge of the import of the document. For example, the purpose is to have the document introduced through this witness merely because he works for the same company that generated the document. (I am not referring to a situation in which the witness comments on a document and the admission of the document is dependent on a foundation by a subsequent witness.)
Lastly, Rule 602 is extremely effective in deflecting attempts to turn fact witnesses into experts. How does this arise? Nothing persuades jurors more than witnesses who appear to be well educated, plainspoken, and knowledgeable. Of course, this happens easily if a witness receives the court’s imprimatur and is deemed an expert. My scenario contemplates an instance when a witness, not formally deemed to be an expert, attempts to testify definitively in a manner that is essentially opinion testimony. The witness might be asked, “What is your view on X” or “Would you have permitted X to have occurred?”
Based on the absence of a formal opinion question, an advocate may argue that she is not seeking to elicit an opinion, but be sure to press forward. There is no reason to seek this type of testimony other than to seek to introduce a pseudo expert’s view before the jury. Rule 602 allows an effective shield against this attempt at introducing an opinion to aid your adversary’s cause.
Impeaching a Witness
Experience tells us that, as trial lawyers, we must prepare for the worst. Among the potential parade of horribles is that your witness, your key witness, tanks. He forgets on the stand all that you have gone over while you prepped or, worse, he lies. All is not lost if this happens to you. Rule 607 allows a lawyer to impeach the credibility of any witness, including one that she has called. The issue is who tanks and how. A witness who earnestly forgets is more likely best suited to have his recollection refreshed. The witness for whom Rule 607 is intended is the person who decides after he gets on the stand that he is more concerned with his future plans with the defendant and the defendant’s friends than living up to a plea deal or the person who decides that you must have misunderstood him at his deposition or during trial prep.
What do you do? Confront the witness immediately and without hesitation. The credibility of your witness is critical to your success, but your own credibility before the jury is also at stake.
How you impeach your witness depends on who the witness is (turncoat or otherwise legitimate businessperson); how bad the damage is (devastating or marginal); and how critical the witness is to your case (pivotal or cumulative).
The most important piece of advice regarding Rule 607 is do not wait to be surprised by your witness. For each witness you contemplate putting on the stand, segregate the documents, exhibits, or other items that can be used to bring the witness back should he stray from the version of the facts you believe to be true. Be prepared to confront him, and realize that impeachment is a necessary and useful tool when the object of your ire is your own witness.
Attacking Credibility—Not by Any Means Necessary
In the same way that Rules 403 and 404(b) seem inexorably intertwined, so too are Rules 608 and 609. Each focuses on the parameters of how and under what circumstances a witness’s credibility may be attacked.
Rule 608 is concerned with the witness’s character for truthfulness. Is this witness worthy of belief? The jury may consider character only as it relates to this issue. This inquiry may be made generally or with regard to specific instances of truthfulness or untruthfulness. This issue is not brought to bear when a party (usually the defendant in a criminal case) calls a character witness who provides testimony regarding what a good person the defendant or other alleged malefactor is, or may be. Such testimony falls within the ambit of general reputation testimony and is an exception to the hearsay rule—Rule 803(21).
Rule 608(b) has clear ramifications on cross-examination. Credibility is at stake. The question is what may be inquired into to attack credibility? Rule 608(b) sets up a unique dichotomy. On the one hand, a witness may be cross-examined on matters that speak to or address that witness’s character for truthfulness or the untruthfulness of another witness about whom the witness being cross-examined has testified.
The rule itself precludes the use of extrinsic evidence when a cross-examination delves into the area of exploring specific instances of the conduct of a witness. This means that when you confront a witness you may not, if you receive an answer you perceive to be untruthful, produce extrinsic evidence to prove the purportedly untruthful response. In other words, you are “stuck” with the answer. For example, if a witness is confronted with a question such as “Six months ago, didn’t you apply for a passport using a false name, a false Social Security number, and false address?”—this question is permissible in that it attacks the witness’s own character for truthfulness. However, if the witness responds with a flat denial, the questioner may not introduce or confront the witness with the purportedly fraudulent passport application, unless, of course, the answer to this particular question was material to the jury’s consideration.
The other side of the equation is that you, the cross-examiner, must have a good-faith basis for the question. Some judges, if pressed by objection, would require the production of the false application. At times, if the question was inflammatory in some sense, you may have to respond to a 403 objection and navigate the balancing of a proper 608(b) inquiry and prejudice.
Rule 609 is more straightforward. The use of a prior conviction for a felony in this context is for impeachment of the witness, including the accused. The rationale is that a person with an untruthful character is a more likely to act in conformity with that character while testifying.
As a practical matter, Rule 609 is often the actual impediment to a defendant taking the stand, particularly if he or she has multiple convictions. The rule is seemingly clear—it applies to convictions that address issues of truthfulness or untruthfulness. In point of fact, many courts employ a rather broad view of untruthfulness that inures to the distinct detriment of the defense. Given the probability of being put to the test, think about what convictions would most aptly fall within this category, such as perjury or false statement to a government official. These types of convictions are not within the discretion of the trial court.
The calculation is more difficult with crimes of violence or drug offenses. Personally, I find that these types of convictions do little to shed light on truthfulness; otherwise, almost any conviction would be deemed admissible because of its potential probative value on credibility. One key element of Rule 609 that is often forgotten is that 609(a)(1) and (2) are not conjunctive. The conviction must be a felony or be a crime of dishonesty and false statement.
The admission of the conviction is not automatic under 609(a)(1). It is within the court’s discretion to determine the conviction’s admissibility. The factors any court would look to are the nature of the crime (is it too similar to the charged crime?); the number of convictions involved; and whether the conviction is such that it is intrinsically prejudicial.
The 10-year time limit is not a hard-and-fast rule. I have known judges to rule as stale convictions that fall well short of 10 years. On the other hand, it is rare to surpass the 10-year proscription. If the conviction is 11 or 12 years old, it may be worth raising the issue, but success is frankly unlikely.
Since we are all wordsmiths, I commend to your attention the balancing required under Rule 609(a)(1) that is different from Rule 403, because the word “substantially” is not present in 609. Thus, the calculus in 609 is merely whether the probative value of the admission of the conviction is outweighed by unfair prejudice. Presumably, this “easier” threshold may be useful if attempting to keep a conviction outside the purview of the jury.
Leading—The Path to Somewhere
The newly minted trial lawyer should always keep Rule 611 in his sights. This rule presents a couple of traps that experienced trial lawyers attempt to set for their less grizzled colleagues all the time. First, the scope of cross-examination (Rule 611(b)) is a fertile ground for objection. You are in the middle of a particularly pointed, well-phrased question when you hear “Objection, outside the scope of direct.” My first admonition to you is always chide your adversary for interrupting you mid-question. I, for one, hated it when I tried cases and hated it even more as a trial judge. It is rude, and frankly, I wanted to hear the entire question, in context, before I ruled. Despite the robe, I could not read minds. Secondly, I told jurors that it is the answers, and not the questions, that are the evidence for them to consider. Some lawyers appeared apoplectic when I insisted on hearing the entire question before ruling on an objection. For me, it was the only way to ensure that my rulings were fair and logical and that the record was preserved.
There are two responses that quell further interruptions: (1) You may point out to the judge that this area directly speaks to the credibility of the witness (for example, prior instances of a lack of veracity by the witness); or (2) if totally unconnected to the direct examination or any argument of attacking credibility, you may ask to examine the witness in an additional area, as if you were conducting direct examination. It is generally not necessary to make this argument because courts generally give incredible leeway regarding the scope of cross-examination. In fact, unless the witness turns out to be a person generally considered to be friendly or within his client’s control, leeway is freely granted. Of course, you should always be prepared to argue that with a little leeway, the connection to the crux of the case will become apparent to the court.
Rule 611(c) is critical, not because it permits leading questions, but because it creates a mechanism for deeming a witness hostile or adverse so that leading questions are permissible.
One of the oddities of the term “hostile witness” is that it implies a witness needs to be adverse to you to be deemed hostile. Not so. Your own witness may, based on her relationship with your client or others involved, be deemed by the court to be hostile. If the mood of the witness changes markedly during direct examination, or the tenor of the responses changes drastically, do not hesitate to request a designation of the witness as a hostile witness.
Sequestration—Keep Everyone Out
There is not much to say about Rule 615 except do not be caught unawares. Rule 615 requires that witnesses—other than named parties, defendants, or corporate representatives—stay out of the courtroom during the testimony of other witnesses. Whatever court you are in, you should ask the judge, before any witnesses are called, for a sequestration order. This order, which may be requested by any party, or issued by the court on its own, keeps witnesses from listening in and tailoring their testimony based on the testimony of another witness. This is particularly important when one witness desires to verify or corroborate another witness’s testimony. The order also keeps witnesses from previewing the cross-examination strategies and techniques of opposing attorneys. A witness who is allowed to stay in the courtroom acquires an enormous advantage, both psychologically and substantively.
Refuse any offer by your adversary, as a gesture of civility, to have all witnesses present for all testimony because, as your adversary suggests to the court, our endeavor is a search for the truth. Beware!
No list of important evidence rules could be compiled without reference to experts. Almost all high-stakes litigation, whether civil or criminal, involves expert testimony. The initial question is whether a witness qualifies as an expert and what that person may opine about to the jury. Any jurist must be convinced that the proposed testimony will be helpful to the jury’s determination of the issues at hand.
The landscape of any discussion of experts at trial changed drastically with the advent of two seminal U.S. Supreme Court cases—Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579 (1993), and Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137 (1999). These cases established that the federal district court must play a gatekeeper role regarding what expert testimony may be deemed competent evidence for the jury’s consideration. Principally, these rulings affected the scope and applicability of Rule 702.
Colloquially referred to as the “junk science” rule, 702 is intended to prevent opinion testimony from reaching the jury’s purview when there is serious question within the substantive specialty or field of endeavor regarding the reliability, veracity, or general worth of certain research, theories, and conclusions. Specifically, Daubert requires “a valid . . . connection to the pertinent inquiry as a precondition to admissibility.” 509 U.S. at 592. Daubert further requires the trial judge to determine (1) whether the testimony has “a reliable basis in the knowledge and experience of [the relevant] discipline”; (2) whether a “theory or technique . . . can be (and has been) tested”; (3) whether it “has been subjected to peer review and publication”; (4) whether, with respect to a particular technique, there is a high “known or potential rate of error” and whether there are “standards controlling the technique’s operation”; and (5) whether the theory or technique enjoys “general acceptance” within a “relevant scientific community.” 509 U.S. at 592–94. The Supreme Court emphasized that this inquiry is a flexible one.
These requirements preclude parties from presenting expert testimony that falls outside the parameters of good science (read—verifiable and peer-reviewed). Kumho expanded Daubert by extending the application of Daubert’s factors to all experts, not just science per se. Most circuits have established their own refinements on Daubert and Kumho. The overriding consideration pertaining to any expert and the requirements of Federal Rule of Civil Procedure 16 (which, inter alia, governs expert discovery) is whether your expert’s theorem is “off the reservation.” Is the manner and method of the research and its conclusion such that there is no basis to argue that the work is accepted in the particular field of endeavor?
My own experience is that motion practice based on Daubert and its progeny, after an initial flurry of activity, has died down a bit. At first, Daubert provided solace to all those who chose to challenge an expert in specific types of cases; i.e., junk science. After the intertwining of Daubert’s application with Kumho, parties appeared more reluctant to bring motions challenging experts. I believe this came about because more pre-Rule 16 disclosures regarding experts occurred. This permitted lawyers to discern earlier in the proceedings whether the proposed expert would pass muster. Second, in the absence of a bona fide technical, scientific, or methodological basis for seeking to discredit or ban an expert, lawyers are now seemingly more reluctant to bring the Daubert motion when the prospects of success are less than certain. Third, there is, depending on the case, a strategic advantage to holding off on declaring an expert, particularly as a defendant, based on your ability to use that expert for consulting on cross-examinations.
More on Hearsay—Admissions, Statements, and Exceptions
Hearsay, as noted earlier, is the crux of trial practice. Until you understand its parameters and meaning, effective trial work is impossible. An out-of-court statement offered for the truth of the matter, hearsay is additionally complicated by its straightforward appearance to laypeople. The term is certainly ubiquitous in our society—what he said. But, as the Bard said, “There lies the rub.” Jurors think they understand hearsay, which is why I always gave a special instruction to every jury the first time the word “hearsay” was mentioned during trial. It is the rare judge who would turn down a request to edify the jury on hearsay.
It would seem very easy, but not very useful, to merely state that all of the evidence rules are critical—learn them, know them, as you know yourself. Although there is some truth to this statement, all hearsay is not created equal.
The real place to start is to ask what is not hearsay? Rule 801(d)(2)(a)–(e) sets forth a category of statements that are deemed not to be hearsay—admissions of a party opponent. These admissions are not hearsay, as opposed to an exception to the hearsay rule.
The key basis for determining admissions as non-hearsay is that a party opponent cannot object to an admission introduced against him because there is no need to cross-examine. There is no unjustness or lack of fairness.
There are five types of party admissions that apply under 801(d)(2): (a) individual admissions; (b) adoptive admissions; (c) authorized admissions; (d) agent admissions; and (e) conspiratorial statements. Rule 801(d)(2)(e) is a favorite in criminal conspiracies, but do not forget its application in civil conspiracies as well. The key question is this: Was the statement made in furtherance of the conspiracy? If so, the co-conspirator statement may be admitted into evidence. For example, A is the defendant on trial, charged with conspiracy to commit murder. B is the witness. C is not present. C, a member of the conspiracy, tells B that he (B) and A need to pick up the explosives at 123 Main Street and plant them at D’s house for detonation at midnight. This is an admissible co-conspirator statement in furtherance of a conspiracy.
Rules 801(d)(2)(a)–(d) are usually interpreted broadly and allow most statements of this ilk into evidence. The application of these rules is not limited to the “I did it” admission.
Whether one takes the theoretical approach of the classroom or the practical approach of the courtroom, hearsay begins in the same place—an out-of-court statement offered for the truth of the matter. This is the shorthand statement of the rule we all use when attempting to explain or describe hearsay, but let me suggest that you start with 801(a)–(c) and dissect the rule. A statement is an oral or written assertion. Little discussed is (a)(2), which says that nonverbal conduct of a person, if it is intended by the person as an assertion, may also be a statement and thus may, depending on the circumstance of the offer, fall within the ambit of hearsay. Section (b) addresses an obvious but sometimes forgotten point: Who is the declarant? Of course, the declarant is the person making the statement who sometimes is, but often is not, the witness on the stand attesting to the making of the statement.
When the discussion of hearsay begins in earnest, it is best to keep in mind that this is one area of the law where the exception is more important than the rule. Rule 803 provides countless exceptions. To be sure, more than a passing familiarity is required to become conversant, but there are several key exceptions to focus on in your preparation.
Here is my list of the top seven out of the 23 exceptions enumerated in Rule 803. (Unfortunately, I have no clever basis for why seven and not some other number.) They are (1) present sense impression; (2) excited utterance; (3) then-existing mental, emotional, or physical condition; (4) statements for purposes of medical diagnosis or treatment; (5) recorded recollections; (6) records of regularly conducted activity (business records); and (7) public records and reports.
These are the exceptions that come up the most in trial practice. Your biggest challenge is to know the foundational questions necessary to have a statement or document admitted into evidence. Although seemingly incredible, I saw the following happen in court: A trial lawyer with over 20 years of experience (or so he claimed) could not frame the necessary questions to have a document qualified as a business record and thus admitted into evidence. Ultimately, a document necessary to his case did not come into evidence. I know—you’re thinking as you read this—brain freeze, it happens to all of us. Possible, but not likely. Help yourself. Have your foundational questions ready.
My only additional admonition on these seven exceptions is that everything stated, shouted, or exclaimed is not an excited utterance. The theory of exceptions is that, as framed, they offer indicia of credibility. A truly excited utterance (think exigent circumstances) fits the bill.
The self-authentication rule was enacted to deflect the objection by the wily veteran trial lawyer. “Objection, Your Honor, this document has no indicia of authenticity and reliability.” Stunned, the novice has that silent “Oh, my gosh!” moment. Rule 902 alleviates your concern. The documents that are listed in Rule 902 require no extrinsic evidence of authenticity in order to be admissible. Consult this list whenever you have a governmental or public document; it will likely qualify and allow you a pithy retort to the wily veteran.
In our quest to win over the jury at trial, we are constantly in search of the exhibit that simplifies, organizes, and presents our case in the most persuasive manner. The smoking gun is our greatest fear and our fondest hope, but, in reality, it is largely a figment of our collective imagination. It is the rare case that lends itself to resolution based on the document that the jury can rely on exclusively to render its verdict. One way to achieve this objective without the winning exhibit is the summary chart.
Rule 1006 states that “[t]he contents of voluminous writings, recordings, or photographs which cannot conveniently be examined in court may be presented in the form of a chart, summary, or calculation.” What is the value of a summary? It creates the opportunity to construct an exhibit to present voluminous or substantial evidence in a form you control, that can persuade. In a criminal trial, the summary chart might present each of the fraudulent transactions—date, time, amounts, and the various malefactors. In a civil case, the summary chart might include all of the contacts between doctor and patient or between company and victim. Whatever the situation may be, the chart can be used in opening (if the court gives prior approval based on a showing that the evidence referred to will be admissible and there is no objection to any of the evidence listed in the chart), the closing, or during the testimony of a witness (either direct or cross). Technically, the voluminous writings need not be admitted but merely made available for an adversary’s examination.
Rule 1006 is a little-discussed rule because lawyers often think narrowly about its application. What exhibits does the jury need to know? When used properly, Rule 1006 allows you to present an exhibit the jury is not likely to forget, and the chart creates advocates for your case in the jury room.
The last caveat about Rule 1006 is that, technically speaking, the chart or summary will not be admitted as an exhibit. Whether it comes into evidence ultimately is within the court’s discretion.
Nightmares abound in the life of a trial lawyer. We are constantly worried that we have forgotten something; then, after delivering the goods and receiving kudos from non-fawning observers, we still dwell on all of the “what could or should have beens.” The study and practice of evidence is the essence of trial practice. We can never really master the rules, but we can become sufficiently facile with the rules to avert courtroom dreams and sleep soundly.
My closing salvo to you is a bit of advice a seasoned judicial colleague gave me when I first came to the bench. She said, “No matter how comfortable I become with the evidence rules, I always review them before each trial I preside over.” At first, I said to myself, what a colossal waste of time. Now I faithfully follow this advice. You should too.
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