Evidence

Week of 2-2-09

2 February

The concept of rules of evidence is pretty much an American one.
Article 11; first, we'll talk about where the rules do not apply:
1. Preliminary questions of fact (relating to admissibility of evidence, not dispositive issues: see Markman comments below). This includes decisions about whether an experty is qualified to testify (see Daubert, e.g.): those are like prelimiary questions of fact.
2. Grand jury proceedings
3. Miscellaneous proceedings: extradition, sentencing, granting/revoking probation, search/arrest warrants
4. Bail hearings
5. Contempt- summary contempt proceedings (1101(b))
6. Bankruptcy (1101(b)) (this can be tricky; there are times when there are jury trials here)
Why? Well, for one thing, these don't go towards the essential elements of either a criminal or civil trial issue (no dispositive facts). There can still be questions of fact (did they or did they not violate terms of probation, for example), though. Also, there's no burden of proof here, or jury (except grand jury). But the grand jury is just about probable cause to proceed, not ajudication of the matter itself. And also, that's just part of the history/culture of the law. There's an efficiency side as well: we don't need a jury for every little bail modification, for example. So practical considerations intervene-- if a judge had to convene a jury in order to convene a search warrant, the odds would increase that word would leak out, or conditions would change-- some of these things require an element of surprise, in other words.
A grand jury is an investigative body of citizens (required in federal court for felonies, generally). You can get selected for this the same way as for regular jury. It's secret, there's no judge. Witnesses are called, there is subpoena power, and the result is a decision about whether there's probable cause to charge someone. Only a bare majority vote is required in order to hand up an indictment (12/23 votes required, or else you get a "no bill"). Defense lawyers are not permitted, nor are counsel for the witnesses (if a witness wishes to consult with counsel, they have to leave the room to do so). Grand jury service is no picnic: it can last 18 months for a full day once per week.
Note also that the Grand Jury is a check on executive power: that's its function-- to make sure that there's merit (and not just an abuse of power) before we charge people. Now, of course, it doesn't really function that way these days.
The grand jury also serves as an investigative/inquisitorial body: it roots out crime, and has almost no limits in what it can pursue.
It can't really fulfil these functions (esp. without a judge at the helm) if the rules of evidence were in the way. And the rules of evidence, more importantly, would interfere with its role as the preliminary conscience of the community: they can consider the character of individuals, for example, when deciding not to charge.
And finally, when we're dealing with a sophisticated criminal enterprise, we don't always have a great deal of information at the start.
Markman (?) hearings (preliminary civil hearings to decide what issues are jury-worthy) are like depositions: there can be objections.
Daubert hearings don't require the rules of evidence, but note that they are often dispositive of the whole case. So, for example, toxic tort suits (esp. class action ones): these might not even get to trial if there's no evidence to show. If you can't establish causation, you lose on summary judgment, in other words. On the other hand, if the expert is admitted, the chances are the case will settle.
Why do judges decide sentences in most US jurisdictions? Because they always have. (with exceptions: death penalty, e.g.).
By looking at where the rules don't apply (FRE 1101 (b),(d)), we can deduce where they do apply. To recap, the reasons are:
1. No dispositive fact
2. No jury
3. History/culture
4. Practicality
Some predictive power, in other words.
The rationale for having rules of evidence rests on the notion of lay fact-finders: if we're committed to determining cases that way, we need to prevent them from being improperly influenced. But note that the jury trial is disappearing (Galanter on the vanishing jury trial). In 1976, 52/1000 criminal charges ended in a jury trial. 20 years later, it's down to 22 cases or so. The difference is even more dramatic in civil cases. In 1938, 19.9% of civil cases in federal court ended in a trial (not necessarily jury trial, but usually). By 2003, it's 1.8% (about 1% jury, and 0.8% bench). If that's what's going on (mediation, arbitration, plea negotiation, summary judgment, settlements), why bother?

Well, because of precedent, for one thing. And the possibility of the jury trial is a bargaining factor. The rules make the outcome more predictable, and this obviates the need for the procedure itself. The rules are important because they allow litigants to contemplate what a jury is likely to hear, and how they'll be allowed to weigh it.
Great point from Ryan: the rules also maybe enhance the legitimacy of the justice system: the jury trial is the most visible aspect of the system, and the rules foster faith in the basic fairness of the process.
And remember, even though the percentage of cases going to trial might be low, the courts are still plenty busy, and the raw number of trials is still high.
So the jury trial still matters a fair amount (and therefore the rules of evidence with them) both in practical terms and in the public consciousness.
Anyway, juries are good (meaning, a normative good: the only direct citizen participation-- at the federal level-- in the judical branch), and if they're vanishing, we need to preserve the things that make them work well. The judicial branch is supposed to be anti-majoritarian, and the jury is essential to its legitimacy in a democratic government.
And note also which cases are in that 1.8%: maybe they are the really hard cases, where each side has a valid story to tell, and big questions are at stake.
Interesting point: there are not very many jury verdicts that wind up being the subject of public dispute-- we mostly think they're acceptable (OJ notwithstanding).
When we project forward to a jury, to discuss probable outcomes, lots of times the questions are evidentiary.
Rule 104: preliminary questions.
To be competent to be a witness, you need to be able to understand the significance of an oath, and to be able to commit to telling the truth and leaving out falsehoods. This is a real issue with child witnesses, incidentally. Their testimony is often key (e.g., in a sexual assault case), and they may have a hard time distinguishing truth from fiction. Judges will ask a child preliminary questions to find out if the child can tell the difference.
If privilege is asserted, the judge has to decide preliminarily whether the privilege applies (we can't hear the testimony and the decide after the fact). All of these privileges (attorney-client, spousal, marital communication, etc.) have legal contours to them.
What burden of proof does the judge apply on preliminary questions? Preponderance of the evidence.
Rule 104(b): evidence doesn't necessarily come in chronological order. And real life intrudes: the judge might have a dentist appointment; a witness might miss their flight, etc. You don't necessarily get to call witnesses in the order you had wanted to. So the judge can make a conditional ruling on admissibility: we admit something now on the expectation that some condition will later be fulfilled. This is often called "tying up" (I'm offering this exhibit now, and I'll tie it up later-- lay foundation, etc.). This frees up advocates to tell their stories in the order that is most advantageous. A prominent example is the statement of a co-conspirator: several elements need to be shown in order for a co-conspirator's statement to come in. But there may be literally dozens of co-conspirators whose statements the prosecution wants to use. The lawyer makes an offer of proof, and the judge allows the evidence in, with the threat of a mistrial if the proper conditions are not fulfilled.
104(e): the jury gets to decide what weight and credibility a piece of evidence has. The judge admits, but the jury decides the meaning.

4 February

Rule 106: the rule of completeness. This isn't tough material, but lawyers don't seem to display great familiarity with this rule. An adverse party may require the introduction of any additional relevant material. Basically, your adversary can't pick bits and take evidence out of context. There are also some fairness concerns implicated here: if you have evidence, you can't just present the parts you like-- you can be required to show the whole thing.
See, e.g., Blagojevich: he's basically claiming that the sound bites about selling the senate seat should be heard in the context of the entire phone conversation.
In WI, incidentally, lie detector tests are not admissible in court; and an offer to take a lie detector test is admissible only in very narrow circumstances.
Offering testimony in excerpts or edited versions might be unfair, or might create the illusion of unfairness, even if it's on the up-and-up. Juries are suspicious when facts are presented selectively.
There's not much (except maybe Rule 403) about playground fairness. But don't forget about Rule 106.
Limiting instructions also can help in instances where evidence is overly complete.
Note that only the opponent can avail himself of Rule 106, not the person proffering the evidence. The proponent of the evidence can't sneak in inadmissible material on a completeness argument.
This is "opening the door" (or, in fancy talk, the doctrine of curative admissibility). If a witness gives an answer that touches on an area that in fairness should be explored, the opponent can go there, and the proponent can't object that it's inadmissible. See Dollar v. Long: the engineer's warning letter to dealers about the design issue becomes fair game when the defendant calles the engineer to testify about the safety of the rollbar. Just because the evidence isn't admissible as a remedial measure (i.e., proof of negligence), it's still admissible for impeachment.

Be careful, when your objection is overruled, not to withdraw your objection accidentally: "Your honor, I understand the court's ruling," not "OK, on second thought I can see that you're right, your honor."
Also there's no need to harp on things: you've preserved your objection for the record.
Note also that Rule 106 allows the additional evidence to be presented contemporaneously with the proponent's evidence.
Note also that the same evidence could be argued both ways: the opposing parties can draw differing inferences.
So anyway Rule 106 is really useful.
Article II, then. This is mostly in civil cases. There's only one rule, 201, and it's pretty straightforward.
The term "judicial notice" comes in two flavors, according to academics:
1. Adjudicative/historical facts: stuff you can look up in an almanac or encyclopedia or whatever. These are facts about which there's uniform agreement, no possibility of reasonable dispute. This is all Rule 201 is about.
2. Legislative facts: in exercising their discretion or deciding a question of first impression, judges look at the world around them and consider wise/unwise policy choices, practical effects of the results of their rulings, etc. Take, for example, sentencing decisions-- judges think about all kinds of factors: Gallion. Basically, these are disputable facts about the world, but they inform a judges decision (e.g., it costs $32K/year to incarcerate someone in WI; sociological data suggest that 1st time offenders on this type of offence are more likely to reoffend if they go to prison instead of probation, whereas probation is ineffective in preventing recidivism with child sexual assaulters). This happens any time when authority is split on some issue of law, for example. Rule 201 doesn't cover this: there's no way to control this anyway, and generally this isn't evidence that would be presented to a jury either.
You can ask a judge to take judicial notice of some fact (e.g., time of sunset on some date; was it rainy on this day, etc.). As long as you can present a source not subject to reasonable dispute, this will work.
NOAA is a great resource for precipitation data, phases of the moon, etc.
Disputes over what's appropriate for judical notice are rare. And even if a judge refuses to take judicial notice of something, all you have to do is go and prove it.
Note 201(g): why is this conclusive in civil cases, but not criminal cases? Perhaps because as a matter of due process, and the 6a right to trial, SCOTUS has held that a judge simply may not ever direct a verdict against a defendant. Martin Linen Suppply v. US: a judge never may direct a verdict against a criminal defendant (a judge can dismiss a charge, of course). But a judge can direct a verdict for or against either side in a civil case. Why is that consistent with 7A? Because at common law, before there was a US, that was normal. Underlying this is the concept of jury nullification: the court can't force the jury to find any specific thing in a criminal case. The jury has the power to acquit someone who is factually guilty. The law is that juries have to follow the legal instructions of a judge, but we can't inquire about a verdict, and the government can't appeal a conviction. So they don't have a right to do this, as a legal matter, but they have the ability to do so.
Jury nullification was an important force in making England use jails for punishment and not just holding before either release or execution. All felonies used to carry the death penalty, after all. The jury is the conscience of the community, and the only democratic area of participation in the judicial branch, and that power is greatly valued, even if it's a mistriable argument to urge the jury to ignore the law.
We're going to skip Article 3, but read it.
We're starting Article 4, and this is the big one. The concept of relevance is the heart of the rules of evidence, and it drives pretty much all the others.
Rule 401 contains the definition of relevance, and this is functionally the same as any jurisdiction.
Materiality: mattering in some way to the determination of the claim or the defense. It a fact matters to the outcome of the lawsuit, it's a material fact.
If there's a material fact, any evidence tending to make the existence or non-existence of that fact more or less likely, it's relevant. Put another way, anything that has probative effect on a material fact is relevant evidence.