I owe many of you an apology. The first thing I wanted to teach went horribly awry last Friday. I wanted to:
a. Make it unclear in class exactly what you were supposed to do to designate whether you were taking the live class or the web class, while telling you that if anything was unclear, you should review the on-line materials -- the home page and the on-line version of the class itself. Then, when anyone asked me what they were supposed to do, I could remind them that if things were unclear, the first thing they should do is review the on-line class. The first step failed because I did not make the instructions incomprehensible enough, so many of you did not realize you hadn't been told exactly how to send your notice and needed to look at the written instructions.
b. Make the online instructions clear but irrational. That way, those tempted to behave rationally (always a dubious idea in litigation) would get a reminder from me about the importance in evidence of reading rules closely and following them, whether they make sense or not. But I inadvertently made the online instructions ambiguous and screwed up the email link that was supposed to send your notices to my secretary, and did not realize either error until after I had sent out a number of emails to people telling them they had failed to read and follow my procedural rules, when it was likely that I, and not you, was the one who screwed up. The idea was to begin today's class by using this as an example of how importance both substantive and procedural rules are in litigation. Well, that plan's out the window -- there go my course evaluations this semester.
So, pretend it worked and that you have all learned to read rules closely and adhere strictly to the procedural requirements, and we can move on to learning how evidence works.
The rules governing the admissibility of evidence fall into 9 categories:
1. Procedure (how to correctly offer or object to evidence) -- 100s, 200s, 300s [plus 611-615]
2. Relevancy -- 400s
3. Privilege -- 500s
3. Competency -- 601, 603-606
4. The personal knowledge rule -- 602
5. Impeachment -- 607-610
6. The opinion rule -- 700s
7. The hearsay rule -- 800s
9. Exhibits -- 900s, 1000s
Each "item of evidence" must run the gauntlet of all 10 categories to be admitted. It must be in proper form, relevant, and offered by a competent witness who has personal knowledge of the
facts. It must pass muster under the rules governing impeachment, opinion, hearsay, privilege and exhibits.
What is an "item" of evidence? It is a piece of information presented to the jury. There are two main kinds of evidence -- witness testimony and exhibits.
1) A question and answer together. See, for example, the transcript on page 5. The question "Who's Jimmy?" is not evidence because it gives the jury no information. The answer "He
used to work at Bill's" is not an item of evidence because it is incomprehensible to the jury without the question. The item of evidence is both the question and answer together.
2) A single item can also be more than one question and answer, e.g.,
Q. Who's Jimmy?
A. What do you mean? I know several Jimmy's.
Q. You just mentioned you had seen Jimmy that night.
A. Oh, okay. You mean Jimmy Johnson.
Q. Right. Who is he?
A. He used to work at Bill's.
3) An exhibit. See, for example, the list of items found at the scene of a murder in Problem 1-2, on page 5. All of these items are exhibits if offered at trial.
Here's how the evidence process works.
STEP TWO: The offered evidence must run the gauntlet of all the rules to get to the jury. It can be knocked out if it violates any one of the rules of evidence, even if it complies with all the others. The gauntlet is under the control of the opposing attorney, who makes 2 decisions
1) Is the evidence important enough to worry about? In litigation, you pick your battles. If evidence is unimportant, you let it through the gauntlet even if you think it is not admissible.
2) If the evidence is important, is there a rule that might knock it out? There are 9 categories, so you have to think through a lot of rules pretty quickly and decide which rule or rules give you the greatest chance of stopping the item of evidence from getting through the gauntlet. The objecting attorney also wants to avoid looking like fool and to behave as ethically as possible, and so will usually invoke only rules he or she thinks have actually been violated. The usual procedure for invoking a rule is making an objection. An objection serves three purposes. It stops the testimony so no further damage is done, wakes up the dozing judge, and presents your argument as to why the item of evidence should not be admitted.
In order to start the process of determining the admissibility of evidence, a lawyer must make an objection. Therefore, you have to know how to make an objection. The rules for making objections are found in Rule 103(a) . The key language is in section (A)(1), subsection A. the party must "timely object or move to strike," and B. must state the specific ground unless it was apparent from the context.
1) Who decides whether grounds were "apparent from the context?" The judge. What happens if you think the grounds were apparent, but the judge does not? You lose your right to appeal. So why on earth would you ever leave it up to the judge's discretion? As lawyers, we can eliminate this option. ALWAYS be timely and always state specific grounds.
2) The timeliness rule -- You must object at trial at the time the item of evidence is introduced, as soon as the grounds become apparent. When the item of evidence is a question and answer, the grounds may become apparent during the question itself, in which case you make an objection to prevent the jury from hearing the answer. In other situations, the grounds may not become apparent until the witness answers the question in which case you object and make a motion to strike the evidence.
3) The specificity rule -- Your objection must be specific in three ways.
part 1. You must tell the judge exactly what you are objecting to.
part 2. You must cite the evidence rule that will control the admissibility of the evidence.
part 3. Since most evidence rules contain lots of subparts, you must identify the specific portion of the text of the rule that leads to the outcome you want.
To look at these requirements, we will use Rule 403. "The court may exclude relevant evidence if its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence."
1) If grounds for objection are apparent from the question, you object to the question. E.g.: In a breach of contract case concerning defective engine parts:
................Q. Isn't it true that you helped Rod Blagojevich's try to sell Obama's Senate seat?
You object to the question because it asks the witness to testify to evidence in violation of Rule 403. Don't wait for the answer.
2) If grounds are not apparent from the question and do not arise until the answer, you object to and move to strike the answer. E.g.:
..............Q. What happened next?
..............A. The defendant said he didn't have time to inspect the engine parts because he had to go help Blagojevich sell Obama's Senate seat.
You object and move to strike the witness's testimony because you couldn't tell that it was going to violate Rule 403 from the innocuous question.
1) First, you tell the judge what particular evidence you object to. E.g.:
.......Q. What happened next?
.......A. The defendant said he didn't have time to inspect the engine parts because he had to go help Blagojevich sell Obama's Senate seat.
.......OBJECTION: I object to the testimony about what the defendant did with Blagojevich.
2) Second, you cite the rule by number (or by name if it has a common name, such as the "hearsay rule"), e.g.
.........OBJECTION: I object to the testimony about what the defendant did with Blagojevich. It violates Rule 403; or
..........OBJECTION: I object to the testimony about what the defendant did with Blagojevich. It is irrelevant and prejudicial.
3) Third, you cite the specific text of the rule. This is trickier than you may think. Many rules apply to several similar kinds of evidence or contain more than one concept. Rule 403 covers two concepts -- probative value and prejudicial effect, and three different kinds of prejudice -- unfair prejudice, confusion of the issues, and waste of time. You must specify which of them are implicated. Use as much of the language of the rule as possible.
..........OBJECTION: I object to the testimony about what the defendant did with Blagojevich. It violates Rule 403 because its low probative value is substantially outweighed by the danger of unfair prejudice.
4) Fourth, you explain whether your objection is procedural or substantive. There are two kinds of evidence rules. Some, like Rule 403, are substantive. They declare that a certain category of evidence is not admissible if properly objected to. E.g.,
...........OBJECTION: I object to the testimony about what the defendant did with Blagojevich. It is not admissible under Rule 403 because its low probative value is substantially outweighed by the danger of unfair prejudice.
Other rules are procedural and provide that evidence is admissible only on certain conditions. For example, look at Rule 602 (p. 959). "A witness may testify to a matter ONLY IF EVIDENCE IS INTRODUCED sufficient to support a finding that the witness has personal knowledge of the matter." If the condition is not satisfied, the evidence is not admissible at this time, although it may be admissible later if its proponent eventually establishes the condition. An objection based on this kind of rule would point to the procedural flaw, e.g.,
..........OBJECTION: I object to the testimony about what the defendant did with Blagojevich. It violates Rule 602 because no evidence has been introduced to show that the witness had personal knowledge of the matter.
5) Fifth, if the jury has heard the inadmissible testimony, you move to strike.
...........OBJECTION: I object to the testimony about what the defendant did with Blagojevich. It is inadmissible under Rule 403 because its little probative value is substantially
outweighed by the danger of unfair prejudice. I move to strike it.
Any questions? E-mail me at tanford@indiana.edu and include the reference 401A.
STEP THREE: After an objection is made, the offering attorney has the opportunity to respond, at least if he or she is quick enough to do so before the judge rules.
No rule requires that you do anything to respond to an objection. You may remain silent and let the judge rule.
If you do respond, you have three choices:
1) Withdraw the evidence and apologize. Not usually a good choice.
2) If the objection is procedural, go back and correct your procedural mistake and then offer the evidence again. For example:
Q. What happened next?
A. The defendant said he was going to go help Blagojevich sell Obama's Senate seat.
OBJECTION: I object to the testimony about what the defendant said about Blagojevich. It violates Rule 602 because no evidence has been introduced to show that the witness had
personal knowledge of Blagojevich's activities.
RESPONSE: I can establish personal knowledge. Mr. Witness, how do you know Blagojevich tried to sell Obama's Senate seat?
A: I was one of the people he called.
3) Argue for the admissibility of the evidence. If you choose this option, the same principle of specificity applies. You must tell the judge what evidence you are referring to, what rule controls the outcome, and exactly what parts of the text you rely on. There are three common arguments that the objection should be overruled and the evidence admitted.
First, you can argue that the item of evidence does not fall within the boundaries of the objection, that is, the item of evidence is not the type that falls under the rule. For example:
Q. What happened next?
A. The defendant said he was going to go help Blagojevich sell the Senate seat.
OBJECTION: I object to the testimony about what the defendant said about Blagojevich's behavior. It violates Rule 602 because no evidence has been introduced to show that the witness
had personal knowledge of Blagojevich's activities.
RESPONSE: The witness testified to what the defendant said, not to anything specific that Blagojevich did, so Rule 602 has no application here.
Second, you can argue that the admissibility of the item of evidence should be determined by a different rule than the one invoked, and that the other rule says that the evidence is admissible. For example:
Q. What happened next?
A. The defendant said he was going to go help Blagojevich sell Obama's Senate seat.
OBJECTION: I object to the testimony about what the defendant said about Blagojevich's behavior. It violates Rule 602 because no evidence has been introduced to show that the witness
had personal knowledge of Blagojevich's activities.
RESPONSE: The witness testified to what the defendant said, not to anything specific that Blagojevich did, so this is a question of hearsay, not personal knowledge. The hearsay rule
provides that the statements of a defendant are admissible.
Third, you can argue that the item of evidence falls within an exception to the rule cited in the objection. There are 3 kinds of exceptions.
a) EXPLICIT: They may be explicitly included in the Rule itself. See, e.g., part (a)(2)-(3) of Rule 404.
b) IMPLICIT: They may be implicit. Rule 403's use of the term "substantially outweighs" suggests that if relevance and prejudice are evenly balanced, exclusion is not appropriate and the testimony should be admitted.
c) EXTRINSIC: Exceptions may be found outside the Rules of Evidence, having been created by the legislature or the courts as matters of public policy, e.g., the court deciding that the
exception in 404(a)(2) for criminal defendants should be extended to civil defendants charged with criminal-like intentional torts. See Niemeyer v. McCarty, 51 N.E.2d 365 (Ind. 1943).
Any questions? E-mail me at tanford@indiana.edu and include the reference 401B.
STEP FOUR: The judge eventually ends the squabble between the lawyers by ruling whether the item of evidence will be admitted or not. Judges sometimes rule correctly, sometimes incorrectly, and sometimes at random. It is critical that you understand this. The trial judge gets to decide whether the jury may hear the evidence, and the judge has almost totally unreviewable absolute discretion to admit or exclude evidence. The judge doesn't even have to follow the rules if the judge doesn't want to. Go back to page 1 in the book and look at Rule 102 . Truth? Justice? Fairness? These are hardly concrete concepts, and they leave a lot of room for judicial discretion.
When an objection has been made, the judge must rule on it. Most judges do so without hearing argument. The judge may make one of two rulings:
Sustain. If the judge sustains the objection, the evidence is not admitted.
Overrule. If the judge overrules the objection, the evidence is admitted.
STEP FIVE: There is no step five. Once the trial judge has ruled, that's it. For all practical purposes, evidentiary rulings are not appealable. Why not? Look at Rule 103 (a): "A party may claim error in a ruling to admit or exclude evidence only if the error affects a substantial right of the party......." In a long trial with lots of witnesses and 100 hours of testimony, it is highly unlikely that any erroneous evidence ruling by itself can be said to have affected a substantial right of a party.
Don't be fooled by occasional appellate cases reversing a trial judge's evidence rulings. Sure, there are a few, but for every one of those there are 10,000 cases in which the judge's evidence ruling was affirmed.
The fact that judicial control over the evidence process is practically unlimited and unreviewable does not mean that trials are total anarchy and that you are wasting your time taking evidence. The evidence rules play an important role most of the time. Most judges believe that following the rules is important to a fair trial, and they will genuinely try to rule correctly most of the time. Your job is to make a good legal argument that reminds the judge of the rule and explains your position. It's kind of like a law school exam. If you make a good legal argument on an exam, you will get credit for it most of the time, but not all of the time. Sometimes you and the professor will disagree concerning the merits of your argument -- you think you're right, the professor thinks you're wrong. In these cases, you lose, and there is no meaningful avenue of appeal. Same with trial judges and evidence.
But heck, if your client's paying you by the hour and the judge has excluded important evidence and you want to preserve your right to appeal, there is one more step:
If you lose an objection and your important evidence is excluded, you must make an offer of proof that places the substance of the excluded evidence into the record if you want to appeal the ruling. See FRE 103(a)(2) . (Recall our earlier discussion of the low likelihood of such appeals, however).
* complicated version. The jury is removed from the courtroom, and the witness is questioned exactly as if the jury were present.
* simple version. The attorney submits a written or oral summary of the excluded evidence out of the hearing of the jury.
Any questions? E-mail me at tanford@indiana.edu and include the reference 401C.