EVIDENCE - HOW IT WORKS
The rules governing the admissibility of evidence fall into 9 categories:
- Procedure (how to correctly offer or object to evidence) -- 100s, 200s, 300s [plus 611-615]
- Relevancy -- 400s
- Privilege -- 500s
- Competency -- 601, 603-606
- The personal knowledge rule -- 602
- Impeachment -- 607-610
- The opinion rule -- 700s
- The hearsay rule -- 800s
- Exhibits -- 900s, 1000s
Each "item of evidence" must run the gauntlet of all 9 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) An item of evidence presented by a witness is usually a question and answer together.
Q: Who's Jimmy?
A: He's the guy who was driving the Corvette.
The question "Who's Jimmy?" is not evidence because it gives the jury no information. The answer "He's the guy who was driving the Corvette" 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 of evidence can also be more than one question and answer, e.g.,
Q. Who's Jimmy?
A. What do you mean? I know several Jimmys.
Q. You just mentioned you had seen Jimmy that night.
A. Oh, okay. You mean Jimmy Johnson.
Q. Right. Who is he?
A. The guy I just referred to.
Q: The one driving the Corvette?
A: Yes.
3) An exhibit - guns, diagrams, hospital records, screen shots of facebook messages, etc.
4) Exhibits may consiste of several pages -- a set of blueprints, a series of crime scene photos, a series of printed screen shots of a text message exchange. Each is a separate item of evidence, because the admissibility may differ. One photo may show the victim's pornography collection in the background and be excluded while the other four admitted.
Here's how the evidence process works.
STEP ONE: THE OFFER
An attorney "offers" an item of evidence in either way -- posing a question to a witness or asking the judge to admit an exhibit and show or read it to the jury. The attorney offering the evidence doesn't want to look like fool in front of jury. It does serious damage to your credibility with the jury if the judge rules that your evidence is not admissible. It is even worse if the judge looks at you incredulously and inquires "Counsel, did you actually take an evidence course in law school?" Some attorneys are also ethical and believe it is wrong to try to get inadmissible evidence in front of the jury. For these reasons, most evidence only gets offered at trial if an attorney thinks that it is admissible under the rules. The judge dozes gently on the bench, paying little attention.
STEP TWO: THE OBJECTION
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 two 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 nine 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 behave as ethically as possible and to avoid looking like fool, so will usually invoke only rules he or she thinks have actually been violated.
The usual procedure for invoking a rule is to make 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. 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 subsection B, the party must state specific grounds 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. E.g.: In a breach of contract case concerning defective engine parts:
Q. Isn't it true that you went twerking with Miley Cyrus?
You object to the question because we're pretty sure that wny answer the witness will give will be iorrelevant. But if the 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 never ran the final safety check because she went twerking with Miley Cyrus.
3) The specificity rule -- Your objection must be specific in five ways.
First, you tell the judge what particular evidence you object to. E.g.:
Q. What happened next?
A. The defendant never ran the final safety check because she went twerking with Miley Cyrus.
OBJECTION: I object to the testimony about what the defendant did with Miley Cyrus.
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 Miley Cyrus. It violates Rule 403; or
OBJECTION: I object to the testimony about what the defendant did with Miley Cyrus. It is irrelevant and prejudicial.
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. For example, rule 403 says
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.
The objection sounds like this:
OBJECTION: I object to the testimony about what the defendant did with Miley Cyrus. It violates Rule 403 because its low probative value is substantially outweighed by the danger of unfair prejudice.
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 Miley Cyrus. 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, Rule 602 says "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 Miley Cyrus. It violates Rule 602 because no evidence has been introduced to show that the witness had personal knowledge of the matter.
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 Miley Cyrus. 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.
What happens if you don't state grounds? The judge gets to rule any way he or she wants. For example: https://www.youtube.com/watch?v=DEabC9WzHck
Any questions? E-mail me at tanford@indiana.edu and include the reference 0201A.
STEP THREE: RESPONDING. 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 never ran the final safety check because she went twerking with Miley Cyrus.
OBJECTION: I object to the testimony about what the defendant did with Miley Cyrus. It violates Rule 602 because no evidence has been introduced to show that the witness had personal knowledge of those activities.
RESPONSE: I can establish personal knowledge. Mr. Witness, how do you know what the defendant did with Miley Cyrus?
A: I was on stage doing it too.
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.
a) 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, let's change the testimony slightly:
Q. What happened next?
A. The defendant said she was going twerking with Miley Cyrus.
OBJECTION: I object to the testimony what the defendant did with Miley Cyrus. It violates Rule 602 because no evidence has been introduced to show that the witness had personal knowledge of those activities.
RESPONSE: The witness testified to what the defendant said, not to anything specific that she and Miley did, so Rule 602 has no application here.
b) 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 she was going twerking with Miley Cyrus.
OBJECTION: I object to the testimony about what the defendant did with Miley Cyrus. It violates Rule 602 because no evidence has been introduced to show that the witness had personal knowledge of those activities.
RESPONSE: The witness testified to what the defendant said, not to anything specific that the defendant did, so this is a question of hearsay, not personal knowledge. The hearsay rule provides that the statements of a defendant are admissible.
c) 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 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 0201B.
STEP FOUR: RULING. 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 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:
OFFER OF PROOF
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 0201C.
PROBLEM 2A. Beckman's attorney tries to introduce some Facebook pages and Adam objects, claiming that they are fake. What argument in response could Beckman’s lawyer make? When you think you know the answer, click here