The Process of Proof and the Structure of Trial - …interactivecasebook.com/images/BeckmanChapter23Evidence.pdf · The Process of Proof and the Structure of Trial ch a p T e r 2

The Process of Proof and the Structure of Trial

chapTer 2

A. Introduction

Going to trial is sometimes equated to a roll of the dice in Vegas – a gamble. No one can predict a trial’s outcome, whether the fact finder is a jury or a judge. However, while trial outcomes are not amenable to forecast, neither are trials random processes. The process of trial is structured and made some-what predictable by the application of rules of evidence and procedure. The rules allow attorneys and their clients to form reasonable expectations and define the tasks necessary to present a case in an orderly, efficient, and reli-able manner.

Trials are mainly fights over facts and factual inferences. The Federal Rules of Evidence are designed to allow admission of facts that are relevant and reli-able while excluding information that is tangential, confusing, speculative, and unrelated to the issues in the case. The trial judge is the arbiter in the application of these rules and enjoys a fair amount of discretion in making sure that they are “construed to secure fairness in administration, elimination of unjustifiable expense and delay, and promotion of growth and development of the law of evidence to the end that the truth may be ascertained and proceedings justly determined.” Rule 102, Federal Rules of Evidence.

1. Witnesses and Physical Evidence

Facts are proved at trial through the introduction of evidence. There are generally two types of evidence a lawyer may introduce in court. The first is the testimony of live witnesses answering questions under oath before the fact finder. The second is tangible physical evidence relating to the case. Tangible physical

In federal civil cases, a fact finder may be a judge or a jury. In federal criminal cases, although a defendant’s guilt or innocence may be decided by a judge or jury, the judge always determines punishment. Tri-als to a judge are typically called “trials to the bench,” or “bench” trials. Note: a defendant is never actually found “innocent.” He may, however, be found “not guilty”.

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Evidence A Contemporary Approach10

evidence can be divided into two categories: real evidence, which is the evidence generated by the case, such as the knife used in the murder in question or the written contract that is the basis of the lawsuit, and demonstrative evidence, such as maps, photographs, charts, experiments, or computer simulations, which are used to illustrate and explain other evidence in the case. Tangible physical evi-dence is called an “exhibit,” must be given an exhibit number or letter, and must be shown to be authentic (often through questioning of a witness with knowledge of its accuracy) before it may be admitted into evidence.

Trial lawyers present evidence in a step-by-step fashion by crafting questions for a witness so as to give meaning to discrete or disparate facts which permits the fact finder to comprehend the totality of his case. The lawyer wants the fact finder to see the facts and circum-stances of his case as a coherent whole, “in living color.” In this sense, the pro-cess of proving a party’s case is much like painting a landscape, one stroke and one color at a time. As in paint-ing, technique is important, and some techniques become routine. There are, for instance, usual and expected meth-ods for questioning an eyewitness to an event or admitting tangible physical evidence, such as a gun or scene pho-tograph. Below are examples of these techniques in a murder trial.

Example of Live Witness Testimony:Q. State your name for the jury.A. Adam Jones.Q. Do you know the defendant in this case, Mike Sutton? A. I do.Q. Do you see him in the courtroom?A. Yes, he is sitting at counsel table, wearing a blue tie.Q. May the record reflect that the witness has identified the defendant,

Mike Sutton.Q. How do you know him?A. Mike has been my neighbor for fifteen years.Q. Directing your attention to May 13, 2008, did you see the defendant on

that evening?A. Yes.Q. Where was the defendant?

For More Information

There are a number of excellent re-sources available to students and lawyers that demonstrate how to introduce evidence in a question and answer format and that give the reader basic information about the federal rule in question. One such resource is “Evidentiary Foun-dations,” by Edwin Imwinkelried, Matthew Bender, 2008; another is the Federal Trial Objections Quick Reference Card published by the National Institute for Trial Advocacy (www.NITA.org).

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11C hapter 2 The Process of Proof and the Structure of Trial

A. On the lawn in front of his house.Q. What was he doing when you first saw him?A. Shooting his wife, Laura Sutton, with a gun. . . .

Example of the Introduction of Tangible Physical Evidence: Real Q. State your name, please.A. Tommy ThompsonQ. How are you employed?A. I am a homicide detective here in the city of Madison.Q. What are your duties as a police officer?A. I investigate suspected homicides in Madison.Q. Were you called to the scene at 113 Main Street on the evening of May 13,

2008 to investigate a homicide?A. Yes.Q. Whose residence is that?A. The defendant, Mike Sutton’s.Q. As you were conducting your investigation at 113 Main, did you find any

weapons relevant to this case?A. Yes, we found a .44 caliber Smith and Wesson pistol in the defendant’s pants

pocket when we searched him. Q. I want to show you what has been marked as State’s Exhibit 1 [a pistol]. Can

you identify it?A. Yes. This is the .44 caliber pistol I found on the defendant immediately after

the shooting. Q. How do you know this is the same pistol you found on that evening?A. Immediately after I took it from the defendant, I bagged it, sealed and labeled

the bag with my initials and the date, and put it in the police evidence room under the defendant’s name. Yesterday, I retrieved it from the evidence room in the same sealed and unaltered condition.

Q. Your honor, I offer State’s Exhibit 1 into evidence.

Example of the Introduction of Tangible Physical Evidence:

DemonstrativeQ. Officer Thompson, please explain the layout of the front yard where the homi-

cide took place.A. The yard is basically a rectangle. The driveway is in the middle of the rect-

angle. Q. Where was the victim, Laura Sutton, when you first observed her on the

evening of May 13, 2008?A. She was face down about twenty feet from the front door, with her head

pointed toward the street.


Q. Would it aid your testimony today if you could draw a diagram of 113 Main Street and the position of Mrs. Sutton?

A. Yes, it would.Q. Your honor, may Officer Thompson step down from the witness stand and

draw a representation of the scene at 113 Main on the white board?[Judge] He may. [Officer complies].Q. Your honor, I would like to have this diagram labeled as State’s exhibit 2, for

demonstrative purposes only.[Judge] It will be so labeled.Q. Officer Thompson, is State’s exhibit 2 a fair and accurate representation of

113 Main Street on May 13, 2008, the scene of the homicide we’ve been discussing?

A. Yes.Q. Your honor, I offer State’s exhibit 2 into evidence for demonstrative purposes

only.

2. Direct and Circumstantial Evidence

Evidence may be categorized as to whether it directly or circumstantially establishes a fact at issue in the lawsuit.

(a) Direct evidence is evidence based on a testifying witness’s personal knowl-edge gained through the witness’s senses which, if true, proves a fact without an inference or presumption. In the above dialogue, when witness Jones testifies that he saw the defendant shoot the defendant’s wife with a gun, this statement, if believed, is direct evidence to support the proposition that the defendant killed her and does not require the fact finder to draw inferences from the statement in order to make it relevant to the case.

(b) Circumstantial evidence is evidence from which a fact-finder must make inferences to reach a factual conclusion in the case. The inferences may be weak,

moderate, or strong. For instance, the fact that the officer in the above dia-logue found the murder weapon on the defendant soon after the shooting is strong circumstantial evidence that the defendant was the person who shot his wife.

To quote Henry David Thoreau, “Some circumstantial evidence is

very strong, as when you find a trout in the milk.”

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It is often said that direct eyewitness testimony is more reliable than cir-cumstantial evidence in proving a case, but this is not always true. Eyewitness testimony is only as good as the witness’s powers of observation, recall, sincerity and narration. For instance, if the witness has poor eyesight or a strong bias in the case, he may not be credible. However, the fact that the murder weapon was found in the defendant’s possession soon after the shooting may be a more convincing indicator of the defendant’s guilt.

B. The Role of the Judge

Although lawyers provide information to the jury through the use of wit-nesses, documents, other exhibits, and argument, the trial judge controls the trial process by setting limits on lawyers in order to achieve justice and efficiency. Federal Rule of Evidence 102 allows the trial judge to use the Federal Rules of Evidence to “secure fairness” and “eliminate undue expense and delay.” Rule 403 permits the judge to exclude evidence that would otherwise be admissible if it confuses the issues, misleads the jury, causes undue delay, waste of time, or is a needless presentation of cumulative evidence. Rules 611 and 614 give judges the power to regulate the order and presentation of the evidence, call and interro-gate witnesses, and make comments to the jury about the evidence that has been presented. The trial judge must, however, implement these rules in an impartial manner. The following cases illustrate the tension between these two concepts: control vs. impartiality.

1. The Time Limits of Presenting Evidence

One of the powers granted trial judges under the Federal Rules of Evidence is to set reasonable time limits on the various stages of the trial. In the following case, notice the court’s description of the tension between the goal of the judge and the goal of the attorney in this regard.

Rule 102. Purpose and Construction

These rules shall be construed to secure fairness in administration, elimination of unjustifiable expense and delay, and promotion of growth and development of the law of evidence to the end that the truth may be ascer-tained and proceedings justly determined.


United States v. ReavesU.S. District Court for the Eastern District of Kentucky636 F. Supp. 1575 (E.D. Ky. 1986)

BERTELSMAN, DISTRICT JUDGE:

Both the prosecution and the defendants in this criminal tax fraud case have challenged the authority of this Court to curtail the presentation of cumula-tive and time-wasting evidence by placing time limits on various stages of the trial. . . .

Initially, the United States esti-mated the trial would take a month. Upon further inquiry, the court was convinced that this time was exces-sive. It was apparent to the Court that the prosecution intended to introduce numerous tax returns of various indi-viduals and partnerships page by page, making little effort to organize the voluminous evidence into a meaningful pattern or streamline the presentation of the case by the use of charts or sum-mary exhibits. Fed. R. Evid. 1006.

Rule 611. Mode and Order of Interrogation and Presentation

(a) Control by court. The court shall exercise reasonable control over the mode and order of interrogating witnesses and presenting evidence so as to (1) make the interrogation and presentation effective for the ascertainment of the truth, (2) avoid needless consumption of time, and (3) protect wit-nesses from harassment or undue embarrassment. . . .

Rule 403. Exclusion of Relevant Evidence on Grounds of Prejudice, Confusion, or Waste of Time

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 delay, waste of time, or needless presentation of cumulative evidence.

Make the Connection

Federal Rule of Evidence 1006 al-lows a party to present the contents of voluminous writings, recordings, or photographs in summary form if those contents cannot be conve-niently examined in court, as long as the originals or duplicates are made available to the opposing party to al-low the opposing party to check the accuracy of the summary.


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It would seem that early in the career of every trial lawyer, he or she has lost a case by leaving something out, and thereupon resolved never again to omit even the most inconsequential item of possible evidence from any future trial. Thereaf-ter, in an excess of caution the attorney tends to overtry his case by presenting vast quantities of cumulative or marginally relevant evidence. In civil cases, economics place some natural limits on such zeal. In a criminal case, however, such fiscal constraints, and the attorney’s enthusiasm for tautology is virtually unchecked.

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The scheduling order was designed to give the United States ten days to present its case-in-chief and to impose proportionate limits on the other phases of the trial. The order worked well in practice. Actually, it was more than generous, the prosecution’s case still being overlong. It was refreshing to see, however, how things started to move along as the prosecution’s time began to run out. Suddenly, the prosecutors quickly reached the point with each witness and stuck to the issues, thus eliminating many objections, and the case became intelligible and interesting. Unfortunately, it ended in a mistrial because of the conduct of a witness.

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Fed.R.Evid. 403 recognizes the power and duty of the court to exclude cumulative evidence or evidence which consumes more time than its probative value justifies. Rule 611 commands the court to “exercise reasonable control over the mode and order of interrogating witnesses and presenting evidence, so as to (1) make the interrogation and presentation effective for the ascertainment of the truth, [and] (2) avoid needless consumption of time.”

It is fundamental that a court has the power and duty to manage its docket and the individual cases before it to “secure fairness in administration, [and] elimination of unjustifiable expense and delay.” Fed.R.Evid. 102. Modern courts recognize that the court’s time is “a public commodity which should not be squan-dered.” D. Louisell and C. Mueller, 2 Federal Evidence § 128 (1985). There is an unnamed party in every lawsuit-the public. Public resources are squandered if judicial proceedings are allowed to proliferate beyond reasonable bounds. The public’s right to a “just, speedy, and inexpensive determination of every action”

The scheduling order, attached as an appendix to the opinion, allowed the government sixty hours of trial time to present its evidence, the defendant thirty hours, and the government six hours for rebuttal, if necessary, excluding recesses and bench conferences.

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is infringed, if a court allows a case, civil or criminal, to preempt more than its reasonable share of the court’s time.

A court cannot rely on the attorneys to keep expenditures of time in trying a case within reasonable bounds. The perspectives of the court and the attorneys in trying a case differ markedly. A judge wants to reach a just result in the case and to do so expeditiously and economically. An attorney’s primary concern is to WIN the case. If he believes he can win that case by proliferating the evidence of the favorable, but relatively uncontested matters so that the weaker aspects of the case will be camouflaged, it is asking too much of our fallen nature to expect him voluntarily to do otherwise.

* * *

Setting a reasonable time limit forces counsel to conform their zeal to the need of the court to conserve its time and resources. But, subject to the time limits imposed, counsel remain in control of the case. It is still counsel’s case, although it must now be presented in a reasonable time. It is counsel rather than the court who decide what evidence is to be admitted and what is to be pruned. Numerous objections or sua sponte interruptions by the court to debate what evidence is repetitious or cumulative are avoided. Thus, the goal of preserving the court’s resources is achieved while the traditional autonomy of counsel to present their own case, subject to the exigencies of that goal, is preserved. Properly stream-lined, the case is more effective for the ascertainment of truth, as mandated by Fed.R.Evid. 611(a).

* * *

This court holds that it has the power to impose reasonable time limits on the trial of both civil and criminal cases in the exercise of its reasonable discretion. Of course, the court must analyze each case carefully to assure that the time limits set are not arbitrary.

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Points for Discussion

a. Crossing the Line.

Reaves was a case involving tax fraud. The prosecution had asked for a month to present its evidence but was only given approximately 10 days. Once the prosecution’s allotted time started to run out, the judge remarked that “the prosecutors quickly reached the point with each witness and stuck to the issues, thus eliminating many objections, and the case became intelligible and interest-


ing.” Perhaps the case was initially uninteresting to the judge because he had tried similar tax fraud cases before. But, is it possible that a jury, upon attempting to wade through technical and complex facts and law, may have needed more time to absorb and process the information?

b. Trials as a Public Resource.

The court observes that “[m]odern courts recognize that the court’s time is ‘a public commodity which should not be squandered,’ and that ‘[p]ublic resources are squandered if judicial proceedings are allowed to proliferate beyond reason-able bounds.’” It is true that trying a case, as opposed to settling or dismissing it, often takes up a larger percentage of available judicial resources. Is this a sufficient justification to allow the trial judge in Reaves to reduce substantially the time period allowed for the prosecution to present its case? Is the trial judge in a better position than the lawyers to judge how long their case should take?

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2. The Order of Witnesses and Their Testimony

Normally, the lawyers determine the order in which they will call witnesses at trial. However, as the following case illustrates, federal trial judges have some discretion in this area.

Stone v. PeacockU.S. Court of Appeals for the 11th Circuit 968 F.2d 1163 (1992)

PER CURIAM:

Plaintiff [sued three] officers of the Georgia Department of Corrections claim-ing they terminated his employment in retaliation for his speaking out about the improper use of public property and funds. . . . At the beginning of trial, the district court required Stone to testify first so that some chronology would be laid out at the beginning of the case. This initial testimony was not subject to cross-examination at that time. Stone’s counsel protested the court’s reordering of the witnesses. Federal Rules or Evidence Rule 611(a), however, gives courts reasonable control over the order and presentation of evidence. There may have been some error, but perhaps harmless in this case, if the court did not give Stone proper notice. The court’s witness order requirement alone, however, is not reversible error absent some showing of harm. Although it does not appear that Stone has shown harm, we need not make this determination. If there is a retrial,


the plaintiff will be on notice that he may be required by the court to testify at the beginning of the case.

Reversed and Remanded (on other grounds).

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a. The Trial Judge’s Objective.

The nature of the case and the brevity of the Stone decision suggest that the case may not have been as complex or difficult for a jury to follow as other types of federal cases, such as those involving antitrust, tax, or securities fraud claims. While it might be helpful to the jury to require that a witness be called out of order to present a chronology of events at the beginning of trial, do you think a trial judge should be allowed to do this as a matter of course? Why do you think the trial judge did not allow the cross-examination of witness Stone at this time? Was it because the witness or the opposing attorney might not be ready for cross?

b. Showing Harm.

How would Stone’s attorney show harm in a case such as this where the client is suddenly called to the witnesses stand without warning? Is there anything Stone’s attorney could have argued to convince the appellate court that there was reversible error?

3. Comments on the Evidence.

Federal judges may comment on the evidence presented at trial. Often, this opportunity arises when the judge charges the jury. In such a case, “[it] is within his province, whenever he thinks it necessary, to assist the jury in arriving at a just conclusion by explaining and commenting upon the evidence, by drawing their attention to the parts of it which he thinks impor-tant; and he may express his opinion upon the facts, provided he makes it clear to the jury that all matters of fact are submitted to their determination.” Quercia v. United States, 289 U.S. 466,

Make the Connection

After the lawyers give closing argu-ments, the trial judge reads written instructions to the jury. These in-structions contain the substantive and procedural law the jurors must follow and apply during jury delib-erations before reaching a verdict. It is during the reading of jury instruc-tions that federal judges are allowed to comment on the evidence that has been presented at trial. To un-derstand where the reading of jury instructions fits into the order of proceedings at trial, see Section C of this chapter.


469, 53 S.Ct. 698, 77 L.Ed. 1321 (1933). In other words, the judge may analyze and dissect the evidence for the jury, as long as she does not distort or add to it. Federal judges may also comment on the evidence as it is presented during the trial itself. However, in doing so, the judge should use great care to not prejudice the litigants or their cases.

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United States v. YatesU.S. Court of Appeals for the Sixth Circuit553 F.2d 518 (6th Cir. 1977)

ENGEL, Circuit Judge.

[Yates appealed from his jury conviction of bank robbery. He had signed a confession but maintained he did not know what he was signing, did not rob the bank, thought he was under investigation for writing bad checks, and wanted to cooperate with the FBI].

The last witness to testify for the government in its case-in-chief was FBI Agent Rogers who testified at length concerning the circumstances of the inter-view with Yates on January 6 and of the preparation and execution of the pur-ported confession. At the conclusion of Rogers’ testimony, the Assistant United States Attorney offered and the court admitted as government’s Exhibit No. 2 the document which had been identified as Yates’ confession. The colloquy which then ensued before the jury and which forms the basis of defendant’s objection is reprinted [below]:

MR. BROWN (Assistant United States Attorney): Your Honor, I would request that Exhibit No. 2 [the confession] be published to the jury, however, to avoid any unnecessary time delay I would request that it be read in open court by some suitable person, either myself or the Clerk.

THE COURT: Mr. Dersom?

MR. DERSOM (Yates’ counsel): Is that as to Exhibit 2?

MR. BROWN: Yes, sir.

MR. DERSOM: Your Honor, respectfully, I submit if the exhibit is in evidence that the jury will have time to look at it themselves. It need not be read at this time.

THE COURT: That’s true, Mr. Brown.

MR. BROWN: Yes, Your Honor.


THE COURT: The written statement of the admissions or confession, or whatever you want to call it, as made by this Defendant is in evidence and the jury will have an opportunity to read it, so it will not be read to or by the jury at this time. It is clear in the record from the testimony of Mr. Gableman and Mr. Rogers that this Defendant did admit his participation in this bank robbery, so call your next witness, Mr. Brown.

The defendant strongly urges that the district judge’s remark that defendant admitted his participation in the bank robbery exceeds the scope of permissible judicial comment on the evidence and is reversible.

The government, however, asserts that remarks are within the broad tradi-tional powers of a trial judge to control the progress of the case and to comment on the evidence . . . . Further, the government urges that the remarks, in their context, amounted not to a comment upon the evidence but rather were simply an observation that the document introduced was self-explanatory and did not need to be published to the jury as requested by the prosecution. The government contends that this interpretation logically explains the failure of the defense to object to the statement at the time or to request any curative instruction then or later.

. . . . While the government urges that “the jury would not have inter-preted said comment as having any bearing whatsoever upon the veracity of the defendant, in that at the time the comment was made, the defendant had not yet testified . . .”, it is nevertheless clear that the court’s comment struck directly at the heart of Yates’ defense; it negated Yates’ claim that he did not make the confession, that he signed the paper without realizing its contents and that he did not rob the bank. While it is true, of course, that Yates had not yet testified at the trial, he had testified fully at the suppression hearing and thus the trial judge had to be aware of his position. Essentially Yates had no other defense.

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The impression was clearly created before the jury that the Court considered certain necessary elements of the Government’s case had been proved, thereby infringing upon the rights of the defendant to have the jury weigh the evidence as to proof of guilt. . . .

Reversed and remanded for a new trial.

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a. Counsel’s Dilemma.

Do you agree with the court in Yates that the trial judge’s remarks were so egregious that the case should be reversed even though the defense attorney did not object when the statements were made? What dilemma does trial counsel face when deciding whether to object to this kind of remark?

b. Is Reversible Error Less Likely in Trials to the Court?

If the Yates case had been tried to the judge instead of a jury, do you think these remarks would have reversed the case?

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4. Questioning Witnesses

Rule 614 of the Federal Rules of Evidence expressly grants judges the right to call and question witnesses, even repeatedly and aggressively, to clear up confu-sion and manage trials whenever necessary. This authority, however, has its lim-its. Judges may not ask questions that signal their belief or disbelief of witnesses because that determination is part of the jury’s role in a case.

The line between appropriate and inappropriate judicial questioning of wit-nesses is not always clear because appellate records do not convey the demeanor or tone of judicial questioning. Generally, however, a judge’s overly aggressive questioning of witnesses will not result in reversal unless it affects the substantial rights of a party.

Rule 614. Calling and Interrogation of Witnesses by Court

(a) Calling by court. The court may, on its own motion or at the sug-gestion of a party, call witnesses, and all parties are entitled to cross-examine witnesses thus called.

(b) Interrogation by court. The court may interrogate witnesses, whether called by itself or by a party.

(c) Objections. Objections to the calling of witnesses by the court or to interrogation by it may be made at the time or at the next available opportunity when the jury is not present.


Crandell v. United StatesU. S. Court of Appeals for the Fourth Circuit703 F.2d 74 (4th Cir. 1983)

SPROUSE, Circuit Judge:

[Scott and Linda Crandell brought suit for medical malpractice against medi-cal personnel at Quantico Marine base for failure timely to diagnose their 6 month old daughter Jennifer with spinal meningitis. They claimed that as a result, Jenni-fer became severely retarded. The Crandells lost in a trial to the court. On appeal, they contend that that the trial judge had predetermined their case.]

As evidence of his prejudgment, the Crandell’s point specifically to the judge’s remarks concerning (a) their refusal to settle and (b) financial con-siderations extraneous to the issues. They further point to (c) the judge’s badgering of their expert witnesses and (d) his interference with the Crandell’s

counsel’s attempts to cross-examine the key defense witness, as demonstrations of the judge’s determination to prevent them from developing their evidence. [The court first determines that the first two allegations are correct].

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The trial judge’s interference with the Crandells’ expert witnesses is even more clearly a demonstrable error. The judge on one occasion ridiculed one of plaintiffs’ experts while contorting his testimony.

THE COURT: This doctor says it was, there was growth deficiency prior to the meningitis, isn’t that what you just said?

THE WITNESS: No. He is saying that from a review of the history-

THE COURT: (Interposing) Certainly, you couldn’t exist without history, could you, Doctor?

THE WITNESS: No.

THE COURT: Well, I didn’t think you could. You couldn’t diagnose any thyroid without having a very complete history.

THE WITNESS: We could, yes.

THE COURT: You could? Could you tell me now if I have got a headache, Doctor?

Make the Connection

A trial to the bench, or “bench trial” means a trial in which the judge is the fact-finder rather than the jury.


THE WITNESS: A headache is a symptom not a disease.

THE COURT: Could you tell me whether I have a thyroid deficiency without asking questions-my, my, my, Doctor, you are the first doctor in all my 80 years that ever told me substantive symptoms, which is history, didn’t mean a thing to you.

MR. SNEAD: He didn’t say that.

THE WITNESS: I didn’t say that.

THE COURT: I know what he said. I know what he means. He said he didn’t need the history.

THE WITNESS: To make a diagnosis of hypothyroidism in an infant.

THE COURT: That’s what he said. He didn’t need the history.

THE WITNESS: Yes, sir. I can explain why.

THE COURT: Well, that’s your opinion.

MR. SNEAD: Could he explain it?

THE COURT: Let him explain it. I don’t want you to testify. You brought him over here as an expert.

THE WITNESS: You can make the diagnosis of hypothyroidism in an infant because they are now screened and we get a laboratory test. In addition, where a child comes in untreated there are certain physical findings you can see that you do not need a history for, and I can list a large number of diseases that can make the diagnosis, I can make the diagnosis by merely looking at the patient without a word being uttered because it is so characteristic.

THE COURT: Well, I am sure if I had my right arm cut off you can tell me I am missing my right arm. I am conscious of that.

Although the issues were tried to the judge alone, the possible inhibitive effect on witnesses and counsel presented as much a danger as it would have in a jury trial.

Finally, the trial judge prevented effective cross-examination of the most important defense witness. At the conclusion of the trial, the judge based his opinion almost exclusively on the testimony of the government’s expert, Dr. Leh-man. All of the findings in the court’s memorandum opinion, on the issue of whether the Naval Hospital personnel breached the standard of care and on the issue of medical causation, were lifted virtually verbatim from a report prepared by Dr. Lehman.


The court precluded the Crandells’ counsel, however, from effectively cross-examining Dr. Lehman on facts in evidence, including the records which Dr. Leh-man relied on in forming his opinion.

Question: You don’t know, then-you don’t have an opinion for this Court about-

Answer: (Interposing) Not without being given information that is reliable on what happened between the 28th and the 1st, no.

Question: All you know is it happened sometime-

THE COURT: (Interposing) He says he doesn’t even know it happened.

MR. SNEAD: If it happened. Doctor, let’s assume that this child did develop, sometime between the 28th and the 1st, a very fulminating viral bacterial meningitis. And further assume that there were frank indications of this on the 1st, that there was a bulging fontanelle, that the left eye was turned inward-

THE COURT: (Interposing) Doctor, you are not assuming that, are you, in your findings?

THE WITNESS: I am listening to him. These are not my assumptions at the moment.

MR. SNEAD: Your Honor, it’s in evidence.

THE COURT: What’s in evidence?

MR. SNEAD: The fact that the child-

THE COURT: (Interposing) But he doesn’t accept it. Next question. He doesn’t have to accept everything you say.

MR. SNEAD: He certainly doesn’t, and I don’t expect him to. But I would expect him to accept the facts in evidence.

THE COURT: You are not the judge of the sole facts in evidence. Next question. If you have something in the record, pick it out of the record. You can show it to him. Ask him how he reconciles his opinion with this exhibit.

MR. SNEAD: I’m trying to understand-this Court asked this witness about his feelings about the adequacy of the care of the infant on the 1st of July.

THE COURT: Based solely, nothing hypothetical, based solely upon what he discovered from these records that he looked at.

MR. SNEAD: Yes.

THE COURT: I didn’t ask him to make any hypotheses, period.

MR. SNEAD: If I told you that the evidence in this case is that there was a significant


neurological sign, the left eye was turned inward-

THE COURT: (Interposing) Next question. I’m not going to let him with this (sic). We will be here the rest of the night.

MR. SNEAD: Your Honor, I believe that is material to the-

THE COURT: (Interposing) Well, I’m sorry.

MR. SNEAD: It’s material to the material the gentleman reviewed.

THE COURT: I’m not going to let you-you asked eleven hypotheses and hypotheticals, but I really want to find out what the facts are and not hypotheses.

This action by the trial judge was particularly glaring since the defendant’s counsel never objected to the form or appropriateness of the questions-the court simply assumed the role of an advocate.

* * *

It is true that a trial judge functions not merely as an umpire, but as a gov-ernor to see that justice is done. The judge, for example, is entitled to propound questions pertinent to a factual issue which requires clarification. He may inter-cede because of apparent inadequacy of examination or cross-examination by counsel, or to draw more information from relevant witnesses or experts who are inarticulate or less than candid. This privilege or duty, however, is subject to reasonable limitations.

A trial judge must assiduously perform his function as governor of the trial dispassionately, fairly, and impartially. He must not predetermine a case, and we must condemn any conduct before or during the course of a trial which indicates predisposition. It is important that a litigant not only actually receive justice, but that he believes that he has received justice.

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An impartial observer could well conclude from the record in the case sub judice that the trial judge predetermined the outcome before the Crandells fully presented their case. The record reveals numerous judicial interjections indicating hostility toward the plaintiffs and their experts, and also reveals an over-solicitous acceptance of the testimony of defendant’s expert. The trial judge precluded plain-tiffs from developing important evidence at trial. Some of the judge’s remarks could only lead an impartial observer to conclude that his decision was influenced by concerns irrelevant to the issues-the price of malpractice insurance and that “taxpayers” may ultimately bear the burden of paying any damages. No litigant


can rightfully expect a favored status before a judge or jury, but all must be assured that their cause will be presented, reviewed, and judged impartially and fairly. We are cautious not to fetter unduly the necessary governing function of trial court judges, but the conduct of the judge in the present case again fell far short of the standards requiring him to govern the trial dispassionately. We do not express any opinion on the substantive merits of the malpractice claim, but we conclude that the trial judge’s conduct deprived the Crandells of a fair trial. We, therefore, reverse the judgment of the district court and remand with instructions to the Chief Judge of the Eastern District of Virginia to reassign the case to a different trial judge.

Reversed and Remanded.

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a. Is It What a Judge Says or How He Says It?

It is clear from the questions, answers and judge’s comments in Crandell that the trial judge was extremely skeptical of the plaintiffs’ expert’s testimony. But, how does the appellate court know that the trial judge had already determined that the plaintiffs should lose by the time he questioned plaintiffs’ expert? Do you think that trial judges frequently know how they are going to decide before all the evidence has been presented?

b. The Appearance of Justice.

Do you agree with the statement in the case that the appearance of justice is as important to a litigant as justice itself? If so, why?

C. The Order of Proceeding

The rules of evidence permeate every level of litigation, both civil and criminal. Competent counsel, from the very onset of a case, will gather facts and anticipate how to present them in ways that the rules will allow to support a claim or defense. Long before trial, consideration of whether evidence is admissible guides counsel in evaluating how to draft pleadings in civil matters and indict-ments or complaints in criminal matters. Discovery in civil cases extends only to matters that are “reasonably calculated to lead to admissible evidence” and allows counsel to preserve evidence for later use at trial. Motions for matters such as summary judgment or other judgments as a matter of law require the motion


drafter to show facts that are admissible in evidence. It is at trial, however, that the evidentiary rules take center stage, as the following description of the stages of trial illustrates.

Basic Stages of Trial

1. Pretrial Conferences. As the date of a trial draws near, federal procedural rules require that the judge hold a pre-trial conference with lawyers for each party in order to narrow the legal and factual issues that will be raised at trial and to iden-tify witnesses and documents that will be offered as evidence. Once determined, these matters are drawn up in a pre-trial order which controls the presentation of each party’s case at trial.

2. Pretrial Motions. Before the trial begins, the parties may attempt to control the admissibility of evidence at trial by filing what are called motions in limine requesting that the judge keep from the jury certain designated

It’s Latin to Me

“In limine” (pronounced “lim-in-ee”) is Latin for ‘at the threshold.”

ex aequo et bono

jus civile

a posteriori

Non constat

Presentation of Evidence

VerdictJury

Deliberates

Jury Instructions Read to Jury

Closing Arguments

Plaintiff/Prosecution’s Case-in-Chief

Rebuttal and

Sur-rebuttal

Defense’s Case-in-Chief

Opening Statements

Selection of the Jury

Pretrial Motions

Pretrial Conference


testimony or documents which a party anticipates her opponent will attempt to offer. For example, a defendant in a product liability case may make a motion in limine to prevent the plaintiff from referring to, or introducing evidence of, other instances where the defendant’s product caused similar accidents. If the motion is granted, the opposing party is ordered not to raise the matter ruled inadmissible in limine, on pain of contempt and possible mistrial, until the jury is excused and final admissibility of the evidence can be determined. If a motion in limine is not granted, the party making the motion has another chance to object and keep the jury from hearing the evidence when it is offered at trial.

3. Selection of the Jury. When the par-ties decide not to use a jury or neither side has a right to a jury trial, the judge sits as both judge and finder of fact in what is called a bench trial. Most serious cases, however, involve jury trials. Juries are picked by a process called “voir dire,” where the judge and the attorneys in turn ask questions of a panel of prospective jurors to deter-mine whether they are qualified to be selected to hear the case. During this process, lawyers must have a thorough knowledge of not only the law but also the facts in order to ask questions that might reveal a juror’s bias in the type of

case at issue. Once the requisite number of jurors has been selected, they take an oath to “a true verdict render,” and the trial begins.

4. Opening Statements. Opening statements provide an opportunity for lawyers to tell the jury in summary form about their theory of the case and to describe evidence the jury will hear at trial in support of that theory. Lawyers need to make certain that the facts they describe in opening statement are admissible; if they are not, the jurors are liable to remember what was promised and hold the failure to produce the evidence against that lawyer’s client. Plaintiff/prosecution gives the first opening statement, followed by the defendant. Or, the defendant may waive opening statement and present it later in the trial before the defense presents its case-in-chief. (See Step 7, infra).

5. Presentation of the Evidence: Plaintiff/Prosecution’s Case-in-Chief. After opening statements, the party with the burden of proof presents evidence in her case-in-chief by calling witnesses to the witness stand, questioning them under oath, and sometimes introducing physical evidence through the witness or otherwise.

What’s That?

The term “voir dire” (pronounced “vwahr deer”) is French for “to speak, to say.” It refers to any trial process by which a person’s qualifications are determined by questioning. For example, prospective jurors are “voir dired” to determine if they are biased or there is cause to not allow them to serve in the case. The term is also used during trial when a party wants to question a witness in order to de-termine if that witness is qualified to be testifying in accordance with the rules of evidence.

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Direct Examination The questioning by the lawyer who calls a witness to testify is called “direct examination.” The goal during direct examination is to question the witness so as to elicit facts favorable to the party who has called the witness. The lawyer conducting the direct examination is generally required to ask the witness questions that are short, open-ended, non-leading, such as “What happened next?” Witnesses are also required to give relatively short, non-narrative answers, such as, “The next thing I saw was the defendant running the red light.” When the lawyer is finished asking questions on direct, he “passes the witness” for cross-examination.

Cross-Examination: Questioning by the lawyer of an adverse witness is called cross-examination. It is through cross-examination that the accuracy and completeness of a witness’s testi-mony is tested. Rule 611(b) embodies the “American” or “restrictive” rule by limiting cross-examination to the scope of the matters asked on direct examina-tion and to witness credibility. By limit-ing cross-examination, the rule allows an orderly presentation of evidence at trial. For example, if the defense in a murder case calls a witness to testify about the defendant’s insanity, it would

be inappropriate, absent permission from the court, to allow the prosecution to question the witness about what she learned as an eye-witness to the crime. If the prosecution wanted to question the witness about the crime itself, she would be required to call the witness during presentation of the prosecution’s rebuttal case.

Redirect Examination: After cross-examination has been completed, the direct examiner may conduct a re-direct examination. The scope of re-direct is theoreti-cally limited to matters raised during cross-examination and is not an opportunity for the direct examiner to repeat questions previously asked or raise matters that were not initially addressed on direct. The trial judge may also allow re-cross by the opposing party to respond to matters raised anew on re-direct. The trial judge

What’s That?

Non-leading questions are those that do not suggest a particular answer. Asking a witness “What happened next? is a non-leading question. Asking a witness “Didn’t you then call the police?” is a leading ques-tion.

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Take Note

Although leading questions during direct examination are generally pro-hibited, Rule 611(a) gives the trial judge discretion to allow a lawyer to lead a witness on direct or ask narrative questions in federal court to control the mode or order of in-terrogating witnesses to further as-certaining the truth, avoid needless consumption of time, and protect witnesses from harassment or undue embarrassment.


may permit this back and forth ques-tioning for some time until the witness is excused. Once all witnesses have been questioned, physical evidence has been introduced, and objections made and determined, the lawyer will then “rest” her case-in-chief.

Objections: During the presentation of evidence, lawyers may make objec-tions. They do so for two basic rea-sons: (1) to prevent the introduction of evidence; and (2) to preserve error for appeal when such evidence is admit-ted over objection in admission of that evidence for appeal. A lawyer most often will make objections to ques-tions or answers of a testifying witness, although objections may also be made to the admission of physical evidence.

To be timely, objections must be made before the witness answers the question. Thus a lawyer has very little time to determine whether the question is objection-able, whether it is worth making, and how to phrase the objection. The failure to object will often waive evidentiary error on appeal.

Once an objection is made, a trial judge will either sustain the objection, thus agreeing that the evidence is not admissible, or overrule the objection, thus finding that the evidence is admis-sible. At times, the judge may ask for further clarification or argument from counsel before deciding how to rule.

Compare the more restrictive Ameri-can rule of cross-examination to the English rule, which allows “wide-open” cross-examination of a witness about any matter that is relevant to the case, not just the subject matter of direct and matters affecting the witness’s credibility. Two advantages of the English rule, which is fol-lowed in many state courts, are that the (1) the trial judge is not required to determine whether certain cross-examination questions are within the scope of direct examination (which, at times, can be problematic); and (2) there is no need for the cross-ex-aminer to call the witness later and question her in a non-leading man-ner, thus making the presentation of evidence more efficient.

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Take Note

If a question is not objectionable but an answer contains inadmissible evi-dence, the opposing lawyer makes a “motion to strike” the inadmissible portion of the answer rather than an “objection.”


Offers of Proof: When an objection is sustained, the party whose evidence has been excluded may decide to preserve the ruling for appellate review. In order to appeal an erroneous ruling excluding evidence, Rule 103 (a)(2) provides that a party must make “the substance of the evidence known to the court” unless the substance “was apparent from the context in which the questions were asked.” This process is called making an “offer of proof.” Lawyers may make their offers of proof either by asking the witness in question and answer form what they would have asked had the objection been overruled, or by summarizing the evidence for the record. For obvious reasons, offers of proof must be made outside the hearing of the jury.

6. Motions for Judgment as a Matter of Law. After the plaintiff/prosecution con-cludes her case-in-chief, the defendant may move for a judgment as a matter of law. To grant the motion, the judge must conclude that no rational jury could find that the plaintiff/prosecution’s evidence satisfies the applicable standard of proof, such as beyond a reasonable doubt in a criminal case or by a preponderance in a civil case. To support or oppose this motion, lawyers must be able to marshall the

Rule 103. Rules on Evidence

(a) Effect of Erroneous ruling. Error may not be predicated upon a ruling which admits or excludes evidence unless a substantial right of the party is affected, and

(1) Objection. In case the ruling is one admitting evidence, a timely objection or motion to strike appears of record, stating the specific ground of objection, if the specific ground was not apparent from the context; or

(2) Offer of proof. In case the ruling is one excluding evidence, the substance of the evidence was made known to the court by offer or was apparent from the context within which questions were asked.

Once the court makes a definitive ruling on the record admitting or excluding evidence, either at or before trial, a party need not renew an objec-tion or offer of proof to preserve a claim of error for appeal.

* * *

For More Information

See Stephen A. Saltzburg, Offers of Proof: The Basic Requirement, (2002).

i


evidence, argue reasonable deductions from it, and apply those deductions to the substantive law in the case.

7. Defendant’s Case-in-Chief. If the defendant’s motion for a judgment as a matter of law (or “directed verdict”) is denied by the judge, as they often are, it is now the defendant’s turn to present its case-in-chief. If the defendant’s lawyer did not make an opening statement at the beginning of the trial, he or she may do so at this point. The defendant’s attorney will then call to the stand defense witnesses and question them through direct examination; and the plaintiff/prosecution will question the defense witness through cross examination. Redirect and re-cross are also usually allowed for each defense witness, within the discretion of the judge. The defense may also offer its own physical evidence if relevant to the case. When the defense finishes presenting witnesses and physical evidence, he too will “rest” his case.

8. Rebuttal and Surrebuttal. After the defendant’s case is concluded, the plaintiff/ prosecution is often allowed to present more evidence as long as it contradicts or clarifies evidence that has been presented in the defendant’s case-in-chief. This process is called rebuttal. For example, if the defendant raises the defense of alibi in his case-in-chief, the prosecution may call witnesses to show the alibi defense is not credible. On occasion, judges may allow the defense to present witnesses in response to rebuttal evidence through a process called surrebuttal. Whichever party calls the witness to the stand during rebuttal or surrebuttal will conduct a direct examination, the opposing party will conduct a cross-examination, and the original party will conduct a redirect examination.

9. Closing Argument. Once all parties rest, the lawyers for each side make their closing arguments telling jurors in a lengthy speech why the evidence they presented should allow them to win the case. The plaintiff/prosecution usually makes an introductory argument, the defense attorney goes next, and the plaintiff/prosecution then closes the argument.

10. Jury Instructions. Based upon the law and the evidence admitted at trial, the judge will draft a set of instructions to the jury, also called the “charge of the court.” The charge tells jurors how to conduct themselves and what to do and not do when deciding the case. It explains the law of the case and gives the jury specific questions they must answer by applying the law to the facts as they have found them to be. In federal court, the charge is read after lawyers make their closing arguments; in many state courts, the charge is read before argument.

11. Deliberations, Verdict, Judgment. The jury now retires to consider its verdict. They gather in private to select a presiding juror, read the charge, and determine the facts in light of the law the judge has given them in the charge. Once they


have made their determinations, their decision is announced in open court, the judge accepts their conclusions and, if necessary, applies the law to the facts that the jury has found to reach a verdict. The judge then issues a judgment based on the verdict.

Executive Summary

Evidence: Testimony and Exhibits.

Evidence is the bedrock of all trials. There are two general forms of evidence. The first type is testimony of witnesses answering questions under oath (“direct examination” is where witnesses have the opportunity to tell their story, while “cross-examination” is where the opposing attorney tests/attacks their credibility). The second type is exhibits, or tangible physical evidence, consisting of “real evi-dence” (actual items involved in the case), and “demonstrative evidence” (items created for trial to help clarify testimony).

Direct and Circumstantial Evidence.

Direct evidence is eyewitness testimony which, if true, does not require the fact-finder to make an inference to reach a factual conclusion in the case; while circumstantial evidence, if true, requires the fact-finder to make an inference to reach a factual conclusion in the case. Neither is necessarily stronger or better evidence.

Power and Discretion of the Trial Judge.

Trial judges have a great deal of power and discretion to run their courtrooms, rule on objections and motions, and set limits on lawyers, provided such power and discretion is exercised fairly and efficiently. (Reaves). Judges also have much power and discretion to control the mode and order of (1) interrogating witnesses and (2) presenting exhibits at trial. (Peacock). Judges also have the power and discretion to comment on the evidence presented at trial, as long as such com-mentary is impartial. (Yates). They also can question witnesses, but again, only if they do so impartially (Crandell).

Events at Trial.

The following events constitute the basic steps and order of proceedings in most state and federal trials:

1. Pretrial Conferences: There are several hearings in the weeks preceding the trial where the judge and lawyers meet and confer to narrow issues for trial, discuss witnesses and exhibits, and draft a “Pre-Trial Order” that serves to organize and govern the trial.


2. Pretrial Motions: Before trial, the judge will consider pretrial matters raised by the attorneys, such as “motions in limine,” where the attorneys request that certain evidence be admitted or excluded and that such decision be made now, instead of at trial.

3. Jury Selection: Judge and counsel engage in questioning (“voir dire”) of potential witness to ensure the jury picked is impartial and unbiased.

4. Opening Statements: Each side presents an introductory “road map” of what they think they evidence will show during trial.

5. Presentation of Evidence/Plaintiff or Prosecution Case-in-Chief: This is where plaintiff (civil) or prosecution (criminal) presents their case, using their witnesses and exhibits. They do a direct examination of their witness, and the defense gets to cross-examine them. Sometimes there is a re-direct (“rehabilitation”) of the witness, and a re-cross.

Attorneys make “objections” during the questioning process if opposing counsel’s question is improper and/or calls for inadmissible evidence. Attorneys will also make a “motion to strike” if a witness answers a question by referring to inadmissible evidence. If an objection is “sustained” (upheld), then the attorney asking the question can make a Rule 103 “offer of proof” outside the hearing of the jury in order to preserve the evidence for appeal. An objection that is “overruled” is rejected, so that the question or evidence presented is deemed proper.

6. Motions for Judgment as a Matter of Law. If the plaintiff/prosecution fails to provide sufficient evidence upon which a rational jury could base a finding of guilt or liability, then the defense is granted a favorable judgment as a matter of law.

7. Presentation of Evidence/Defense Case-in-Chief: This is the opportunity for the defense to present its case (its witnesses and exhibits) in the exact same manner as set forth in Step #5, above.

8. Rebuttal and Surrebuttal. After the defendant’s case-in-chief, additional witnesses can be called by either side to rebut (clarify or contradict) any testimony presented by either side in their case-in-chief. The “close of evidence” is after the last witness testifies.


9. Closing Arguments. Each side has an opportunity to summarize the evidence and argue how the fact-finder should make findings and inferences based on the evidence provided during trial.

10. Jury Instructions. The judge reads general admonitions to the jury about their deliberation process and the applicable law and legal elements to be applied in their deliberations.

11. Deliberations, Verdict, Judgment. The jury deliberates, renders a verdict and the judge enters a legal judgment based on the verdict, or on the judge’s factual findings in a bench trial.


Relevance–A Primer

chapTer 3

A. Introduction

Not all evidence a party may wish to offer at trial is useful in resolving a disputed issue. Some evidence may be too tangential, confusing, cumulative, or unfairly prejudicial to a fair determination of the facts. The process of sorting through evidence that will assist a judge or jury in resolving a dispute is known as determining relevancy, and it is done as a threshold matter before a court consid-ers any other evidentiary barriers to admission.

The rules regarding relevancy are found in Federal Rule 401, which contains the definition of relevancy, Rule 402, which provides that all relevant evidence is (presumptively) admissible, and Rule 403, which describes exclusionary prin-ciples that weigh against admissibility. This chapter will focus on these rules, that is, how relevancy is determined and how discretionary factors may keep such evidence from being admitted.

B. Definition of Relevant Evidence

Rule 401. Definition of “Relevant Evidence”

“Relevant evidence” means 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.

Rule 402. Relevant Evidence Generally Admissible; Irrelevant Evidence Inadmissible

All relevant evidence is admissible, except as otherwise provided by the Constitution of the United States, by Act of Congress, by these rules, or by other rules prescribed by the Supreme Court pursuant to statutory authority. Evidence which is not relevant is not admissible.


Rule 401 embodies two concepts. First, the rule requires that evidence must bear upon a “fact that is of consequence to the determination of the action.” Whether a fact is of consequence to a case turns upon the requirements of the underlying substantive law. For example, in a statutory rape case where consent of the underage victim is not at issue, the fact that the defendant believed that the victim had consented would not be of consequence to the case because legally, consent does not matter. The victim’s consent would be of consequence to the case, however, if the defendant were charged with raping an adult victim.

Second, evidence a party seeks to offer must be probative, that is, have a “tendency to make the existence of a fact . . . more probable or less probable than it would be without the evidence.” Sometimes, this is called determining “logical relevance.” Probative value is not an inherent charactersitic of any item of evidence. It exists as a relation between evidence and a proposition sought to be proved or disproved by that evidence. Furthermore, any increase or decrease in the probablility of a fact of consequence will suffice, no matter how small. The fact that the defendant

(along with others) was found two blocks from the crime scene might slightly increase the probability that he commit-ted the crime and thus have probative value under Rule 401, even though it would never be a sufficient basis for a guilty verdict by itself. To have proba-tive value, therefore, evidence need not by itself prove the fact at issue. It can be combined with other evidence to prove or disprove a fact. Or, as famously stated by Professor McCormick, “a brick is not a wall.” In other words, each brick of

The drafters of Rule 401 consid-ered two possible models of rele-

vance. The Wigmore model rejected an approach that depended upon multiple chains of reasoning when the evidentiary value was slight. The Thayer approach allowed admission of evidence that had “any tendency” to make a fact at issue more or less probable and did not require the evi-dence to have any minimum probity. The Thayer Theory was incorporated in Rule 401.

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Food for Thought

It might be helpful to think of piec-es of evidence as puzzle pieces. A single puzzle piece or even several of them will not make a complete pic-ture. All of them are required. Or, to put a more modern spin on it, each piece of evidence is like a pixel in a digital image that goes into making up a complete photograph.

It is not necessary that the “factthat is of consequence” be in dispute in the case. Evidence offered as an aid to understanding other evidence, such as a witness’s biographical in-formation that is not in dispute, might be relevant to shed light on the witness’s substantive testimony.

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39C hapter 3 Relevance–A Primer

evidence need not, in and of itself, prove a fact completely before it is relevant; it can be one of many bricks in a wall of proof.

Once a trial judge has determined evidence has probative value in proving or disproving a fact under Rule 401, Rule 402 deems that evidence presumptively admissible.

C. Determining Relevant Evidence

People v. AdamsonSupreme Court of California165 P.2d 3 (1947)

TRAYNOR, Justice.

The body of Stella Blauvelt, a widow 64 years of age, was found on the floor of her Los Angeles apartment on July 25, 1944. The evidence indicated that she died on the afternoon of the preceding day. The body was found with the face upward covered with two bloodstained pillows. A lamp cord was wrapped tightly around the neck three times and tied in a knot. The medical testimony was that death was caused by strangulation. Bruises on the face and hands indicated that the deceased had been severely beaten before her death.

The defendant does not contend that the evidence does not justify a finding that murder in the first degree had been committed… The sole contention of fact that he makes is that the evidence is not sufficient to identify him as the perpetrator. The strongest circumstance tending to so identify the defendant was the finding of six fingerprints, each identified by expert testimony as that of the defendant, spread over the surface of the inner door to the garbage compartment of the kitchen of the deceased’s apartment… Counsel for defendant questioned witnesses as to the possibility of defendant’s fingerprints being forged, but the record does not indicate that any evidence to that effect was uncovered. The theory of the prosecution was that the murderer gained his entrance through the garbage compartment, found the inner door thereof latched from the kitchen side, and forced the door from its hinges. It was established that defendant could have entered through the garbage compartment by having a man about his size do so. The fact that the key to the apartment could not be found after search and the testimony of a neighboring tenant as to sounds heard indicate that the murderer left the apartment through the door thereof and made his exit from the building down a rear stairway.


The tops of three women’s stockings identified as having been taken from defendant’s room were admitted in evidence. One of the stocking tops was found on a dresser, the other two in a drawer of the dresser among other articles of apparel. The stocking parts were not all of the same color. At the end of each part, away from what was formerly the top of the stocking, a knot or knots were tied. When the body of the deceased was found, it did not have on any shoes or stockings. There was evidence that on the day of the murder that the deceased had been wearing stockings. The lower part of a silk stocking with the top part torn off was found lying on the floor under the body. No part of the other stocking was found. There were other stockings in the apartment, some hanging in the kitchen and some in drawers in a dressing alcove, but no other parts of stockings

were found. None of the stocking tops from defendant’s room matched with the bottom part of the stocking found under the body…

To be admissible, evidence must tend to prove a material issue in the light of human experience. The stock-ing tops found in defendant’s room were relevant to identify defendant because their presence on his dresser and in a drawer thereof among other articles of wearing apparel with a knot or knots tied in the end away from what was formerly the top of the stocking indicates that defendant had some use for women’s stocking tops. This inter-

est in women’s stocking tops is a circumstance that tends to identify defendant as the person who removed the stockings from the victim and took away the top of one and the whole of the other. Although the presence of the stocking tops in defendant’s room was not by itself sufficient to identify defendant as the criminal, it constituted a logical link in the chain of evidence. Evidence that tends to throw light on a fact in dispute may be admitted. The weight to be given such evidence will be determined by the jury… The admission of such evi-dence must be regulated by the sound discretion of the court.

It is contended that the admission of the stocking tops deprived defen-

What’s That?

The term “material” at common law meant that evidence would be offered to help prove or disprove a matter in dispute in the lawsuit. The drafters of Rule 401 thought the term too narrow and legalistic. They discarded it in favor of requiring the evidence to be “of consequence to the determination of the action,” a much broader concept based upon common sense that does not require the evidence be directed to matters in controversy.

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Food for Thought

Try to identify each step in the chain of inferences in Adamson which con-nects the stocking tops found in the defendant’s room and his identity as the perpetrator of the crime. Would this chain of logic be persuasive to a jury?


dant of a fair trial and therefore denied him due process of law. Defendant states that their admission could serve no purpose except to create prejudice against him as a Negro by the implication of a fetish or sexual degeneracy. No implication of either was made by the prosecutor in his brief treatment of the evidence in oral argument. Moreover, except in rare cases of abuse, demonstrative evidence that tends to prove a material issue or clarify the circumstances of the crime is admis-sible despite its prejudicial tendency…

The judgments and the order denying a new trial are affirmed.

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Perspective and Analysis

Rule 401 makes information relevant if it has “any tendency” to make a fact at issue more or less probable, implying that relevancy can be shown by an infinitely long chain of questionable inferences. After considering Rule 401 and its expansive definition, can it be said that there is such a thing as “irrelevant evidence?” At least one commentator has argued there is not.

“Given Rule 401, it takes real ingenuity to come up with an example of evidence that seems truly irrelevant. One of my favorites comes from Dean Newell H. Blakley, who was a great classroom teacher. Imagine that the defendant is on trial in Chicago for theft. The indictment charges that he stole a television set from the owner’s home. The prosecutor offers testimony of an eyewitness, along with other evidence that is “of consequence” to the elements of the crime. This evidence sounds relevant, and under the Federal Rules it undoubtedly is.

But after the prosecution rests, the defense lawyer—with great fanfare, let us suppose—calls a witness to offer testimony that it was raining in Utah on the day in question. Isn’t this evidence “irrelevant?”

Make the Connection

Counterweights, such as unfair prejudice, that may exclude logically relevant evidence are discussed in section D. below.



a. Flight as Evidence of Guilt. Admission by Conduct.

If the defendant in Adamson fled the state shortly after the crime, what would be the probative value of this flight evidence if offered by the prosecution? Is this chain of inferences excessively long? Is it necessarily reliable? Would it be relevant to his innocence if he did NOT flee the state? Can you think of any other type of evidence that might constitute an admission by conduct?

The paradoxical answer is, not by the definition in the Federal Rules. One can construct chains of experiential and logical propositions—long chains, admittedly—that connect [this] evidence to the issues in the case. Rainfall in Utah has at least some statistical correlation to weather in Chicago, the site of the alleged crime. We can prove this proposition, if it is doubted, by producing an expert who will testify that precipitation in the Rockies correlates with weather systems elsewhere so that, ever so slightly, it is more probable that the weather was bad in Chicago given this fact than if we did not know it. And this inference, in turn, affects the credibility of eyewitness testimony identifying the defendant, thereby influencing the probability of existence of a fact that is of consequence.”

David Crump, On the Uses of Irrelevant Evidence, 34 Hous. L. Rev. 1, 9 (1997).

Hypo 3.1

Police stop the defendant for driving while intoxicated. One of the officers takes a half-pint bottle about two-thirds full of an unknown liquid from the defendant’s car. The contents of the bottle are never tested. How would the prosecution argue that this bottle has probative value in the case? What would the defendant argue to the contrary? (Remember, in making your analysis, do not confuse determining probative value with determining admissibility).


b. The Probative Value of Statistics.

A witness to a hit-and-run accident testifies that the car that struck the plaintiff was a white Ford Mustang. There is testimony that the defendant drives a white Ford Mustang. The plaintiff’s attorney wishes to offer statistical evi-dence from the Department of Motor Vehicles that only 2% of all car owners in the city drive white Ford Mustangs. Is this evidence relevant? How persuasive is this evidence in proving the identity of the defendant as the driver of the car that hit the plaintiff?

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D. Exclusion of Relevant Evidence

Two of the most basic principles of evidence law are that relevant evidence should be admitted, and irrelevant evidence should be excluded. Rule 402 embod-ies both of these concepts. With regard to irrelevant evidence, this is the end of the inquiry. Irrelevant evidence is never admissible. With regard to relevant evidence, however, Rule 402 also contains an “except as otherwise provided” clause that allows the trial judge to prevent its admissibility by considering other sources of legal authority that may outweigh any relevancy. For instance, the government in a federal criminal case may have compelling relevant evidence, but if it were obtained through an unreasonable search and seizure, it must be excluded. A basic map of Rule 402 looks like this:

Make the Connection

The admissibility of statistical evi-dence is discussed in more detail in Chapter 12.

Rule 402. Relevant Evidence Generally Admissible; Irrelevant Evidence Inadmissible

All relevant evidence is admissible, except as otherwise provided by the Constitution of the United States, by Act of Congress, by these rules, or by other rules prescribed by the Supreme Court pursuant to statutory authority. Evidence which is not relevant is not admissible.


Although several sources of the law are named by Rule 402 as providing pos-sible exclusions of relevant evidence, one of the most frequently used exclusions is contained in Rule 403.

The exclusions listed in Rule 403 are called “counterweights,” and the process of balancing the strength of the relevancy of evidence against the “counterweights” listed in Rule 403 is called determining “legal relevance.” These counterweights range from those that might influence a decision on a non-logical (often emo-tional) basis to those that merely waste time at trial.

Unfair Prejudice. Of all the counterweights, the one most frequently argued to exclude relevant evidence is that of “unfair prejudice.” Most evidence offered by a party is prejudicial in the sense that it is harmful to an opponent. However, to exclude relevant evidence, the prejudice must be “unfair,” that is, it must distort the fact finding function of the trial by allowing the jury to draw inferences that

Rule 403. Exclusion of Relevant Evidence on Grounds of Prejudice, Confusion or Waste of Time

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 consideration of undue delay, waste of time, or needless presentation of cumulative evidence.

Is evidence relevant?

Is evidence excluded by other

rules prescribed

by the Supreme Court?

Is evidence excluded

by Federal Rules of

Evidence?

Is evidence excluded by Act of Congress?

Is evidence excluded by United

States Con-stitution?

Evidence is inadmissible

Evidence is admissible

Yes NoNoNo

YesYesYesYes NoNo

Rule 402 Logic Map


are improper. For example, even though relevant, courts on occasion refuse to admit autopsy photos in a homicide case because of their tendency to arouse the jury’s sense of outrage or horror and to encourage the jurors to convict the defendant solely on the basis of their emotional reaction.

Other Less Frequently Used Counterweights. The remaining counter-weights are less frequently urged. Confusion of the issues and misleading the jury refer to a tendency of the evidence to distract the jury from deciding the case on a proper basis by placing too much emphasis on matters that are not essential to a proper determination. For example, it might confuse or mislead the jury if evidence was introduced showing subsequent changes to an allegedly defective product or its design because such evidence would divert the jury’s attention from whether the product was defective at the relevant time. Counterweights such as undue delay, waste of time, or needless presentation of cumulative evidence allow the trial court to keep the trial streamlined and the fact-finder focused. It might be proper, for example, for a trial judge to exclude the testimony of additional witnesses to prove facts as to which five witnesses have already testified. Many of these counterweights overlap each other to ensure that the trial judge has broad discretion to manage the trial.

Conducting the Balancing Test. There are several steps a judge must take when conducting a Rule 403 balancing test. First, she must determine whether the evidence has probative value under Rule 401, that is, she must determine if it has any possibility of making a fact at issue more or less probable than it would be without the evidence. If so, the evidence is presumptively admissible under Rule 402. Second, the judge will estimate the strength of that probative value. In mak-ing this assessment, the judge looks at the extent to which the evidence will sway the jury in the proponent’s favor on a contested issue of fact taking into account her own experience, knowledge and general understanding of the human thought process, as well as the extent to which the facts at issue are established by other evidence, stipulation, or inference. Third, the judge then determines the strength of any counterweights under Rule 403 and decides whether they substantially outweigh the probative value of the evidence. In the case of unfair prejudice, the judge will estimate the likelihood that a jury will make improper inferences from the evidence as opposed to proper inferences. Nowhere in the rule or the Advisory Committee Notes to the rule is “substantially” outweighed defined. It has been generally interpreted, however, to mean that in a case where the probative value and countervailing factors are close, the judge should admit the evidence. See Saltzburg, Martin, and Capra, Federal Rules of Evidence Manual (9th ed. 2006). In other words, if the probative value is simply outweighed by the danger of unfair prejudice, then the evidence is still admissible. It is therefore only when the probative value is “substantially” outweighed by the 403 dangers, or the counter-weights, that the evidence is inadmissible.


To begin moving through the Rule 403 logic map, you must have already made a determination that the evidence in question is relevant. The Rule 403 logic map looks as follows:

Carter v. HewittU.S. Court of Appeals for the Third Circuit617 F.2d 961 (3rd Cir. 1980)

GARTH, Circuit Judge:

We are called upon to determine whether a letter written by the plaintiff Regi-nald Carter, a prison inmate, violated the Federal Rules of Evidence when it was read and admitted into evidence at the trial of a §1983 action brought by Carter against prison authorities. We determine that it did not, and therefore affirm the judgment of the district court in favor of the defendants.

Is the probative

value substantially outweighed

by the danger of

unfair prejudice?

Is the probative


by the needless

presentation of cumulative

evidence?

Is the probative


by considerations

of undue delay?

Is the probative


by the danger of

misleading the jury?

Is the probative


by the danger of

confusion of issues?

Evidence is inadmissible

Evidence is admissible

No NoNoNo

YesYesYesYes NoYes

Rule 403 Basic Map


Reginald Carter is an inmate at the Pennsylvania State Correctional Institu-tion at Huntingdon. He claims that he was severely beaten in the course of a routine “shakedown,” or search, of his cell on September 22, 1977 by three prison guards, defendants John Fuiek, Duane Pyles, and Gilbert Levi…

[Defendants filed a motion for summary judgment which was heard by a Magistrate. During the hearing, a number of witnesses testified, including plaintiff Carter]. The incident giving rise to this appeal occurred during Carter’s cross-examination. Carter was shown a letter written by one “Abdullah” to a fel-low inmate at Huntingdon. Carter admitted that he had written the letter, and also admitted that he had denied writing this same letter when he had been questioned as to its authorship in an earlier prison disciplinary proceeding. Defense counsel asked Carter to read the letter. Carter objected on the grounds of relevance, claim-ing that the letter had been written six months after the alleged beating. The Magistrate then ordered Carter to read the letter but expressly reserved ruling on whether the letter was admissible. Complying with the Magistrate’s direction, Carter read the letter aloud. The letter, which was undated, generally described to its unidentified recipient how to file a complaint charging prison guard brutality. In its most significant portion, the letter reads:

This is a set up my brother — compile complaints to be use for bullshit courts, possibility news media, and a radio program in Pittsburg [sic] & W.D.A.S. down Philly. We want to establish a pattern of barbaric brutal harrassment [sic] and turn it on these chumps to the max.

Defense counsel suggested that this letter was a direction to file a false brutality complaint. Carter claimed that he was only encouraging the filing of a legitimate complaint… We believe, quite simply, that the letter is admissible, substantive evidence because it bears on the central factual issue in the case—whether Carter was beaten by prison guards on September 22, 1977. The standard of relevance established by the Federal Rules of Evidence is not high: evidence is relevant if it has “any tendency to make the existence of any fact that is of consequence to determination of the action more probable or less probable than it would be without the evidence.” Fed. R. Evid. 401 (emphasis added). A fact finder could reasonably interpret this letter as reflecting a plan on Carter’s part to promote the filing of false complaints. A fact finder could further draw the inference that Cart-

What’s That?

The court here is referring to 42 U.S.C.A. §1983, which gives plain-tiffs a federal cause of action against defendants who deprive them of their constitutional rights while act-ing under color of law, i.e. pursuant to ostensible legal authority.

???

?

?

?


er’s own complaint about being beaten on September 22, 1977 had been filed pursuant to that plan. Thus, the letter is relevant: it has some tendency to make Carter’s assertion that he was beaten less likely to be true than it would be without the evidence. Since the letter is relevant, it is also admissible, unless its admission is otherwise restricted. Fed. R. Evid. 402…

Carter finally contends that the letter should have been excluded under Fed. R. Evid. 403. Again, we are constrained to disagree.

Rule 403 provides:

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 delay, waste of time, or needless presentation of cumulative evidence.

This rule cannot help Carter. It does not offer protection against evidence that is merely prejudicial, in the sense of being detrimental to a party’s case. Rather, the rule only protects against evidence that is unfairly prejudicial. Evidence is unfairly prejudicial only if it has “an undue tendency to suggest decision on an improper basis, commonly, though not necessarily, an emotional one.” It is unfairly preju-dicial if it “appeals to the jury’s sympathies, arouses its sense of horror, provokes its instinct to punish,” or otherwise “may cause a jury to base its decision on something other than the established propositions in the case.” A classic example of unfair prejudice is a jury’s conclusion, after hearing a recitation of a defendant’s prior criminal record, that, since the defendant committed so many other crimes, he must have committed this one too. This is an improper basis of decision, and the law accordingly prohibits introduction of prior convictions to demonstrate a propensity to commit crime.

Carter’s letter, while undoubtedly prejudicial to his case in that it resulted in the district court ruling against him, presents no danger of unfair preju-dice. The letter was offered by the defendants to suggest that no beating

Food for Thought

What are the two contrary inferences that could be made by reading the letter? Why does the court disregard the defendant’s interpretation in fa-vor of the prosecution’s interpreta-tion? If these inferences are equally likely, does this mean the evidence is not relevant? Do opposite inferences cancel out one another, or do they merely show that the evidence is relevant and admissible for two pos-sible reasons?

Food for Thought

The court claims that admission of the letter presents no danger of unfair prejudice to Carter. Do you agree? Assuming the letter contains unfair prejudice, is it possible that the court could still admit it?


occurred on September 22, 1977 and that Carter was lying when he testified to the contrary. This, of course, was the central issue at trial. In a case such as the one here where the witnesses on each side take diametrically opposed positions, the fact finder’s task is to determine which witnesses are more credible. If the Magistrate, after hearing the letter read, drew the inference that Carter was lying, it cannot be claimed that this was an improper basis of decision. It was, rather, a use of properly admitted evidence which, together with other evidence in the case, resulted in a decision on a proper basis. Thus, Carter has made no showing of unfair prejudice: he cannot demand exclusion of the letter under rule 403.

_______________

Old Chief v. United StatesSupreme Court of the United States519 U.S. 172 (1997)

Justice SOUTER delivered the opinion of the Court.

Subject to certain limitations, 18 U.S.C. § 922(g)(1) prohibits possession of a firearm by anyone with a prior felony conviction, which the Government can prove by introducing a record of judgment or similar evidence identifying the pre-vious offense. Fearing prejudice if the jury learns the nature of the earlier crime, defendants sometimes seek to avoid such an informative disclosure by offering to concede the fact of the prior conviction. The issue here is whether a district court abuses its discretion if it spurns such an offer and admits the full record of a prior judgment, when the name or nature of the prior offense raises the risk of a verdict tainted by improper considerations, and when the purpose of the evidence is solely to prove the element of prior conviction.

In 1993, petitioner, Old Chief, was arrested after a fracas involving at least one gunshot. The ensuing federal charges included not only assault with a danger-ous weapon and using a firearm in relation to a crime of violence but violation of 18 U.S.C. § 922(g)(1). This statute makes it unlawful for anyone “who has been convicted in any court of, a crime punishable by imprisonment for a term exceed-ing one year” to “possess in or affecting commerce, any firearm…”

The earlier crime charged in the indictment against Old Chief was assault causing serious bodily injury. Before trial, he moved for an order requiring the Government “to refrain from mentioning-by reading the Indictment, during jury selection, in opening statement, or closing argument-and to refrain from offering into evidence or soliciting any testimony from any witness regarding the prior criminal convictions of the Defendant, except to state that the Defendant has been convicted of a crime punishable by imprisonment exceeding one (1) year.” He


said that revealing the name and nature of his prior assault conviction would unfairly tax the jury’s capacity to hold the Government to its burden of proof beyond a reasonable doubt on current charges of assault, possession, and violence with a firearm, and he offered to “solve the problem here by stipulating, agreeing and requesting the Court to instruct the jury that he has been convicted of a crime punishable by imprisonment exceeding one (1) yea[r].” He argued that the offer to stipulate to the fact of the prior conviction rendered evidence of the name and nature of the offense inadmissible under Rule 403 of the Federal Rules of Evidence, the danger being that unfair prejudice from that evidence would substantially outweigh its probative value.

The Assistant United States Attorney refused to join in a stipulation, insist-ing on his right to prove his case his own way, and the District Court agreed, ruling orally that, “If he doesn’t want to stipulate, he doesn’t have to.” At trial, over renewed objection, the Government introduced the order of judgment and commitment for Old Chief’s prior conviction. This document disclosed that on December 18, 1988, he “did knowingly and unlawfully assault Rory Dean Fenner, said assault resulting in serious bodily injury,” for which Old Chief was sentenced to five years’ imprisonment. The jury found Old Chief guilty on all counts, and he appealed.

[The Ninth Circuit affirmed and the Supreme Court granted certiorari on the basis that the Courts of Appeals were divided on the issue.]

II

A

As a threshold matter, there is Old Chief’s erroneous argument that the name of his prior offense as contained in the record of conviction is irrelevant to the prior-conviction element, and for that reason inadmissible under Rule 402 of the Federal Rules of Evidence. Rule 401 defines relevant evidence as having “any tendency to make the existence of any fact that is of consequence to the deter-mination of the action more probable or less probable than it would be without the evidence.” Fed. Rule Evid. 401. To be sure, the fact that Old Chief’s prior conviction was for assault resulting in serious bodily injury rather than, say, for theft was not itself an ultimate fact, as if the statute had specifically required proof of injurious assault. But its demonstration was a step on one evidentiary route to the ultimate fact, since it served to place Old Chief within a particular sub-class of offenders for whom firearms possession is outlawed by §922(g)(1). A documen-tary record of the conviction for that named offense was thus relevant evidence in making Old Chief’s §922(g)(1) status more probable than it would have been without the evidence.


Nor was its evidentiary relevance under Rule 401 affected by the availability of alternative proofs of the element to which it went, such as an admission by Old Chief that he had been convicted of a crime “punishable by imprisonment for a term exceeding one year” within the meaning of the statute. The 1972 Advisory Committee Notes to Rule 401 make this point directly:

“The fact to which the evidence is directed need not be in dispute. While situations will arise which call for the exclusion of evidence offered to prove a point conceded by the opponent, the ruling should be made on the basis of such considerations as waste of time and undue prejudice (see Rule 403), rather than under any general requirement that evidence is admissible only if directed to matters in dispute.”

If, then, relevant evidence is inadmissible in the presence of other evidence related to it, its exclusion must rest not on the ground that the other evidence has rendered it “irrelevant,” but on its character as unfairly prejudicial, cumulative or the like, its relevance notwithstanding.

B

1

The term “unfair prejudice,” as to a criminal defendant, speaks to the capacity of some concededly relevant evidence to lure the factfinder into declaring guilt on a ground different from proof specific to the offense charged. So, the [Advi-sory] Committee Notes to Rule 403 explain, “ ‘Unfair prejudice’ within its context means an undue tendency to suggest decision on an improper basis, commonly, though not necessarily, an emotional one.”

Such improper grounds certainly include the one that Old Chief points to here: generalizing a defendant’s earlier bad act into bad character and taking that as raising the odds that he did the later bad act now charged (or, worse, as calling for preventive conviction even if he should happen to be innocent momentarily). As then-Judge Breyer put it, “Although… ‘propensity evidence’ is relevant, the risk that a jury will convict for crimes other than those charged-or that, uncertain of guilt, it will convict anyway because a bad person deserves punishment-creates a prejudicial effect that outweighs ordinary relevance.” United States v. Moccia, 681 F.2d 61, 63 (C.A.1 1982). Justice Jackson described how the law has handled this risk:

“… The state may not show defendant’s prior trouble with the law, specific criminal acts, or ill name among his neighbors, even though such facts might logically be persuasive that he is by propensity a probable perpetrator of the crime. The inquiry is not rejected because character is irrelevant; on the contrary, it is said to weigh too much with the jury and to so overpersuade them as to prejudge one with a bad general record and deny him a fair opportunity to defend against a particular charge. The overriding policy of excluding such evidence, despite its admitted probative


value, is the practical experience that its disallowance tends to prevent confusion of issues, unfair surprise and undue prejudice.”

Rule of Evidence 404(b) reflects this common-law tradition by addressing propensity reasoning directly: “Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in confor-mity therewith.” Fed. Rule Evid. 404(b). There is, accordingly, no question that propensity would be an “improper basis” for conviction and that evidence of a prior conviction is subject to analysis under Rule 403 for relative probative value and for prejudicial risk of misuse as propensity evidence.

As for the analytical method to be used in Rule 403 balancing, two basic possibilities present themselves. An item of evidence might be viewed as an island, with estimates of its own probative value and unfairly prejudicial risk the sole reference points in deciding whether the danger substantially outweighs the value and whether the evidence ought to be excluded. Or the question of admis-sibility might be seen as inviting further comparisons to take account of the full evidentiary context of the case as the court understands it when the ruling must be made. This second approach would start out like the first but be ready to go further. On objection, the court would decide whether a particular item of evidence raised a danger of unfair prejudice. If it did, the judge would go on to evaluate the degrees of probative value and unfair prejudice not only for the item in question but for any actually available substitutes as well. If an alternative were found to have substantially the same or greater probative value but a lower danger of unfair prejudice, sound judicial discretion would discount the value of the item first offered and exclude it if its discounted probative value were substantially outweighed by unfairly prejudicial risk. As we will explain later on, the judge would have to make these calculations with an appreciation of the offering party’s need for evidentiary richness and narrative integrity in presenting a case, and the mere fact that two pieces of evidence might go to the same point would not, of course, necessarily mean that only one of them might come in. It would only mean that a judge applying Rule 403 could reasonably apply some discount to the probative value of an item of evidence when faced with less risky alternative proof going to the same point. Even under this second approach, as we explain below, a defendant’s Rule 403 objection offering to concede a point generally cannot prevail over the Government’s choice to offer evidence showing guilt and all the circumstances surrounding the offense.

The first understanding of the Rule is open to a very telling objection. That reading would leave the party offering evidence with the option to structure a trial in whatever way would produce the maximum unfair prejudice consistent with relevance. He could choose the available alternative carrying the greatest threat of improper influence, despite the availability of less prejudicial but equally


probative evidence. The worst he would have to fear would be a ruling sustaining a Rule 403 objection, and if that occurred, he could simply fall back to offering substitute evidence. This would be a strange rule. It would be very odd for the law of evidence to recognize the danger of unfair prejudice only to confer such a degree of autonomy on the party subject to temptation, and the Rules of Evidence are not so odd.

Rather, a reading of the companions to Rule 403, and of the commentaries that went with them to Congress, makes it clear that what counts as the Rule 403 “probative value” of an item of evidence, as distinct from its Rule 401 “relevance,” may be calculated by comparing evidentiary alternatives. The [Advisory] Com-mittee Notes to Rule 401 explicitly say that a party’s concession is pertinent to the court’s discretion to exclude evidence on the point conceded. Such a concession, according to the Notes, will sometimes “call for the exclusion of evidence offered to prove [the] point conceded by the opponent…”.

2

In dealing with the specific problem raised by § 922(g)(1) and its prior-conviction element, there can be no question that evidence of the name or nature of the prior offense generally carries a risk of unfair prejudice to the defendant. That risk will vary from case to case, for the reasons already given, but will be substantial whenever the official record offered by the Government would be arresting enough to lure a juror into a sequence of bad character reasoning. Where a prior conviction was for a gun crime or one similar to other charges in a pending case, the risk of unfair prejudice would be especially obvious, and Old Chief sensibly worried that the prejudicial effect of his prior assault conviction, significant enough with respect to the current gun charges alone, would take on added weight from the related assault charge against him.

* * *

Old Chief’s proffered admission would, in fact, have been not merely relevant but seemingly conclusive evidence of the element. The statutory language in which the prior-conviction requirement is couched shows no congressional concern with the specific name or nature of the prior offense beyond what is necessary to place it within the broad category of qualifying felonies, and Old Chief clearly meant to admit that his felony did qualify, by stipulating “that the Government has proven one of the essential elements of the offense.” As a consequence, although the name of the prior offense may have been technically relevant, it addressed no detail in the definition of the prior-conviction element that would not have been covered by the stipulation or admission. Logic, then, seems to side with Old Chief.


3

There is, however, one more question to be considered before deciding whether Old Chief’s offer was to supply evidentiary value at least equivalent to what the Government’s own evidence carried. In arguing that the stipulation or admission would not have carried equivalent value, the Government invokes the familiar, standard rule that the prosecution is entitled to prove its case by evidence of its own choice, or, more exactly, that a criminal defendant may not stipulate or admit his way out of the full evidentiary force of the case as the Government chooses to present it. The authority usually cited for this rule is Parr v. United States, 255 F.2d 86, in which the Fifth Circuit explained that the “reason for the rule is to permit a party ‘to present to the jury a picture of the events relied upon. To substitute for such a picture a naked admission might have the effect to rob the evidence of much of its fair and legitimate weight.’ ”

This is unquestionably true as a general matter. The “fair and legitimate weight” of conventional evidence showing individual thoughts and acts amount-ing to a crime reflects the fact that making a case with testimony and tangible things not only satisfies the formal definition of an offense, but tells a colorful story with descriptive richness. Unlike an abstract premise, whose force depends on going precisely to a particular step in a course of reasoning, a piece of evidence may address any number of separate elements, striking hard just because it shows so much at once; the account of a shooting that establishes capacity and causation may tell just as much about the triggerman’s motive and intent. Evidence thus has force beyond any linear scheme of reasoning, and as its pieces come together a narrative gains momentum, with power not only to support conclusions but to sustain the willingness of jurors to draw the inferences, whatever they may be, necessary to reach an honest verdict. This persuasive power of the concrete and particular is often essential to the capacity of jurors to satisfy the obligations that the law places on them. Jury duty is usually unsought and sometimes resisted, and it may be as difficult for one juror suddenly to face the findings that can send another human being to prison, as it is for another to hold out conscientiously for acquittal. When a juror’s duty does seem hard, the evidentiary account of what a defendant has thought and done can accomplish what no set of abstract state-ments ever could, not just to prove a fact but to establish its human significance, and so to implicate the law’s moral underpinnings and a juror’s obligation to sit in judgment. Thus, the prosecution may fairly seek to place its evidence before the jurors, as much to tell a story of guiltiness as to support an inference of guilt, to convince the jurors that a guilty verdict would be morally reasonable as much as to point to the discrete elements of a defendant’s legal fault.

But there is something even more to the prosecution’s interest in resisting efforts to replace the evidence of its choice with admissions and stipulations, for


beyond the power of conventional evidence to support allegations and give life to the moral underpinnings of law’s claims, there lies the need for evidence in all its particularity to satisfy the jurors’ expectations about what proper proof should be. Some such demands they bring with them to the courthouse, assuming, for example, that a charge of using a firearm to commit an offense will be proven by introducing a gun in evidence. A prosecutor who fails to produce one, or some good reason for his failure, has something to be concerned about. “If [jurors’] expectations are not satisfied, triers of fact may penalize the party who disap-points them by drawing a negative inference against that party.” Expectations may also arise in jurors’ minds simply from the experience of a trial itself. The use of witnesses to describe a train of events naturally related can raise the prospect of learning about every ingredient of that natural sequence the same way. If sud-denly the prosecution presents some occurrence in the series differently, as by announcing a stipulation or admission, the effect may be like saying, “never mind what’s behind the door,” and jurors may well wonder what they are being kept from knowing. A party seemingly responsible for cloaking something has reason for apprehension, and the prosecution with its burden of proof may prudently demur at a defense request to interrupt the flow of evidence telling the story in the usual way.

In sum, the accepted rule that the prosecution is entitled to prove its case free from any defendant’s option to stipulate the evidence away rests on good sense. A syllogism is not a story, and a naked proposition in a courtroom may be no match for the robust evidence that would be used to prove it. People who hear a story interrupted by gaps of abstraction may be puzzled at the missing chapters, and jurors asked to rest a momentous decision on the story’s truth can feel put upon at being asked to take responsibility knowing that more could be said than they have heard. A convincing tale can be told with economy, but when economy becomes a break in the natural sequence of narrative evidence, an assurance that the missing link is really there is never more than second best.

4

This recognition that the prosecution with its burden of persuasion needs evidentiary depth to tell a continuous story has, however, virtually no application when the point at issue is a defendant’s legal status, dependent on some judgment rendered wholly independently of the concrete events of later criminal behavior charged against him. As in this case, the choice of evidence for such an element is usually not between eventful narrative and abstract proposition, but between propositions of slightly varying abstraction, either a record saying that conviction for some crime occurred at a certain time or a statement admitting the same thing without naming the particular offense. The issue of substituting one statement for the other normally arises only when the record of conviction would not be


admissible for any purpose beyond proving status, so that excluding it would not deprive the prosecution of evidence with multiple utility; if, indeed, there were a justification for receiving evidence of the nature of prior acts on some issue other than status (i.e., to prove “motive, opportunity, intent, preparation, plan, knowl-edge, identity, or absence of mistake or accident,” Fed. Rule Evid. 404(b). Rule 404(b) guarantees the opportunity to seek its admission. Nor can it be argued that the events behind the prior conviction are proper nourishment for the jurors’ sense of obligation to vindicate the public interest....Congress, however, has made it plain that distinctions among generic felonies do not count for this purpose; the fact of the qualifying conviction is alone what matters under the statute....The most the jury needs to know is that the conviction admitted by the defendant falls within the class of crimes that Congress thought should bar a convict from possessing a gun, and this point may be made readily in a defendant’s admission and underscored in the court’s jury instructions. Finally, the most obvious reason that the general presumption that the prosecution may choose its evidence is so remote from application here is that proof of the defendant’s status goes to an element entirely outside the natural sequence of what the defendant is charged with thinking and doing to commit the current offense. Proving status without telling exactly why that status was imposed leaves no gap in the story of a defen-dant’s subsequent criminality, and its demonstration by stipulation or admission neither displaces a chapter from a continuous sequence of conventional evidence nor comes across as an officious substitution, to confuse or offend or provoke reproach.

Given these peculiarities of the element of felony-convict status and of admis-sions and the like when used to prove it, there is no cognizable difference between the evidentiary significance of an admission and of the legitimately probative com-ponent of the official record the prosecution would prefer to place in evidence.... In this case, as in any other in which the prior conviction is for an offense likely to support conviction on some improper ground, the only reasonable conclusion was that the risk of unfair prejudice did substantially outweigh the discounted probative value of the record of conviction, and it was an abuse of discretion to admit the record when an admission was available. What we have said shows why this will be the general rule when proof of convict status is at issue, just as the prosecutor’s choice will generally survive a Rule 403 analysis when a defendant seeks to force the substitution of an admission for evidence creating a coherent narrative of his thoughts and actions in perpetrating the offense for which he is being tried.

The judgment is reversed, and the case is remanded to the Ninth Circuit for further proceedings consistent with this opinion.


Justice O’CONNOR, with whom THE CHIEF JUSTICE, Justice SCALIA, and Justice THOMAS join, dissenting.

The Court today announces a rule that misapplies Federal Rule of Evidence 403 and upsets, without explanation, longstanding precedent regarding criminal prosecutions....

I

Rule 403 provides that a district court may exclude relevant evidence if, among other things, “its probative value is substantially outweighed by the danger of unfair prejudice.” Certainly, Rule 403 does not permit the court to exclude the Government’s evidence simply because it may hurt the defendant. As a threshold matter, evidence is excludable only if it is “unfairly” prejudicial, in that it has “an undue tendency to suggest decision on an improper basis.” The evidence tendered by the Government in this case-the order reflecting petitioner’s prior conviction and sentence for assault resulting in serious bodily injury, in violation of 18 U.S.C. § 1153 and 18 U.S.C. § 113(f) (1988 ed.)-directly proved a necessary element of the § 922(g)(1) offense, that is, that petitioner had committed a crime covered by § 921(a)(20). Perhaps petitioner’s case was damaged when the jury discovered that he previously had committed a felony and heard the name of his crime. But I cannot agree with the Court that it was unfairly prejudicial for the Government to establish an essential element of its case against petitioner with direct proof of his prior conviction.

…The structure of § 922(g)(1) itself shows that Congress envisioned jurors’ learning the name and basic nature of the defendant’s prior offense.... The statute excludes from § 922(g)(1)’s coverage certain business crimes and state misde-meanors punishable by imprisonment of two years or less. § 921(a)(20). Within the meaning of § 922(g)(1), then, “a crime” is not an abstract or metaphysical concept. Rather, the Government must prove that the defendant committed a particular crime. In short, under § 922(g)(1), a defendant’s prior felony conviction connotes not only that he is a prior felon, but also that he has engaged in specific past criminal conduct.

* * *

The Court never explains precisely why it constitutes “unfair” prejudice for the Government to directly prove an essential element of the § 922(g)(1) offense with evidence that reveals the name or basic nature of the defendant’s prior con-viction. It simply notes that such evidence may lead a jury to conclude that the defendant has a propensity to commit crime, thereby raising the odds that the jury would find that he committed the crime with which he is currently charged…


Yes, to be sure, Rule 404(b) provides that “[e]vidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith.” But…[i]n a prosecution brought under § 922(g)(1), the Government does not submit evidence of a past crime to prove the defendant’s bad character or to “show action in conformity therewith.” It tenders the evidence as direct proof of a necessary element of the offense with which it has charged the defendant…

Any incremental harm resulting from proving the name or basic nature of the prior felony can be properly mitigated by limiting jury instructions. Federal Rule of Evidence 105 provides that when evidence is admissible for one purpose, but not another, “the court, upon request, shall restrict the evidence to its proper scope and instruct the jury accordingly.” Indeed, on petitioner’s own motion in this case, the District Court instructed the jury that it was not to “ ‘consider a prior conviction as evidence of guilt of the crime for which the defendant is now on trial.’ ”...

II

The Court also holds that, if a defendant charged with violating § 922(g)(1) concedes his prior felony conviction, a district court abuses its discre-tion if it admits evidence of the defendant’s prior crime that raises the risk of a verdict “tainted by improper considerations.”...

Why, precisely, does the Court think that this item of evidence raises the risk of a verdict “tainted by improper considerations”? Is it because the jury might learn that petitioner assaulted someone and caused serious bodily injury? If this is what the Court means, would evidence that petitioner had committed some other felony be admissible, and if so, what sort of crime might that be? Or does the Court object to the order because it gave a few specifics about the assault, such as the date, the location, and the victim’s name? Or perhaps the Court finds that introducing the order risks a verdict “tainted by improper considerations” simply because the § 922(g)(1) charge was joined with counts charging petitioner with using a firearm in relation to a crime of violence, in violation of 18 U.S.C. § 924(c), and with committing an assault with a dangerous weapon, in violation of 18 U.S.C. § 1153 and 18 U.S.C. § 113(c) (1988 ed.)? Under the Court’s nebu-lous standard for admission of prior felony evidence in a § 922(g)(1) prosecution, these are open questions.

More troubling still is the Court’s retreat from the fundamental principle that in a criminal prosecution the Government may prove its case as it sees fit. The Court reasons that, in general, a defendant may not stipulate away an element of a charged offense because, in the usual case, “the prosecution with its burden of


persuasion needs evidentiary depth to tell a continuous story.” The rule has, how-ever, “virtually no application when the point at issue is a defendant’s legal status, dependent on some judgment rendered wholly independently of the concrete events of later criminal behavior charged against him.”...

On its own terms, the argument does not hold together. A jury is as likely to be puzzled by the “missing chapter” resulting from a defendant’s stipulation to his prior felony conviction as it would be by the defendant’s conceding any other element of the crime. The jury may wonder why it has not been told the name of the crime, or it may question why the defendant’s firearm possession was illegal, given the tradition of lawful gun ownership in this country.

III

…Like it or not, Congress chose to make a defendant’s prior criminal convic-tion one of the two elements of the § 922(g)(1) offense. Moreover, crimes have names; a defendant is not convicted of some indeterminate, unspecified “crime.” Nor do I think that Federal Rule of Evidence 403 can be read to obviate the well accepted principle, grounded in both the Constitution and in our precedent, that the Government may not be forced to accept a defendant’s concession to an ele-ment of a charged offense as proof of that element. I respectfully dissent.

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a. Stipulations and Limiting Instructions.

Lawyers often use offers to stipulate strategically. For example, if there is a gruesome photograph in a murder case showing the location of the bloody bodies of the victims, the defense may offer to stipulate as to the location of the bodies, and thus render the photo inadmis-sible because the probative value of the photo is already contained in the stip-ulation, but without the unfair preju-dice contained in the gruesome photo. Similarly, the prosecution might offer a Rule 105 limiting instruction to be given by the judge directing the jury to consider the photo only for purposes of showing the location of the bodies, and thus render the photo admissible

What’s That?

The term stipulation merely means “agreement”. Lawyers will often stipulate or offer to stipulate which means they agree with their oppo-nent about a matter thereby avoid-ing a decision by the judge. For ex-ample, the lawyers may stipulate to the admission of a piece of evidence or its authenticity or the like.

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because any unfair prejudice will now be ignored by the jury.

b. The Balancing of Unfair

Prejudicein a Trial to the Court

In Gulf States Utilities Co. v. Ecodyne Corp., 577 F.2d 1031 (5th Cir. 1978), the court stated that the exclusion of relevant evidence on the basis that it is unfairly prejudicial has no applica-tion to non-jury trials and is a “useless procedure” because a trial judge can “exclude those improper inferences from his mind in reaching a decision.” Is this argument persuasive?

c. Review of the Trial Court’s Rule 403 Decision on Appeal

Rule 403 decisions are discretionary and once made, will seldom be reversed on appeal unless the decision cannot be supported by reasonable arguments. United States v. Awadallah, 436 F.3d 125 (2d Cir. 2006). Appellate courts rec-ognize that trial judges are in a unique position to assess the jury’s need for the evidence and its likely affect on the jury. But a judge’s discretion is not unlimited. See McQueeney v. Willington Trust Co., 779 F.2d 916 (1985) (reversing a Rule 403 decision to exclude evidence that the plaintiff committed perjury in a related deposition because there was no particularized showing of unfair prejudice, and the evidence did not have the obvious potential for such a showing).

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Hypo 3.2

Three robbery suspects are stopped by the police at gunpoint. Accord-ing to an officer, one of the suspects made a quick movement with his hand into his coat as if he were going to reach for a weapon, after which the officer shot and killed him. In a civil rights action against the officers by the suspect’s survivors, the survivors wish to offer evidence that the suspect was unarmed when he was shot. The law of self-defense allows defenders to use deadly force against apparent danger as well as actual danger as long as their actions are reasonable under the circumstances. Is evidence that the suspect was unarmed admissible under Rule 403? If the trial court admits this evidence, do you think this ruling would be upheld on appeal? See Sherrod v. Berry, 856 F.2d 802 (7th Cir. 1988) (en banc).

What’s That?

Rule 105 provides that evidence may be admissible for one purpose but not for another. Therefore, in a jury trial, the judge may give the jury a ‘limiting instruction’ which instructs the jury that such evidence is only admissible for the purpose given by the judge. This allows some flexibil-ity for evidence that may be critical but may be excluded as to certain purposes. Rule 105 eliminates the concept of “all or nothing” with re-gard to admissibility.

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3. Judicial Determination of Preliminary Questions

Under Rule 104(a), the trial judge determines the admissibility of proposed evidence except for matters involving conditional relevancy as discussed below. In making that decision, the judge may hold a hearing outside the presence of the jury where each side presents evidence relevant to whether the legal require-ments for admissibility have been met. These legal requirements often require that the judge act as a trier of fact. For example, if the competency of a child-witness is challenged, the judge would need to determine from the facts whether the child knows the dif-ference between right and wrong and can coherently narrate events, the legal requirements for witness competency. In the same manner, if a party seeks to prevent the admission of evidence allegedly protected by the attorney-client privilege, the judge might need to ascertain from the facts whether an attorney-client relationship ever existed, and if so, whether communications between the attorney and the client were made in confidence. A judge’s findings as to these preliminary questions must be made by a preponderance of the evidence in both civil and criminal cases.

Rule 104(a) also provides that the judge is not bound by the rules of evidence in determining evidence admissibility, except for those with respect to privileges. It is based on the assumption that the judge, unlike the jury, is legally trained to consider only reliable portions of evidence that is offered and to disregard those

Rule 104 Preliminary Questions

(a) Questions of admissibility generally. Preliminary questions concerning the qualification of a person to be a witness, the existence of a privilege, or the admissibility of evidence shall be determined by the court, subject to the provisions of subdivision (b). In making its determination it is not bound by the rules of evidence except those with respect to privileges.

What’s That?

The term “preponderance of the evidence” means the greater weight of the evidence, not necessarily es-tablished by the greater number of witnesses testifying to a fact, but by evidence that has the most convinc-ing force and satisfies the burden of proof in civil trials. This is some-times referred to as the “more likely than not” standard.

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that are unreliable. While the rule appears straightforward, its application can be problematic. What if the only evidence a party offers to lay a founda-tion for admission of written hearsay statement is the content of the written statement itself? If the statement alone is allowed to satisfy its own foundation for admissibility, it would in essence “bootstrap” itself into evidence. This “bootstrapping” problem has been

resolved by an amendment to Rule 801(d)(2), which permits the proponent of the evidence to offer the hearsay contents of the statement itself as proof of the statement’s admissibility as long as the proponent also offers evidence other than the statement’s contents. Prior to the rule’s amendment, however, the “bootstrap-ping” issue was rigorously debated and unresolved. See United States v. Bourjaily, 483 U.S. 171 (1987).

4. Judicial Determination of Conditional Relevancy

Occasionally, the relevancy of a piece of evidence depends upon proof of other facts. For example, the relevancy of a contract may depend upon whether the defendant’s agent who signed the contract had authority to do so, a fact issue that may be hotly contested by the parties. Or, proof that a particular automobile was speeding before the accident may be relevant only if it can be shown that the automobile was being driven by the defendant in the case.

To avoid interference with the functioning of the jury, the drafters of Rule 104(b) provide that both the judge and the jury share the responsibility of determining admissibility for evidence whose admission is conditioned upon another fact. The judge’s role is to decide whether a reasonable juror could find the contested fact to be true. If so, the judge admits the evidence, and the jury is instructed to disregard it if they find the contested fact does not exist.

Rule 104. Preliminary Questions

(b) Relevancy Conditioned on Fact. When the relevancy of evidence depends upon fulfillment of a condition of fact, the court shall admit it upon, or subject to, the introduction of evidence sufficient to support a finding of the fulfillment of the condition.

Food for Thought

Can you think of an instance where the judge might be allowed to con-sider privileged material to deter-mine the admissibility of evidence? How about when determining whether the statements themselves are privileged?


Rule 104(b) issues are usually entwined with the admissibility of evidence under other evidentiary rules such as Rule 404(b), as the following case illus-trates.

Huddleston v. United StatesSupreme Court of the United States485 U.S. 681 (1988)

Chief Justice REHNQUIST delivered the opinion of the Court:

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Petitioner, Guy Rufus Huddleston, was charged with one count of selling stolen goods in interstate commerce, one count of possessing stolen property in interstate commerce. The two counts related to two portions of a shipment of stolen Memorex videocassette tapes that petitioner was alleged to have possessed and sold, knowing that they were stolen.

The evidence at trial showed that a trailer containing over 32,000 blank Memorex videocassette tapes with a manufacturing cost of $4.53 per tape was stolen from the Overnight Express yard in South Holland, Illinois, some-time between April 11 and 15, 1985. On April 17, 1985, petitioner contacted Karen Curry, the manager of the Magic Rent-to-Own in Ypsilanti, Michigan, seeking her assistance in selling a large number of blank Memorex videocas-sette tapes. After assuring Curry that the tapes were not stolen, he told her he wished to sell them in lots of at least 500 at $2.75 to $3 per tape. Curry subsequently arranged for the sale of a total of 5,000 tapes, which petitioner delivered to the various purchasers-who apparently believed the sales were legitimate.

There was no dispute that the tapes which petitioner sold were stolen; the only material issue at trial was whether petitioner knew they were stolen. The District Court allowed the Government to introduce evidence of “similar acts” under Rule 404(b), concluding that such evidence had “clear relevance as to [petitioner’s knowledge].” The first piece of similar act evidence offered by the Government was the testimony of Paul Toney, a record store owner. He testified

Make the Connection

Rule 404(b) of the Federal Rules of Evidence allows admission of evi-dence of a person’s prior acts that are relevant to show a fact at issue in the case. For example, evidence that the defendant possessed cocaine on another occasion might be relevant to prove the defendant knew that the substance for which he was ar-rested was cocaine, if he denies such knowledge. This rule will be exam-ined later in this book as a special application of Rules 401-403.


that in February 1985, petitioner offered to sell new 12” black and white televi-sions for $28 apiece. According to Toney, petitioner indicated that he could obtain several thousand of these televisions. Petitioner and Toney eventually traveled to the Magic Rent-to-Own, where Toney purchased 20 of the televisions. Several days later, Toney purchased 18 more televisions.

The second piece of similar act evidence was the testimony of Robert Nelson, an undercover FBI agent posing as a buyer for an appliance store. Nelson testi-fied that in May 1985, petitioner offered to sell him a large quantity of Amana appliances-28 refrigerators, 2 ranges, and 40 icemakers. Nelson agreed to pay $8,000 for the appliances. Petitioner was arrested shortly after he arrived at the parking lot where he and Nelson had agreed to transfer the appliances. A truck containing the appliances was stopped a short distance from the parking lot, and Leroy Wesby, who was driving the truck, was also arrested. It was determined that the appliances had a value of approximately $20,000 and were part of a shipment that had been stolen.

Petitioner testified that the Memorex tapes, the televisions, and the appli-ances had all been provided by Leroy Wesby, who had represented that all of the merchandise was obtained legitimately. Petitioner stated that he had sold 6,500 Memorex tapes for Wesby on a commission basis. Petitioner maintained that all of the sales for Wesby had been on a commission basis and that he had no knowl-edge that any of the goods were stolen.

In closing, the prosecution explained that petitioner was not on trial for his dealings with the appliances or the televisions. The District Court instructed the jury that the similar acts evidence was to be used only to establish petitioner’s knowledge, and not to prove his character. The jury convicted petitioner on the possession count only.

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We granted certiorari to resolve among the Courts of Appeals as to whether the trial court must make a preliminary finding before “similar act” and other Rule 404(b) evidence is submitted to the jury. We conclude that such evidence should be admitted if there is sufficient evidence to support a finding by the jury that the defendant committed the similar act.

Federal Rule of Evidence 404(b)-which applies in both civil and criminal cases-generally prohibits the introduction of evidence of extrinsic acts that might adversely reflect on the actor’s character, unless that evidence bears upon a rel-evant issue in the case such as motive, opportunity, or knowledge. Extrinsic acts evidence may be critical to the establishment of the truth as to a disputed issue, especially when that issue involves the actor’s state of mind and the only means of


ascertaining that mental state is by drawing inferences from conduct. The actor in the instant case was a criminal defendant, and the act in question was “similar” to the one with which he was charged. Our use of these terms is not meant to suggest that our analysis is limited to such circumstances.

Before this Court, petitioner argues that the District Court erred in admitting Toney’s testimony as to petitioner’s sale of the televisions. The threshold inquiry a court must make before admitting similar acts evidence under Rule 404(b) is whether that evidence is probative of a material issue other than character. The Government’s theory of relevance was that the televisions were stolen, and proof that petitioner had engaged in a series of sales of stolen merchandise from the same suspicious source would be strong evidence that he was aware that each of these items, including the Memorex tapes, was stolen. As such, the sale of the televisions was a “similar act” only if the televisions were stolen. Petitioner acknowledges that this evidence was admitted for the proper purpose of showing his knowledge that the Memorex tapes were stolen. He asserts, however, that the evidence should not have been admitted because the Government failed to prove to the District Court that the televisions were in fact stolen.

Petitioner argues from the premise that evidence of similar acts has a grave potential for causing improper prejudice. For instance, the jury may choose to punish the defendant for the similar rather than the charged act, or the jury may infer that the defendant is an evil person inclined to violate the law. Because of this danger, petitioner maintains, the jury ought not to be exposed to similar act evidence until the trial court has heard the evidence and made a determination under Federal Rule of Evidence 104(a) that the defendant committed the similar act. Rule 104(a) provides that “[p]reliminary questions concerning the qualifica-tion of a person to be a witness, the existence of a privilege, or the admissibility of evidence shall be determined by the court, subject to the provisions of subdivision (b).” According to petitioner, the trial court must make this preliminary finding by at least a preponderance of the evidence.

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[The Court rejects the petitioner’s position that the language of Rule 404(b) requires a preliminary showing that the Rule 404(b) act occurred before admitting the act into evidence].

[Q]uestions of relevance conditioned on a fact are dealt with under Federal Rule of Evidence 104(b).

“When the relevancy of evidence depends upon the fulfillment of a condition of fact, the court shall admit it upon, or subject to, the introduction of evidence sufficient to support a finding of the fulfillment of the condition.”


In determining whether the Government has introduced sufficient evidence to meet Rule 104(b), the trial court neither weighs credibility nor makes a finding that the Government has proved the conditional fact by a preponderance of the evidence. The court simply examines all the evidence in the case and decides whether the jury could reasonably find the conditional fact-here, that the televi-sions were stolen by a preponderance of the evidence. The trial court has traditionally exercised the broadest sort of discretion in controlling the order of proof at trial, and we see nothing in the Rules of Evidence that would change this practice. Often the trial court may decide to allow the proponent to introduce evidence concerning a similar act, and at a later point in the trial assess whether suf-ficient evidence has been offered to permit the jury to make the requisite finding. If the proponent has failed to meet this minimal standard of proof, the trial court must instruct the jury to disregard the evidence.

We emphasize that in assessing the sufficiency of the evidence under Rule 104(b), the trial court must consider all evidence presented to the jury. Individual pieces of evidence, insufficient in themselves to prove a point, may in cumulation prove it. The sum of an evidentiary presentation may well be greater than its constituent parts. In assessing whether the evidence was sufficient to support a finding that the televisions were stolen, the court here was required to consider not only the direct evidence on that point-the low price of the televisions, the large quantity offered for sale, and petitioner’s inability to produce a bill of sale-but also the evidence concerning petitioner’s involvement in the sales of other stolen merchandise obtained from Wesby, such as the Memorex tapes and the Amana appliances. Given this evidence, the jury reasonably could have concluded that the televisions were stolen, and the trial court therefore properly allowed the evidence to go to the jury.

Affirmed.

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Take Note!

The Court states that the trial judge, in making a Rule 104(b) determina-tion, should not weigh witness cred-ibility. What do you think is the policy behind this requirement? Is it realistic to think that a judge will be able to put aside her own beliefs as to witness credibility in making this decision? Is it humanly possible for a judge to consider something and then be able to ignore it, even though it is still in the back of her mind? Can anyone ever “unring a bell”?



a. Is There Really a Distinction Between Rule 104(a) and 104(b)

Rule 104(a) governs procedures for the admission of all evidence except evi-dence that is conditionally relevant under Rule 104(b). While this division may appear to be straightforward, this may be an illusion. For example, in a negligence case the admissibility of testimony that the plaintiff was struck by a speeding red car does not appear to require a conditional relevance evaluation because it simply describes how the accident occurred. However, it can be argued that such testimony is only relevant if the plaintiff can prove that it was the defendant who was the driver of the red car. In the same manner, a chemist’s expert opinion that the contents of a particular baggie contained cocaine is only relevant if the police took the baggie from the possession of the defendant. For reasons such as these, many scholars agree that all cases of relevancy are cases of conditional relevance.

b. Is the Distinction Between Rule 104(b) and 104(b) Significant in

Practice?

Despite scholarly criticism and call for reform, Rule 104 (a) and (b) have not been amended, perhaps because attorneys seldom make conditional relevance objections at trial, so there is no real world pressure for a change in the rules.

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5. The Reverse Balancing Portion of Rule 403

Normally, evidence that has probative value is presumptively admissible unless substantially outweighed by a Rule 403 counterweight. In two rules which we have yet to consider, (Rules 412 and 609) however, the balancing test is reversed. For evidence to be admissible under these rules, the proponent must show that the probative value of the evidence substantially or otherwise outweighs any counterweights. This creates a presumption of inadmissibility for this evidence, but allows it to come in when it is strongly important to the case.

Executive Summary

Relevant/Irrelevant Evidence

The initial inquiry into any evidentiary issue is relevance. It is a very low threshold: under Rule 401, if the proposed evidence has “any tendency” to make a disputed fact more or less probable (it has “logical relevancy”), and if it relates to a legal issue in the case (it has “legal relevancy”), then the proposed evidence is considered relevant. (Adamson). Relevant evidence is admissible, provided that it


does not violate any other rule of evidence. However, irrelevant evidence is always inadmissible under Rule 402.

Exclusion of Relevant Evidence

Rule 403 gives the judge the discretion to exclude otherwise relevant evi-dence if the “danger of unfair prejudice” of the evidence substantially outweighs its probative value. Simply because an item of evidence may be “prejudicial” does not mean it should be excluded. In fact, all relevant evidence is “prejudicial” in the sense that it has a tendency to make a factual issue more or less likely. Thus, the proposed evidence must contain so much “unfair” prejudice that it substantially outweighs the probative value. (Carter). Note that the Rule 403 discretionary balancing test requires the danger of unfair prejudice to substantially outweigh the probative value, meaning that even if the danger of unfair prejudice merely outweighs its probative value, the proposed evidence will still be admissible.

A strategic move to exclude evidence under Rule 403 is to offer to “stipulate” to a matter and thereby remove the justification for offering the evidence contain-ing the unfair prejudice. A stipulation is a way to maintain some or all of the probative value of the evidence, yet still remove the unfair prejudice, because the evidence is not used. A judge should consider an offer to stipulate, but should not necessarily require the parties to accept it, because parties should be able to use the evidence they choose, without it being “sanitized” or overly diluted by the stipulation. (Old Chief). Rule 403 does not means all emotional, or powerful, or even graphic evidence should be excluded. Such evidence has a place in trials and often will form part of the legitimate probative value of the evidence, instead of its unfair prejudice.

A strategic move to overcome a Rule 403 objection is to request that the judge offer a Rule 105 “limiting instruction,” where the evidence is admissible only for a limited (legitimate) purpose, but not for an illegitimate (unfair prejudice) purpose (“limited admissibility”).

Unfair prejudice in not the only “counterweight” that should be balanced against probative value; there are also the concerns for confusion of the issues, misleading the jury, or considerations of undue delay, waste of time, or needless presentation of cumulative evidence.

Preliminary Questions

Rule 104 allows the judge to make preliminary findings regarding the admis-sibility of evidence.

Rule 104(a) allows the judge to consider any underlying evidence (admis-sible or not) in order to make a legal finding about the admissibility of an item


of evidence in issue. This includes having a conference with counsel outside the hearing of the jury.

Rule 104(b), on the other hand, requires the judge to allow the jury to decide whether certain underlying factual conditions exists in order to make an item of evidence relevant. Because the determination of whether the factual condition exists is an inquiry for the jury, the judge will admit the item of evidence and allow the jury to give it whatever weight and relevance it sees fit during deliberations. However, the judge will allow this to occur only where there has been an initial showing that reasonable jury could find by a preponderance of the evidence that the factual condition at issue exists. (Huddleston).


Documents

The Process of Proof and the Structure of Trial - …interactivecasebook.com/images/BeckmanChapter23Evidence.pdf · The Process of Proof and the Structure of Trial ch a p T e r 2