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The Evidence Rules Every New Trial Lawyer Should Know

By Hon. Joseph A. Greenaway Jr.

My objective here is straightforward—to identify, and provide a critical understanding of, some of the key rules of evidence that will provide you with an ability to use the rules to your advantage. An all-encompassing and exhaustive exegesis on evidence this is not.


It all Starts with Hearsay
The definition of hearsay is straightforward: an out-of-court statement offered for the truth of the matter asserted. All lawyers should be ready to object any time a witness is recalling to the jury anything that witness said previously or heard, and is presently recounting on the stand. If you are not poised to act, you may lose your objection.


It Is All Relevant, Isn’t It?
The best way to think about relevancy is to envision the evidence you need to introduce and the evidence your adversary will seek to introduce as it relates to the complaint, the answer, or the indictment. Rule 401 states that relevant evidence is “evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.”


If a pithy response at the time of the relevance objection fails to allay the court’s concerns, ask for an opportunity to make an offer of proof (this is found in Rule 103). If pressed by the judge, be prepared to literally connect the strategic dots for him. You must be ready to support your offer with a cogent explanation of how the evidence ties into your theory of the case and the interrelationship between that evidence and other evidence as well. This analysis is at the core of determining relevant evidence.


Embrace Prejudice—Rule 403
Rule 403 is, next to hearsay, the most oft-cited rule of evidence. 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 waste of time, or needless presentation of cumulative evidence.


Prejudice is almost entirely a judgment call left to the discretion of the court. It requires the classic balancing test. Does the danger of unfair prejudice substantially outweigh the probative value of the evidence? Although the issue is framed most often in terms of unfair prejudice, other the evidence may also be excluded if confusion of the issues, misleading the jury, undue delay, or waste of time come into play.


Propensity or Insight
The Rule 403 balancing test invokes serious consideration of Rule 404(b)—other crimes, wrongs, or acts. This rule is one of the most difficult rules to apply. On its face, it would appear that almost any use of 404(b) would prove, if effective, propensity. Of course, such a result is antithetical to the purpose of the rule. In the quest to permit only competent evidence before the jury, 404(b) suggests that examining prior activities of a defendant in a criminal case or either party in a civil case (or in rare instances, a witness) may give or create insight into the resolution of the issues at hand, one of which is always credibility.


The Witness’s Personal Knowledge
Rule 602 is one of my favorite rules. Our entire notion of relevant evidence, fairness, and hearsay is based on a witness’s personal knowledge or some indicia of reliability that allows a court to perceive or infer reliability. We cannot countenance instances where a party attempts to create corroboration based on impermissible inferences or hearsay. Rule 602, when properly invoked, helps keep the playing field level.


Impeaching a Witness
Among the potential parade of horribles that might confront a trial lawyer is that his witness forgets on the stand all that you have gone over while you prepped, or worse, he lies. All is not lost if this happens to you. Rule 607 allows a lawyer to impeach the credibility of any witness, including one that she has called.


The most important piece of advice regarding Rule 607 is do not wait to be surprised by your witness. For each witness you contemplate putting on the stand, segregate the documents, exhibits, or other items that can be used to bring the witness back should he stray from the version of the facts you believe to be true. Be prepared to confront him immediately, and realize that impeachment is a necessary and useful tool when the object of your ire is your own witness.


Attacking Credibility—Not by Any Means Necessary
Rules 608 and 609 are inexorably intertwined. Each focuses on the parameters of how and under what circumstances a witness’s credibility may be attacked. Rule 608 precludes the use of extrinsic evidence when a cross-examination delves into the area of employing specific instances of the conduct of a witness. This means that when you confront a witness, you may not, if you receive an answer you perceive to be untruthful, produce extrinsic evidence to prove the purportedly untruthful response. In other words, you are “stuck” with the answer.


Rule 609 is more straightforward—it permits for impeachment purposes the admission of felony convictions that address issues of truthfulness or untruthfulness. The rationale is that a person with an untruthful character is more likely to act in conformity with that character while testifying.


One key element of Rule 609 is that 609(a)(1) and (2) are conjunctive. The conviction must be a felony and be a crime of dishonesty and false statement.


 Moreover, under 609(a)(1), the admission of the conviction is not automatic, but within the court’s discretion. The factors any court would look to are the nature of the crime (is it too similar to the charged crime); the number of convictions involved; and whether the conviction is such that it is intrinsically prejudicial.


Leading—The Path to Somewhere
There are two responses to Rule 611(b) “outside the scope of direct” objections: (1) that the area of questioning speaks to the credibility of the witness; or (2) if totally unconnected to the direct examination or any argument of attacking credibility, you may ask to examine the witness in an additional area, as if you were conducting direct examination. It is generally not necessary to make this argument, because courts generally give incredible leeway regarding the scope of cross-examination. Of course, you should always be prepared to argue that with a little leeway, the connection to the crux of the case will become apparent to the court.


Rule 611(c) is critical, not because it permits leading questions, but because it creates a mechanism for deeming a witness hostile or adverse so that leading questions are permissible—even if that witness is your own.


Sequestration—Keep Everyone Out
Rule 615 requires that witnesses—other than named parties, defendants, or corporate representatives—stay out of the courtroom during the testimony of other witnesses. Whatever court you are in, you should ask the judge, before any witnesses are called, for a sequestration order. This order, which may be requested by any party, or issued by the court on its own, keeps witnesses from listening in and tailoring their testimony based on the testimony of another witness.


Expert Testimony
Almost all high-stakes litigation involves expert testimony. The initial question is whether a witness qualifies as an expert and what that person may opine about to the jury. Any jurist must be convinced that the proposed testimony will be helpful to the jury’s determination of the issues at hand.


Colloquially referred to as the “junk science” rule, 702 is intended to prevent opinion testimony from reaching the jury’s purview when there is serious question within the substantive specialty or field of endeavor regarding the reliability, veracity, or general worth of certain research, theories, and conclusions. Governed by Daubert v. Merrell Dow Pharmaceuticals and Kumho Tire Co., Ltd. v. Carmichael, the overriding consideration pertaining to any expert is whether your expert’s theorem is “off the reservation.” Is the manner and method of the research and its conclusion such that there is no basis to argue that the work is accepted in the particular field of endeavor?


More on Hearsay—Admissions, Statements, and Exceptions
When the discussion of hearsay begins in earnest, it is best to keep in mind that this is one area of the law where the exceptions are more important than the rule.


Rule 801(d)(2)(a)–(e) sets forth a category of statements that are deemed not to be hearsay (as opposed to an exception to the hearsay rule)—admissions of a party-opponent. The key basis for determining admissions as non-hearsay is that a party-opponent cannot object to an admission introduced against him because there is no need to cross-examine. There is no unjustness or lack of fairness.


Rule 803 provides countless additional exceptions. Here is my top seven list out of the 23 exceptions enumerated in Rule 803: (1) present sense impression; (2) excited utterance; (3) then-existing mental, emotional, or physical condition; (4) statements for purposes of medical diagnosis or treatment; (5) recorded recollections; (6) records of regularly conducted activity (business records); and (7) public records and reports.


Self-Authentication
The self-authentication rule was enacted to deflect the objection by the wily veteran trial lawyer. “Objection, Your Honor, this document has no indicia of authenticity and reliability.” Stunned, the novice has that silent “Oh, my gosh!” moment. Rule 902 alleviates your concern. The documents that are listed in Rule 902 require no extrinsic evidence of authenticity in order to be admissible. Consult this list whenever you have a governmental or public document; it will likely qualify and allow you a pithy retort to the wily veteran.


Summaries
We are constantly in search of the exhibit that simplifies, organizes, and presents our case in the most persuasive manner. Rule 1006 states that “[t]he contents of voluminous writings, recordings, or photographs which cannot conveniently be examined in court may be presented in the form of a chart, summary, or calculation.” What is the value of a summary? It creates the opportunity to construct an exhibit to present voluminous or substantial evidence in a form you control, that can persuade. The summary chart can be used in opening (if the court gives prior approval based on a showing that the evidence referred to is not objected to and will be admissible and), the closing, or during the testimony of a witness (on direct or cross).


Conclusion
My closing salvo to you is a bit of advice a seasoned judicial colleague gave me when I first came to the bench. She said, “No matter how comfortable I become with the evidence rules, I always review them before each trial I preside over.” At first, I said to myself, what a colossal waste of time. Now I faithfully follow this advice. You should too.


Keywords: litigation, rules of evidence, trial tips


Hon. Joseph A. Greenaway Jr. is a federal judge who sits on the U.S. Court of Appeals for the Third Circuit.


This article was adapted from a longer one that was published in the Summer 2010 issue of Litigation.


 
  • February 2, 2011 – Great article! I'm passing it along now. BKS

 
 

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