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Hearsay—in small steps

June 6, 2012

We are starting this evidence course by covering hearsay—a little unconventional perhaps—but not without purpose.  The purpose is to start where evidence starts, with thinking.  Hearsay is representative of the thinking we need to engage in to solve all evidence problems, so that’s our starting point.

Hearsay is a very difficult problem; arguably the most difficult in law.  The great Irving Younger teasingly lamented “I wasted the flower of my youth studying hearsay.”  By this he meant that after spending a lifetime trying to conquer hearsay, he finally realized the beast cannot be conquered.  The most we can hope for is to understand the manner in which hearsay deceives us!  So, let’s set out a few small steps we can take to give ourselves the best chance at this giant challenge.

Before we get to the hearsay analysis, let’s make a few preliminary ground rules for this exercise:

Ground Rule One: we are going to focus on the definition of hearsay under Rule 801(c), and in particular subpart (2) of that definition.  Understanding this definition is one of the hardest tasks for a trial lawyer.  In order to do it, we must stay focused on the words of 801(c)(2), which are:

“Hearsay” means a statement that:

* * *

(2) a party offers in evidence to prove the truth of the matter asserted in the statement.

There is more to the definition of hearsay, such as Rule 801(d), entitled “Statements which are not hearsay.”  For now, however, please forget about Rule 801(d).  We will cover it in great detail later.  I also want you to forget about any hearsay exceptions under Rules 803, 804 or 807.  That, too, will come later.  We are also leaving out 801(c)(1), which requires that the statement be one that “the declarant does not make while testifying at the current trial or hearing.”  We’ll cover all of that, but our first task is to understand the 801(c)(2) subpart of the definition of hearsay.  For now, let’s not worry about the other stuff.

Ground Rule Two: we must remember that evidence problems arise in trials, not in textbooks or law school classrooms.  This requires us to keep two thoughts firmly in our grasp:

  1. Evidence problems do not exist in the abstract.  Rather, they arise during the course of the efforts of trial lawyers to resolve problems faced by real people.  So, in order to properly understand any evidence problem (particularly hearsay), we must understand the legal and practical context in which the problems of those people arose.
  2. We also have to remember that an evidence problem (again, particularly hearsay) presents itself in a courtroom—during a trial.  The supposed hearsay itself, however, necessarily arises out of an event (a statement) that occurred previously, outside of the courtroom (meaning we are dealing with a statement “the declarant does not make while testifying at the current trial or hearing”).

We’ll consider the steps of the hearsay analysis in the practical context of the trial of Emich Motors Corporation v. General Motors Corporation, 181 F.2d 79 (7th Cir. 1950).  General Motors had been accused and convicted of violating the Sherman Antitrust Act by requiring a dealer such as Emich to use General Motors Acceptance Corporation to finance the cars it sold as a condition of retaining its GM franchise.  Emich Motors was owned by Fred Emich, who also owned U.S. Acceptance Corporation, which supplied credit services to purchasers from Emich Motors.  Emich Motors was one of the dealers whose franchise GM cancelled.  Both Emich Motors and U.S. Acceptance Corporation filed suit against GM and GMAC, claiming they were damaged by GM’s illegal conduct.  Because GM had already been convicted of the antitrust violation in a criminal trial, it could hardly defend the civil damages claim denying the existence of the illegal conspiracy.  So, GM defended on the basis that Emich was a “bad dealer” with consistently dissatisfied customers, and thus that GM was justified in cancelling Emich’s franchise contract to sell Chevrolets.

In this context, let’s imagine the scenario that unfolded during the trial.  A trial lawyer representing GM stood up in court and offered into evidence several hundred customer complaints GM had received regarding Emich Motors.  As the Seventh Circuit described it, “[GM] sought to establish the existence of a considerable amount of customer dissatisfaction with Emich service which had been brought to the attention of the Chevrolet organization, and their difficulties in attempting to adjust the various complaints.”  181 F.2d at 82.  A trial lawyer representing Emich objected to the complaints, some sixty of which were in writing and some of which were not, on the basis that the statements contained in the complaints were hearsay.

Let’s go through the analysis, step by step.  I’ll warn you, however, that I am going to renumber the steps at the end of this blog post, so don’t get too attached to these numbers.  The steps:

Step One:

We always first determine whether the evidence, in this case the out-of-court statement, is relevant!  As it is most of the time, the relevance of these statements is easy.  Now we’re moving on to “what is it?”—or in this case “is it hearsay?”

Step Two:

Yesterday I had us play a little “Jeopardy,” giving you the answer and asking you to come up with the question.  When we are trying to determine if a statement is hearsay, the answer is “yes” when the statement meets the definition of hearsay in 801(c).  More specifically, it’s hearsay when “a party offers [the statement] in evidence to prove the truth of the matter asserted in the statement.”  That’s from 801(c)(2).  So, now let’s play “Jeopardy.”  If a statement is hearsay when “a party offers [the statement] in evidence to prove the truth of the matter asserted in the statement,” what is the question we need to ask to determine if it’s hearsay?  As you all quickly figured out, the answer—or in “Jeopardy” terms, the question—is “why”?


To determine whether a statement is hearsay, we must ask “why did the party offer the statement?”  If the answer is “to prove the truth of the matter asserted in the statement,” then it’s hearsay.  If the statement was offered for some other purpose, then it’s not hearsay.  Don’t forget that!

Step Three:

So, we have the key question—Why?  To find the answer to this question, we have to break it down a little bit more.  Look at Emich—why did GM offer the customer complaints into evidence?  Or, let’s ask “why” this way—did GM offer the customer complaints in evidence “to prove the truth of the matter asserted in the statement?”

You are not in a position to argue the answer to that question yet, because you don’t have enough information.  How can you argue that a customer complaint was “offer[ed] in evidence to prove the truth of the matter asserted in the statement” until you know “what is the matter asserted in the statement?”  Let’s break it down a little farther—how can you argue what “the matter asserted in the statement” is until you know what the statement is?  You can’t!

It is absolutely essential to determine what the statement is.  The Emich opinion does not tell us the specific words of the statements.  It does tell us that the substance of the complaints was that Emich performed poor service on the automobiles it sold, and that it was in general a “bad dealer.”  We can imagine a few of the statements made in the complaints might have been:

  1. “Emich made me wait for three days before they called me back to tell me what was wrong with my Chevrolet;”
  2. “I have never been treated so rudely as when I asked Emich’s service personnel to explain the repairs they did;” and
  3. “Chevrolet will lose business because of the way Emich treated me.”

This is step three—determine what the statement is!

Step Four:

Now that we have determined what the statement is, tracking as much as possible the words of the statement, we must determine what is asserted in the statement, or “the matter asserted.”  Here, it is important to frame the question precisely: we want to know what is “the matter asserted in the statement!”  Don’t focus on what Emich or GM asserted in the lawsuit.  Don’t focus on what a witness might assert from the witness stand.  Don’t focus on what a lawyer might assert to the trial judge when arguing the admissibility of the customer complaints.

Focus on what the declarant asserted “in the statement” that Emich has objected to as hearsay!

In (a) above, one way to characterize what is asserted is that Emich is slow in performing its service obligations, or at least on that particular occasion it was.  In (b), the matter asserted is just what is said, that nobody ever treated the complainant so badly.  In (c), we might say the declarant has asserted it will never buy another Chevrolet, or that he predicts others will not buy as many as before; and that the reason for this is Emich’s bad conduct.

Step Five:

Now, finally, we can take “the matter asserted” in each statement and determine whether the statement is being offered “to prove the truth of the matter asserted.”  This is the question I will stress so much during this summer, not only in regard to hearsay—”Why is the evidence being offered?”  Emich argued the answer to this “Why” question was that GM wanted to prove Emich deserved to have its franchise cancelled because it was a bad dealer so it offered the complaints to prove that the statements made in the complaints were true, or “to prove the truth of the matter asserted in the statement.”  GM argued, on the other hand, that one of the grounds for cancelling the Emich franchise was that GM had been told so many times that Emich’s customers were dissatisfied, and that it acted on the dissatisfaction shown by the complaints instead of the truth of the statements.  GM’s argument to the trial judge might have gone something like this:

“Your honor, it’s not important to this case that the person making complaint (c) thinks GM will lose business; or that the person making complaint (b) has not been treated rudely by others.  What matters is that GM has knowledge of hundreds of complaints from dissatisfied Emich customers.  Judge, any manufacturer is justified in getting rid of a dealer whose customers are consistently dissatisfied.  To the manufacturer, it doesn’t matter why the customers are dissatisfied.  That is the reason GM cancelled Emich’s franchise—because Emich’s customers were consistently dissatisfied.  Your honor, we are not offering the complaints to prove the truth of the statements in the complaints.  We are offering the complaints for the purpose of proving that GM knew, and how GM knew, that Emich’s customers were consistently dissatisfied.”

As with all hearsay problems, the answer is debatable.  Some of you will believe the statements were offered to show they were true (to prove the truth of the matter asserted in the statement), and some will accept the importance of proving that GM knew of the dissatisfaction, and acted on it, regardless of whether the complaints were valid.  The Seventh Circuit sided with GM.  The Federal Rules of Evidence Advisory Committee thought enough of the factual scenario as a classic hearsay problem to include the opinion as the only one in the Notes to Rule 801(c), and the Committee specifically used the case to illustrate this critical point in the study of hearsay:

“If the significance of an offered statement lies solely in the fact that it was made, no issue is raised as to the truth of anything asserted, and the statement is not hearsay.”

Let’s reformulate the steps we take in solving a hearsay problem, based on the analysis above.

Step One:

Determine what is the statement, focusing as much as possible on the words of the statement.

Step Two:

Determine what is the matter asserted in the statement.

Step Three:

In the practical and legal context of the lawsuit being tried in the courtroom in which you are arguing that the hearsay problem should be solved in favor of your client, formulate an argument that the other “party offers [the statement] in evidence to prove the truth of the matter asserted in the statement.”  Or, if you are the party offering the statement, formulate an argument that you are not offering it to prove “the truth of the matter asserted in the statement.”

  1. What is the statement?
  2. What is the matter asserted in the statement?
  3. Formulate an argument …

Thinking Through the Structure of Evidence

June 4, 2012

On Thursday I discussed with you my general approach to evidence problems.  This approach is the foundation for your evidence course, is based on the structure of the Federal Rules of Evidence, and focuses on the fundamental skill of a great lawyer: Thinking.  Thinking is one of the keys to success at the practice of law in general, and the practice of evidence in particular.  Structure is at the heart of a sound approach to evidence.  We will spend a lot of time in this class talking about thinking through this structure.  We’ll focus on thinking in terms of understanding the structure, and also thinking in terms of navigating it, with “think” as an action verb describing the advocate’s mental movements through the structure.  A trial lawyer who commits the structure of evidence to instinct is freed to use his or her creative thinking to formulate arguments that win evidentiary struggles, and thus win cases.  “Thinking Through the Structure of Evidence” was the topic of the second hour of class on Thursday, May 31.  Here is a review of that class.

In this class, we will focus on four key concepts of evidence:

  1. Relevance, or what is the structure of evidence?
  2. Authentication;
  3. Foundation;
  4. Discretion.

This class is designed to give you a practical, working understanding of the law of evidence so that you can use it in trials, not so you can write law review articles.  With that as our goal, I am going to constantly focus you on a structure of thinking you will not find in academic textbooks, but which you will find outstanding trial lawyers and trial judges using every day in courtrooms all over the country.  The object is to win!  Listen up!

The first three key concepts represent the levels of the structure of evidence, while Discretion is the overriding idea that makes an evidence struggle the most fun encounter in all of the practice of law.


This is not an explanation of what evidence is relevant and what is not, as defined in Rule 401.  As you will see in a few days (when we spend ten minutes covering relevance), you already know “relevance” in this respect.  Rather, this key concept of the structure of evidence, which forms the philosophical and the practical starting point for all evidence analysis, is found in Rule 402, which starts with these critical words:

“Relevant evidence is admissible … .”

This is the starting point to the structure of evidence.  If evidence is relevant, it’s admissible.  With some minor exceptions, Rule 402 is the only rule of evidence which “admits” evidence.  The rest of the rules serve to “exclude” relevant evidence.  That’s why the next words in Rule 402 are:

“… unless any of the following provides otherwise:”

Remember this: if evidence is relevant—it’s admissible—unless some other rule excludes it!  If it’s not relevant, as Rule 402 also succinctly states:

“Irrelevant evidence is not admissible.”

So, this gets us to “authentication.”


We normally think of authentication in terms of compliance with Rule 901(a): introducing evidence to prove that “the matter in question is what its proponent claims.”  This means that when a lawyer seeks to introduce a certain piece of evidence, the lawyer must prove what it is.  For example, if the lawyer wishes to introduce a letter, he must prove it is the letter that is the subject of the case, often by testimony identifying the signature of the author.  If a prosecutor wishes to introduce drugs sold by a criminal defendant, the prosecutor must prove the drugs she seeks to introduce are the same ones the police seized from the scene of the sale.  This is done by proving the chain of custody.

In order to fully understand an evidence question, however, the lawyer must also ask: “what is it?” on a different level.  This is very much like a “second level” of authentication.  Asking this question is critical to the admissibility of evidence, because depending on the answer, there may be some rule that excludes it.  For example, although proving a letter was written by a key witness in a case may satisfy “[t]he requirement of authentication or identification as a condition precedent to admissibility” as set forth in Rule 901(a), the question “what is it?” may lead us to other issues regarding its admissibility.  If the letter is an offer to settle a legal claim, its admissibility is affected by Rule 408; if it’s a letter written to express religious beliefs, Rule 610 forbids its use to show credibility; if it’s a letter offered as a prior inconsistent statement, the party offering it must take the steps set forth in Rule 613; and if the letter contains a statement offered to prove the truth of the statement, then it’s hearsay, meaning almost no one will know what to do with it.  Whether any of these rules, or others, affect the admissibility of the letter depends on the answer to the question “what is it?”

On Thursday I discussed another example of how the question “what is it?” affects admissibility.  Remember Andre Tufts?  He was working in a hospital as an orthopedic technician when he was accused of committing a sexual assault on a young patient.  Shortly after the alleged crime, a hospital security guard interviewed Andre.  The guard testified at trial as follows:

Well, Mr. Tufts put his hands into his pockets.  He was standing up, and I was standing near my desk.  He put both hands into his pockets and started to sway from side to side, and hung his head down.  At that time, he said, that he knew he had a problem with his sexual desires, but that he wanted to go home and talk with his girlfriend that night, and after he talked to his girlfriend, he would come back to see me on the next day, which would have been Friday, and tell me what really happened to the victim in the emergency room.

Andre’s lawyer objected to the admissibility of this testimony.  His lawyer and the prosecutor aggressively argued their different answers to the question “what is it?”  Andre’s lawyer made the case that the statement “I know I have a problem with my sexual desires” was evidence of a trait of character offered to prove Andre had a propensity to commit the alleged crime.  She argued, therefore, that it was character evidence and should be excluded under Rule 404(a).  The prosecutor, on the other hand, argued it was a confession, and thus it was admissible because it was relevant and no rule excluded it.  Although there was no issue related to Rule 901, the question of “what is it?” was critical to its admissibility.  I told you how the case came out, but if you want to read it you can: State v. Tufts, 355 S.C. 493, 585 S.E.2d 523 (Ct. App. 2003).

Much of the difficulty of the law of evidence is answering the question “what is it?!”  We will spend the bulk of this class studying how to make the arguments you need to make to get the judge to rule in favor of your client.  Now we come to the concept of “foundation.”


When a judge answers the question “what is it?” in such a way that another rule of evidence might exclude it, there is almost always a way to try to get it into evidence anyway.  For example, evidence determined to be hearsay may fit into any one of at least twenty-nine exceptions.  If it fits, it’s admissible.  The party who wants the hearsay admitted makes it “fit” by laying the foundation.  As to each hearsay exception, there is a list of elements to the foundation which if established will lead to the admission of the statement despite the fact that it is hearsay.  Similarly, when any other rule excludes relevant evidence, there still is a way of getting it in.  An expert opinion, although relevant, it is not admissible unless the foundation is laid: (1) the expert must be qualified, (2) the opinion must assist the trier of fact, and (3) the science the expert used in reaching the opinion must be reliable.  For character evidence, it is still possible to get the evidence in if the proper foundation is laid.  Under Rule 404(b), which addresses the use of a defendant’s other acts as evidence of his character, the foundation will vary from jurisdiction to jurisdiction, but always contains the basic elements that the defendant clearly committed the act, there is some logical connection between the act and the crime with which the defendant is charged other than a propensity to commit similar crimes, and the probative value of the other act must not be substantially outweighed by the danger of unfair prejudice.


Evidence struggles are won or lost on the spot, in the courtroom, in front of a trial judge.  In the vast majority of cases, there is no effective right of appeal.  Playing to the trial judge’s discretion is what makes evidence an Art!  It’s what makes the ability to use this structure of evidence as the basis for the creative thinking of a great trial lawyer . . . the key to being a great trial lawyer!

Why do I call this “The Art of Evidence.”  Isn’t evidence a field of law based on rules?  Well, yes, that’s always the starting point, but evidence is really about people.  Evidence is the art of writing and talking to judges and other lawyers in order to accomplish the goal of a client.  The law of evidence has little meaning until it is applied by lawyers and judges to facts in a trial dealing with real issues in the lives of real people.  Evidence is about thinking, and strategizing, and thinking about strategizing!  In the end, a lawyer stands in a courtroom in front of a trial judge and makes an argument—for or against the admissibility of the evidence—and the judge makes a ruling.  Evidence is all about that moment—when the trial judge exercises his or her discretion—and rules.  The lawyer has either won or lost an important struggle—for a client.  At that point, in somewhere above 95% of the cases, the issue is over.  As the Tenth Circuit famously stated about the chances of winning on appeal after losing an evidence struggle at trial:

The district judge has a particularly wide range of discretion in ruling on the admissibility of evidence.   Indeed, we have gone so far as to declare that appellants who challenge evidentiary rulings “are like rich men who wish to enter the Kingdom; their prospects compare with those of camels who wish to pass through the eye of a needle.”  United States v. Glecier, 923 F.2d 496, 503 (7th Cir.) (citing Matthew 19:24), cert. denied, 502 U.S. 810 (1991).

We’ll talk more about this later.  For now, I’m just glad you’re in the class!  We’re going to learn a lot—together—about how lawyers use the law of evidence to help real people.  It’s an Art!  Stay tuned!

A Brief Introduction to the Federal Rules of Evidence

June 1, 2012

July 1, 1975 was an important re-start for a trial lawyer’s study of the practice of evidence.  On that date the Federal Rules of Evidence became effective.  December 1, 2011 is another important date.  On that date the “restyled” Rules became effective.  Substantively, the 2011 amendments did not change the Rules.  Stylistically, they now read as though they were written to be understood by ordinary people.  The “Committee Notes” to the 2011 amendments tell us:

The language of [the Rules] has been amended as part of the restyling of the Evidence Rules to make them more easily understood and to make style and terminology consistent throughout the rules. These changes are intended to be stylistic only. There is no intent to change any result in any ruling on evidence admissibility.

In 2012, it is no longer important that the original Rules unified and simplified a vastly complex and often contradictory body of common law into a cohesive system, and that the language of that system is now “restyled” to be more easily understood.  Among those things that remain important to the student and practitioner of evidence in 2012, however, these two principles stand out:

  1. The newly worded Rule 402 remains the bedrock we turn to every time we analyze an evidence problem: “Relevant Evidence is admissible unless …”
  2. The study and practice of evidence is based on the newly revised Rules

Let’s start with the first principle.  The original Rule 402 began with the words “All relevant evidence is admissible, except … .”  As the Federal Rules Advisory Committee stated in 1975,

The provisions that all relevant evidence is admissible, with certain exceptions, and that evidence which is not relevant is not admissible are “a presupposition involved in the very conception of a rational system of evidence.” Thayer, Preliminary Treatise on Evidence 264 (1898). They constitute the foundation upon which the structure of admission and exclusion rests.

This principle remains the starting point under the restyled Rules.  The simplified language of Rule 402 now states:

Rule 402. General Admissibility of Relevant Evidence

Relevant evidence is admissible unless any of the following provides otherwise:

  • the United States Constitution;
  • a federal statute;
  • these rules; or
  • other rules prescribed by the Supreme Court.

Irrelevant evidence is not admissible.

Let’s get that principle down quickly, and move on to the real struggle of evidence:

When “the following provides otherwise” … and when it doesn’t!

The second principle that remains important to us is that the study and practice of evidence is based on the Rules.  So, let’s learn them.  Many of you laughed yesterday when I concluded class by saying:

This weekend, find yourself a comfortable place, in time and in space, and sit down with this little gift I have given you, the pocket Federal Rules of Evidence.  Get yourself situated and settled, and take out the rulebook, but DO NOT READ THE RULES.

I said it to get a laugh, and yet I could not have been more serious.


At least not now.  We’ll read each one repeatedly in time.  For now, we need context.  We need to know how the Rules are organized.  Remember that once we have answered the question of relevance, and if we have determined it is relevant and therefore admissible under Rule 402, we must then figure out if “the following provides otherwise.”  We start that inquiry by asking:

What is it?

To put yourself in the best position to get a judge to answer that question favorably for your client (not to mention to get this “Judge” to grade your exam favorably), you need to know what all the options are for “What it can be.”  It could be hearsay, opinion, character, other similar incident, habit, religious belief, or many other things.  For you to effectively argue on behalf of a client whether “the following provides otherwise,” you must first be able to argue what the evidence is in the first place.  So for now, learn what the options are by simply reading the subject headings of the Rules.


It would even be a good idea to flip your new pocket rulebook over and read the subject headings of the old Rules, since for years to come most of the cases we’ll be reading will be discussing the older version.

See you Tuesday!

Playing to the Discretion of the Trial Judge: Practicing the Art of Evidence from a Trial Lawyer’s Perspective.

April 21, 2012

As I get ready to teach evidence again this summer at the Charleston School of Law, I thought I would restart my blogging by posting my written materials for a talk I did on “discretion” at the South Carolina Bar Convention in Columbia, South Carolina on January 20, 2012:

A lawyer stands in a courtroom in front of a trial judge and makes an argument, for or against the admissibility of the evidence, and the judge makes a ruling. Evidence is all about that moment—when the trial judge exercises his or her discretion, and rules. At that point, in somewhere above 95% of the cases, the issue is over—the lawyer has either won or lost an important struggle and the appellate courts can do nothing to change it.

In State v. Commander, Op. No. 27062 (S.C. Sup. Ct. filed Oct. 31, 2011) (Shearouse Adv. Sh. No. 38 at 51), our supreme court repeated the well-established language delineating the responsibilities of the appellate courts from those of the trial judge:

Standard of Review 

“The general rule in this State is that the conduct of a criminal trial is left largely to the sound discretion of the presiding judge and this Court will not interfere unless it clearly appears that the rights of the complaining party were abused or prejudiced in some way.” State v. Bridges, 278 S.C. 447, 448, 298 S.E.2d 212, 212 (1982) (citations omitted). Therefore, in criminal cases, this Court will only review errors of law. State v. Baccus, 367 S.C. 41, 48, 625 S.E.2d 216, 220 (2006) (citations omitted).  


I.    Admissibility of Expert Testimony

The admission or exclusion of evidence is a matter within the trial court’s sound discretion, and an appellate court may only disturb a ruling admitting or excluding evidence upon a showing of a “manifest abuse of discretion accompanied by probable prejudice.” State v. Douglas, 369 S.C. 424, 429, 632 S.E.2d 845, 847–48 (2006) (citations omitted).

The same rules apply in a civil case:

In Whaley v. CSX Transportation, Inc., 362 S.C. 456, 483, 609 S.E.2d 286, 300 (2005), our supreme court recognized that similar acts are admissible under Rule 404(b), SCRE, if they tend to prove or disprove some fact in dispute, and applied the abuse of discretion standard of review to the admissibility of evidence of similar accidents. “The admission of evidence is within the trial judge’s discretion and his decision will not be reversed absent an abuse of discretion.” State v. Gaster, 349 S.C. 545, 557, 564 S.E.2d 87, 93 (2002). See Branham v. Ford Motor Co., 390 S.C. 203, 230, 701 S.E.2d 5, 19 (2010) (discussing Whaley).

In Commander, the supreme court stated “we adopt a rule whereby an expert in forensic pathology’s opinion testimony as to cause and manner of death is admissible under Rule 702.”  However, that statement does not mean that every trial judge must admit such an opinion every time it is offered.  When an appellate court decides an appeal based on the admissibility of evidence, the court is really saying “in this particular case, on these particular facts, we find this trial judge acted within his or her broad discretion to admit or exclude evidence, and we will affirm.”  It is very possible the same appellate court could review a similar case in which a trial judge ruled precisely the opposite way, and affirm that decision as well.  See State v. Commander, Op. No. 27062 (S.C. Sup. Ct. filed Oct. 31, 2011) (Shearouse Adv. Sh. No. 38 at 62) (Pleicones, J., dissenting) (“I do not join that part of the majority’s opinion that suggests that a forensic pathologist’s testimony regarding the victim’s anecdotal history is always admissible under Rule 702, SCRE.”).

The point is that the trial judge’s decision is discretionary.  Our courts have had some colorful things to say about the discretion given to trial judges.  In White v. Coleman, 38 S.C. 556, 17 S.E. 21 (1893), the supreme court wrote:

“Discretion” is defined to be “a man’s own judgment as to what is best in a given case, as opposed to a rule governing all cases of a certain kind.” We are unable to see upon what principle we could proceed in considering that which from its very nature is in the breast of the circuit judge. The effort to consider such charges might only make a new way of appeal from that which under the law is declared to be unappealable.

In Michalson v. Rountree, 51 S.C. 405, 29 S.E. 66 (1898), the supreme court repeated language from an even earlier case:

As a general rule, where a court or judge is invested with power to be exercised at discretion, such power is absolute, and, when exercised, it is final. From the very meaning of the term, and the nature of the power, discretion is unlimited. It is bounded by no rule except the good sense and integrity of the party empowered to exercise it, and, in the absence of an express right to appeal, it necessarily follows that its exercise is unappealable.

In Bishop v. Jacobs, 108 S.C. 49, 93 S.E. 243 (1917), the court said this:

It is true the exercise of discretion by a judge does not mean the same thing as the exercise of his desire in a given case. It is true one judge might exercise his discretion one way, and another judge might exercise it another way, on the same state of facts. In the nature of the case, then, there must be latitude in which the judicial discretion may move; and that means a hard and fast rule for the exercise of discretion cannot be stated.

While modern courts use less colorful language, the breadth of discretion has not changed.  Trial judges have a duty to consider and decide, and when they do, it’s over.  “The exercise of discretion implies conscientious judgment, not arbitrary action, and takes account of the law and particular circumstances of the case, being directed by the reason and conscience of the judge to a just result.”  State v. Galations Hill, 266 S.C. 49, 221 S.E.2d 398 (1976).   This presentation is about how to get the trial judge to consider and rule in your favor, so that when the other side appeals, you can help the appellate courts relearn how to use colorful language, like this:

The [trial] judge has a particularly wide range of discretion in ruling on the admissibility of evidence. Indeed, we have gone so far as to declare that appellants who challenge evidentiary rulings “are like rich men who wish to enter the Kingdom; their prospects compare with those of camels who wish to pass through the eye of a needle.”  

Smith v. Great American Restaurants, Inc., 969 F.2d 430 (7thCir. 1992) (quoting United States v. Glecier, 923 F.2d 496, 503 (7th Cir. 1991) (citing Matthew 19:24)).

The Inherent Power of Taking Judicial Notice

July 12, 2011

The power to take judicial notice of a fact is part of the inherent power of the court.  It is not initially an issue of evidence, and the power does not derive from Rule 201.  The power of judicial notice can be used to recognize the truth of two types of facts: legislative and adjudicative.  Rule 201 governs only adjudicative facts. 

The power to take judicial notice of a fact is part of the inherent power of the court.  It is not initially an issue of evidence, and the power does not derive from Rule 201.  The power of judicial notice can be used to recognize the truth of two types of facts: legislative and adjudicative.  (We’ll talk about the difference in a minute)  Rule 201 governs only adjudicative facts. 

Rule 201. Judicial Notice of Adjudicative Facts

(a) Scope of rule.

This rule governs only judicial notice of adjudicative facts.

(b) Kinds of facts.

A judicially noticed fact must be one not subject to reasonable dispute in that it is either (1) generally known within the territorial jurisdiction of the trial court or (2) capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned.

* * *

(g) Instructing jury.

In a civil action or proceeding, the court shall instruct the jury to accept as conclusive any fact judicially noticed. In a criminal case, the court shall instruct the jury that it may, but is not required to, accept as conclusive any fact judicially noticed.

Much of this potentially confusing “judicial notice” stuff is discussed and clarified in United States v. Gould, 536 F.2d 216 (8th Cir. 1976) (Our Book, 904).  So, let’s talk about Gould, in which the Eighth Circuit explained the general concept of noticing facts.

It is apparent that courts may take judicial notice of any fact which is “capable of such instant and unquestionable demonstration, if desired, that no party would think of imposing a falsity on the tribunal in the face of an intelligent adversary.” 

536 F.2d at 219 (quoting IX J. Wigmore, Evidence § 2571, at 548 (1940)). 

The Court had earlier noted:

In a sense the question is one of the definition or meaning of words long in common use, about which there is no obscurity, controversy, or dispute, and of which the imperfectly informed can gain complete knowledge by resort to dictionaries within reach of everybody.  …  Common knowledge, or the common means of knowledge, of the settled, undisputed, things of life, need not always be laid aside on entering a courtroom.

536 F.2d at 218-19 (quoting Hughes v. United States, 253 F. 543, 545 (8th Cir. 1918)). 

Gould’s first contention was that the District Judge should not have taken judicial notice as he did.  Gould had been charged with importing cocaine, a schedule II controlled substance.  A “schedule II controlled substance” is defined under Federal law as any derivative of coca leaves.  A government expert witness testified that the substance seized from Gould was “cocaine hydrochloride.”  The court noted: “There was no direct evidence to indicate that cocaine hydrochloride is a derivative of coca leaves.”  536 F.2d at 218.  The Court then stated: “The fact that cocaine hydrochloride is derived from coca leaves is, if not common knowledge, at least a matter which is capable of certain, easily accessible and indisputably accurate verification.”  536 F.2d at 219.  Therefore, the District Judge had properly taken judicial notice that cocaine hydrochloride is a derivative of cocoa leaves.  Id. 

Gould’s next contention was that it had been error for the District Court to instruct the jury that it must accept this fact as conclusive.  Here is where Rule 201 really comes into play.  The District Judge had instructed the jury as follows:

If you find the substance was cocaine hydrochloride, you are instructed that cocaine hydrochloride is a schedule II controlled substance under the laws of the United States.

In addressing this contention, the Eighth Circuit explained the two different types of facts of which a court may take notice, “adjudicative facts” and “legislative facts,” and why the difference is important.

The precise line of demarcation between adjudicative facts and legislative facts is not always easily identified. Adjudicative facts have been described as follows:

When a court … finds facts concerning the immediate parties who did what, where, when, how, and with what motive or intent the court … is performing an adjudicative function, and the facts are conveniently called adjudicative facts. …

Stated in other terms, the adjudicative facts are those to which the law is applied in the process of adjudication. They are the facts that normally go to the jury in a jury case. They relate to the parties, their activities, their properties, their businesses.  (citation omitted).

Legislative facts, on the other hand, do not relate specifically to the activities or characteristics of the litigants. A court generally relies upon legislative facts when it purports to develop a particular law or policy and thus considers material wholly unrelated to the activities of the parties.

Legislative facts are ordinarily general and do not concern the immediate parties. In the great mass of cases decided by courts … , the legislative element is either absent or unimportant or interstitial, because in most cases the applicable law and policy have been previously established. But whenever a tribunal engages in the creation of law or of policy, it may need to resort to legislative facts, whether or not those facts have been developed on the record.  (citation and footnote omitted).

Legislative facts are established truths, facts or pronouncements that do not change from case to case but apply universally, while adjudicative facts are those developed in a particular case.

536 F.2d at 219-20.

The Court then applied these principles to the facts of the case:

Applying these general definitions, we think it is clear that the District Court in the present case was judicially noticing a legislative fact rather than an adjudicative fact. Whether cocaine hydrochloride is or is not a derivative of the coca leaf is a question of scientific fact applicable to the administration of the Comprehensive Drug Abuse Prevention and Control Act of 1970.  21 U.S.C. § 801 et seq. (1970).  The District Court reviewed the schedule II classifications contained in 21 U.S.C. § 812, construed the language in a manner which comports with common knowledge and understanding, and instructed the jury as to the proper law so interpreted. It is undisputed that the trial judge is required to fully and accurately instruct the jury as to the law to be applied in a case. (citation omitted) When a court attempts to ascertain the governing law in a case for the purpose of instructing the jury, it must necessarily rely upon facts which are unrelated to the activities of the immediate parties. These extraneous, yet necessary, facts fit within the definition of legislative facts and are an indispensable tool used by judges when discerning the applicable law through interpretation.[FN6] The District Court, therefore, was judicially noticing such a legislative fact when it recognized that cocaine hydrochloride is derived from coca leaves and is a schedule II controlled substance within the meaning of § 812.

FN6. The Notes of the Advisory Committee to rule 201 offer support for the proposition that courts utilize legislative facts when they interpret a statute.

While judges use judicial notice of “propositions of generalized knowledge” in a variety of situations: determining the validity and meaning of statutes, formulating common law rules, deciding whether evidence should be admitted, assessing the sufficiency and effect of evidence, all are essentially nonadjudicative in nature. (emphasis added.)

536 F.2d at 220.

The difference between “adjudicative facts” and “legislative facts” is important in determining whether or not Rule 201 applies.  In Gould, the specific issue was whether the District Court erred in charging the jury that it must accept the judicially noticed fact as conclusive.  Rule 201(g) would have prevented the District Court from making that charge.  However, because the facts noticed were “legislative,” the Court held that Rule 201 did not apply, the noticed facts were conclusive, and their truth was binding on the jury.

Judicial notice and Rule 201 hardly ever come into play, but Gould is a great resource when it does.

An Introduction to Impeachment Evidence

July 11, 2011

Impeachment means “[t]o call in question the veracity of a witness, by means of evidence adduced for such purpose, or the adducing of proof that a witness is unworthy of belief.”  Black’s Law Dictionary (5th ed. 1979).  Here’s another definition, with a little more explanation:

Impeachment is an attack upon the credibility of a witness.  The purpose of impeachment is to destroy credibility, not to prove the facts stated in the impeaching statement.  As with all relevant evidence, the trial court retains discretion to admit or exclude evidence offered for impeachment.

81 Am. Jur. 2d Witnesses § 828.

Aha … “Purpose!”  Remember what this passage says the purpose is, and what it is not; it matters!

Let’s look at impeachment in the structure of evidence:

Is it relevant?

Assuming the witness on the stand has testified to relevant evidence, the credibility of the witness is important.  Therefore, evidence bearing on the witness’s credibility is almost always going to be relevant.  For most impeachment evidence, that’s all you need to know.  The evidence is relevant, and no rule of evidence excludes it, so it’s admissible.  However, some forms of relevant impeachment evidence are addressed by the rules, and by some of the concepts of evidence, each of which might affect the admissibility of the evidence.

What is it?

Depending on the answer to this question, one or more of the following rules may affect the admissibility of the evidence.  I’m not going to quote the rules here, but take a few minutes to read them very carefully.  The primary rules related to impeachment are:

  • Rule 608(a)—Opinion or Reputation Evidence of “Character for Truthfulness”
  • Rule 608(b)—Specific Instances of Conduct to prove “Character for Truthfulness”
  • Rule 609—Impeachment by Evidence of Conviction of Crime
  • Rule 613(b)—Extrinsic Evidence of Prior Inconsistent Statement
  • Rule 403—Balancing Probative Value against Unfair Prejudice

There are some other rules that relate to impeachment but are less prominent, including:

  • Rule 602—Perception, Memory, Communication (Personal Knowledge)
  • Rule 607—Who May Impeach
  • Rule 610—Religious Beliefs or Opinions

As an exercise to get us ready for the discussion tomorrow, take the “ten modes for impeaching the witness” listed in Our Book, and connect each one to a rule of evidence.  Remember that some may be connected only to Rule 402.

Foundation—How Can You Get it in Anyway?

When you have connected one of the “modes for impeachment” to a rule of evidence which might exclude the evidence even though it’s relevant, consider what the foundation for the admissibility of the evidence is.  “Foundation” will be the focus of our study of Impeachment!

Hearsay—Business Records—What is the Business Duty Rule?

July 6, 2011

Many times you have heard me say the Rules of Evidence replace the common law as a comprehensive body of evidence law, and that if we want to figure out the foundation for an item of evidence we must track the language of the Rule.  So, where in Rule 803(6) are the words “business duty?” 

Rule 803. Hearsay Exceptions; Availability of Declarant Immaterial

The following are not excluded by the hearsay rule, even though the declarant is available as a witness:

(6) Records of regularly conducted activity.  A memorandum, report, record, or data compilation, in any form, of acts, events, conditions, opinions, or diagnoses, made at or near the time by, or from information transmitted by, a person with knowledge, if kept in the course of a regularly conducted business activity, and if it was the regular practice of that business activity to make the memorandum, report, record or data compilation, all as shown by the testimony of the custodian or other qualified witness, or by certification that complies with Rule 902(11), Rule 902(12), or a statute permitting certification, unless the source of information or the method or circumstances of preparation indicate lack of trustworthiness. The term “business” as used in this paragraph includes business, institution, association, profession, occupation, and calling of every kind, whether or not conducted for profit.

The words are not there, and yet, courts include the “business duty rule” as part of the foundation for admitting a business record as an exception to the hearsay rule.  To remind ourselves, here are the elements of the foundation as described by the Tenth Circuit:

To satisfy Rule 803(6) the inventory records must (1) have been prepared in the normal course of business; (2) have been made at or near the time of the events recorded; (3) be based on the personal knowledge of the entrant or of a person who had a business duty to transmit the information to the entrant; and (4) indicate the sources, methods and circumstances by which the record was made were trustworthy.  (citation omitted).  The proponent of the document must also lay this foundation for its admission.

United States v. Ary, 518 F.3d 775, 785 (10th Cir. 2008).

Here’s another version of the elements of the foundation of a business record, from Evidentiary Foundations § 10.05[2] (6th ed. 2005) by Professor Edward J. Imwinkelried, currently at the University of California (Davis) School of Law:

(1) The report was prepared by a person with a  business relationship with the company; (2) The informant (the ultimate source of the report) had a business duty to report the information; (3) The informant had personal knowledge of the facts or events reported; (4) The written report was prepared contemporaneously with the facts or events; (5) It was the routine practice of the business to prepare such reports; (6) The report was reduced to written form; (7) The report was made in the regular course of business; (8) The entry is factual in nature (noting Rule 803(6) allows for opinions or diagnoses).

Both of these renditions of the elements include the business duty rule.  In my first blog on the business records exception to the hearsay rule (July 5), I promised we’d get back to United States v. Vigneau, 187 F.3d 70 (1st Cir. 1999), so let’s do it!  We left our discussion with this question:

What is the court’s ruling, and which element of the foundation did the court find the government failed to meet?

Well, the court stated at one point that “[t]he district judge was correct that the “To Send Money” forms literally comply with the business records exception … .”  The court went on, however, to hold the forms should have been excluded because the statement “Patrick Vigneau” violated the business duty rule.

[D]espite its language, the business records exception does not embrace statements contained within a business record that were made by one who is not a part of the business … .

So, what is this “business duty rule?”  Some courts and commentators suggest the requirement of a business duty arises from the portion of Rule 803(6) that says:

… if kept in the course of a regularly conducted business activity, and if it was the regular practice of that business activity to make the … record …

This view seems to be the one expressed in American Jurisprudence.  29A Am. Jur. 2d Evidence § 1260.  This also seems to be the position taken in the Advisory Committee Notes.  The elements listed in the Ary opinion suggest, however, that the business duty rule relates to the requirement of personal knowledge.  McCormick seems to support this view.  McCormick on Evidence § 290 (6th ed. 2006).  Other authorities suggest that the business duty rule is actually a recognition of the principle of hearsay within hearsay.  See Kwestel, The Business Records Exception to the Hearsay Rule: New is Not Necessarily Better, 64 Mo. L. Rev. 595 (1999).

I say … it makes little or no difference to a practicing lawyer!

A practicing lawyer who wants to win an evidence struggle by keeping evidence out may use the business duty rule as a tool to convince the trial judge that the foundation has not been met.  On the other hand, a practicing lawyer who wants to win the struggle by getting the record admitted may argue that the rule has been relaxed under the Federal Rules of Evidence, particularly when the business participant verifies the information, or where there are other adequate indications of trustworthiness.  See, e.g., United States v. Cestnik, 36 F.3d 904, 908 (10th Cir. 1994).

Let the academics figure this one out while you win evidence struggles, and cases, for clients!