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“Why?” is a critical question in Evidence!

June 8, 2011

One of the most important questions a lawyer or judge can ask in thinking through a particular evidence problem is “why is the evidence being offered?”  There are two primary reasons for this.  First, as I said yesterday, evidence struggles arise in the context of real problems faced by real people.  So, in order to properly understand any evidence problem, we must understand this practical context.  This, in turn, will help us to understand the reasons the evidence is important, which relate to whether it is relevant.  It will also help us to understand the proponent’s goal in seeking to introduce the evidence, and the opponent’s thinking in trying to keep the evidence out, all of which will help the advocate formulate the most effective arguments, and help the judge make the proper rulings.  We’ll talk more about the role of the context of the case in a minute.

Second, in many cases the purpose for which the evidence is offered relates directly to its admissibility.  In many more cases, the purpose relates indirectly to the foundation for its admissibility.  Let’s consider some examples of instances in which the purpose for which the evidence is offered relates directly to admissibility.  We’ve already talked about hearsay, and we’re going to come back to it over and over again.  Hearsay is “an out of court statement offered to prove the truth of the matter asserted” in the statement.  In order to determine whether an out of court statement is hearsay, the lawyer and the judge must know the purpose for which the statement is being offered, or “why?.”  If the purpose of offering the statement is to prove the truth of what is asserted in the statement, then it’s hearsay.  If the statement is offered for some other purpose, it’s not hearsay.  Simple, eh?  No!  But here’s the point:

Whether a statement is hearsay depends entirely on the purpose for which the statement is offered!  No lawyer, no judge, can ever correctly evaluate whether an out of court statement is hearsay unless he or she has a good handle on the answer to the question “why is the statement being offered?” 

How about another example: character?   Under Rule 404(a) and (b), evidence which might reflect on a person’s character is excluded only when it is offered “for the purpose of proving action in conformity therewith on a particular occasion.”  (the last four words are not in 404(b), but it doesn’t matter).  Why is the evidence being offered?  What is the purpose for the evidence?  Just as with hearsay, whether Rule 404 excludes the evidence depends entirely on the purpose for which the evidence is offered!  If the evidence is not offered for the purpose of proving that a person acted in compliance with their character trait, then Rule 404(a) has nothing to say about it.  In that instance, the evidence is relevant, and no rule excludes it, so it’s admissible. 

Want more examples?  How about Rules 1002, 1003 and 1004?  We’re going to talk about these rules later, but for now let’s just say two things: (1) these rules should NOT be called the best evidence rule (the “best evidence rule,” if it ever existed, was eliminated generations ago); and (2) the rules come into play only when the disputed evidence is offered for the purpose of proving the content of a writing.  If the evidence is offered for some other purpose, Rules 1002, 1003 and 1004 have nothing to say about it.  Other situations in which the purpose for which the evidence is offered relates directly to the admissibility of the evidence include: Rule 406 (Habit), Rule 407 (Subsequent Remedial Measures), Rule 408 (Offers of Compromise), Rule 409 (Payment of Medical Expense), Rule 411 (Liability Insurance), Rule 608(b) (Specific Instances of Conduct – debatable), Rule 609 (Impeachment by Evidence of Conviction of Crime), and Rule 610 (Religious Beliefs or Opinions).

I also mentioned there are situations in which the purpose of the evidence relates indirectly to the foundation for its admissibility.  Expert opinion under Rule 702 is a perfect example.  One of the elements of the foundation for the admissibility of an expert opinion is that the “scientific, technical, or other specialized knowledge (the opinion) will assist the trier of fact.”  In order to evaluate this element, either to make an argument as an advocate or to make a ruling as a judge, it is helpful to consider the “purpose” for offering the opinion.  For example, imagine an automobile accident case in which the excessive speed of the defendant driver is conceded, and the only issue before the jury is the alleged comparative fault of the plaintiff.  If the plaintiff offers the opinion of an accident reconstruction expert for the purpose of establishing the defendant’s speed, the judge might find this element has not been met.  However, if the defendant were to offer the same opinion, explaining that the purpose of offering it is to provide part of the basis for a human factors expert’s opinion that the plaintiff had ample reaction time in which to avoid the accident, the judge may find that the opinion will in fact assist the jury, and admit the opinion.

Back to the first reason: context.  Consider the example of Rule 403.  On one side of the balancing required by Rule 403, the advocate must argue and the judge must consider the probative value of the evidence.  Probative value can be generally defined as the usefulness of the evidence to the fact finder.  In order to evaluate usefulness, one must know what it is being used for.  In evidence, that means “purpose.”  Knowing the purpose for which the evidence is being offered is a key step in the meaningful evaluation of probative value. 

Asking the question “why is the evidence being offered?” is a key step in evaluating the admissibility of almost any piece of evidence.

One Comment leave one →
  1. Marvin Quattlebaum permalink
    June 13, 2011 2:05 pm

    Students: I am a lawyer in Greenville who used to be on the other side of Judge Few in cases and later, when he became a trial judge, appeared before him. Judge Few is absolutely correct that evidence questions arise in real trials and that evidence arguments are won or lost on the spot at trial. To me, that makes the pre-trial preparation of these evidence issues all the more important. While you will not be able to predict every evidentiary question that comes up in trial, you should be able to predict most. In the Emich case, the GM lawyer made the right argument that the purpose of the out of court complaints was to show that the statements were made and that they were the reason (and a legitimate reason) for GM to terminate the dealership. So the evidentiary point was not whether or not they were true, but that they were made. Of course, however, the GM lawyer hoped the jury would believe the complaints were true and believe that Emich was not a bad dealer. If they did, they might be less inclined to find for Emich and even if they did, they might not award as high of damages as they would if they thought he was a good dealer. In other words, evidence often has multiple purposes during trials. But if the GM lawyer articulated this as a reason for admitting the evidence, the evidence would have been excluded. So you need to think through not only the purposes of the evidence from a law of evidence standpoint, but also ancillary purposes from a persuasive standpoint. By knowing evidence law, you can introduce evidence that helps your case in many ways, even ways that would be an improper basis to introduce the evidence. In order to be able to win evidence arguments on the spot, you need to identify all the pros and cons of the evidence, then work through the likely evidence argument in advance of trial. Some lawyers are gifted enough to do this on the fly, but most aren’t. So get in the habit of spotting these issues in advance of trial and going through these issues so that, when the argument takes place, you are prepared. On the most important evidentiary issues, having a “pocket brief” prepared may increse your chances even more.

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