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Legal Relevance Limitations, Beyond Credibility Considerations

We have discussed on prior occasion how the law sometimes applies limitations to what would otherwise be perfectly relevant credibility evidence. Those same evidentiary limitations may by the same token be necessary to exclude more than just credibility evidence. We again go back to the idea that the framers of the Federal Rules of Evidence sought to place some restrictions upon what might otherwise be logically relevant evidence. The rationale being that we don't trust that jurors can decide cases fairly when exposed to logically relevant but legally irrelevant evidence. This type of evidence typically is seen to be unfairly prejudicial though logically relevant. Unfairly prejudicial evidence is evidence which tempts the jurors to decide the merits of the case on an improper basis. Federal Rule of Evidence 403 gives the trial judge significant discretion in determining what logically relevant evidence should be excluded from the purview of the jurors given these concerns of unfair prejudice.

When the trial judge encounters evidence which may be unfairly prejudicial, he or she must conduct a balancing test to weigh the pros and cons of allowing or disallowing the evidence. A chief consideration of the court will always be whether there is other less prejudicial evidence which will suffice to prove the same facts. If this is the case, the court should allow the least prejudicial evidence available to be introduced to the exclusion of prejudicial evidence. For example, there is a general prohibition of introducing prior bad acts as evidence to demonstrate that the defendant committed the current act alleged. The courts reason that the jurors may find against the accused simply based on his or her history of bad acts despite consideration of the facts in the current case before them. Thus there is a fear of unfair prejudice. A fear that the jurors would be tempted to decide the merits of the case on an improper basis.

That being said, as we know, there are often exceptions within the law of Evidence. For instance, despite the general rule which prohibits the admission of a prior act to prove that the defendant committed the act he or she is accused of, the introducing party may still be able to introduce such prior acts if those acts are introduces as being in the form of a habit. Federal Rule of Evidence 406 allows the admission of such habit evidence to show that someone's actions are in conformity with an existing habit. I assume the reasoning for this exception is that the drafters of the Federal Rules assume that a habit is more reliable conduct than simply one or two prior similar acts. To this end, if you wish to introduce habit evidence you need to lay foundation demonstrating that the person or business in question engaged in the same specific behavior, consistently and frequently enough, to create a solid pattern of behavior. To introduce this type of habit evidence it is typical to question a witness who is familiar with the individual or business which possesses the habit. That witness needs to testify that he or she is familiar with the individual or business and has been familiar with the individual or business for a substantial length of time. The witness can then testify that it is his or her opinion that the individual or business has such a habit. Finally, as always the witness needs to testify as to the basis for reaching his or her opinion. This would of course be that the witness has observed the individual or business perform in the same way on many prior occasions.

Remember that when you are inquiring of your witness as to an individual's habit behavior that you are free to inquire as to whether the witness believes that the individual or business has such a habit. In fact you need to inquire as to this for the purposes of laying the proper foundation. That being said, after your witness testifies that he or she believes the individual or business possesses the habit you should not then ask the witness whether in their opinion the individual acted in conformity with that habit as alleged in the case. That would be improper opinion testimony. It is the jury's role to make that inference. That being said, in closing argument, you as counsel are free to argue that inference.

Another example to the general rule prohibiting prior acts to prove current acts in conformity therewith arises when one wishes to use those prior acts to show such things as motive, intent, preparation, knowledge, identity, absence of mistake. Essentially, there are situations in which a judge may allow a prior act if that act is probative of one of those listed factors. The prohibition of prior bad acts was created as the drafters of the Federal Rules of Evidence felt that jurors would give undue wait to prior bad acts and as a result of those prior bad acts find defendants guilty simply because these defendants are "bad people" in the jurors' opinion without giving sufficient consideration to the facts of the current case before them. However, when those prior acts can show that the defendant had a motive to act as he or she did, for instance, then the court may allow the prior act into evidence after conducting a Rule 403 balancing test.

To lay a foundation for a prior act in order to prove motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake you first need to put a witness on the stand who can testify as to where and when the prior act occurred. The witness will then need to testify as to the nature of the prior act. The witness will need to testify that the defendant is the one who in fact committed the prior act. The judge will accept this testimony at face value assuming the evidence is sufficient to create a permissive inference that the accused committed the prior act. Lastly, the trial lawyer need demonstrate to the court the logical relevance of the prior act to the case at hand for a reason other than the defendant's general disposition or propensity to act that way. Remember that your witness is only on the stand to lay the foundation for the prior act which demonstrates an inference of motive or identity and the like. You cannot have this witness testify as to whether in his or her opinion, given the prior act, that the defendant more or likely committed the current alleged act. This again would be improper opinion evidence. The jurors can reach this inference on their own. Moreover, you can argue this inference in your closing argument as much as you like.

So far we have only discussed prior acts of individuals. There is a similar state of evidentiary law which applies to physical objects or property. Here, there are some prohibitions as to prior events related to the same physical entity or object at issue. The prohibitions are typically based on different reasoning however. For instance, if you show that a particular object has caused harm to other individuals in the past then the juror's may improperly decide against the owner of the property based on those prior acts, whether or not the property in fact created any injury under the current set of facts at issue in trial. Thus the judge again needs to conduct a rule 403 balancing test, balancing the probative value of the evidence against any possible unfair prejudice. The general state of the law for some time has been to prohibit such prior accidents based on the same physical entity. That being said, there are exceptions to this rule and the courts are now becoming more liberal as to what they will allow introduced as evidence as to a prior accident caused by a common entity. The prime exceptions to the rule falls within product liability cases. Therein, prior or subsequent accident in these defective product strict liability cases may be allowed into evidence assuming the products are sufficiently similar in physical and mechanical characteristics. You will lay a foundation here by having your witness testify as to where and when the prior accident occurred. You would then have your witness speak to the nature of the accident and then to the defendant's responsibility for that accident. Lastly, have the witness testify as to the circumstances which show the similarity or sameness of the two products or objects.

A last area where we will see this Rule 403 balancing apply is when counsel wishes to present an in-court exhibition or in-court demonstration. The former, the exhibition, is simply a display of something other than a normal inanimate physical exhibit. If the display is gruesome perhaps or has other prejudicial concerns then the trial judge will have to exercise discretion in determining whether to deny or admit this evidence. Beyond the exhibition is the in-court demonstration. The demonstration requires an actual physical act or mechanical process in action before the jurors. The question with both the exhibition and demonstration is whether it is relevant, will aid the jurors in understanding oral testimony, and whether it will inflame the emotions of the jurors. These are the three factors the trial judge must consider in determining whether to admit or deny the exhibition or demonstration.

Within the context of personal injury lawsuits, it is important to remember the general prohibition against mentioning defendant's possession of liability insurance. The fear is that the jurors will be all too willing to find liability on part of the defendant if the jury knows that the defendant has an insurance policy with deep pockets from which to pay the claim. That being said, there are some ways in which you can in fact get the insurance policy into evidence. You need to have a good reason such as to show a witness's bias, agency, ownership, or control. For instance, assume the defendant denies that a worker was an employee at the time of the incident. If you can show that the employer's insurance policy covered the worker at the time of the incident you can prove agency. Thus the court would likely allow the evidence of an insurance policy to come in within this context whereas it otherwise wouldn't. This is just one example, of many.

The above article reflects some evidentiary rules as promulgated by the Federal Rules of Evidence. Remember that states have their own rules of evidence which may or may not reflect the Federal Rules of Evidence. For more information on this topic I refer you to Edward Imwinkelried, (2012) Evidentiary Foundations which is an excellent book on this subject matter and the source of the majority of my own information, as outlined above, on this topic. I, Eric Roy, am by no means an expert in this area. I write these blogs/articles solely for my own personal learning benefit.

Categories: Evidence