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Is Your Evidence Admissible?

Is Your Evidence Admissible?

The rules of evidence are difficult to understand, and many attorneys lack a system for dealing with the introduction of evidence during trial. In their book Trial Evidence, Thomas Mauet and Warren Wolfson discuss a well-crafted three-step process for determining the admissibility of evidence which they call “The Three Rs”: relevance, reliability and rightness.

Relevance.  Relevant evidence is evidence (testimony, writings, material objects) that goes toward proving or disproving a disputed fact important to the resolution of the dispute. Whether evidence is relevant depends on the allegations, claims and defenses in the case; thus, there is no hard and fast rule that dictates relevance.

Inevitably, at some point during trial, the judge will interrupt counsel by asking: “Where are you headed with this line of questioning?” Attorneys often stumble when asked this question. This can be problematic because the slightest hesitation may result in the judge sustaining a relevance objection or telling counsel to move on to another topic. For this reason, attorneys should clearly understand the purpose of their questions prior to trial and be able to respond quickly to inquiries from the judge regarding “why” the evidence being elicited is relevant to the case.

Assuming the evidence is relevant, the next step is to determine whether the evidence is reliable.

Reliability. The primary purpose of the evidence rules is to ensure that judges and juries consider only trustworthy evidence. If judges and juries reached decisions based upon unreliable evidence, their judgments would be suspect and subject to doubt. Thus, relevant evidence is not admissible unless it is reliable.

Evidentiary rules designed to ensure reliability include the following: documents must be authentic; witnesses must be competent and testify from personal knowledge; experts must base their opinions on well-established principles in their fields; and recordings and photographs must be original.

The evidence rules also consider many statements made outside of court inadmissible "hearsay." These statements are often unreliable because individuals making them do not do so under oath and are not subject to cross-examination. Nevertheless, the evidence rules recognize that some hearsay statements are reliable and therefore admissible. For instance, admissible hearsay (out-of-court statements offered for their truth) includes statements made by people against their own interests, spontaneous and contemporaneous statements and dying declarations. The rules recognize that in these situations, individuals are more likely to make truthful statements, which make them sufficiently reliable.

If the evidence is relevant and reliable, the final step is to determine whether it is right to admit the evidence.

Rightness. The last inquiry for the admissibility of evidence involves a general consideration of whether it would be "right" to admit the evidence. The rules prohibit admission of relevant, reliable evidence in the following circumstances in which the public would be better served by its exclusion: (a) when its admission would be contrary to an extrinsic policy or (b) if it would prejudice or confuse the jury or waste the jury’s time.

There are many policy reasons for excluding relevant and reliable evidence. In civil cases, the rules bar evidence of subsequent remedial measures, settlement offers, and discussions during mediation because courts want to encourage parties to voluntarily make repairs and settle their disputes out of court. Likewise, the rules also prohibit evidence of communications between patients and their doctors, and clients and their lawyers so that patients and clients can be open and candid without fear that their communications may be used against them.

Additionally, the evidence rules give judges the broad discretion to exclude relevant and reliable evidence if its admission would unduly prejudice or confuse the jury or waste its time. For example, in a sexual harassment case, a judge may exclude relevant and reliable evidence that the plaintiff had an abortion because of the potential for prejudice given the strong emotions people have about abortions. Additionally, a judge may disallow relevant and reliable evidence of prior accidents caused by defective products or conditions because a jury might confuse the cause of prior accidents with that of the accident in dispute. Finally, a judge may bar duplicative evidence, even if it is relevant and reliable, in order to save the jury's time.

So the next time you are evaluating whether important evidence in your case is admissible remember “The Three Rs”: relevance, reliability and rightness.