10 Exercise Ten – Evidence for Civil Procedure Students

This exercise has two purposes.  The first is to engage you actively in legal analysis.  Hence, the exercise contains some difficult questions that require careful thought.  The second is to provide a survey of the rules of evidence in order to give you a deeper understanding of subjects studied in the civil procedure course.  Of course you will study these topics in depth in your evidence course.  The intent here is not to anticipate that course, but rather to provide a rudimentary understanding of evidence law as it relates to civil procedure.  Instances in which evidence rules illuminate aspects of the civil procedure course are set forth in footnotes.

I. SOME BASIC EVIDENCE RULES

The Federal Rules of Evidence were first adopted for the federal courts in 1975, and have since provided the pattern for evidence rules in a majority of states.  For purposes of this computer exercise, you need only be familiar with the sections of the Federal Rules of Evidence described in this book.

A. The Requirement of Personal Knowledge[i]

Federal Evidence Rule 602 provides the following:

A witness may not testify to a matter unless evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter.  Evidence to prove personal knowledge may, but need not, consist of the witness’ own testimony.  This rule is subject to the provisions of rule 703, relating to opinion testimony by expert witnesses.

The rule prevents a lay witness from testifying about an event that could be perceived by the senses unless the witness actually perceived the event.  For example, if the first question asked to a witness were, “State the color of defendant’s car,” the question would be objectionable because the examiner has failed to produce any evidence that the witness actually saw the defendant’s car.  The witness’s answer might be based on guesswork or secondhand information.  If the witness saw the car personally, then the examining lawyer must “lay the foundation” by having the witness so testify.

The personal knowledge requirement is analytically distinct from the hearsay rule.  If a witness makes an assertion about a fact that can be perceived by the senses and does not purport to base her knowledge on another’s statement, then the correct objection is lack of personal knowledge.  If the examiner cures the personal knowledge problem by having the witness testify that she read or heard an out‑of‑court statement that asserted the fact in question, then the correct objection is hearsay.  For example, suppose that to prove when a train arrived, a witness testifies “The train arrived at 8:05.”  If there is no evidence that the witness was in a position to observe the train, then the testimony would be objectionable on grounds that the witness lacked personal knowledge.  A hearsay objection would be inappropriate because there is no indication that the witness is basing the testimony on the statement of another.  Suppose, then, that the witness is asked how she knows and responds by saying “Mr. Bailey told me that the train arrived at 8:05.”  The requirement of personal knowledge has now been satisfied (the witness has testified about something she perceived with her senses—Bailey’s statement).  In the absence of a hearsay exception, however, the testimony would be inadmissible hearsay.

B. The Hearsay Rule and Its Exceptions[ii]

1. The Concept of Hearsay

The credibility of a witness depends upon the witness’s perception, memory, narrative ability, and sincerity.  For example, suppose a witness testifies “I saw Smith in the bar on February 1.”  The witness might have been intoxicated, near‑sighted, or simply too far away to see clearly, so the statement might be inaccurate because of infirmities of perception.  The witness might be mistaken about the date because of defects in memory.  The witness might have misspoken, as by saying “bar” while meaning “car,” so that poor narrative ability made the utterance misleading.  Or the witness might be intentionally lying.

    When a witness testifies in court, the witness is under oath, subject to cross‑examination, and present for observation of demeanor by the trier of fact.  These safeguards are thought to increase the likelihood that the witness will try to tell the truth and that defects in credibility will be exposed to the trier.  The hearsay rule is grounded on the belief that sometimes too much credence will be given to statements made in situations in which these safeguards are absent.

Not every out‑of‑court statement is hearsay.  Under the Federal Rules, hearsay is a statement made out of court that is offered for the purpose of proving the truth of what is asserted in the statement.  See Fed. R. Evid. 801(c).  An in‑court statement (a statement made by the witness while testifying) is not hearsay, and an out‑of‑court statement is not hearsay if it is offered in evidence for some purpose other than proving the truth of the matter asserted in the statement.  Normally (although not invariably) statements that are offered for some purpose other than showing their truth do not depend for value upon the credibility of the out‑of‑court declarant;  hence, nothing is lost by the absence of cross‑examination under oath.

This is not the place for discussion of all of the various meanings that have been imputed to the phrase “truth of the matter asserted.”  Even at this early stage, however, the student should attempt to become familiar with the principal types of utterances that courts deem not to be hearsay on grounds that they are not “offered for the truth of what they assert.”  Most such utterances fall within the following three categories:

a. Statements Offered to Show Their Effect on the Reader or Hearer

Suppose that a defendant is charged with burglary of a neighbor’s garage.  As an alternate explanation of why he was in the garage, the defendant testifies that a child told him that an intruder was in the garage and asked him to investigate.  The child’s statement is not hearsay if offered solely for the purpose of showing why defendant entered the garage.  The statement is not being offered to show its truth (that an intruder was in fact in the garage) but only to show its effect on the hearer.  Even if the child was lying or mistaken, the statement still has value in explaining defendant’s conduct.  Because the statement does not depend for value on the credibility of the child declarant, the absence of an opportunity to cross‑examine the declarant about the basis for the statement is of no consequence.

b. Legally Operative Language

To show that A made a contract with B, testimony is offered that A said to B “I will pay $40,000 for 100 carloads of your widgets,” and that B responded with “I accept your offer.”  Testimony about these utterances is not hearsay.  The mere fact that they were made created a legal relationship, under the objective theory of contracts, even if A or B is not credible.  Consequently, the utterances are said not to be offered for their truth, but merely to show that they were made.

c. Statements Used Indirectly

Suppose A tells B that C committed a crime, and the words are offered to show that A does not like C.  Under traditional analysis, A’s utterance is considered not to be hearsay.  When offered for the purpose of showing A’s dislike for C, the truth of the statement does not matter.  In fact, if the statement is false, the inference may be even stronger evidence that A dislikes C.

Utterances like the one above are often characterized as circumstantial evidence, which is another way of saying that they are not offered directly to show their truth, but indirectly to show something else.[iii]

One important category of indirect utterances are those that are offered as prior inconsistent statements for the purpose of impeaching a witness.  Suppose a bystander tells an investigator prior to trial that a traffic light was red, and then testifies at trial it was green.  The bystander’s prior statement is not hearsay when offered solely to impeach credibility.  The statement, under traditional analysis, is not being offered to prove the truth of its assertion, but merely to show that the witness is not credible because she said different things at different times.

2. Exceptions to the Hearsay Rule

Even though a statement is hearsay, it is admissible if it falls under one of the exceptions to the hearsay rule.  The Federal Rules of Evidence list nearly 30 exceptions.  This computer exercise deals only with the ones set forth in these materials.

a. Present Sense Impression Exception

Rule 803(1) provides that hearsay is admissible if it is “A statement describing or explaining an event or condition made while the declarant was perceiving the event or condition, or immediately thereafter.”  Example:  “Look at that car running the red light.”

The Advisory Committee’s Note to Rule 803(1) states “The underlying theory . . . is that substantial contemporaneity of event and statement negative the likelihood of deliberate or conscious misrepresentation.”

     b. Excited Utterance Exception

Rule 803(2) provides an exception for “A statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition.”  Example:  “Oh, no.  The car struck the pedestrian.”

The rationale of this exception is that excitement is likely to prevent deliberate fabrication.

c. Present State of Mind Exception

Rule 803(3) provides, in relevant part, that hearsay is admissible if it is “A statement of the declarant’s then existing state of mind, emotion, sensation, or physical condition (such as intent, plan, motive, design, mental feeling, pain, and bodily health), but not including a statement of memory or belief to prove the fact remembered or believed * * *.”  Examples of the exception include such statements as “My leg hurts” offered to show that the leg hurts (but not the statement of memory “My leg hurt”), or “I am fond of John” offered to show the declarant’s fondness for John, or “I am going to Crooked Creek” offered to show that declarant did later go there (but not the memory “I went to Crooked Creek”).

Although there are dangers of misrepresentation (for example, a plaintiff may exaggerate pain), the exception can be justified on grounds of necessity (determining mental or physical state without use of statements by the subject is difficult) and the absence of some of the hearsay dangers (for example, the danger that a declarant’s bad memory will lead to mistake is absent in a present tense statement).

d. Dying Declaration Exception

Rule 804(b)(2) provides an exception for “[A] statement made by a declarant while believing that the declarant’s death was imminent, concerning the cause or circumstances of what the declarant believed to be impending death.”  The exception applies to civil actions and to criminal prosecutions for homicide.  Example:  “Jill shot me.”

The theory behind the dying declaration exception is that a person knowing he is about to die is unlikely to tell falsehoods.

e. Declaration Against Interest Exception

In relevant part, Rule 804(b)(3) provides an exception for “A statement which was at the time of its making so far contrary to the declarant’s pecuniary or proprietary interest, or so far tended to subject the declarant to civil or criminal liability, or to render invalid a claim by the declarant against another, that a reasonable person in the declarant’s position would not have made the statement unless believing it to be true.”  Example:  “I owe you $1,000.”

The theory is that a person is highly unlikely to make a statement against his own interest unless that statement is true.

f. Admission of a Party Opponent[iv]

Rule 801(d)(2) provides that a statement by a party is not hearsay when offered against that party.  For reasons not here relevant, the rulemakers decided to treat admissions as a special category of utterances that are not hearsay instead of treating them as hearsay admissible under an exception.  Under the Fed. R. Evid., an admission is not hearsay even when offered to prove the truth of its assertion.

The admissions exclusion is broad and important.  Any statement by a party clears the hearsay barrier when offered by an opposing party.  In addition, statements by an employee will sometimes be vicariously admissible against an employer and statements by one co‑conspirator will sometimes be admissible against other co‑conspirators.  These aspects of the admissions rule are beyond the scope of this essay.

g. Former Testimony Exception;  Depositions

Two of the safeguards that are thought to make courtroom testimony reliable are present during the taking of a deposition.  The deponent is under oath and is subject to cross‑examination.  Nevertheless, courtroom testimony is considered to be superior to deposition testimony.  In the courtroom, the witness is available for observation by the trier of fact, and the solemnity of the courtroom may encourage the witness to tell the truth.  Moreover, the cross‑examination that occurs during a deposition or other former testimony may not be an adequate substitute for courtroom cross-examination.  The main purpose of cross‑examination during a deposition is usually the discovery of information, not the revelation of defects in the witness’s credibility.  For these reasons, depositions are not freely admissible when a nonparty deponent is available to testify in court, though deposition testimony does have a more favored status than ordinary out‑of‑court statements.  Should the witness become unavailable, depositions (and certain other instances of former testimony) are generally admissible as a hearsay exception under Rule 804(b)(1).

h. Business Records Exception

The business records exception is commonly used.  It allows, for example, the introduction by a business of account books showing that a defendant is indebted to it.  Without this exception, a business would have a tough time proving that a customer actually purchased its product and owes money.  Third parties may also use the exception for a variety of purposes;  for example, a personal injury plaintiff may use the exception to introduce hospital records pertinent to an injury.

Business records are said to be reliable for a number of reasons:  the business relies upon them, people making entries have a duty to be accurate, the records are likely to be checked systematically, and regularity in keeping records makes the record‑keeper develop the habit of precision.

The federal business records rule is set forth in Fed. R. Evid. 803(6), which provides a hearsay exception for

     i. Other Exceptions

Many other exceptions to the hearsay rule, ranging from trivial (inscriptions on tombstones) to important (public records), exist.  This essay does not purport to be comprehensive, but describes only exceptions and exclusions that are particularly important or that present interesting challenges in interpretation.

C. Relevancy and Its Counterweights

Federal Evidence Rule 402 declares that irrelevant evidence is inadmissible.  Under the Federal Rules, however, evidence is rarely irrelevant, because Fed. R. Evid. 401 deems evidence to be “relevant” if it has “[A]ny tendency to make the existence of any fact that is of consequence to determination of the action more probable or less probable than it would be without the evidence.”

     This definition of relevance is a broad one.  Under it, almost every item of evidence that a rational lawyer might offer would be relevant.  For example, evidence that a defendant has been in prior accidents tends slightly to support the inference that the defendant is not a careful driver and then the further inference that the accident at issue was defendant’s fault.  The prior accidents would therefore be relevant under the definition of Rule 401.

Such evidence is, however, normally excluded.  In a civil case, the evidence would be inadmissible for two reasons.  The evidence of other accidents is offered to prove defendant has a character trait of poor driving.  Character evidence is not admissible in civil cases (Fed. R. Evid. 404(a)), and in any event character ordinarily may not be proved with evidence of specific acts of conduct (Fed. R. Evid. 405).  Even without specific rules about character evidence, however, the evidence may be inadmissible because of Rule 403, discussed below.

Another example is the result of a polygraph test.  Probably the result, if obtained by a reliable operator, has enough value to satisfy Rule 401’s definition of relevance.  Yet the jury might give the result undue weight or be confused, and the evidence attacking or supporting the validity of the test is likely to be lengthy and tangential.  One would expect the result to be excluded under Fed. R. Evid. 403, which provides that

     Rule 403 is not the only rule designed to prevent the introduction of evidence that is prejudicial or a waste of time;  it is merely the most general one.  The Fed. R. Evid. also set forth specific rules for certain recurring situations in which the balance of probative value and prejudicial effect tips in favor of exclusion.  See, e.g., Fed. R. Evid. 404–405 (character evidence), Fed. R. Evid. 411 (evidence of liability insurance).  For purposes of this exercise, you need not become acquainted with any of the relevance rules except Rules 401, 402, and 403.  If you think that evidence ought to be excluded under Rule 403 in the computer exercise, say so.  If you are right and there is also a more specific rule excluding the evidence, then the computer will tell you.

D. The Opinion Rule

     There are two aspects of the rule limiting the admission of opinion testimony by lay (non‑expert) witnesses.  First, the lay witness must not express an opinion about something that requires special skill, knowledge, or education—for example, a lay witness could not testify that the injury she received caused her to develop cancer.  Second, lay witnesses are sometimes prevented from expressing opinions even about matters that require no special skill.  For example, a lay witness would not ordinarily be permitted to testify that one of the parties in an accident “was driving negligently” and the other was not.  The evidence would be excluded on grounds that the testimony in that form would not be helpful to the trier of fact.  The jury, not the witness, should decide whether the driver was negligent; in making the determination the jury would be helped by specific testimony about what the driver was doing but not by the witness’s conclusion of negligence.

Courts have encountered difficulty in applying a rule that purports to distinguish between “facts” and “opinions”:

Kenneth S. Broun et al., McCormick on Evidence § 11, at 24 (6^th ed. 2006).

The Federal Rules of Evidence adopt a pragmatic view of the opinion rule that encourages specificity while still permitting lay opinions when they will be helpful.  Fed. R. Evid. 701, entitled “Opinion Testimony by Lay Witnesses,” provides

E. Lawyer–Client Privilege

The statements in the following text describe features of the common law lawyer-client privilege as it exists in most American jurisdictions.  See generally Roger C. Park, David P. Leonard & Steven H. Goldberg, Evidence Law: A Student’s Guide to the Law of Evidence as Applied in American Trials §§ 8.03-8.12 (2d ed. 2004).  The Federal Rules of Evidence do not codify rules of privilege.  Fed. R. Evid. 501 merely provides that when the source of a substantive rule of decision is state law, then state rules of privilege must be followed in federal court;  otherwise, the federal courts are instructed to use “the principles of the common law as they may be interpreted by the courts of the United States in the light of reason and experience.”

The lawyer-client privilege prevents a lawyer from testifying about communications between lawyer and client made in confidence during the course of the professional relationship.  The privilege is based upon the theory that justice will best be served if the client confides freely in the lawyer, knowing that the lawyer cannot be required to testify about what the client has said.

A communication is considered to be given in the course of a professional relationship if the client has consulted a lawyer or a lawyer’s representative for the purpose of securing legal services from the lawyer.  The communications are protected even if the client ultimately decides not to hire the lawyer.  Moreover, the privilege covers both disclosures of the client to the lawyer (or the lawyer’s representative) and advice given by the lawyer to the client.

The privilege does not apply unless the communication was “confidential.”  If the client intended that the lawyer make the communication public, then the communication is not privileged.  Similarly, if the client made a disclosure to the lawyer in front of third persons in circumstances indicating that the communication was not intended to be confidential, the communication is not privileged.

Moreover, the privilege applies only to communications between the client and the lawyer (or the lawyer’s representative).  Not everything that a lawyer learns while representing a client is privileged.  For example, suppose that a lawyer visits the scene of an accident, observes the relative position of the automobiles, and interviews eyewitnesses.  Neither the lawyer’s observations nor the statements made by the eyewitnesses would be protected by the privilege.

The fact that the lawyer-client privilege would not apply to these observations and statements does not mean that the lawyer would be free to disclose them voluntarily.  First, they are work product.[v]  Second, the lawyer has an ethical duty not to divulge information learned in the course of the professional relationship even if it falls outside the scope of the lawyer-client privilege.  Model Rule of Professional Conduct 1.6(a) prohibits a lawyer from revealing information relating to the representation of a client.  The Rule also provides six exceptions, including “to comply with other law or a court order” [see Model Rule 1.6(b)], but these are not within the scope of this exercise.

F. The Best Evidence Rule

Suppose that the wording of a written contract is of significance in a lawsuit.  May the party relying on the contract prove its contents with oral testimony?  If not, may a copy of the writing be introduced in lieu of the original?

     At common law, the best evidence rule supplied the answer to these questions.  Generally, it required the proponent to produce the original writing or to make an acceptable excuse for not having it.  Neither oral testimony nor a copy was admissible in the absence of an excuse for not presenting the original.

One need hardly explain why the original of a writing is preferable to oral testimony about its contents.  The preference for an original writing over a duplicate is more questionable.  Modern methods of copying are far more accurate than the hand-copying used at the time of inception of the rule.

The Federal Rules of Evidence contain a version of the best evidence rule, although it does not use the term best evidence rule.  The name has been retained in this exercise since it is the traditional name for the rule.  The rule retains a general preference for the original while taking into account improvements in methods of copying.  Fed. R. Evid. 1002 provides the basic rule of exclusion, stating that except where otherwise provided by rule or statute, “To prove the content of a writing, recording, or photograph, the original writing, recording, or photograph is required * * * .”

Federal Evidence Rule 1003 creates an exception for duplicates made by photocopy, carbon copy, or similar reliable methods;  they are admissible unless there is a genuine issue about the authenticity of the original or other circumstances make use of the duplicate unfair.

Rule 1004 deals with other situations in which the original is not required, similar to the common law allowance to offer other than the original of the writing with an adequate excuse for not producing the original.  Basically, the rule provides that the original is not required when the person offering evidence of its contents shows a good excuse for not producing the original, i.e., the original is missing or unobtainable.  In these circumstances, other evidence of the contents of the original (including oral testimony about what the document said) is admissible.  Nonproduction because the proponent has lost or destroyed the original in bad faith is not accepted as a good excuse.  Fed. R. Evid. 1004(1).  Rule 1004 also provides an exception for unimportant documents on collateral issues;  neither the original nor an excuse for nonproduction is necessary when “The writing, recording, or photograph is not closely related to a controlling issue.”  Fed. R. Evid. 1004(4).  For example, when a witness testifies that she knew that the date of the collision was November 7 because the newspaper contained a story about her mother on that day, the newspaper need not be produced.

     You should guard against the tendency to overgeneralize the best evidence rule.  No rule has ever invariably required the “best evidence” to be offered on every matter.  For example, a lawyer may elect to call only one witness to a collision, despite the fact that ten others were better placed to observe it;  the rule simply has no application in this situation, despite the fact that the lawyer is not using the “best evidence” available.  Similarly, a lawyer may elect to use hearsay testimony that is admissible under an exception in lieu of calling the actual witness.  The federal best evidence rule applies only to evidence of the contents of writings, recordings, or photographs;  it has nothing to do with other types of evidence.

G. Leading Questions

On direct examination, a lawyer ordinarily may not “lead” the witness by asking a question that suggests the desired answer.  Thus, “Was defendant wearing a green plaid jacket?” would be improper;  “What was defendant wearing?” would not.  There are, however, many situations in which leading questions are permitted.  These include testimony about undisputed preliminary matters (“Were you present at the April 19 board meeting?”);  here, leading does no harm and speeds up the proceedings.  Leading questions are also permitted if the witness appears to need some assistance.  For example, if the attorney has unsuccessfully sought to elicit a fact from the witness by non-leading questions (“Was anyone else there?”), the attorney may then use a leading question (“Was Mr. Hand there?”).  In this instance, the trier has had the opportunity to see that the witness cannot testify without leading, so it can discount the witness’s testimony accordingly.

Leading questions are also permitted on cross-examination, except in relatively rare situations in which the witness being cross-examined is strongly partial toward the cross-examiner.  Accordingly, cross-examination of a witness with questions such as “Isn’t it true that the robber’s face was completely covered?” would ordinarily be permitted.  Indeed, good cross-examination may be all leading questions.  There is little danger that the witness will be overly influenced by suggestive questions on cross, and in any event leading questions may be the only way to pin down an uncooperative witness.

Fed. R. Evid. 611(c) sets forth the general rule and its exceptions as follows:

II.  COMPUTER EXERCISE: CALI CIV 06

A.  General Instructions

Read all of the material in this chapter before going to the computer terminal.  Also, check your civil procedure casebook to see whether it has an introductory note on evidence.  If it does, read the note.

     The computer will print out simulated trial testimony in question and answer form.  You will be asked to assume the role of the trial judge and rule on objections to that testimony.  Because you will sometimes need to know what answer is expected in order to rule on an objection, the computer will tell you both the attorney’s question and the answer that the witness would give if permitted.  Normally, of course, the witness would not answer unless the judge overruled the objection.  If necessary, the judge could hold a bench conference beyond the hearing of the jury for the purpose of finding out what answer the examining attorney was seeking.

In the computer exercise you will be asked to select from choices including “sustained” to sustain an objection (i.e., exclude the evidence), and “overruled” if you decide to overrule an objection (i.e., admit the evidence).  You will be asked to explain your rulings.  Sometimes the computer will print out its own list of possible justifications for your ruling;  more often, it will ask you to choose a justification from Display One or Display Two, both of which are reproduced at the end of this written material for the exercise.  Do not refer to Display One or Display Two to answer a question unless the computer tells you to do so.  The displays are not relevant to all of the objections, so reference to them at the wrong time can be misleading.

Example

Computer:  Plaintiff’s lawyer continues the direct examination of the witness as follows:

Q. After the collision, what happened?

A. The defendant got out of his car and came over to mine.

Q. Did he say anything?

A. Yes.

Q. What was it?  OBJECTION

A. He said, “It wasn’t my fault—the brakes went out.”

Push “s” to sustain or “o” to overrule.  Then push “return.”

Student: “s”

Computer:  You have ruled that the testimony is inadmissible.  Why must this testimony be excluded?

Look at DISPLAY ONE, push a number key to indicate your answer, and then push “return.”  If you want to change your mind and want to overrule the objection, push “o”.

B.  Background Facts About the Lawsuit

This case is a civil action to recover damages for personal injuries sustained when an automobile driven by plaintiff was involved in an intersection collision with an automobile driven by defendant.  At a pre-trial conference, you learned that plaintiff will seek to prove defendant ran a red light, drove his car knowing its brakes were bad, drove at an excessive speed, and failed to keep a proper lookout.  Defendant will deny these acts of negligence and claim that plaintiff was negligent in ignoring a police officer’s warning not to enter the intersection in which the collision occurred.

C.  Display One and Display Two

DISPLAY ONE

1. Irrelevant/prejudicial

2. Best evidence rule

3. Leading question

4. Opinion rule

5. Hearsay

6. Privilege

7. No personal knowledge

(Push “o” if you have changed your mind and want to overrule the objection.)

DISPLAY TWO

1. The statement falls under the dying declarations exception.

2. The statement falls under the declarations against interest exception.