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An Introduction to Character Evidence

September 17, 2018

The key to understanding the admissibility of evidence of character starts with an understanding of the difference between (1) character, (2) evidence of character, and (3) inadmissible evidence of character. Read carefully, and you will become one of that rare group of lawyers who actually understands this stuff.


“Character” is relevant in our everyday lives. In fact, we consider it very important. Every one of us—every day—bases critical decisions on our perception of the character of other people. When young people consider personal questions such as dating, they rightfully want to know the character of the dating prospect. Certainly, when our children bring home a new boyfriend or girlfriend, we will be studying the new friend carefully to assess his or her character. When we consider professional decisions—such as whom to hire for an important position—we investigate the candidate’s character, because we consider this a reliable indicator of the person’s “propensity” to behave and perform well.

Character is important in our everyday lives!

We should pause here and consider “what is” a person’s character. This is not an easy definition to articulate. In fact, as the Seventh Circuit has stated,

We doubt that a fully satisfactory, comprehensive definition of “character evidence” is possible, but we have stated that “‘[c]haracter trait’ refers to elements of one’s disposition, ‘such as honesty, temperance, or peacefulness.’” … Thus, character evidence typically involves personality traits, such as diligence, aggressiveness, honesty, and the like, that create a propensity for acting in certain ways under certain conditions.

United States v. Doe, 149 F.3d 634, 638 (7th Cir. 1998) (emphasis added).

Let’s see how the authorities define it. According to McCormick on Evidence § 195 (6th ed. 2006),

Character is a generalized description of a person’s disposition, or of the disposition in respect to a general trait, such as honesty, temperance or peacefulness.

In Black’s Law Dictionary (10th ed. 2014), “character” is defined as,

The qualities that combine to make an individual human being distinctive from others, esp. as regards morality and behavior; the disposition, reputation, or collective traits of a person as they might be gathered from close observation of that person’s pattern of behavior.

That’s actually pretty clear.[1]I like how Black’s distinguishes the “collective traits” of a person’s character from evidence of that character by noting character “might be gathered from close observation of that person’s pattern of behavior.” “Character” is the traits that are shown by behavior—the “evidence.” That’s a good cue for us to move on to “evidence of character.”

Evidence of Character

“Character” for purposes of the study of its admissibility in evidence is better understood in terms of how we try to use it in trials. On this subject, I want to be emphatic in saying,

Character evidence is routinely—and properly—admitted in trials every day.

Consider this illustration. On Friday afternoon before a Monday jury trial, the client shows up to his lawyer’s office for trial preparation. The lawyer is appalled to see the client wearing jeans, flip-flops, and a raggedy shirt. “No,” the lawyer tells the client, “That will not do. On Monday, I want you to dress like the respectable person we want the jury to believe you are.” On Monday, the client shows up at the courthouse in a three-piece suit. “Well,” the lawyer tells the client, “that’s better, but you’re overdoing it. We want you to look respectable in a sincere way, not overstated or flashy.” When the client removes his vest and tie, and loosens his shirt, he looks the part. In giving these instructions, the lawyer is preparing to do what every good lawyer does—offer to the jury evidence that her client is a person of respectable character—understated, not flashy.

The trial lawyer’s legitimate effort to show her client to be a person of good character continues during her direct examination of the client. Because she wants the jury to think well of her client, she will tailor her questions to bring out background information that puts her client in a good light. “Tell us about your family.” And, “What is your role in your church?” In South Carolina where I live and work, The Citadel—also known as The Military College of South Carolina—is well-known (even among jurors) to place great emphasis on its honor code. Most juries are likely to have at least one member who knows that The Citadel honor code states, “A cadet does not lie, cheat, or steal, nor tolerate those who do.” So, good trial lawyers would hardly ever pass up an opportunity to connect their client to The Citadel if they can. If it’s not the Citadel, the lawyer will use something else in the client’s background to try to show the jury the client is a person of good character.

Good trial lawyers are keenly aware our character shows to others our propensity—what we are likely to do—and what we are likely not to do—so lawyers are constantly managing the message of character by showing what we have done, our reputation, and the opinion of others. Emerson might not have been the first to tell us,

What you do speaks so loudly I cannot hear what you are saying.

But he was teaching us the importance we place on the character of other people.

So, assuming evidence of character is relevant, it is admissible

except… in one narrow circumstance. That’s the next section.

Inadmissible Evidence of Character

That one narrow exception to the admissibility of relevant character evidence is found in Rule 404 of the Federal Rules of Evidence.

Rule 404. Character Evidence; Crimes or Other Acts

(a) Character Evidence.

(1) Prohibited Uses. Evidence of a person’s character or character trait is not admissible to prove that on a particular occasion the person acted in accordance with the character or trait.

* * *

(b) Crimes, Wrongs, or Other Acts.

(1) Prohibited Uses. Evidence of a crime, wrong, or other act is not admissible to prove a person’s character in order to show that on a particular occasion the person acted in accordance with the character.

I want you to notice something critically important: Rule 404(a)(1) excludes character evidence only when the evidence is offered for the purpose of proving “that on a particular occasion the person acted in accordance with the character.” Go back and read the beginning of the rule again. The same is true of Rule 404(b)(1), which excludes evidence of crimes, wrongs, or other acts only when they are offered for the narrow purpose “to prove a person’s character in order to show that on a particular occasion the person acted in accordance with the character.” As I explained in another post entitled “Why?” is a critical question in Evidence!, the purpose for which any evidence is offered is a key inquiry in determining its admissibility, especially for character evidence.


People use evidence of another person’s character as an important consideration in making decisions about our interactions with that person. Thus, we can see that a person’s character is almost always going to be relevant. Under the first four words of Rule 402—“Relevant evidence is admissible …”—evidence of a person’s character is coming into evidence unless some other Rule or provision of law gives the trial judge the authority to exclude it. Rule 404 grants that authority only in one narrow circumstance.

What is that circumstance? Propensity. Under Rule 404(a)(1) and (b)(1), the use of evidence of a person’s character to show a propensity to take action consistent with that character trait is the only “Prohibited Use” of the evidence.

However, if character evidence is offered for any other purpose, then Rule 404 has nothing to say about it, and if it’s relevant, it’s admissible.

The Supreme Court of the United States explained how it works in criminal cases,

Courts … almost unanimously have come to disallow resort by the prosecution to any kind of evidence of a defendant’s evil character to establish a probability of his guilt. … The State may not show defendant’s prior trouble with the law, specific criminal acts, or ill name among his neighbors, even though such facts might logically be persuasive that he is by propensity a probable perpetrator of the crime.

Michelson v. United States, 335 U.S. 469, 475 (1948).

Here’s a quote I love, from a former law professor here in South Carolina:

It is in criminal cases that the law must be the most sternly on guard against allowing the doing of an act to be proved by a propensity to do it.

James F. Dreher, A Guide to Evidence Law in South Carolina 35 (South Carolina Bar 1967).

In criminal cases, there are exceptions to the “Prohibited Use,” but we’ll get to that another time. That’s as far as we’re going to go for now.

[1]When the Seventh Circuit wrote Doe, they must have been using an old edition of Black’s, like the fifth (1979) that I grew up with and that still sits on my shelf. The definition of character in that version was difficult. Things have gotten a lot better since Bryan Garner took over as editor of Black’s.

“Why?” is a critical question in Evidence!

September 10, 2018

One of the most important questions a trial 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, evidence struggles arise in the context of real problems faced by real people. So, to properly understand any evidence problem, lawyers and judges must understand the practical context in which the underlying problem arose. Focusing on the reason the party has for offering a particular piece of evidence draws us farther into this practical context. This, in turn, will sharpen our understanding of the evidence problem. Knowing the proponent’s goal in seeking to introduce the evidence—and the opponent’s thinking in trying to keep the evidence out—will help the trial lawyer formulate the most effective arguments, and help the trial judge make the proper rulings.

Second, and most importantly, the purpose for which the evidence is offered relates directly to its admissibility. Hearsay is an obvious example. If an “out-of-court” statement is “offer[ed] in evidence to prove the truth of the matter asserted in the statement,” it’s hearsay! Thus, knowing whether a statement is hearsay requires an inquiry into the purpose for which the statement is offered! As I wrote in a post about the “Small Steps” to understanding hearsay, 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? Character evidence is properly admitted in trials every day. Under Rule 404(a) and (b), however, evidence which might reflect on a person’s character is ordinarily excluded when it is offered “to prove that on a particular occasion the person acted in accordance with the character trait.” (the precise words of 404(b) are slightly different, 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 requires the trial judge to exclude 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 accordance with their character trait, then neither Rule 404(a) nor Rule 404(b) has anything 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,

  • Rule 406 (Habit)—“Evidence of a person’s habit … may be admitted” for the purpose of proving “that on a particular occasion the person … acted in accordance with the habit.”
  • Rule 407 (Subsequent Remedial Measures)—“Evidence of [a] subsequent [remedial] measure[] is not admissible” for the purpose of proving “negligence; culpable conduct; a defect … ; or a need for a warning.”
  • Rule 408 (Offers of Compromise)—“Evidence of [Compromise Offers and Negotiations] is not admissible” for the purpose of proving or disproving “the validity or amount of a disputed claim.”
  • Rule 409 (Payment of Medical Expense)—“Evidence of … offering to pay medical … expenses … is not admissible” for the purpose of proving “liability.”
  • Rule 411 (Liability Insurance)—“Evidence that a person was or was not insured against liability is not admissible” for the purpose of proving “whether the person acted negligently.”
  • Rule 610 (Religious Beliefs or Opinions)—“Evidence of a witness’s religious beliefs or opinions is not admissible” for the purpose of “attack[ing] or support[ing] the witness’s credibility.”
  • Rule 1002 (Original Documents)—“An original writing … is required” for the purpose of “prov[ing] its content.”

These Rules come into play only when the disputed evidence is offered for the purpose not permitted under the Rule. If the evidence is offered for some other legitimate purpose, the cited Rules have nothing to say about the admissibility of the evidence.

There are also situations in which the purpose for offering 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 help the trier of fact to understand the evidence or to determine a fact in issue.” To evaluate this element, either to make an argument as a trial lawyer or to make a ruling as a trial 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. The jury needs no “help” determining a conceded fact. 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 trial judge may find that the opinion will in fact help 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, a trial lawyer 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, and thus in whether evidence should be excluded under Rule 403.

But keep this very important principle in mind! The person offering the evidence does not get to choose what her purpose is. She gets to argue what her purpose is, but the other side gets to argue the point as well. As the Third Circuit explained regarding hearsay,

If the hearsay rule is to have any force, courts cannot accept without scrutiny an offering party’s representation that an out-of-court statement is being introduced for a material non-hearsay purpose. Rather, courts have a responsibility to assess independently whether the ostensible non-hearsay purpose is valid.

United States v. Sallins, 993 F.2d 344, 346 (3d Cir. 1993).

I had this come up regarding subsequent remedial measures under Rule 407 when I was Chief Judge of the South Carolina Court of Appeals. The plaintiff made a vigorous argument on appeal that the trial judge had improperly disagreed with him when she (the trial judge) found the evidence was offered for the prohibited purpose, instead of the purpose the plaintiff claimed. I wrote,

A trial court’s broad discretion to decide evidence questions … allow[s] it to determine whether the evidence violated Rule 407 or was legitimately offered for a purpose permitted under the rule.

Stephens ex rel. Lillian C. v. CSX Transp., Inc., 400 S.C. 503, 514, 735 S.E.2d 505, 511 (Ct. App. 2012). The State Supreme Court reversed on some issues, but not on the evidence questions. See 415 S.C. 182, 192 n.3, 781 S.E.2d 534, 539 n.3 (“Petitioner does not challenge the evidentiary rulings by the trial judge or the Court of Appeals’ decision on this issue. Accordingly, we have not addressed this portion of the Court of Appeals’ opinion.”).

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

Welcome—to “The Art of Evidence”

September 7, 2018

My name is John Cannon Few. I am a Justice on the Supreme Court of South Carolina, but in my heart, I’m still a trial lawyer! I love the study of how trial lawyers and trial judges deal with the admissibility of evidence. I love the human dynamics of a trial, in which real trial lawyers put their hearts into helping people solve real problems. And I love how those human dynamics affect the evidence issues that arise. In short, I love the passion of a trial lawyer! This blog is built on that passion.

I spent the last thirty years in a courtroom, face-to-face with that passion, and I know how evidence actually works in trials. I tried dozens of cases from counsel table with and against the best lawyers in the South. For ten years I tried hundreds of cases from the trial bench with the best lawyers from anywhere. For the last eight years, I have worked in appellate courtrooms reviewing thousands of cases in which the best trial lawyers and trial judges handle evidence. I have taught evidence. I gave my first of many continuing legal education classes on the admissibility of evidence over twenty-five years ago. In 2004, I began teaching Evidence to trial judges at the National Judicial College in Reno, Nevada. I started teaching Evidence classes in law schools in 2007, and I have been teaching “Advanced Evidence” at the University of South Carolina School of Law since 2012. So, I should have learned a bit about how evidence actually works in trials.

This blog—“The Art of Evidence”—will be my outlet for the hard lessons I have learned in all those years. I will cover it all, from general posts about hearsay, character, and experts, to specific posts about how to analyze reliability for non-opinion scientific knowledge, the authentication of GPS tracking data, and whether so-called “investigatory statements” made to law enforcement officers should be excluded under the rule against hearsay. With what I have learned about these topics and others, I hope to generate a broader discussion among trial lawyers, trial and appellate judges, and academics, about the practical use of evidence in trials. So, I invite the academics to point out to us how we can make our work more academically sound, but I promise my readers that what you read here is practically sound. I am going to write about the manner in which the best trial lawyers and trial judges in America handle evidence issues in real courtrooms, to solve the problems of real people.

So, please follow along and join me in this discussion. Follow the blog—literally—which you can do by clicking in the lower right-hand corner. Write your thoughts in public comments on the blog, or in private messages to me at or through Twitter at @Justice_Few. If you have thoughts about other topics I should cover, share those too.

Thank You!

John Cannon Few

An Introduction to the Requirement of Authentication

September 6, 2018

To develop a deep understanding of the practicalities of authentication as quickly as possible, let’s begin with a point of philosophy. Understanding this philosophical premise will enable us to master the challenge of getting it done in court.

The task of authenticating evidence is addressed in Rules 901 to 903 of the Federal Rules of Evidence. The requirement that evidence be authenticated, however, is not in the text of the Rules themselves. So, here is the philosophy,

The requirement of authentication is inherent in the foundational concept of Relevance.

This point of philosophy is essential to understanding how the requirement of authentication works in practice. In 1954, Professor McCormick wrote the following about the requirement of authentication,

One who seeks to introduce evidence of a particular fact, or item of proof, must generally give evidence (or offer assurance that we will do so) of those circumstances which make this fact or item relevant to some issue in the case.

This is from the Advisory Committee’s official “Notes” to Rule 901(a),

Authentication and identification represent a special aspect of relevancy[;] … “an inherent logical necessity” (quoting Wigmore) … in the category of relevancy dependent upon fulfillment of a condition of fact … governed by the procedure set forth in Rule 104(b).

To illustrate this point, let’s consider the plaintiff’s evidentiary burden in an action for breach of a written contract. Let’s be more specific. The plaintiff is a furniture store, and the contract is a sales contract through which the store financed the sale of furniture. The buyer agreed to make monthly payments for five years. The dispute is over interest; the store contends the buyer agreed to pay 8% annual interest on the outstanding principal, but the buyer contends the sale was interest-free. So, to collect interest, the store must prove the obligation to pay interest was one of the terms of the contract. Since everyone agrees it is a written contract, the store must produce the writing itself.

Rule 1002. Requirement of Original

To prove the content of a writing, recording, or photograph, the original writing, recording, or photograph is required, except as otherwise provided in these rules or by Act of Congress.

But what writing, or which contract?

This brings up the key question for authentication,

What does the proponent claim this evidence is?

If the store attempted to introduce a contract it made with a different customer, the contract would not be relevant. The trial judge would throw up her hands and say, “What does that have to do with anything?” The store must introduce the contract it made with the defendant.

That’s the answer to the key question

We (the store) claim this document is the contract the buyer/defendant signed!

When the store attempts to do that by introducing a specific writing, how do we know it’s the right one?


A sales contract signed by another customer would have nothing to do with this case; it would infuriate the trial judge because it would not be relevant. The way we know the sales contract offered into evidence is relevant is that it proves (or tends to prove) this buyer agreed to pay interest, and the way we know that is the writing he signed says so.

Authentication establishes relevance!

Here are some examples of how the attorney for our plaintiff could authenticate the sales contract showing (or perhaps not showing) the buyer’s promise to pay 8% interest,

  • Rule 901(b)(1)
    • “I am listed as a witness to the buyer’s signature on this contract. I would not have witnessed this contract if I did not see the buyer sign it, and I recognize my own signature.”
    • “I am not listed as a witness, but I remember this particular contract and I watched the buyer sign it.”
  • Rule 901(b)(2)
    • “I am the buyer’s wife, I am familiar with his signature, and I recognize the signature on this contract as his.”
  • Rule 901(b)(3)
    • “It is my opinion that this signature was placed on this sales contract by the defendant,” testified to by an expert who has been qualified as an expert under Rule 702.
  • Rule 901(b)(4)
    • Proof of distinctive provisions in the contract such as date of execution, account number, buyer’s SSN, amount of principle, listing of furniture purchased, date of and address for delivery, perhaps others.
  • Rule 902(9)
    • The sales contract is an agreement to pay to an identified person a particular amount of money on a set date, and thus it is a “note,” as a result of which it is considered “commercial paper.” The note is signed by the buyer, and pursuant to section 3-308(a) of the UCC (“general commercial law”), “with respect to an instrument, the authenticity of . . . each signature on the instrument is admitted unless specifically denied in the pleadings.”

Hearsay—in Small Steps

September 5, 2018

Hearsay is a very difficult problem; arguably the most difficult in law. Many years ago, the late, great Lawyer, Professor, and Judge Irving Younger teasingly lamented,

I wasted the flower of my youth trying to understand hearsay.

By this, Younger meant that after spending a lifetime trying to conquer the rule against hearsay, he finally realized the beast cannot be conquered. Others have had colorful things to say about the difficulty of understanding hearsay. Professor John M. Maguire of Harvard Law School called hearsay an “unintelligible thicket.” John M. Maguire, The Hearsay System: Around and Through the Thicket, 14 Van. L. Rev. 741 (1961). Here is one of my favorite comments on the difficulty of understanding hearsay,

[For] judges, practitioners and students (not to mention occasional law teachers) . . . the rule against hearsay has always been an awesome and terrifying mystery. Like its partner in terror, the rule against perpetuities, the rule against hearsay ranks as one of the law’s most celebrated nightmares. To many practitioners, it is a dimly remembered vision, which conjures up confused images of complex exceptions and incomprehensible and antiquated cases.

That’s from a book called Evidence and Advocacy by Peter Murphy and David N. Barnard (Blackstone 1984).

These playful comments confirm for us the serious reality that hearsay is an extremely difficult concept. As a trial judge years ago, I ruled on the admissibility of statements I was absolutely positive were offered to prove the truth of the matter asserted, only to later discuss them with the smartest judges I know to find they completely and emphatically disagreed with me. However, we’re all in good company. In a recent decision by the Supreme Court of the United States, five justices were adamant that statements in a laboratory report were offered to prove the truth of the statements, but four justices were equally convinced the statements were offered for a purpose other than their truth. See Williams v. Illinois, 567 U.S. 50, 57-58, 119-20 (2012).

If the justices of our nation’s highest court cannot agree on the supposedly basic premise of the rule against hearsay, how can we expect to fully understand it? Well, we can’t. The most we can hope for is to understand the manner in which hearsay deceives us! Acknowledging the difficulty of understanding a particular hearsay problem is a helpful—if not essential—step toward getting the analysis right.

One of the core tasks of lawyers in general, and trial advocates in particular, is to take extremely complicated subjects and make them simple, so they can be better—even if not completely—understood. I might be crazy, but I think I can do that for you. So, I’m going to do three things in this post. First, I will set out two short, hopefully pain-free, philosophical premises about hearsay analysis. Second, I am going to give you a few “small steps” we can take to give ourselves the best chance at the giant challenge of understanding a specific hearsay problem. Third, I am going to reference another blog post in which I will prove the effectiveness of the “small step” method of analysis by applying it to the facts of one of the classic hearsay cases of all time—Emich Motors Corporation v. General Motors Corporation, 181 F.2d 79 (7th Cir. 1950). I would have included it here, but this post will already be long enough.

The Philosophy

The philosophical premises are simply that the analysis of whether a statement is hearsay under the definition in Rule 801(c) of the Federal Rules of Evidence:

  1. is a separate analysis from whether an exception or exemption applies, and
  2. is an analysis that cannot be made effectively in the abstract.

To clarify these premises, here are a few ground rules for understanding hearsay, focused on the Rule 801(c) definition:

Ground Rule One: to truly grasp hearsay, we must 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. 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 That Are Not Hearsay.” For now, however, please forget about Rule 801(d). I will cover it in great detail in separate blog posts. 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—for now—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 to understand hearsay, 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, 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 an “out-of-court” statement, or, as stated in Rule 801(c)(1), a statement “the declarant does not make while testifying at the current trial or hearing”).

The “Small Steps”

Step One—the first step in analyzing any evidence problem is to ask “Is it Relevant?”

This point is proven in a separate blog post “The Fundamental Concept of Relevance.” But there is a more subtle point here, and that is to consider not only whether it is relevant, but why is it relevant? We could call that two steps—whether and why—but it’s really one, because . . .

Understanding the reason a piece of evidence is relevant is integral to knowing whether it is relevant.

Step Two—to the extent possible, you must answer the question “What is the Statement?”

Sometimes this can be quite difficult, even impossible, but it is very important to know what the statement is, down to the specific words the declarant used to make it. This “second step” can be intertwined with the first step because sometimes you must know what the statement is to understand whether and why it is relevant, but for our purposes here it is step two.

If you’re a trial judge, send the jury out so you can discuss the words of the statement with the lawyers, or to let the witness testify to them outside the jury’s presence. That’s not always necessary, but I know I did it hundreds of times when I was a trial judge, and it always gave me a clearer understanding of what my ruling should be. If you’re a trial lawyer, then consider whether asking to have the jury sent out helps your client. If you think it does, ask for it. If not, well . . .

No lawyer should ask for something that does not help her client . . . !

Step Three—you must ask “What is ‘the Matter Asserted in the Statement?’”

Notice that the interior quote in the step-three question is the language of Rule 801(c)(2). You also have to remember the Rule 801(a) provision that a statement is “a person’s . . . assertion,” or if it is non-verbal conduct, it is a statement when “the person intended it as an assertion.” So, here we ask what was the person trying to say? Or, if it is non-verbal conduct, what was the person intending to convey with the conduct?

In this “third step,” 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 the plaintiff or defendant asserted in a pleading, or in the lawsuit generally. 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 statement.

Focus on what the declarant asserted “in the statement”—the one the party has objected to as hearsay!

One more point of emphasis, because this is where I see most lawyers—even good ones—get tripped up. The question here is literal! What—literally—did the declarant assert in the statement?

Step Four—we are getting close to the critical question, but next we ask a question that can be framed in a number of different ways. I like to frame it like this, “What is the significance to the case that the statement might be true, as compared to the significance of the mere fact the statement was made, or the significance of some other role the statement may play in the case that does not depend on the truth of the statement?” Here are a couple of illustrations of how we might analyze the significance of a statement in this way:

Imagine an intersection wreck case in which the passenger of one car is severely injured. Just after the accident, a bystander heard the passenger say, “That other knucklehead ran the red light and hit us.” Forget that this might be an excited utterance, for perhaps the passenger is a careful-thinking lawyer, and the defense argues persuasively the statement was not spontaneous. I’ll have a blog post later on the importance of spontaneity in admitting excited utterances. Consider the significance to the case that the statement might be true in each of these three scenarios.

  1. The passenger survived, and the issue of liability is hotly contested at trial.
  2. The passenger died, and the issue of liability is hotly contested at trial.
  3. The passenger died, and the defendant concedes liability at trial.

In the first scenario, whether the statement is true is very significant to the case. In the second scenario the truth is also significant, but it is also very significant merely that the statement was made, because it proves the passenger was alive after the accident, and thus suffered conscious pain and suffering. In the third scenario, it makes little to no difference whether the statement is true, but it is quite significant that the passenger was alive after the accident.

Here is another illustration. The plaintiff slips, and falls, on a paved walkway outside a business during a rainstorm. Not long before this happened, the business put a sealer on the surface of the walkway. The plaintiff called employees of the business to testify that several customers told them the walkway “was slick when it was wet.” Obviously, it is very important to the plaintiff’s case to prove that the walkway gets slippery when it’s wet. So, it is significant to the outcome of the case that the statements might be true. However, in a slip and fall case, it is necessary to prove notice, so the mere fact the statement was made is also significant, even if the statement is not true.

Focusing on the significance to the case that the statement might be true—as opposed the significance of using the statement for some purpose not dependent on its truth—prepares us for the last step—the critical question in any hearsay analysis.

Step Five—“Why is the statement being offered?”

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 in the statement.” This brings us back to the Rule 801(c)(2) portion of the definition of hearsay. If the statement is offered for the purpose of proving the truth of whatever is asserted in the statement, then it is hearsay. However, if it is not offered for that prohibited purpose, it is not hearsay!

Let’s go back to the slip and fall case. Many of you will recognize these facts, because the case is included in several popular evidence textbooks. The trial judge in the case allowed the statements into evidence, and the plaintiff won. The defendant appealed, in part on the basis that the admission of the statements violated the rule against hearsay. The appellate court acknowledged it was important to the case the statements were true, but affirmed the trial court’s ruling the statements did not violate the rule against hearsay, finding the statements were nevertheless offered for another purpose. The court stated,

[T]o make her case the plaintiff was obliged to show that defendant’s officers knew about the slickness. Under the circumstances of this case, the trial court properly admitted evidence that this knowledge had come to them through complaints of patrons that [the] sealed area was slick when wet.

Vinyard v. Vinyard Funeral Home, Inc., 435 S.W.2d 392, 396 (Mo. Ct. App. 1968)

Here it is important to understand, however, that the person offering the statement does not get to choose what her purpose is. She gets to argue what her purpose is, but the other side gets to argue the point as well. As the Third Circuit has explained,

If the hearsay rule is to have any force, courts cannot accept without scrutiny an offering party’s representation that an out-of-court statement is being introduced for a material non-hearsay purpose. Rather, courts have a responsibility to assess independently whether the ostensible non-hearsay purpose is valid.

United States v. Sallins, 993 F.2d 344, 346 (3d Cir. 1993).

How does a court do that? Or, more importantly, how does a trial lawyer effectively argue “purpose?” I will cover that in detail very soon in a separate blog post titled “‘Why?’ is a Critical Question in Evidence!”

The Proof for the “Small Steps” Approach

This “proof” is in a separate blog post on Emich Motors Corporation v. General Motors Corporation, a classic hearsay case reported at 181 F.2d 79 (7th Cir. 1950). Why do I say this is a “classic case?” It’s the only court decision discussed by the Federal Rules of Evidence Advisory Committee in its “Note” to Rule 801(c).

Relevance—The Fundamental Concept in the Analysis of Evidence

September 4, 2018

Relevance is important in the analysis of the admissibility of evidence for obvious reasons. But whether a particular piece of evidence is relevant is important to the analysis of evidence on an even more fundamental level than often gets discussed—its “role” in the structure of evidence analysis. In fact, the fundamental concept—the starting point—in all analysis of the admissibility of evidence in American courts is found in the first four words of Rule 402 of the Federal Rules of Evidence:

Relevant evidence is admissible . . .

. . . and its converse from the last sentence of Rule 402:

Irrelevant evidence is not admissible.

Before I go on to explain in more depth what that “role” is, let me prove the point that this is the fundamental concept of the analysis of the admissibility of evidence. Here are the first two sentences of the official “Notes” to Rule 402 written by the Federal Rules of Evidence Advisory Committee when the Federal Rules of Evidence were adopted 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.

You will observe from reading this “Note” that this “fundamental concept” is not new with the adoption of the Federal Rules, but has been “a presupposition involved in the very conception of a rational system of evidence” since at least 1898 when Harvard law professor James Bradley Thayer wrote about it.[1]

Let’s see what some others have had to say. Here is Professor Dale Nance,

The cornerstone of modern evidence law is relevance. Its rationalist tones may not engender the passion of notions like prejudice, due process, or even privilege. Yet its theoretical and practical importance cannot be denied. For example, the heart of the Federal Rules of Evidence, Rule 402, codifies the two fundamental principles of the common law of admissibility: the presumptive admissibility of relevant evidence and the inadmissibility of irrelevant evidence. Relevance is the threshold admissibility issue, applicable to every piece of evidence offered.

Dale A. Nance, Conditional Relevance Reinterpreted, 70 B.U.L. Rev. 447 (1990).

As Professor Nance[2] explains, Rule 402 embodies the central concept upon which the Federal Rules of Evidence were based. If evidence is relevant, it’s presumptively admissible. With some minor exceptions, this is the only rule of evidence which “admits” evidence.

The rest of the rules serve two basic purposes.  Some rules explain the way trials and rulings on evidence work. For example, Rules 101, 103, 1008, and 1101 set forth the scope and applicability of the Rules; and Rule 104 gives us guidelines on how judges make decisions preliminary to rulings on evidence. The heart of the rest of the rules, however, serve the other purpose—to permit trial judges to “exclude” relevant evidence. That’s why the next words in Rule 402 are

. . . unless any of the following provides otherwise . . . .

The point of the authorities quoted above is that we never reach questions about character evidence, or hearsay, or opinion, or any of the other difficult concepts of evidence, if the evidence is not relevant. If the evidence is relevant, it’s admissible, “unless” some other rule or provision of law allows the trial judge to exclude it.

This “central concept” is fundamental to understanding how all of the other rules apply to the situations you face on a daily basis. I wrote a bit more about it in anther blog post, “Thinking Through the Structure of Evidence.” That one will be out shortly.

[1] Professor Thayer was one of the original scholars on evidence law, and his 1893 article on judicial restraint—“The Origin and Scope of the American Doctrine of Constitutional Law”— remains “one of the most renowned pieces of scholarship in American constitutional law.”  For a discussion of Thayer’s role in the development of modern evidence analysis, see

[2] Professor Nance is an internationally recognized evidence scholar who currently teaches at Case Western Reserve University. He previously taught at Cornell University, Chicago-Kent College of Law, the University of Colorado, and the University of San Diego.