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“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.

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