Determining Admissibility of Evidence
By – Charles H. Barnett, III and Sara E. Barnett
A. Determining Applicability of Rules: State and Federal
The applicability of the Federal Rules of Evidence is specified in Rule 1101 of the Federal Rules of Evidence (“FRE”). The Rules naturally apply in most cases in Federal courts. They are applicable in United States district courts, bankruptcy courts and magistrate judges, courts of appeals, and courts of federal claims. The rules apply in both civil and criminal cases as well as admiralty, maritime cases, and contempt proceedings. There are, however, some exceptions. They do not apply to grand jury proceedings, extradition, the issuing of arrest warrants, a preliminary examination in a criminal case, sentencing, granting or revocation of probation, and bail or release proceedings.
Tennessee Rules of Evidence (“TRE”) 101 provides that the rules of evidence govern evidence rulings in all trial courts of Tennessee except as otherwise provided by statute or rule of the Tennessee Supreme Court. The advisory comments specifically state that the rules of evidence are applicable to General Sessions Courts and Juvenile Courts. Further, the Tennessee Claims Commission is governed by the rules. Other areas which they are not applicable are similar to the FRE, and they would include preliminary proceedings and sentencing proceedings. Administrative proceedings are not governed exclusively by the rules. The exceptions to the rules are quite complex in preliminary criminal matters and post-trial matters involving interplay between statutes and United States Constitutional requirements and are beyond the scope of this presenter’s knowledge.
Of significance to both civil and criminal practitioners, the Federal and Tennessee Rules of Evidence, with the exception of privilege, do not apply to a court’s determination under Rule 104(a) on a preliminary question of fact governing admissibility. Rule 104(a) governs the process of determining admissibility of evidence itself. In other words, to determine whether a given matter is let into evidence, the court does not have to follow the rules of evidence. For example, to determine whether a statement is admissible as a dying declaration, the court could hear hearsay statements concerning the circumstances of the declaration. Ironically, this means that hearsay is admissible to determine if a statement is hearsay.
The remaining provisions of Rule 104 are very similar in both the federal and state rules. They provide that a court can admit evidence conditionally. For example: “I will tie that up shortly, Your Honor.” Rule 104(b). The Rule also provides for jury out hearings on admissibility. Rule 104(c). The Rules provide that the testimony of an accused on a preliminary matter does not subject the accused to cross-examination in the case in chief. Rule 104(d). Rule 104(e) is a handy rule that practitioners should keep in mind. This Rule, in essence, states that just because something is ruled into evidence does not mean that you cannot attack its weight or credibility. For example, the court rules that a dying declaration is admissible. You seek to introduce evidence that the declarant was drunk. Your opponent objects that the court has already ruled the declaration admissible. Your response is that your evidence goes to the “weight” and is admissible under Rule 104(e).
B. Is it Hearsay?
One of the most common evidentiary objections is that a statement is hearsay. The hearsay rule, although familiar to all practitioners and laymen, is probably the most misunderstood and misapplied evidentiary rule. The hearsay objection is so common that lawyers begin talking like this: “Q Did Mr. Smith indicate to you what town he came from?” The reason lawyers use the word “indicate” is because they are afraid to use the word “say” for fear of bringing on the dreaded hearsay objection. The truth be told, there is some method in this madness. The words “say” or “said” tend to trigger a hearsay objection whether it is warranted or not. For example, an expert witness is testifying as to the cost of fencing. The expert witness testifies: “I conducted an investigation and consulted with ten local fencing vendors, and they all said that the cost of fencing is between $0.50 to $0.75 per foot.” There is a strong likelihood that this will draw an objection and the proponent will have to explain why this is admissible. Or, the expert witness could testify as follows: “I conducted an investigation and consulted with ten local fencing vendors and found that the cost of fencing is between $0.50 to $0.75 per foot.” There is likely to be no hearsay objection to this testimony, and if there is an objection, it is likely to be summarily overruled.
Leaving aside the wisdom of avoiding the hearsay objection by careful wording, it is extremely useful to have an understanding of what is and is not hearsay. Both the state and federal Rule 801 define hearsay similarly as an out of court statement that is offered for the proof of the fact stated. The problem comes with the later part of the definition. As stated above, most or many practitioners make an objection of hearsay to any statement that they do not like if it is an “out of court statement” whether it is offered for the proof of the fact stated or not.
Let’s take a look at an example: The witness testifies that he talked to his brother on the phone and his brother said it was raining in London. Is this hearsay? The answer is, it depends. If the statement was offered to prove that it is raining in London, then it is hearsay. But, if it was offered to prove anything else-such as his brother was alive or the phone was working-then it is not hearsay.
Any time it is relevant as to whether the statement was actually made, the statement is not hearsay. For example, “I will pay you $500 for your car” is not hearsay in a breach of contract case about the sale of the car. It is a little tricky because it is offered to prove that it was said and not that it was done. Generally speaking, statements that look forward in time are not hearsay or else fit into a hearsay exception.
This example is a common type of situation in court: The witness testifies: “Mr. Jones told me that he was going to burn down the church.” Is this hearsay? Again, it depends on what the testimony is intended to prove. Let’s say in this case that what is at issue is whether the person testifying should be prosecuted for wrongfully calling the fire department. It is obvious to anyone, layman or lawyer, that this statement should go into evidence, but because lawyers and judges do not necessarily understand the rule of hearsay, it will usually go in under the “state of mind” exception when it is really not hearsay at all because it is not offered for the proof of the fact stated. It is offered to prove that the statement was made and caused the witness to call the fire department. This is not to say that if you try to explain to a judge that something is not hearsay and do not make any head way that you should not go ahead and offer up the old “excited utterance” and “state of mind” exception. In fact, if you were trying to prove that the speaker burned down the church, then state of mind exception would be applicable.
The following is a somewhat mind bending example. A man comes into a store and points a gun at the cashier, and says “Stick um up, this is a hold up.” The issue in question is whether there was a hold up. Can the cashier testify as to what the man said? Is pointing the gun a statement? Is it hearsay? Does the state of mind exception apply? Does excited utterance apply? Is it all of the above?
C. Is it Relevant?
The definition of relevance is pretty straightforward, although vague and subjective. Relevant evidence is any evidence that has the tendency to make a fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence. Rule 401 of FRE and TRE. Rule 402 says, in effect, that relevant evidence is admissible and irrelevant evidence is inadmissible. The phrase of “consequence to the determination of the action” is referred to as materiality. Materiality seems to be similar to relevance, which illustrates the vagueness of the rule because the rule more or less says that relevant evidence has to be relevant. It also states that evidence is not admissible if it is prohibited by the Constitution of the United States, the Constitution of the State of Tennessee, and other rules and statutes.
The definition of relevance has another requirement other than materiality that is discussed above. It also has to have a “tendency to make a fact more probable or less probable.” Therefore, relevant evidence has two requirements. It has to have some weight and be material. This has everyday practical applications. The practitioner should keep handy the idea that proof does not have to prove something absolutely. The phrase should be at the tip of your tongue when meeting a relevance objection about a fact that you want to go into evidence: “Your Honor, it goes to the weight not the admissibility.” For example, let’s say you’re the prosecutor in a drunk driving case. You are trying to enter the testimony of a witness who saw the defendant have a few drinks a couple of hours before he was in a crash and got caught by the cops.
Opposing Counsel: “Objection, Your Honor, Relevance.”
You: “Your Honor, we have a burden to prove that the Defendant was intoxicated at a particular time on the day of the crash. Eyewitness testimony describing him consuming alcoholic beverages that day clearly tends to support that point.”
Opposing Counsel: “Your Honor, may I respond? The State has a burden to prove the defendant was intoxicated at a particular time on the day in question. But they are discussing events that occurred several hours beforehand, without demonstrating a connection between the two.”
You: “Your Honor, may I respond? Provided all parties here concede, as I think we do, that consuming alcoholic drinks at one time tends to cause intoxication later, Counsel’s objection goes to weight not admissibility. Relevance is a low bar; these facts need only tend to show he was intoxicated at the time he drove. Opposing counsel is certainly free to argue that we haven’t met our burden to prove intoxication, but he should be making that argument to the jury.”
It is important for the practitioner to have at the top of his tool box the applicable phrases to make and meet the objections as rapidly as possible because it is far easier to get a court to rule in your favor initially than it is to persuade the court to reverse its ruling. Somewhere in judge school, judges learn that once they rule they should rarely, if ever, change their ruling. Therefore, just like the phrase “it goes to the weight and not the admissibility” should be at the tip of your tongue. The phrase “evidence of bias and prejudice is always relevant” should also be readily available. Support for this is found in TRE Rule 616, which states: “A party may offer evidence by cross-examination, extrinsic evidence, or both, that a witness is biased in favor of or prejudiced against a party or another witness.” There are a couple of important things to note about this Rule. One is that the evidence is not limited to cross-examination but can include extrinsic evidence. In other words, “bias and prejudice are never collateral.” Another point to note is that there is no Rule 616 in the Federal Rules of Evidence; however, federal case law is apparently the same or similar. “Proof of bias is almost always relevant because the jury, as finder of fact and weigher of credibility, has historically been entitled to assess all evidence which might bear on the accuracy and truth of a witness’s testimony.” United States v. Abel, 469 U.S. 45, 52 (1984).
D. Reasons to Exclude
1. Exclusion on the Grounds of Prejudice, Confusion, or Waste of Time
Despite Rule 402, Rule 403 states that relevant evidence can be excluded if its probative value outweighs the danger of unfair prejudice, confusion, waste of time, etc. Rule 403 is a tool that the practitioner should keep handy to use to try to keep out evidence that is otherwise relevant. If the particular evidence seems to be a big problem and the practitioner thinks the trial judge would have a tendency to keep the evidence out, then Rule 403 is the one to use. On the other hand, if your opponent is making a Rule 403 objection, your argument should point out that this in an extraordinary remedy that excludes evidence only when the probative value is “substantially” outweighed by the listed considerations. Rule 403 “is an extraordinary remedy that should be used sparingly.” State v. James, 81 S.W.3d 751, 757 (Tenn. 2002) (quoting White v. Vanderbilt Univ., 21 S.W.3d 215, 227 (Tenn. Ct. App. 1999)). The rule contains a balancing test, but it should be noted that it is not the same balancing test that is generally used in a civil action. The balance weighs heavily toward allowing relevant evidence to be admitted.
2. Other Reasons Based on the Types of Evidence
a. Character Evidence
First, if you are a criminal trial specialist, then you need to be a grand master of the law of character evidence and you already know or should know more than you can learn from this seminar. The basics, however, for the general practitioner are as follows. Rules involving character evidences are found primarily in Rules 404, 405, 608, and 609. It is important to know that these very similar and confusing rules are in two separate sections of the Rules of Evidence and what the relationship is between the two sets of rules. Rules 404 and 405 are largely the domain of the criminal law practitioner. Rule 404(a)(1) starts out stating that you cannot use character to prove that a person acted in accordance with that character or trait. This is a blanket prohibition excluding character evidence in civil cases in so far as it is offered to prove that a person acted in accordance with the character or trait. A common example is that you cannot prove that a person was likely to be at fault in an accident because they had the character of being careless as being shown by other automobile accidents in which they were involved. This very same evidence might well be admissible for other purposes such as showing negligent hiring. In addition, such evidence also might be admissible in a case where character is a substantive issue such as a defamation suit where there is an issue of damage to reputation.
In contrast to civil cases, in criminal cases, the law does provide that in certain important circumstances character evidence can be used to prove that a person acted in conformity with that character on a particular occasion. Rule 401(a)(1). The most common circumstance is a defendant introducing evidence of a specific character trait in a trial. For example, if the case involved an assault, the defendant might introduce character evidence of peacefulness. In an embezzlement case, the defendant might introduce evidence of honesty. The law does not allow the prosecution to introduce evidence concerning the defendant’s character unless the defendant makes his or her character an issue in the case. This is very much a trap for the unwary since any cross-examination or statements concerning character can open the door to the prosecution introducing character evidence. Rule 405(a) specifically provides that “