MURRAY – EVIDENCE
FINAL EXAMINATION – PART I, FALL 2009
The purported purpose of the Federal Rules of Evidence is to facilitate the ascertainment of the truth in judicial proceedings. FREv 102. This objective implies that the fact-finder should be allowed toexamine all relevant evidence to produce the richest possible narrative and achieve the most accurate judicial determination. However, the exclusion of various forms of relevant evidence suggests mistrust in a jury’sability to avoid impermissible inferences, flawed reasoning, and emotional influenceswhen rendering verdicts. Becauseinquiry into the “black box” of a jury’s decision-making process is strictly prohibited (Tanner;FREv 606(b)),evidence law tries to prevent the jury from taking erroneous paths to decisions by depriving jurors of material that would tend to produce impermissible inferences.In depriving the jury of such potentially misleading information, evidentiary rules legitimate the otherwise inscrutable results of jury determinations.Although this legitimating function is to a large extent the primary goal of evidence law, public policy goals have also significantly influenced the development of the rules of admissibility.
The primary purpose of the evidentiary rules is to provide circumstantial guarantees that reason will triumph over emotion in the courtroom.This logical basis is first established by the orderly presentation (FREv 611(a)) of relevant evidence (FREv 401-402). Many evidence rules presumably function to provide the jury with pertinent information within the appropriate context to aid them in making informed decisions. See, e.g. FREv 607-609, FREv 703. However, many of the rules are clearly aimed at preventing juries from considering relevant evidence that nonetheless could lead them to improper inferences. For example, FREv 403 assigns the weighing function for evidence carrying a mere danger of unfair prejudice to the judge rather than the jury. The rules also mandate exclusion of certain evidence in sex offense cases (FREv 412-415) and evidence of prior crimes (FREv 404(b); FREv 609) for fear that the jury will draw inappropriate propensity inferences. Where such evidence is admitted for other purposes, limiting instructions provide only a minimal circumstantial guarantee that this information will be used correctly in a jury’s decision-making.
Hearsay rules also legitimize opaque jury verdicts to the extent that they eliminate the jury’s need to weigh evidence of questionable reliability. While many civil law jurisdictions admit relevant out of court statements subject to weighing, the Anglo-American tradition excludes such evidence absent circumstantial guarantees of reliability. FREv 802. This reflects a concern that juries will give too much weight to hearsay evidence. Exceptions to the hearsay rule are based on the common-law tradition rather than the actual reliability of particular statements. Accordingly, many hearsay exceptions have been criticized for being contrary to modern understanding.For example, present sense impressions (FREv 803(1)) and excited utterances (FREv 803(2)) are admissible hearsay exceptions, but psychological studies have shown that people are usually no more likely to be truthful in the heat of a moment or under stress. A credible explanation for this seeming contradiction is that hearsay exceptions are designed to comport with the community’s perception of legitimate evidenceindependent of any enhanced reliability. Thus, jury verdicts appear more legitimate where relevant hearsay is admitted based on socially-acceptable, rather than otherwise provable, circumstantial guarantees of reliability.
On the other hand, it could be argued that the hearsay rule and its exceptions operate primarily as rules of procedural fairness, rather than instruments of jury supervision. Theorigin of the hearsay rule at common law derives from the Treason Trial of Sir Walter Raleigh, which implies the insufficiency of second-hand evidence, especially where the liberty of a criminal defendant is at stake. The entire concept of the American adversarial system is based on the presentation of in-person oral testimony by witnesses under oath, from memory, in response to directed questions, subject to cross-examination, and in the presence of the lawyers, judge, and fact-finders. Written testimony is not allowed as a substitute for oral testimony, where the court can procure live testimony.FREv 804(a). While admission of out of court statementsusually does not violate a criminal defendant’s Constitutional confrontation rights,the American perception of a fair trial includes the opportunity to look the accusing witnesses in the eye and to hold them personally and psychologically accountable for their testimony. This provides an alternate explanation for why the hearsay rule has no middle ground. Hearsay evidence is arguably admitted (or not)based on conception of a fair trial in the American adversarial system, rather than our fears about the jury’s ability to evaluate such evidence.
In addition to the concept of fairness, manyevidentiary rulesare motivated by public policy rationale. These exceptions decrease the accuracy of jury verdicts by withholding extremely probative evidence from the fact-finder to promote some broader public interest transcending the normally predominant principles of evidence. Although it is doubtful that evidentiary rules have a significant effect on out-of-court behavior, several categorical rules of exclusion serve to promote preferential conduct. Public policy favors that dangerous conditions be remedied, that disputes be resolved, that acts of charity be encouraged, and that potential liabilities be insured.Thus, the rules of admissibility exclude evidence of subsequent remedial measures, offers of compromise, plea negotiations, payment of medical and similar expenses, and possession of liability insurance. FREv 407-411. External public policy also explains privileges that protect certain societal relationships and confidential communications (FREv 501), including attorney-client privilege (Prichard), psychotherapist-patient privilege (Jaffee), and marital privilege (Trammel).Privileges protect interpersonal relationshipsthat are highly valued by society and peculiarly vulnerable to deterioration should their necessary component of privacy be continually disregarded in courts of law.
These alternate functions of evidence law – fairness and promotion of preferential out-of-court behavior – can also be seen as necessary components of a legitimate jury system. Thus, the true legitimacy of a jury verdict is not measured by its proximity to the objective truth, but rather its conformity with society’s perceptions of fairness and justice. To the extent that the evidence rules embrace this concept of legitimacy, they are successful in their primary function of legitimating jury verdicts.
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