UIdaho Law Digital Commons @ UIdaho Law Articles Faculty Works 10-2017 Avoid These leveE n Common Evidentiary Mistakes John E. Rumel University of Idaho College of Law, [email protected] Follow this and additional works at: https://digitalcommons.law.uidaho.edu/faculty_scholarship Part of the Evidence Commons Recommended Citation 60(10) Advocate 37 (2017) This Article is brought to you for free and open access by the Faculty Works at Digital Commons @ UIdaho Law. It has been accepted for inclusion in Articles by an authorized administrator of Digital Commons @ UIdaho Law. For more information, please contact [email protected]. Avoid These Eleven Common Evidentiary Mistakes John Rumel Tim Gresback he law provides attorneys with numerous tools not only that the to prove a case, but to prevent "[O]ne of the most overworked formulas is an objection the other side from submit- evidence is'incompetent, irrelevant and immaterial:Its rhythm and ting improper evidence. Un- alliteration seduce some lawyers to employ it as a routine ritual."I fortunately, all too often, lawyers make misplaced objections or fail - Professor Charles McCormick to make appropriate objections at trial-because they both misunder- stand the rules governing the admis- sibility of evidence and also have not fully evaluated the objection's strate- gic consequences. Mastering the fun- damentals of effective evidentiary Professor Charles McCormick, an McCormick explains, "A brick is not 1 objections opens the door to a more early national authority on the Law a wall." That is, a single item of evi- sophisticated and effective litigation of Evidence, decried attorneys' use of dence need not prove every element strategy. Here are some of the most the general objection, stating in his of a cause of action. Some evidence common misguided evidentiary ob- hornbook that "[o]ne of the most is more compelling than other evi- jections. overworked formulas is an objection dence. A relevance objection is an that the evidence is 'incompetent, ir- improper mechanism to inform a relevant and immaterial: Its rhythm court that a lawyer does not find the Objections relating to and alliteration seduce some lawyers opponent's proof convincing. substantive admissibility to employ it as a routine ritual", Take away: Many relevance objec- The General Objection: Irrelevant, Similarly, more recent commenta- tions are misplaced because the ad- immaterial and incompetent: In the tors have referred to the general ob- missibility threshold is easily met." early years of Idaho trial practice, jection as a "hackneyed alliterative Repetitive and reflexive relevance 7 objecting to evidence as irrelevant, phrase? objections bog trials down and un- immaterial and incompetent was a Take away: The alliteration is out- dermine a lawyer's credibility. Rele- dated and should be avoided. vance objections are best made spar- common and successful practice.1 Objection: Relevance: Relevance ingly. Indeed, as of 1930 and as late as objections are often lodged without Objection: Highly Prejudicial 1965, objections on these grounds an understanding that relevance is Sometimes evidence drives a nail were sustained by Idaho judges very easy to establish. Under I.R.E. through the heart of a claim or de- and affirmed by the Idaho Supreme is devastating. 2 401, relevant evidence need only fense; its admission Court. However, by the mid-1930s, have "any tendency to make the ex- Our rules do not reject devastating the Idaho Supreme Court began to istence of any fact that is of conse- evidence-they invite it. In a des- question the sufficiency of a general quence to the determination of the perate attempt to keep the hammer 3 objection. Likewise, an increasing action more probable or less prob- from the nail, many lawyers conflate number of treatises viewed an ob- able than it would be without the the purpose of the IRE 403 balanc- jection that evidence was irrelevant, evidence.' ing test and wrongly think that high- immaterial and incompetent as an Professor McCormick uses a ly prejudicial evidence is somehow impermissible general objection, brick wall metaphor to illustrate objectionable. only to be sustained if the evidence how almost all evidence is relevant.9 Under Rule 403, the first inquiry was not admissible on any grounds.4 A party has broad discretion on is whether the proffered evidence is Thus, by the early 1970s, the Idaho how to build its wall of truth, even relevant. As already explained, the high court held that the mantra was if the other side hotly disputes the vast majority of evidence is relevant. improper when a more specific ob- existence of every, some, or a single Once this easy threshold is crossed, jection might have been made.s evidentiary brick offered at trial. As the court then weighs whether the The Advocate -October 2017 37 probative value of the evidence will Objection: Lack of Foundation: Objection: [Blab Blab Blab] - The be "substantially outweighed" by Admissible evidence cannot arise Speaking Objection Jurors are not the danger of "unfair prejudice" from a factual vacuum. For example, supposed to hear lawyers argue legal Close calls favor admissibility: evi- before a party can testify in an auto issues meant for the court. Unfortu- dence is excluded only if the "unfair collision case that the traffic light nately, many lawyers ignore the con- prejudice" "substantially" outweighs was green at the time of a crash, striction and use an objection as a the probative value. The Rule 403 numerous predicate foundational showboating opportunity in front of balancing test, like our rule on rel- facts should be established-includ- the jury. Although a few judges may evance, favors admissibility. An un- ing that the witness remembers the tolerate such a technique, most will biased eyewitness who clearly sees a crash, was at the scene, and saw the rebuke it. Objections, when lodged, stabbing provides extremely prejudi- traffic light before impact. On direct must be succinctly stated without a cial testimony. Although highly prej- exam, foundational facts are usually commentary.14 elicited through non-leading jour- udicial, nothing whatsoever about Take away: Legal objections to ev- nalist questions that start with who, the evidence is unfair. idence neither present an opportu- what, where, when, or how. By contrast, evidence that the de- nity to charm jurors nor help a law- fendant previously stabbed someone yer establish credibility. Bombarded else on a prior occasion requires a with speaking objections-particu- more nuanced analysis. As already larly those that are overruled, a jury mentioned, the threshold inquiry may begin to tire and wonder why does not set a high bar. Certainly, the Our experience is that the wordy objector is slowing down fact that a person acted in a certain foundation objections, like the process. Even worse, the jury may consider the source rather than way yesterday does not conclusively relevance objections, are lodged prove the content of the objection and not how the person acted today. too frequently-and they The "any tendency" standard, how- take legitimate objections seriously. ever, does not require anything close usually backfire. to conclusive proof. As such, yester- Objections regarding the form of the day's conduct is indeed relevant in question or substance of the answer evaluating today's. Objection: Leading Question (on For Rule 403 balancing of a prior Re-direct Examination) Under the incident, it may help not to consider Idaho Rules of Evidence, the law whether the prior incident is irrele- concerning use of leading questions vant, but whether it is "too" relevant. on direct and cross-examination is In other words, jurors may reason Our experience is that founda- well established and well under- that because the defendant stabbed stood: "[hleading questions should tion objections, like relevance ob- before, the defendant is a bad per- not be used on the direct examina- jections, are lodged too frequent- son and should be convicted even if tion of a witness except as may be ly-and they usually backfire. The the proof of the charged incident is necessary to develop the testimony 12 overuse of foundation objections underwhelming. Now, the danger of the witness" including examining occurs mostly in criminal cases. De- of unfair prejudice is high, and the "a hostile witness, an adverse party, need for 403 balancing is more com- fenders time and again help prosecu- or a witness identified with an ad- tors prove guilt by demanding more pelling. verse party ... "1 In contrast,"[o]rdi- Take away: The goal in using the foundation. Prosecutors then shore narily leading questions should be Rule 403 balancing test is not to up their case and add the missing permitted on cross-examination"' convince the court that the evidence facts. Veteran defenders, by contrast, But what about on re-direct exami- devastatingly prejudices your case. wait for closing argument to explain nation? Its admission must unfairly preju- the absence of details. Although undecided in Idaho, dice your client for a compelling Take away: Like relevance objec- courts in other jurisdictions have policy reason that substantially out- tions, just because a foundation ob- held and commentators have made weighs its probative value. The preju- jection can be made does not mean clear that leading questions are dice must be unfair, and imbalance that it should be made. Avoid the generally inappropriate on redirect must be substantial.13 premature pounce. examination and are, therefore, ob- 38 The Advocate *October 2017 jectionable.17 Indeed, one court held that the failure to object to leading questions on re-direct examina- tion in a criminal case amounted to "unprofessional errors" constitut- ing ineffective assistance of coun- In an almost Pavlovian response, lawyers hear the words"she said"or sel, although the court ultimately "he said"and quickly blurt out a hearsay objection.