Lawyers want (and need) easy tools for handling Evidence issues. Their understanding of the Rules, their application and their interplay may be hobbled by whether their Law School education was at the hands of a theorist rather than a practice-focused educator, the frequency with which they are in court, and their willingness to read, re-read and think about the law of Evidence.
What so many need is a handy, pocket-sized tool for assessing and addressing Evidence issues. In this electronic/digital age, they also get to choose format – print or online. This article will review two newly-available resources.
FEDERAL EVIDENCE APPLIED is an Ipad/Iphone app, available for free. Developed by the lawfirm Colley Shroyer Abraham in Ohio, it professes to “provide a clear and comprehensive way for attorneys to determine whether or not a specific piece of evidence is admissible in court. While analyzing a specific piece of evidence, the app screen lights up GREEN for admissible evidence or RED for inadmissible evidence.”
If only this were true. The app succeeds in part by offering a decision-tree approach to evidence questions. For example, the user may begin by finding a decision tree under the heading “Move to Admit.” The user then proceeds through steps – what is being used [live testimony, an exhibit, judicial notice]; whether the offering witness needs to be screened for competence; whether the proffered evidence is “relevant;” whether there is unfair prejudice; the type of evidence [e.g. subsequent remedial measure, other acts, habit.] But each screen offers only generic options. For example, the screen for “habit” offers four options:
- Person was in conformity with the habit
- Organization was in conformity with the habit
- Was not in conformity with the habit or custom if relevant such non-conformity is elevant
- None of the above
Let’s forget that the Habit rule speaks of the habit of a person or the “routine practice” of an organization, making the second bullet wrong; and let’s also forget the awkward wording of the third bullet. What’s missing is a critical analysis of why a particular behavior meets the habit threshold. The app offers no guidance to answer questions of that nature.
Decision trees guide reasoning – they don’t provide the answers or the tools for analysis. And the app has occasional errors/omissions. For example, when discussing the character attack on the credibility of a testifying witness the App omits entirely the phenomenon of a 608(a) character witnesses.
[For more information, go to http://www.colleyshroyerabraham.com/Federal-Evidence-Applied-App.shtml ]
A more complete tool is found in the latest NITA release of OBJECTIONS AT TRIAL. Co-authored by Judge Myron Bright and Evidence Professors Ronald Carlson and Edward J. Imwinkelreid, this pocket-sized reference (also available in an e-pub format) lacks the interactivity format of FEDERAL EVIDENCE APPLIED but makes up for that in analytical completeness. Each objection is showcased in a minute courtroom exchange and is then followed with an exegesis of the applicable Rule(s), the explanation for the particular ruling, and supporting caselaw.
Of particular value is the book’s reference of multiple Rules when an objection may implicate more than one legal issue. An example is the objection “Bad Acts Inadmissible.” The book analyzes the issue twice – first under 404(b), and again as an attack on witness credibility under 608(b).
There is an awkwardness to the organization of OBJECTIONS AT TRIAL. The book lists potential objections alphabetically – for example, the first five are
- Addressing Juror By Name
- Assuming Facts Not In Evidence
- Authentication or Identification Lacking
- Bad Acts Inadmissible
This format works only if the terms the authors use are those typically used by the practitioner. For example, the book discusses “Cross-Examination Exceeds Scope of Direct,” but to many practitioners the objection is “beyond the scope.” And I am not certain what “Misconduct of Counsel” translates to. [On the other hand, reading through the table of contents may inspire lawyers to think creatively about possible Evidence challenges – and for those not familiar with the Rules by numbers, the labels may offer a key to recognizing potential challenges.]
The section on hearsay is organized differently. Each hearsay exception or exemption is described, followed by a list of potential grounds for challenging an assertion being offered under that provision. This offers both ease of finding the specific rule at issue and the comfort of having a ‘checklist’ of conditions that must be met to permit admission.
There are other NITA Evidence resources, in particular FEDERAL RULES OF EVIDENCE WITH OBJECTIONS (2017), a book that tracks the Rules as codified. But for those who want an aid organized by topic rather than Rule, with succinct but rich caselaw updates, OBJECTIONS AT TRIAL is a useful tool for trial lawyers.