While judges believe the Rules of Evidence are their tools for controlling lawyers, I have always believed and taught that knowledge of the Rules is what permits lawyers to control the courtroom.\u00a0 This is true in at least two regards.<\/p>\n
Because the litigation process is adversarial, it is the lawyer who addresses evidence claims in limine<\/em> or by objection who decide in most instances whether an evidentiary issue will even be \u2018on the table\u2019 for judicial consideration. \u00a0\u00a0\u201cAdvocates take an active role, whereas the judge remains a passive participant.\u201d\u00a0 United States v. Loughner<\/u>, 672 F.3d 731, 762 (9th Cir. 2012) \u00a0And lawyers who know<\/em> the Rules \u2013 know their language, their theoretical underpinnings, their interplay with one another, their interpretation through decisional law and commentary, and their application to specific patterns of facts \u2013 set the conversation and dominate it, framing the issues and leading the discussion.<\/p>\n Is there one Rule that is so powerful above all others that it gives control, or the potential for control to the lawyer?\u00a0 Posing the question \u201cwhat Rule of Evidence is the most powerful\u201d \u2013 itself a question with inherent ambiguity, as \u201cpowerful\u201d may have varied meanings \u2013 to colleagues is a test I recently conducted, simply to see what responses were generated.\u00a0 First I\u2019ll report what skilled Evidence scholars, with litigation backgrounds, replied; and then share my own answer, one selected by only one of the respondents.<\/p>\n RESPONSES OF COLLEAGUES<\/p>\n All thoughtful answers.\u00a0 Particularly intriguing is that involving Rule 501 and the idea of the power of privilege barring access to what may be the most probative evidence available in a case.\u00a0 As to the vote for Rule 403, I differ not because of the Rule\u2019s potential but because of its express limitations \u2013 evidence \u201cmay\u201d be excluded when its value is \u201csubstantially\u201d outweighed by any of the enumerated risks.<\/p>\n And only one volunteered my selection.\u00a0 Approaching this from a litigation perspective, my selection is Rule 105.<\/p>\n Hunh?<\/p>\n 105 reads as follows:<\/p>\n If the court admits evidence that is admissible against a party or for a purpose\u2014but not against another party or for another purpose\u2014the court, on timely request, must restrict the evidence to its proper scope and instruct the jury accordingly.<\/p>\n Delete the notion of \u201cagainst a party\u201d and the Rule addresses the situation \u201cif the court admits evidence that is admissible for [one] purpose but not for another purpose\u2026\u201d<\/p>\n While the Rule\u2019s use of \u201cif\u201d does not itself create an authority to admit evidence as long as it has one allowable use, it has been read as such.\u00a0 Limited admissibility is \u201cembodied in Rule 105\u2026\u201d\u00a0 Lubbock Feed Lots, Inc. v. Iowa Beef Processors, Inc.<\/u>, 630 F.2d 250, 265 (5th Cir. 1980).\u00a0\u00a0 See also <\/em>Davis v. Duran<\/u>, 276 F.R.D. 227, 233 n.5 (N.D. Ill. 2011)(\u201c Rule 105 provides for limited admissibility\u2026\u201d).<\/p>\n The power of this Rule does not end with its tolerance of and approval for admitting evidence that has some<\/em> legitimate purpose regardless of any number of improper ones; it increases exponentially with the \u201ccrucial assumption underlying that system is that juries will follow the instructions<\/strong> given them by the trial judge\u2026\u201d\u00a0 Parker v. Randolph<\/u>, 442 U.S. 62, 73, 99 S. Ct. 2132, 2139 (1979).<\/p>\n Lest there be any doubt of the power of Rule 105, consider the recent decision in The prosecution was permitted to introduce evidence that Thomas had assaulted the codefendant weeks earlier by shoving the gun barrel into her mouth and down her throat<\/em>.\u00a0 In terms of the relevance of this evidence, the Michigan court explained that this<\/p>\n was material because it related to a fact of consequence (i.e., who had access to and used the murder weapon)\u2026If defendant used the murder weapon to assault [codefendant], it shows that he had access to the murder weapon and made it more probable that he committed the instant offense with the murder weapon. Moreover, the fact that the gun was shoved down Dijana’s throat explains why her DNA was on the inside of the barrel and on the side of the gun.<\/p>\n And Rule 105\u2019s role?\u00a0 As the appellate court explained, \u201cthe trial court\u2026gave a limiting instruction that the jury may only use this evidence to \u2018think about whether this tends to show how the DNA of [codefendant] was found on the gun.\u2019 This limiting instruction lessened the potential for prejudice because \u2018jurors are presumed to follow their instructions.\u2019”<\/p>\n In other words, an instruction along the lines of \u201cdon\u2019t use the fact that he shoved a gun down someone else\u2019s throat to show he is a bad, murderous guy but only to explain why the other person\u2019s DNA is there\u201d is presumed to suffice.\u00a0 That is a POWERFUL rule.<\/p>\n <\/p>\n <\/p>\n <\/p>\n <\/p>\n","protected":false},"excerpt":{"rendered":" While judges believe the Rules of Evidence are their tools for controlling lawyers, I have always believed and taught that knowledge of the Rules is what permits lawyers to control the courtroom.\u00a0 This is true in at least two regards. Because the litigation process is adversarial, it is the lawyer who addresses evidence claims in<\/p>\n","protected":false},"author":31,"featured_media":0,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"generate_page_header":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[2,3,7,11],"tags":[],"coauthors":[238],"class_list":["post-1804","post","type-post","status-publish","format-standard","hentry","category-advocacy","category-advocacy-and-evidence-blog","category-evidence","category-trial-advocacy"],"yoast_head":"\n\n
\nPeople v. Thomas<\/u>, No. 326232, 2016 Mich. App. LEXIS 1506, at *5 (Ct. App. Aug. 11, 2016).\u00a0 Thomas was charged with murder, but his DNA was not found on the gun; his codefendant\u2019s DNA was found on the side of the gun along with inside of the barrel of the gun. Who fired the weapon that killed the victim was at issue in the case.<\/p>\n