Narrative Implications of Evidentiary Rules

Abstract:     
Narrative coherence (the context in which statements are made) and narrative integrity (protecting a witness’ statements from "contamination" by extrinsic narratives) shape some evidentiary rules and practices. For example, allowing or restricting leading questions usually reflects whose story is being told - the witness’ own narrative, or one presented by a cross-examining attorney. In addition, prohibiting the use of "speaking objections" protects against attorneys’ arguments being presented at inappropriate times, and also protects against impermissible coaching of witnesses while they are being questioned by the opposing attorney. Furthermore, the development of context in dealing with embedded narratives provides a better explanation than more conventional justifications for treating most forms of party admissions as non-hearsay (or as admissible hearsay). However, narrative considerations also suggest that - contrary to common practice, such as under Federal Rule of Evidence 801(d)(2)(D) - a vicarious statement by a party’s agent should not be treated as a party admission, but should instead be tested for admissibility either as a previous statement by a non-party witness, or as an exception to the hearsay rule.

Number of Pages in PDF File: 38

Keywords: narrative, story, evidence, rhetoric, hearsay, hearsay exceptions, party admissions, vicarious admissions, direct examination, cross examination, speaking objections, waiver, estoppel, agent, principal

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