Poetic Justice in Punishing the Evidentiary Misdeed of Knowingly Proffering Inadmissible Evidence
International Commentaries on Evidence, 2008
26 Pages Posted: 20 Oct 2008
Date Written: October 17, 2008
Beginning in the late 1980s, reformers began developing new strategies for dealing with pretrial discovery misconduct. There was a consensus that such misconduct was widespread and often prevented litigants from successfully prosecuting meritorious claims.
Legislatures and courts adopted a much more aggressive attitude to combat such misconduct. For example, sanctions were imposed more frequently; and Federal Rule of Civil Procedure 37 was amended to permit the aggrieved party to introduce evidence of the opponent's pretrial discovery misconduct at trial as proof of the opponent's consciousness of the weakness of their position in the litigation. The downside of this development, though, was that pretrial hearings over such misconduct became commonplace and expensive. When the parties became mired down in such hearings, they were sometimes distracted from their primary task of litigating the merits of the case. There is now mounting pressure to deal more vigorously with evidentiary misconduct at trial. While such misconduct may not be as widespread as pretrial discovery misconduct, in at least one respect trial misconduct is arguably a more serious concern. When the misconduct occurs before trial, the judge has time - and numerous options - to prevent the misconduct from tainting the outcome of the trial. In contrast, if the misconduct occurs midtrial, there is less time, there are fewer viable options. When a litigant engages in the misconduct of knowingly exposing the jury to inadmissible evidence, many of the existing remedial options available to the trial judge are unsatisfactory. The judge may grant a curative instruction directing the jury to disregard the inadmissible evidence, but empirical research raises grave questions about the effectiveness of such instructions. To be sure, in an extreme case the judge can declare a mistrial. However, the aggrieved litigant may have limited financial resources; and if he or she cannot afford a second trial, he or she may be compelled to settle on unfavorable terms. This article proposes a new remedy for this evidentiary misconduct; analogizing to Rule 37, the article urges the courts to allow the innocent party to treat the misconduct as evidence of the opposition's consciousness of the weakness of their position in the litigation. On the one hand, the adoption of this proposal would provide a powerful disincentive to this species of misconduct. On the other hand, like pretrial discovery misconduct hearings, midtrial hearings devoted to this issue could potentially be both expensive and distracting. For that reason, the remedy should be granted only in extraordinary cases. The aggrieved party should have the burden of proving to the judge that the misconduct was intentional, and the measure of the burden ought to be clear and convincing evidence. Moreover, the judge should permit the aggrieved party to introduce the evidence only when the judge finds that any other available remedy would be ineffective.
Keywords: legal ethics, uncharged misconduct, other acts, and trial ethics
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