05 July 2005

For the judges out there . . .

For all three trial judges out there who might be reading this blog - Please either agree with me that that evidence is objectionable or disagree and tell me it is admissible because [fill in the blank].

When you don't explain why the evidence is admissible and only tell me that my argument "goes to the weight of the evidence, Mr. Lammers", my first instinct is to interpret that as "yes, you're correct, it should be excluded but I'm not going to do it and I think the appellate courts are more likely to back me than you." I also take it to mean that that bit of evidence is going to carry every bit of weight the prosecutor wants it to carry with you.

I know it's a terribly unfair way to see things but you must remember that at that moment I am in the heat of battle and not seeing things in a fair light.

[addendum: What brought this to mind is that I am reading a transcript while writing an appeal and the judge did this. As I read it I can see the probable reason for allowing the item into evidence but I don't know if it was the judge's reasoning. All I know is that I was told my argument would only go to the weight (where I expected it to weigh about as much as a gossamer web). I was a wee bit upset at this; still, Client was found not guilty on the charge that evidence related to (on an unrelated statutory argument) so I cannot claim any harm.]


Have Opinion, Will Travel said...

Your post pushed one of my buttons. As a practicioner and as a judge, I have long lamented that so many lawyers and judges simply do not sufficiently know or comprehend the rules of evidence.

In an adversary system of justice, it is up to the lawyers for the parties to make the tactical decision about whether or when to object and in the perfect world, they would state for the record the nature of the objection and the grounds with sufficient detail that the trial judge and appellate court would have a very clear idea of the legal grounds for keeping the evidence out and again in a perfect world, the other lawyer would advance a clear rationale as to why the evidence/testimony is admissible under the law and the trial court would rule, either adopting the rationale of one of the parties or advancing its own.

Reality of course is far removed from my idylic example above. Often reasons are not given at all or at least with any clarity and neither the losing party nor the trial court bother to make any real record to support their position which will always hurt you on appeal if you didn't prevail below. In other words, there is plenty of fault to go around.

A true story from my prosecution days may make you feel better by showing you are not alone in your frustration.

I put on my case and rested and the first witness called by the defense was the detective who was asked to relate the (self-serving) statement the defendant had given after his arrest. I objected on hearsay grounds and the judge looked at me strangely and said "but a defendant's statement to the police is admissible, after all you prosecutor's put them in all the time."

Astounded, I tried to explain that the statement of a party exception to the hearsay rule requires that the party be unavailable as a witness (which of course a criminal defendant is as far as the prosecutor is concerned thanks to the Fifth Amendment) but that the defendant was hardly unavailable to himself.

The trial judge just kept muttering "but you guys do it" and allowed the detective to testify. I spent the rest of the day just shaking my head since, of course I had no right to appeal.

Anonymous said...


I had, literally, the exact same thing happen to me. I'm still hot about it.

Anonymous said...

Actually, I should have read your comment more closely. It happened to me, and the judge got it wrong. However, the reason it's not admissible is not because of the availability or unavailability of the witness. It's because the exception is for a statement of a party opponent.