jan182011

Why Every High School Student Should Learn the Rules of Evidence

A basic understanding of hearsay, credibility, and expert opinions

Karen A. Stansbury, Attorney at Law

Founder and Chair, Professional Women’s Alliance of Connecticut pwa-ct.com

January 18, 2011

Never believe anything you hear, and only half of what you see.

Wouldn’t it be great if people actually knew the facts of a situation before they began spreading rumors? It has happened to all of us: a friend, or colleague, or so-called professional makes a statement, and what has been said, or written, is immediately taken as gospel. Later on, it is clear that the original story teller didn’t have a clue about the subject, or worse, deliberately misled the listener, often to her detriment.

The reasons for this passing of misinformation are varied. Some people just like the sound of their own voices. They enjoy captivating an audience with entertaining opinions and generalizations, and they know that many people assume that if a story teller sounds confident in his subject matter, everything that he is saying is true. Others get a charge out of deliberately manipulating people, usually to their own ends. The agenda may be jealousy, competitiveness, or fear. Money may be the impetus. For example, a journalist wants to sell copies of newspapers and magazines, or draw the public to a television, radio, or web report. Veracity is immaterial, and more often than not, if the viewers see the story in the media, they will believe.

Most law students take an Evidence course in their first year of legal training. From that point on, budding lawyers are aware that there are at least two sides to every case, and that the motivation of the story teller is every bit as relevant as the story itself.

The Rules of Evidence were drafted for the federal court system, and each state, as a means of introducing probative information into the litigation process, thereby separating the wheat from the chaff. What does this mean? If a wife states that her husband is having an affair, her testimony will be completely discounted if she is merely repeating what her best friend has allegedly heard. If a legally blind man is being questioned regarding a car accident which he observed, his testimony is probably, although not necessarily, less credible than evidence presented by another man with perfect vision. If a physician is claiming to be an expert on Lyme disease, it would be important to ascertain where she went to school, how long she had been practicing medicine, what extra training she has received to deal with Lyme disease cases, any research she may have done, and how many patients she has treated.

Hearsay

The definition of hearsay is ‘an out of court statement repeated in court for the purpose of proving that what the declarant said is true.’ The original speaker is not present in court, and someone else is telling the tale. Such testimony will be dismissed by the judge as valueless, because the declarant, or real witness, is not in court to be cross examined. There are exceptions to this rule, and they vary in the federal rules, and from state to state.

What are some examples of hearsay?

Meg says to Judy: “Kim emailed me that cheerleader tryouts are Friday at four in the gym.”

Sandy says to Laura: “Connie told me that the library art show is accepting entries all day on Saturday and Sunday.”

Bill says to Pete: “Joe thinks that we should hire Fred’s construction company to put the addition on the clubhouse.”

Paul says to Bart: “Melanie texted me that she would never go out with you.”

Applying the legal definition to the above statements, they were all allegedly rendered by a declarant who is not present for validation, and the third party is meant to believe the statements.

Credibility

The term ‘impeachment’ refers to the introduction of evidence aimed at discrediting the testimony of a witness. The information offered is meant to cast doubt upon the accuracy or truthfulness of her testimony.

For example, Meg has deliberately misled Judy as to the date and time of cheerleading tryouts because Meg wants to be a member of the squad, and she has a better chance of making it if Judy misses her chance to tryout. If Judy even suspects that Meg’s motivation is less than honest, she should immediately check with the captain or coach of the existing squad, who can contradict Meg’s statement.

Similarly, Connie has lied to Sandy, and as a result, Laura as well, because Connie wants to win a prize at the art show, and feels that Sandy is too much competition. Again, the key is to approach disinterested people who probably have the facts.

In the third instance, perhaps Joe or Pete has a financial interest in hiring Fred. They may be business partners, or family members, or just friends, and Bill knows that Fred needs the money.

Finally, Paul may want to go out with Melanie himself, or he has a friend who does. In the alternative, Paul’s agenda is pure spite; Melanie has turned him down in the past.

Remember that in every case it is possible that the declarant never made a statement at all, and that each of the declarants is being set up as a liar. Connie did not speak to Sandy regarding the art show, and so on. Litigation lawyers use several techniques to show flaws in the credibility of witnesses: evidence of bad character or dishonesty; evidence of bias, either through favoritism or hostility; and evidence of prior inconsistent statements or self contradiction. Such methods work equally well out of court. Kim may be known to everyone in school as being a bit of a flake. Bill has let down a succession of three different business partners. If Paul has been caught cheating on tests, or has had his license suspended for drunk driving, his veracity should immediately be called into question.

In short, consider the source.

The Opinions of Experts

Qualifying experts is an area which lawyers find particularly bothersome. What exactly is an expert? If someone wears a white coat, or a badge, or hangs up a shingle, or prints impressive business cards, does it guarantee that every statement which comes out of his mouth is a fact?

With a few unusual exceptions, Connecticut attorneys are not permitted to claim that they are experts in law. By definition, however, an expert possesses knowledge and skill which distinguishes her from ordinary witnesses. The assumption is that she is in a superior position to draw inferences and deliver opinions and conclusions within her field of expertise.

Does this mean that an ‘expert’ is always right?

George has been a traffic cop for twenty-five years. The plaintiff’s lawyer wants him to testify as to his opinion of what happened in the pile up on I-95. The defense attorney cross examines George, and George admits that he has worked for the bulk of his career in Taos, New Mexico, and has only been in Connecticut for the last six months. He has only limited experience with traffic conditions in Connecticut.

Jody’s lawyer wants to prove that Jody’s husband is an unfit father. Jody’s lawyer hires a forensic psychiatrist named Sean to testify that Jody’s husband should not have custody of their children. The husband’s lawyer cross examines Sean. It turns out that Sean had only two meetings with Jody’s husband, and never saw the man interact with their children.

Stephanie has bought a young horse from a farm in Ireland and hires Jim to train the mare to be a show jumper. On his website Jim claims to be an expert with Irish horses, and he makes many pronouncements to Stephanie regarding her young mare’s abilities and health. Later Stephanie learns that Jim has only worked with two Irish horses in the past, both of which were older, experienced show animals. Furthermore, Jim is a show judge, and does very little training.

Joy has wanted to be an actress since high school. She has appeared in many amateur productions, and a few local professional shows. She hires a reputable acting coach named Sara, to help her get accepted into a famous school. Sara tells Joy that she doesn’t have the talent to be a professional actress, and that she should find another career. Joy ignores this negative advice, hires another coach, and is accepted into the school.

Phil has heard that Oscar is an amazing psychic. Oscar has worked with the state police and has had great success. He appears on talk shows, and radio programs, and has written two books on his experiences. Phil makes an appointment for a reading with Oscar. Oscar tells Phil that the reason that Phil can’t maintain a relationship with a woman is because he is really gay. Oscar also advises Phil that his career is at a dead end, and that he should consider moving to another part of the country. Phil is devastated, and contemplates changing his entire life. Suddenly, his boss offers him a big promotion and pay raise, and Phil becomes engaged to one of his new colleagues—a beautiful woman named Kelly. They buy a house in the next town and raise two children.

The bottom line regarding ‘experts’ is go with your gut. If the information received from a so-called professional sends off warning bells inside of you, don’t ignore them. Get another opinion, ask questions, and above all, think for yourself. When it comes to your life, you are the only expert.

Secondary school subject, or just common sense?

The obvious remedy is to teach the basic rules of evidence to young people as soon as possible. By age sixteen most teenagers are working and driving. It is therefore an opportune time to acquaint them with the concept of keeping an open mind when receiving information of any kind.

Course work in government, politics, history, and logic may easily accommodate this lesson. Students can debate the ‘real’ reasons for the Revolution, or the Civil War, for example, and the motivations behind the conflicts. Literature classes are equally fertile grounds for this kind of discussion. Most of the confusion in a good story is the result of a he said/she said imbroglio, with the whole truth finally emerging in the last chapter. If Elizabeth Bennet had not been so angry with Fitzwilliam Darcy, she never would have taken George Wickham’s narrative to heart, and most of the plot of Pride and Prejudice would have dropped out of the novel.

Of course, once people learn to keep their own counsel, and to analyze carefully what they are told, the public use for lawyers to disentangle conflicts will lessen exponentially. Incentive indeed.

Consider the excellent advice of Agatha Christie’s Miss Jane Marple in Sleeping Murder: “It really is very dangerous to believe people. I never have for years.”