JurisdictionUnited States


The Rules of Evidence apply in bench trials as well as in jury trials.97 Nevertheless, appellate courts often recognize a difference between bench and jury trials when reviewing evidentiary decisions.98 For example, the Supreme Court wrote that "[i]n bench trials, judges routinely hear inadmissible evidence that they are presumed to ignore when making decisions."99 However, if the trial record demonstrates that the court relied on inadmissible evidence, the presumption disappears.100 There are other differences. For example, Civil Rule 52(a) requires findings of fact and conclusions of law in a bench trial.101



[97] See McCormick, Law and the Future: Evidence, 51 Nw. U. L. Rev. 218, 225 (1956) ("[T]here is another great field of litigation in which the vitality of the exclusionary rule is already being drained away. This is the great and ever-growing field of trials by judges without a jury. Here it is true that nominally the jury trial rules of evidence are in effect. Actually, however, they are applied so loosely that they lose much of their restrictive force. The atmosphere of such trials discourages objections. Many experienced judges will admit all evidence, though objected to, if admissibility is debated, with the announcement that questions of admissibility will be reserved until all the evidence is in.").

[98] See generally Levin & Cohen, The Exclusionary Rules in Nonjury Criminal Cases, 119 U. Pa. L. Rev. 905 (1971); Davis, An Approach to Rules of Evidence for Nonjury Cases, 50 A.B.A. J. 723 (1964).

[99] Harris v. Rivera, 454 U.S. 339, 346 (1981) (per curiam).

[100] See United States v. Moore, 429 U.S. 20, 22 (1976) ("Equally unpersuasive is the Government's argument that the error was probably harmless because Moore was convicted in a bench trial; whatever the merits of that argument as a general proposition, it has a hollow ring in a case where the trial judge expressly relied upon the inadmissible evidence in finding the defendant guilty."); United States v. Poole, 640 F.3d 114, 118 (4th Cir. 2011) ("At the outset, we observe that the district court's comments constitute error, because the court apparently gave some consideration to matters that were not in evidence in the case."); Petion v. State, 48 So. 3d 726, 730 (Fla. 2010) ("The initial presumption that a trial court has disregarded inadmissible evidence during a non-jury trial is well established in Florida. . . . However, this...

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