§ 11.02 STIPULATIONS

• Jurisdiction: United States

§ 11.02. stipulations

[1] the doctrine

It is very common for the parties to stipulate before or during a trial. A stipulation can save both parties time, and by stipulating in the jury's presence, a party can attempt to create the impression in the jurors' minds that he or she is a reasonable, fair person.

There are several types of stipulations. For example, the parties may stipulate to continuances or to the admission of a particular exhibit.¹ However, we are concerned primarily with two types of evidentiary stipulations. The first is a stipulation of fact; the parties agree that a certain fact existed or that a certain event occurred. If the parties enter a stipulation of fact, neither party can ordinarily introduce evidence to contradict the stipulated fact. As the Court recognized in Old Chief v. United States, 519 U.S. 172, 117 S. Ct. 644, 136 L. Ed. 2d 574 (1997), the mere tender of a stipulation to a fact can reduce the proponent's need to resort to an item of evidence to prove the fact; the tender makes the evidence more vulnerable to an objection based on Rule 403. The second type of stipulation is a stipulation of expected testimony; the parties agree that if a particular person were present in court as a witness, the person would give certain testimony. The parties are not stipulating that the testimony is admissible, truthful, or correct; the parties may introduce evidence to contradict what the person would testify to, and they may object if particular sentences in the stipulation are objectionable under evidence law. The parties are agreeing on only what the person's testimony would be if the person appeared and testified in court.

The procedure for introducing stipulations varies. Some judges commonly permit the attorneys to recite oral stipulations. Other judges prefer that the parties reduce their stipulation to writing. Written pretrial stipulations obviously reduce the possibility for disagreement at trial over the content of the stipulation.

The final procedural question is whether the judge accepting the stipulation must personally question the parties. May the judge accept the attorneys' assurances that the parties assent? In civil actions, the judges routinely do so.

The answer is more complex in criminal cases. In Boykin v. Alabama, 395 U.S. 238, 89 S. Ct. 1709, 23 L. Ed. 2d 274 (1969), the Supreme Court held that since an accused waives certain constitutional rights by pleading guilty, the trial record must reflect that the accused knowingly waived the rights. In many cases, the accused stipulates to a trial on the basis of the preliminary hearing transcript. This practice is sometimes called a "slow (guilty) plea." Even if the accused does not stipulate to the truth of all the facts recited by the prosecution witnesses at the preliminary hearing, the accused is entering into a stipulation of expected testimony; the defense is agreeing that if the same witnesses appeared at trial, they would give the testimony they gave at the earlier hearing. The accused is implicitly waiving the Sixth Amendment rights to confront these witnesses and to have the jurors determine the witnesses' credibility. The argument was made that since this...