§ 45.05 STIPULATIONS CONCERNING PROCEDURAL AND EVIDENTIARY RULES

• Jurisdiction: United States

§ 45.05. STIPULATIONS CONCERNING PROCEDURAL AND EVIDENTIARY RULES

Stipulations also include agreements between the parties about procedural and evidentiary rules. As the Supreme Court has noted, "[e]videntiary stipulations are a valuable and integral part of everyday trial practice. Prior to trial, parties often agree in writing to the admission of otherwise objectionable evidence, either in exchange for stipulations from opposing counsel or for other strategic purposes. . . . During the course of trial, parties frequently decide to waive evidentiary objections, and such tactics are routinely honored by trial judges."²⁶

Civil Rule 29 explicitly permits the parties to stipulate to changes in discovery procedures. In addition, counsel often stipulate to the authenticity of documents under Rule 901, the accuracy of copies of documents under Rule 1001 (best evidence rule), or the admissibility of evidence.²⁷ In effect, by stipulating, counsel agrees not to object to admissibility as required by Rule 103(a).

Although courts generally favor this type of agreement, they have rejected them on occasion. Courts often assert that stipulations relating to procedure and evidence are not binding on the judge.²⁸ For example, they have divided over the admissibility of the results of polygraph examinations offered pursuant to a stipulation. Courts rejecting stipulated polygraph results reason that the stipulation does not establish the validity of the polygraph technique; the agreement "does nothing to enhance the reliability of such evidence."²⁹ In contrast, courts admitting stipulated polygraph results take the position that the parties should control this issue. As one court has noted: "[T]he primary effect of the stipulation is that it operates as a waiver of objection or challenge to the validity of the basic theory of polygraph testing and eliminates the necessity of or the opportunity for the parties to establish a foundation in each case to satisfy the trial court of the basic theory and validity of polygraphs."³⁰

Constitutional issues. Stipulating to the admissibility of evidence may raise constitutional issues, such as the right of confrontation, in criminal cases. The issue is whether the accused has to personally waive this right. The courts, both federal³¹ and state,³² typically hold that defense counsel in a criminal case may stipulate to the admission of evidence as long as the defendant does not object and the attorney's decision was part of a legitimate...