Evidentiary Issues That Are Likely to Arise at Trial

• Author: Anthony G. Amsterdam/Martin Guggenheim/Randy A. Hertz
• Profession: University Professor and Professor of Law at New York University/Fiorello LaGuardia Professor of Clinical Law at New York University School of Law/Professor of Clinical Law at NYU School of Law
• Pages: 673-694

673

CHAPTER 30

EVIDENTIARY ISSUES

THAT ARE LIKELY TO

ARISE AT TRIAL

§ 30.01 Applicability of the Rules of Evidence

In In re Gault, 387 U.S. 1 (1967), the Supreme Court condemned the use of hearsay in

delinquency trials, observing that “[n]o reason is suggested or appears for a different

rule in respect of sworn testimony in juvenile courts than in adult tribunals.” Id. at 56.

The Gault opinion referred with approval to juvenile justice standards that “state that

testimony should be under oath and th at only competent, material and relevant evidence

under rules applicable to civil cases should be admitted in evidence.” Id. at 56–57 (citing

the Children’s Bureau’s Standards for Juvenile and Family Courts).

In a number of States a statute or court ru le specifies that juvenile delinquency trial s

shall be conducted in accordance wit h the rules of evidence employed in adult court pro-

ceedings. Jurisdictions that have adopted uniform ru les of evidence to govern adult civil

and criminal cases usually apply these rules to juvenile delinquency cases as well. See,

e.g., Ne. R. S. § 27-1101(1) (2012); O. S. A. tit. 10A, § 2-2-402(A) (2012);

R.I. R J. P. 9(b) (2012); W. S. A. § 938. 299(4) ( 2012); W. R E.

1101(b)(3) (2012) & 1977 Committee Note. In jurisdictions that employ differing rules

in civil and criminal cases, some States provide for the use of criminal rules of evi-

dence in delinquency trials (see, e.g., C. R J. P. 1 (2012); F. S. A.

§ 985.35(2) (2012); 705 I. C. S. A. 405/5-605(3)(a) (2012); I C A.

§ 232.47(5) (2012); M. R J. D 13.04 (2012); N.C. G. S. A.

§ 7B-2408 (2012); T. R J. P. 28(c) (2012); T. F. C A. § 54.03(d)

(2012); W. V. C §49-5-2(k) (2012)), while others call for the use of civil rules (see,

e.g., K. S. A. § 38-2354 (2012); S.D. C L §26-7A-56 (2012)). Still

other jurisdictions provide in general terms that evidence in delinquency trials must be

competent, relevant, and material, see, e.g., D.C. C§16-2316(b) (2012); N. R.

S. § 62D.040(4) (2012); N.Y. F. C. A § 342.2(1) (2012), without saying whether

evidentiary issues should be resolved in accordance with civil or criminal rules of evi-

dence. Finally, in some jurisdictions the juvenile code does not address the question of

evidentiary r ules at all; the courts by custom follow either the cr iminal or the civil ru les.

674 | Tri al Manual for Defense At torneys in Juvenile Delinquenc y Cases

§ 30.02 Procedur al Devices

Ordinarily, evidentiary issues are raised during trial by means of objections, motions

to strike testimony, and motions for a mistrial. These procedures are discussed in

Chapter34.

When the evidence in question is extremely prejudicial, the normal processes for

objecting to evidence wil l be inadequate. References to the existence of the evidence and

discussions of its admissibility will jaundice the trier of fact. Section 30.02(a) discusses

techniques for litigati ng the admissibility of highly prejudicial ev idence out of earshot of

the trier in bench and jury trials.

Section 30.02(b) discusses stipulations, which can be used to exclude prejudicial evi-

dence and can also be used to obviate the need to seek out and present witnesses on

technical or routine mat ters that the prosecution is prepared to concede. Section 30.02(c)

then discusses the option of “stipulated trials,” a procedure in which the entire trial is

conducted on the basis of prior transcripts, stipulations, or both.

§ 30.02(a) Procedures for Litigating Evidentiary Issues out

of Earshot of the Trier of Fact

§ 30.02(a)(1) Bench Trials

Unlike jury trials, in which the division of responsibilities between judge and jury

facilitates a resolution of sensitive evidentiary issues outside the hearing of the trier of

fact, bench trials involve a trier who is also the arbiter of evidentiary issues. Even when

evidence is excluded, the judge will ordinarily hear it in the course of determining its

admissibility. Although all judges profess to ignore excluded evidence in deciding guilt

or innocence, inevitably the evidence affects the judge’s thinking. The problem is com-

plicated further by the unwillingness of most judges to grant a recusal motion after

hearing highly prejudicia l evidence, see § 20.05 supra,and by the risk that a mere request

for recusal will irritate the judge, see § 20.07 supra.

If counsel knows in adva nce, from defense investigation, discovery, or prior hearings

in the case, that the prosecution intends to offer certain highly prejudicial and objec-

tionable evidence, counsel should consider litigating the admissibility of the evidence

before trial by making a motion in limine which can be heard by a judge other than the

one who will preside over the trial. As explained in § 7.03(c ) supra, some jurisdictions

recognize pretrial motions in limine for the purpose of challenging the admissibility of

prosecution evidence that, if mentioned at trial, may prejudice the accused despite an

eventual rul ing excluding it. Although these motions are ordinarily made in cases slated

for jury trial, counsel can invoke the same procedure before a bench trial. Since a judge

may resent the implication that s/he would consider prejudicial information s/ he has

excluded, counsel should stress that the motion in limine is being made merely as a pre-

cautionary measure to avert the possibility that inadmissible evidence might affect the

judge unconsciously at trial. See § 20.07 supra. In addition, counsel may wish to point

out that the motion procedure conserves judicial resources by obviating any need for a

later request for recusal. Of course, in f raming the motion and in argu ing it, counsel will