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 test imony in juvenile courts t han in adult tribuna ls.” 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 jurisd ictions that employ differi ng 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 civ il rules (see,
e.g., K . S. A . § 38-2354 (2012); S.D. C L § 26-7A-56 (2012)). Stil l
other jurisdict ions provide in general terms that ev idence in delinquency trials must be
competent, relevant, and material, see, e.g., D.C. C § 16 -231 6( b ) ( 20 12 ); 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, evidentiar y issues are raised during trial by means of objections, motions
to strike testimony, and motions for a mistrial. These procedures are discussed in
Chapter34.
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 admissibil ity 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 t he 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 t he 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 Evidentia ry Issues out
of Earshot of the Trier of Fact
§ 30.02(a)(1) Bench Trials
Unlike jury t rials, in which t he division of responsibilities bet ween judge and jury
facilitates a resolution of sensitive evidentiary issues outside the heari ng 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 ordinar ily hear it in the course of determining its
admissibility. Although all judges profess to ignore excluded evidence in deciding guilt
or innocence, inevitably the ev idence affects the judge’s think ing. The problem is com-
plicated further by the unwilling ness of most judges to grant a recusal motion af ter
hearing highly prejudicia l evidence, see § 20.05 supra, and by the risk that a mere request
for recusal will i rritate 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 ev idence
before trial by mak ing a motion in limine which can be heard by a judge other tha n the
one who will preside over the tria l. As explained in § 7.03(c ) supra, some jurisdict ions
recognize pretr ial motions in limine for the purpose of challenging the admissibilit y of
prosecution evidence that, if mentioned at tria l, may prejudice the accused despite an
eventual rul ing excluding it. Although these motions are ordinarily made in cases slated
for jury tria l, 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 t hat 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 obviati ng any need for a
later request for recusal. Of course, in f raming the motion and in argu ing it, counsel will
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