Evidentiary Trapdoors

Author:Justin Sevier
Position:Charles Ehrhardt Assistant Professor, Florida State University College of Law
Pages:1155-1212
SUMMARY

The Federal Rules of Evidence purport to balance a legal tribunal's search for the truth underlying a dispute with the tribunal's ability to do so using fair and just procedures. Rule makers' attempts to balance these competing interests have resulted in significant ambiguity—and maneuverability—within the Federal Rules of Evidence that cunning advocates can exploit to prove their case to the fact finder. Many legal... (see full summary)

 
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1155
Evidentiary Trapdoors
Justin Sevier*
ABSTRACT: The Federal Rules of Evidence purport to balance a legal
tribunal’s search for the truth underlying a dispute with the tribunal’s ability
to do so using fair and just procedures. Rule makers’ attempts to balance these
competing interests have resulted in significant ambiguity—and
maneuverability—within the Federal Rules of Evidence that cunning
advocates can exploit to prove their case to the fact finder. Many legal scholars
argue that advocates are left to their moral code and sense of fair play in
deciding whether to avail themselves of these ambiguities within the Federal
Rules of Evidence. This Article suggests that this approach can lead to
unintended consequences.
This Article introduces the concept of the evidentiary trapdoor. Evidentiary
trapdoors encompass instances under the Federal Rules of Evidence where the
application of an evidentiary rule either contradicts the rule’s plain language
or takes advantage of unintended ambiguities within the rule, based on the
tacit assumption that the novel application of the Rule will increase the legal
tribunal’s decisional accuracy. This Article relies on the psychological
literature on legitimacy and moral decision making to argue that a legal
tribunal’s use of trapdoor evidence has two perverse effects: (1) it lowers the
public’s perceptions of the trial’s fairness; and (2) it causes the public to
delegitimize the tribunal’s verdicts.
In support of these assertions, this Article reports the results of three original
experiments. The experiments reveal (1) that the public perceives a legal
tribunal’s decisional accuracy and its procedural fairness reciprocally, such
that an increase in the former decreases the latter; and (2) the use of so-called
“accuracy-enhancing” trapdoor evidence does not increase the perceived
accuracy of the tribunal’s verdict, but instead contributes to lowered
perceptions of the tribunal’s fairness and legitimacy. These findings have
substantial implications for the future direction of evidence law, for the role
*
Charles Ehrhardt Assistant Professor, Florida State University College of Law. I thank
Shawn Bayern, Avlana Eisenberg, Joni Hersch, Jake Linford, Mark Seidenfeld, Mark Spottswood,
Tom R. Tyler, Kip Viscusi, the Florida State University College of Law F aculty, and the Yale
University Department of Psychology for their guidance and for helpful oral and written
comments regarding the contents of this Article.
1156 IOWA LAW REVIEW [Vol. 103:1155
of empirical research in legal policymaking, and for attorneys’ ground-level
strategic decisions in litigation.
I.INTRODUCTION ........................................................................... 1157
II.THE LAW OF THE TRAPDOOR ...................................................... 1161
A.EVIDENTIARY CONTEXT ......................................................... 1161
B.TRAPDOOR TYPES & JUSTIFICATIONS ..................................... 1164
III.THE PSYCHOLOGY OF THE TRAPDOOR ........................................ 1169
A.PSYCHOLOGICAL LEGITIMACY ................................................ 1169
B.THE MORAL PSYCHOLOGY OF GAMESMANSHIP ....................... 1175
IV.THREE EXPERIMENTS .................................................................. 1180
A.STUDY 1: EVIDENTIARY TRAPDOORS ....................................... 1180
1.Participants .................................................................. 1181
2.Procedure and Measures ............................................ 1183
3.Results .......................................................................... 1187
i.Preliminary Matters ................................................. 1187
ii.Main Analysis ......................................................... 1189
iii.Serial Mediation Analysis ........................................ 1192
iv.Discussion ............................................................... 1194
B.STUDY 2: LEGAL MODERATORS .............................................. 1195
1.Participants .................................................................. 1196
2.Procedure and Measures ............................................ 1196
3.Results .......................................................................... 1198
i.Main Analysis ......................................................... 1199
ii.Mediated Moderation Analysis ................................. 1201
iii.Discussion ............................................................... 1203
C.STUDY 3: PSYCHOLOGICAL MODERATORS ............................... 1204
1.Participants, Procedures, and Measures .................... 1204
2.Results and Discussion ................................................ 1205
V.IMPLICATIONS, OBJECTIONS, AND CONCLUSIONS ....................... 1207
A.RESEARCH AND POLICY IMPLICATIONS ................................... 1208
B.CONCLUSION ......................................................................... 1211
2018] EVIDENTIARY TRAPDOORS 1157
I. INTRODUCTION
Trap (n.): “A stratagem for catching or tricking an unwary person. . . . A
confining or undesirable circumstance from which escape or relief is difficult
. . . . A trapdoor.” 1
As “[t]he government’s star witness” in the federal trial of David Hinkson
for solicitation of murder, Elven Joe Swisher proudly displayed his Purple
Heart lapel pin on his military uniform as he testified about his military
exploits in the Korean War.2 He then confidently testified that the defendant
had solicited him to commit the murders because of Swisher’s copious special
operations experience while he was deployed.3 When pressed by defense
counsel on cross-examination abou t the authenticity of his military
credentials, Swisher dramatically produced a document from his pocket
corroborating the details of his extensive service.4
There was, of course, one problem with Swisher’s testimony: none of it
was true. Military documents subpoenaed by the defense revealed that Swisher
lied about his military service to the court and the jury.5 But when the defense
attorney later attempted to impeach Swisher’s testimony with documents
provided by the Department of Defense, the prosecutor objected based on a
novel interpretation of Federal Rule of Evidence (“FRE”) 608(b), which
disallows the use of extrinsic evidence to prove collateral matters—such as a
witness’s character for truthfulness—at trial.6 The court sustained the
1. Trap, THE FREE DICTIONARY, http://www.thefreedictionary.com/trap (last visited Jan.
20, 2018). Dictionaries sometimes cross-list the term “trapdoor” with the related term “back
door,” which they define as “a secret, furtive, or illicit method, manner, or means.” Back door,
DICTIONARY.COM, http://www.dictionary.com/browse/back-door (last visited Oct. 22, 2017).
2. United States v. Hinkson, 585 F.3d 1247, 1268 (9th Cir. 2009) (en banc) (Fletcher, J.,
dissenting). “A Purple Heart is an award given to” United States military personnel “who are
wounded in combat.” Id. at 1270; see THE MILITARY ORDER OF THE PURPLE HEART, http://www.
purpleheart.org (last visited Jan. 20, 2018).
3. See Hinkson, 585 F.3d at 1269–70 (noting that the United States argued in its opening
statement to the jury that Swisher was a Korean War combat veteran, and arguably suggested at
trial that Swisher’s experience in the Korean War formed the basis of Hinkson’s sincere desire to
hire Swisher to murder federal officials).
4. Swisher produced a DD Form 214 (“Certificate of Release or Discharge from Active
Duty”). Id. at 1254, 1275. A DD-214 is a document issued by the United States Department of
Defense when a military service member retires, separates, or is discharged from active duty in
any branch of the United States Armed Forces. See The Road to Acquire Your DD214, http://www.
dd214.us (last visited Jan. 20, 2018).
5. Hinkson, 585 F.3d at 1276 (recounting how Swisher fabricated his records).
6. The defense attorney’s strategy to impeach Swisher’s trial testimony regarding his
military service constitutes a classic example of the “impeachment by contradiction” doctrine,
pursuant to Federal Rule of Evidence (“FRE”) 607. Id. at 1282. The Federal Rules place no formal
restrictions on the manner in which the defense conducts the impeachment. See FED. R. EVID.
607; see also United States v. Castillo, 181 F.3d 1129, 1132–33 (9th Cir. 1999) (noting that “the
concept of impeachment by contradiction [under FRE 607] permits courts to admit extrinsic
evidence that specific testimony is false” on the theory that “the witness should not be permitted
to engage in perjury, mislead the trier of fact, and then shield himself from impeachment by

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