SC Lawyer, Jan. 2004, #2. Beyond the bar January 2004 Public policy: the Corpus Evidentia meets Fredrick Nietzsche.

• Author: By Warren Mo\xEFse

South Carolina Lawyer

2004.

SC Lawyer, Jan. 2004, #2.

Beyond the bar January 2004 Public policy: the Corpus Evidentia meets Fredrick Nietzsche

South Carolina LawyerJanuary 2004 Beyond the bar January 2004 Public policy: the Corpus Evidentia meets Fredrick NietzscheBy Warren MoïseThe corpus evidentia is an ageless parade of non sequiturs stumbling through the pluff mud of confusion to the mountaintop of inconsistency. The Supreme Court has admitted that "much of this [evidence] law is archaic, paradoxical, and full of compromises and compensations by which an irrational advantage to one side is offset by a poorly reasoned counter privilege to the other." Michaelson v. United States, 335 U.S. 469, 486 (1948). No, the real beauty is not in the rules but in the process itself. Watching the courts balance conflicting procedural rules and vague legislative directives while struggling to do justice to the parties and the people at large is a wonderful thing to see.

When I was a 1 L, Prof. Pat Hubbard drummed into us the necessity of arguing public policy when no law is on point. Evidence law will often be "off point," thus the need for its underlying policies.

Who makes public policy, and where is it found?

Apologies to Rousseau, but official public policies are promulgated by government officials - not the public. They may be found in constitutions, statutes, rules, regulations and even in public speeches like President James Monroe's 1823 address to Congress in which the Monroe Doctrine was introduced.

The legislature is the primary source of public policy. Courts generally try to determine the legislature's intent when it has spoken on an issue. However, voids such as interpreting the requirements of due process still must be filled by the judiciary. Similarly, legislatures cannot possibly anticipate and declare public policies for the infinite potential scenarios arising in all areas of the law. Attorneys may persuade a court to adopt a policy by arguing that it follows or is consistent with legislative intent, or if a void exists, for fairness, historical, statistical, ethical, practical or other reasons.

Many evidentiary public policies are obvious. For example, Rules 408 and 410 obviously favor settlements and negotiated pleas, and Rule 409 encourages medical assistance to injured persons by making such kindness "inadmissible." However, some policies are not so obvious. Below I have set forth just a few of the many policy issues in the common law and rules of evidence. Of course, sometimes courts will favor one argument over another. Other times the court will ignore a policy argument or dispatch it with a footnote. Thus, accept these as general guidelines and not set in stone.

Rule 102

A broad public policy underlying evidence law is found in Rule 102: "These rules shall be construed to secure fairness in administration, elimination of unjustifiable expense and delay, . . . to the end that the truth may be ascertained and proceedings justly determined." Rule 102 is a rule of construction, not discretion. More to the point, the word "fairness" in Rule 102 is not an additional grant of discretion to the judge to trump a card played by a litigant, avoid a verdict with which he or she simply disagrees or even up the playing field between two litigants. 21 Charles Alan Wright & Kenneth W. Graham, Jr., Federal Practice and Procedure § 5023, at 128 (1977).

The big picture: let the sunshine in

Fact finders must make informed decisions, and they cannot do so in a vacuum. Thus, public policy strongly favors admission of relevant evidence unless it has no probative value at all. International Wood Processors v. Power Dry, Inc., 593 F. Supp. 710, 733 (D.S.C. 1984). This is no platitude - it's a rule of openness that sets the judiciary apart from backroom politics.

Rule 403 v. Frederick Nietzsche

The antagonist of the policy favoring free admission of relevant evidence is Rule 403, a necessary evil. In Justice John Rutledge's era, a biased or unsavory witness often was barred from testifying at all. Now the witness usually can testify but may be impeached about his flaws.

When a party moves to exclude relevant evidence under Rule 403, a directed-verdict analysis of sorts applies. A federal judge must view the "evidence in a light most favorable to its proponent, maximizing its probative value and minimizing its prejudicial value." Mullen v. Princess Anne Volunteer Fire Co., 853 F.2d 1130, 1135 (4th Cir. 1988). Nietzsche remarked that the "truth can be detestable and ugly in the extreme." Even when the truth is as ugly as my English bulldog Petunia, that doesn't necessarily mean it is unfairly prejudicial, Davis v. Traylor, 340 S.C. 150, 530 S.E.2d 385 (Ct. App. 2000) (Morehead, J.), or inadmissible under Rule 403.

The policy favoring relevant evidence requires that a judge look at alternatives. When a party claims to be surprised by relevant evidence, a continuance might be more preferable than excluding it. See Fed. R. Evid. 403 advisory committee note. Cf. Kramer v. Kramer, 473 S.C. 846, 323 S.C. 212 (Ct. App. 1996).

Similarly, when evidence is inadmissible for one purpose but relevant to another issue in the trial, courts will allow its admission subject to a limiting instruction.

Every person's evidence

There exists a basic principle that "the public . . . has a right to every man's evidence." Trammel v. United States, 445 U.S. 40, 50 (1980). In other words, the truth and the facts don't belong to a party - everyone should have access to them. This principle underlies the spoliation doctrine and gives rise to the concept that a party should produce all relevant evidence in its possession, custody or control for the fact finder's inspection, whether it has a legal right to withhold the information or not. Cf. Welsh v. Gibbons, 211 S.C. 516, 46 S.E.2d 147 (1948). Although there are exceptions, a party who withholds relevant evidence, even when not absolutely required to produce it, may be subject to cross-examination about the matter. Further, a party must not corrupt the jury or improperly prevent an adversary from presenting his case. Bribing of witnesses and jury tampering are crimes and may give rise to adverse inferences.

You made your bed; now lie in it

Themes of the Old Testament, Hammurabi and gestalt are found in evidence law. Especially when wrongdoing is intentional, or effectively so, the judge may penalize the wrongdoer, not the innocent party. The opened door doctrine is an example. Under this rule, a party who voluntarily injects improper issues into a trial may not complain when his adversary is allowed to rebut the wrongly admitted evidence. (A similar doctrine is impeachment by contradiction.) Similarly, courts have little patience for parties who do not object to improper evidence or who waive evidence rules in plea agreements then cry that they have made a bad bargain.

Criminal defendants are different

The accused enjoys special perquisites in evidentiary law. Constitutional protections, common-law rules and unique procedures such as Denno hearings carve out a special niche for the criminal defendant. Courts give a defendant the benefit of the doubt in a close decision to exclude certain species of prejudicial evidence. State v. Lyle, 125 S.C. 406, 436-37, 118 S.E. 803, 814 (1923). When the accused faces the death penalty, the U.S. Supreme Court has required extraordinary procedures to ensure that the process is done in a fair, reliable manner.

State of mind

Few burdens are as difficult as proving an adversary's mind-set. The courts recognize this and sometimes loosen the reins in such scenarios. When a U.S. Attorney must show criminal intent or knowledge, for example, extrinsic evidence of prior bad acts is freely admitted as circumstantial evidence. United States v. Queen, 132 F.3d 991, 995 (4th Cir. 1997). The same principle is applied in civil fraud cases.

Pigs, the fish eye and evidence rules

Finally, just as the pigs in Orwell's Animal Farm were more equal than the other animals, some rules are simply more important than others. For example, courts accord special significance to showing an adverse witness's bias, prejudice or motive to misrepresent the truth. The right to show those characteristics is an über rule and in a proper setting can trump virtually any other precept in evidence law. Cf. Yoho v. Thompson, 345 S.C. 361, 547 S.E.2d 584 (2001) (Burnett, J.). Courts appear more willing to permit extrinsic evidence to prove these things. See Davis v. Alaska, 415 U.S. 308 (1974). On the other hand, courts give the fish eye (i.e., a critical look) to exclusionary rules (for example, the Dead Man's Rule) and testimonial privileges. Thus, because the attorney-client privilege prevents the jury from learning the truth, it is not favored in the Fourth Circuit, In Re Grand Jury Proceedings, 727 F.2d 1352, 1355 (4th Cir. 1984), and our state courts strictly construe it.

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