Trial Notebook: Common Evidentiary Problems at Trial
| Jurisdiction | United States |
| Publication year | 2022 |
You are in the middle of a hotly contested trial. You are attempting to introduce a critical piece of evidence. Your opponent suddenly screams, "Hearsay!" You know you can get it into evidence. After all, it falls under an exception to the hearsay rule, right? Its a recorded recollection, isn't it? ... Or is it a present recollection refreshed? Is there a difference?
This article is intended to be a "quick read" reference outline for trial practitioners to put in their trial notebooks or in the dog-eared Code of Evidence pamphlet they bring to trial. It contains a list of the main evidentiary problems that frequently arise at trial, an explanation of the doctrine in the Louisiana Code of Evidence, the foundation that must be laid to get the evidence in, and, in most cases, a recent Louisiana case interpreting or applying the rule. It also points out the major differences between the Louisiana Code of Evidence and the Federal Rules of Evidence.
Three Things to Remember in Every Evidentiary Skirmish
Make a Contemporaneous Objection Using the Proper Grounds
If you want to keep the evidence out, you must make a proper, contemporaneous objection stating the correct grounds for exclusion of the evidence. The evidence may be objectionable, but you must use the right objection to keep it out.
In Tartar v. Hymes, 94-758 (La. App. 5 Cir. 5/30/95), 656 So. 2d 756, 758, writ denied, 95-1640 (La. 10/6/95), 661 So. 2d 475, the court held that, where a trial objection to the admission of medical expense evidence in a personal injury case was on the grounds of relevancy, the objecting party's contention in the court of appeal that the evidence was hearsay would not be addressed.
The 403/401 Balancing Test
If you are losing the evidentiary battle, and if the evidence is particularly harmful to your case, try objecting under Code of Evidence art. 403, which provides that, even though the evidence may be relevant under art. 401, and otherwise admissible, it may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, misleading the jury, or by considerations of undue delay or waste of time.
Jones v. Peyton Place, Inc., 95-0574 (La. App. 4 Cir. 5/22/96), 675 So. 2d 754, involved a fall in which the plaintiff tripped over carpet and was injured. The defendant attempted to introduce evidence that subsequent to the accident the plaintiff had pleaded guilty to two felony counts of possession with intent to distribute cocaine. The court held that, even assuming, as the defendant argues, that the plaintiff's incarceration would be in some way relevant to the physical and mental pain and suffering from his injuries, whatever probative value this evidence has is extremely low when weighed against its potential prejudice.
Proffer
If you are attempting to introduce a piece of evidence and the court incorrectly excludes it, you must "proffer" the evidence if you wish to preserve the issue of its exclusion for appellate purposes.
La. C.E. art. 103(A) provides that error may not be predicated upon a ruling which admits or excludes evidence unless a substantial right of the party is affected, and, when the ruling is one excluding evidence, the substance of the evidence was made known to the court by counsel.
The courts have interpreted this to mean that, when evidence has been excluded by the trial court, a party has a legal right to make an offer of proof outside the presence of the jury of what the attorney expected to prove. The purpose of a proffer is to preserve evidence excluded by the trial court so that the evidence is available for appellate review. McLean v. Hunter, 495 So. 2d 1298 (La. 1986).
La. C.C.P. art. 1636 states that:
when the court rules against the admissibility of any evidence, it shall either permit the party offering such evidence to make a complete record thereof, or permit the party to make a statement setting forth the nature of the evidence.
If you do not make a proper proffer of the evidence, the appellate court will not be able to consider the issue on appeal.
Evidentiary Issues
Admissions: La. C.E. Art. 801(D)(1)(2)
An admission is not hearsay.
Hearsay is (1) an assertive statement; (2) made out of court; (3) offered in court to prove the truth of the matter stated.
An admission is a party's own statement, either in an individual, adoptive, or representative capacity.
The foundation: (1) A statement; (2) made by a party opponent; (3) in an individual or representative capacity; or (4) a statement of which he has manifested his adoption or belief; or (5) a statement made by a person authorized by him to make a statement concerning the subject; and (6) offered against that party.
The court in Hoffman v. Schwegmann Giant Super Markets, Inc., 572 So. 2d 825 (La. App. 4 Cir. 1990), admitted a statement of an individual identified only as "Mike" who came to a shopper's aid where there was evidence that he was a store employee and the statement concerned a matter within scope of his employment and was made during the existence of the employment...
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