Evidence Rules and Trial Skills: Where Are We and Where Do We Go from Here
| Publication year | 2021 |
| Pages | 0018 |
By Judge W. Scott Donaldson
"The Constitution guarantees a fair trial through the Due Process Clauses... [A] fair trial is one in which evidence subject to adversarial testing is presented to an impartial tribunal for resolution of issues defined in advance of the proceeding."
Strickland v. Washington, 466 U.S. 668, 684-85 (1984).
For several years, I worked with middle school students preparing a mock trial to be presented at the end of the spring semester. The fact pattern I used involved a dispute between neighbors that arose from the sale of an item that did not meet the purchaser's expectations. The purchaser refused to pay and demanded another item; the seller refused and insisted on full payment. The students learned that interacting with each other inevitably leads to disputes and that this was a common one. The question we began with was fundamental: how does this dispute get resolved? We started with the assumption that there was nothing in place and worked through the historical evolution of dispute resolution. For example, the students saw that using violence to resolve disputes led to chaos and left the community unable to conduct business. Trials by ordeal and mystical approaches were not satisfactory. Monarchs and other arbiters could at least resolve the claims, but the students viewed the results as too dependent upon the personal biases and whims of the decision-maker.
What the students always said they wanted was "fairness." We looked for a dispute resolution system that at least attempted to treat all sides equally and without favoritism, and with a reasonably predictable result that could be applied to future disputes of a similar nature so that the community could govern itself accordingly. What was missing, the students ultimately concluded, were rules that were binding and guided the decision-maker toward a conclusion consistent with the stated goals. Thus, the judicial system was created within the classroom, and the mock trial made more sense to them.
As noted in the quote at the beginning of this article, a fundamental element of the constitutionally guaranteed "fair" trial in our judicial system is the presentation of evidence "subject to adversarial testing." In this edition of The Alabama Lawyer, experienced lawyers and judges from across our state give practical advice on that topic in six of the most common practice areas in our state court system. The authors were asked to write as if a lawyer who had an upcoming trial in that practice area asked: "What should I focus on?" The authors refer to some of the most common Alabama Rules of Evidence ("the Rules"), as the presentation and adversarial testing of evidence is largely governed by those Rules. We need external guides, like the Rules, in part so that reliable information can be presented in an orderly manner and to restrain the decision-maker from making decisions based on personal preferences. The Rules are not meaningless hurdles for the parties to navigate; instead, they "should be construed to secure fairness in administration, elimination of unjustifiable expense and delay, and promotion of growth and development of the law of evidence to the end that the truth may be ascertained and proceedings justly determined."1 As the students concluded, reasonable guidelines established in advance and applied in a consistent manner help ensure that the parties have a "fair" dispute resolution process, a "fair" trial.
The authors also make suggestions about how evidence should be presented in court under the Rules, or more broadly, about a lawyer's trial skills. I think we need to assess...
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