Criminal Defendant's Right to Present Exculpatory Evidence

Defendant was charged with various immigration-related offenses. Conviction of each offense depended on satisfactory proof that defendant was an illegal alien. The trial court rejected defendant's offer of Idaho birth certificate, which tended to show that defendant was born in the United States and therefore was a citizen of the United States. The Ninth Circuit US Court of Appeals held (2-1) that the trial court had committed reversible error. United States v. Evans, 720 F.3d 953 (9th Cir. 2013). The Court of Appeals made the following points (footnotes omitted):

"The Constitution 'guarantees criminal defendants a meaningful opportunity to present a complete defense.' United States v. Stever, 603 F.3d 747, 755 (9th Cir.2010) (internal quotation marks omitted). This right includes 'the right to present the defendant's version of the facts,' Washington v. Texas, 388 U.S. 14, 19, 87 S.Ct. 1920, 18 L.Ed.2d 1019 (1967), and to 'put before a jury evidence that might influence the determination of guilt,' Pennsylvania v. Ritchie, 480 U.S. 39, 56, 107 S.Ct. 989, 94 L.Ed.2d 40 (1987); see also Chambers v. Mississippi, 410 U.S. 284, 294, 93 S.Ct. 1038, 35 L.Ed.2d 297 (1973) ('The right of an accused in a criminal trial to due process is, in essence, the right to a fair opportunity to defend against the State's accusations.'). We have acknowledged that this right is not 'absolute,' and Alcala v. Woodford, 334 F.3d 862, 877 (9th Cir.2003), since the 'him adversary process could not function effectively without adherence to rules of procedure that govern the orderly presentation of facts and arguments,' and Taylor v. Illinois, 484 U.S. 400, 410–11, 108 S.Ct. 646, 98 L.Ed.2d 798 (1988). However, ‘"when evidence is excluded on the basis of an improper application of the evidentiary rules,"’ the the danger of a due process violation is particularly great, since ‘"the exclusion [of the evidence] is unsupported by any legitimate ... justification."’ Stever, 603 F.3d at 755 (brackets omitted) (quoting United States v. Lopez–Alvarez, 970 F.2d 583, 588 (9th Cir.1992)). We therefore begin our analysis by considering whether the district court properly applied the Federal Rules of Evidence. We conclude that it did not.

"A.

"The district court invoked Rule 104(a) as the source of its 'gate-keeping' authority. Rule 104(a) states that the court 'must decide any preliminary question' of fact or law about three types of issues: whether (1) 'a witness is qualified,' (2) 'a privilege exists,  him'or (3) 'evidence is admissible.' Fed.R.Evid. 104(a); see also Fed.R.Evid. 104(a) advisory committee notes.FN5 We have previously considered the trial court's gate-keeping function as it applies to the first two issues, but we have not explicitly considered the scope of the trial court's gate-keeping function with regard to the third issue.FN6 We conclude that the trial court's authority to determine if evidence is admissible pursuant to Rule 104(a) is necessarily limited by other rules of evidence—most importantly, Rule 402, which provides that evidence is admissible so long as (1) it is relevant, and (2) it is not otherwise inadmissible under, inter alia, the Federal Rules of Evidence. Fed.R.Evid. 402 ('Relevant evidence is admissible unless any of the following provides otherwise: the United States Constitution; a federal statute; these rules; or other rules prescribed by the Supreme Court. Irrelevant evidence is not admissible.').

"Thus, Rule 104(a) provides the trial court with the authority to decide questions that might make evidence inadmissible under some other rule of evidence (or under the Constitution, a federal statute, or other Supreme Court rules), but it does not itself provide a substantive basis for excluding the evidence. ...

"In each of the above [enumerated] scenarios, the trial court uses its Rule 104(a) authority to determine 'the existence of a condition,' which in turn determines '[t]he applicability of a particular rule of evidence.' Fed.R.Evid. 104(a) advisory committee notes. We have not previously considered whether a trial court can exclude evidence pursuant to Rule 104(a) without relying on some substantive basis outside of Rule 104(a), such as another rule of evidence, a federal statute, or the United States Constitution. We now hold that it cannot.FN7 See Fed.R.Evid. 402. To the extent that the district court here invoked an umbrella 'gate-keeping' him authority to exclude Evans's birth certificate so as to avoid a 'miscarriage of justice,' it exceeded the scope of its authority under Rule 104(a).FN8

"B.

"Because the trial court must admit evidence that is (1) relevant, and (2) not inadmissible under, inter alia, some other rule, Fed.R.Evid. 402, we next consider whether these conditions are met here. The government argues that the birth certificate is irrelevant because even if it was 'genuine in form,' it was 'not [genuine] in substance.' We disagree. The fact that the birth certificate was properly issued by the State of Idaho establishes that it is 'of consequence' him to an issue in both cases—Evans's claim of United States citizenship—and that it has some 'tendency to make [his alleged citizenship] more ... probable than it would be without the evidence.' Fed.R.Evid. 401. FN9 This establishes him that the birth certificate was relevant to all the counts in both cases.

"Furthermore, to the extent the district court conditioned the relevance of the birth certificate upon its 'substantive genuineness,' it erred in its application of Rule 104(b). This rule provides that where 'the relevance of evidence depends on whether a fact exists, proof must be introduced sufficient to support a finding that the fact does exist.' Fed.R.Evid. 104(b).FN10 If 'the foundation evidence is sufficient to support a finding of fulfillment of the condition ... the item is admitted.' Fed.R.Evid. 104(b) advisory committee notes. Furthermore, if 'after all the evidence on the issue is in, pro and con, the jury could reasonably conclude that fulfillment of the condition is not established,' the evidence is admitted, because 'the issue is for [the jury].' Id. (emphasis added). Only if 'the evidence is not such as to allow a finding, [does] the judge withdraw[ ] the matter from [the jury's] consideration.' Id. Of critical importance here, when 'determining whether the [party introducing evidence] has introduced sufficient evidence to meet Rule 104(b), the trial court neither weighs credibility nor makes a finding that the [party] has proved the conditional fact by a preponderance of the evidence.' Huddleston v. United States, 485 U.S. 681, 690, 108 S.Ct. 1496, 99 L.Ed.2d 771 (1988) (emphasis added). 'The court simply examines all the evidence in the case and decides whether the jury could reasonably find the conditional fact ... by a preponderance of the evidence.' Id.

"Here, although the district court did not specifically cite to Rule 104(b), its conclusion that no 'reasonable person' could 'determine that the Defendant's Idaho birth certificate is substantively genuine' draws its language and reasoning from Rule 104(b). But in reaching the conclusion that no reasonable person could find that Evans's birth certificate was substantively genuine, the district court erroneously weighed the credibility of the government's witnesses against the credibility of the official state document. Indeed, it expressly found that 'all three of the Government's witnesses were credible.' This was error. The fact that the birth certificate was an official document, issued by the Idaho Bureau of Vital Records and Health Statistics, provided a sufficient basis upon which a juror could conclude that the birth certificate was 'substantively genuine.' And to the extent the Government's evidence suggests otherwise, the issue boils down to the credibility of the parties' conflicting evidence, which is a question for the jury to decide.FN11 We therefore hold that to the extent the district court relied on Rule 104(b) in excluding the birth certificate, it erred.

"C.

"We next turn to the district court's application of Rule 403. As part of its authority to decide preliminary questions of law pursuant to Rule 104(a), the trial court may exclude relevant evidence if 'its probative value is substantially outweighed' by, inter alia, the danger of unfair prejudice, misleading the jury, or undue delay.FN12 Fed.R.Evid. 403; see also Hankey, 203 F.3d at 1168 (recognizing that the court's Rule 104(a) authority allows it to exclude evidence under Rule 403). The district court here concluded that Evans's birth certificate was inadmissible under Rule 403 because it was 'without probative weight' and could 'only lead to undue delay.' This was legal error. 'Weighing probative value against unfair prejudice under [ Rule] 403 means probative value with respect to a material fact if the evidence is believed, not the degree the court finds it believable.' Bowden v. McKenna, 600 F.2d 282, 284–85 (1st Cir.1979) (citing 22 C. Wright & K. Graham, Federal Practice & Procedure: Evidence, § 5214, at 265–66 (1978)) (emphasis added). The court may not exclude relevant evidence—or, in this case, assign it no probative value—on the ground that it does not find the evidence to be credible. See United States v. Candoli, 870 F.2d 496, 509 (9th Cir.1989) ('[A] conflict in the evidence goes to the weight of [the evidence], not to its admissibility.').

[snip. snip]

"Admission of the birth certificate also would have posed a low risk of confusing or misleading the jury. Although the birth certificate would have increased the chances that the jury would acquit Evans, such a result could not be attributed to the jury being confused or misled; to find otherwise would be to prejudge the 'correct' outcome of the trial before it occurs. See, e.g., United States v. Crosby, 75 F.3d 1343, 1349 (9th Cir.1996) ('"[I]f the evidence [that someone else committed the crime] is in truth calculated to cause the jury to doubt, the court should not attempt to decide for the jury that this doubt is purely speculative and fantastic but should afford the accused every opportunity to create that doubt."’ (quoting 1A John Henry Wigmore, Evidence in Trials at Common Law § 139 (Tillers rev. ed.1983)) (alterations in original)). It is the jury, not the trial judge, that must decide how much weight to give to Evans's delayed birth certificate in light of the government's evidence suggesting that the birth certificate is fraudulent and that Evans is not a United States citizen. We therefore conclude that it was an abuse of discretion for the district court to exclude Evans's delayed birth certificate under Rule 403.

"E.

"We next consider whether the exclusion of the birth certificate rose to the level of a constitutional violation. We hold that it did.FN15 'The Ninth Circuit has found ... violations [of the constitutional right to present a defense] where the district court incorrectly excluded evidence that was necessary for the defendant to refute a critical element of the prosecution's case.' Pineda–Doval, 614 F.3d at 1033.

"... Here, as in Stever, the excluded birth certificate was (1) the main piece of evidence, (2) for the defendant's main defense, to (3) a critical element of the government's case. On this ground, we conclude that the exclusion of the birth certificate amounted to a deprivation of Evans's due process right to present a defense. See United States v. Ramirez, 714 F.3d 1134, 1139 (9th Cir.2013) ('To be sure, the Constitution protects a criminal defendant's right to argue a point that goes to the heart of his defense.')."

************

Gould, J., dissenting, wrote (footnotes omitted):

I take a different view and would affirm the district court for three reasons.

First, Federal Rule of Evidence 104(a) literally permits a district court to perform a threshold review of the admissibility of evidence. Even if Rule 104(a) is limited to the “preliminary requirements or conditions that must be proved before a particular rule of evidence may be applied,” United States v. Brewer, 947 F.2d 404, 409 (9th Cir.1991), that does not prevent the court from excluding illegitimate evidence when excluding such evidence is the very reason rules of evidence exist. I have no problem reaching the firm conclusion that illegitimate evidence may permissibly be held to be inadmissible due to its inaccurate nature. We should make that our precedential point, rather than the approach favored by the majority.

I illustrate with a thought experiment or hypothetical. Let's say that an organized-crime czar is charged in a serious case and wants to present “exculpatory” evidence. But the prosecution has independent evidence that the defense evidence is as phony as a $3 bill. It might be fraudulently obtained (such as the legitimate document here that was procured by fraudulent means). Or it might be the product of extortion (such as through a threat like “I will kill your children if you don't give me an alibi”). Or it might be the product of bribery (such as a promise to pay a large sum for favorable evidence). In each case, the majority's rule would appear to require the phony evidence to be admitted before the jury, while merely letting the prosecution present responsive evidence to the jury showing that it was procured by fraud, extortion, or bribery. That would require mini-trials within the trial, would be potentially confusing to a jury, and is not literally required by Rule 104.

The majority agrees that the court can condition relevance on validity. But it concludes that in making “a preliminary determination whether the foundation evidence is sufficient to support a finding of fulfillment of the condition,” Fed.R.Evid. 104(b) advisory committee's note, a court may not consider the underlying substance and process that led to the issuance of a document because doing so would amount to an improper credibility determination. Applying this rationale in the present case, the majority concludes that “the district court erroneously weighed the credibility of the government's witnesses against the credibility of the official state document.” But the existence of the document does not at all bear on the question of whether it was procured by fraud. And the district court cannot be said to have made a credibility determination when Evans presented no evidence at the hearing to support the document's integrity. Adopting the rule of the majority permits a party's old lies to insulate new ones from challenge outside the jury's presence.

Here are the facts: To gain the delayed birth certificate, Evans offered an affidavit and testimony asserting that he was born in Idaho and was a former member of the U.S. Marine Corps. He said under oath that he was “active in the Vietnam [W]ar, from 1969 through 1975” and had twelve years of combat duty where he earned a purple heart. He said that when he came back to the United States, he “donated [his] next eight years of service [in the Marine Corps] for free” until he retired. On this evidence, the Idaho judge granted the delayed birth certificate in the non-adversarial state proceeding and thanked Evans for his military service.

In the federal criminal proceeding, the district court excluded the Idaho birth certificate. It reached this correct decision after hearing extensive evidence that Evans was not a U.S. citizen and never served in the military, let alone in a war zone.FN1 Based on this evidence and without any evidence presented by Evans, the court fairly concluded:

"While neither party questions the validity of the Idaho birth certificate on its face, the Government has unequivocally shown that the Idaho birth certificate is substantively fraudulent and that it was obtained through fraud of the Defendant. The [c]ourt finds that all three of the Government's witnesses were credible and that there is no support in the record that would allow a reasonable person to determine that the Defendant's Idaho birth certificate is substantively genuine."

The majority argues that the court impermissibly made a credibility determination, but as I have explained, this principle should not be applied when all the evidence was on the Government's side and Evans had no witnesses testify at the evidentiary hearing. The district court's rationale quoted above is equivalent to saying that no reasonable jury could determine that the birth certificate was not tainted by fraud. I conclude that the district court made a correct and discerning judgment. There is nothing on the side of nonfraud here, and the district court's decision excluding the evidence was correct.

“Fraud” is “an instance or act of trickery or deceit esp[ecially] when involving misrepresentation.” Webster's Third New International Dictionary 904 (3d ed.1993). To tell a lie is to “make an untrue statement with an intent to deceive” or to “create a false or misleading impression.” Id. at 1305. Lying is a form a fraud. And to determine whether fraud exists, substance and process must be examined. Under the majority rule, the district court could not perform such an examination and evidence procured by fraud would be admissible, leaving it to the jury to sort things out. To my thinking, there is no evidence error at all in excluding fraudulently obtained evidence. I would conclude that Federal Rule of Evidence 104(a) lets the court preliminarily review whether a state document in the form of a belated birth certificate was procured by fraud. That is one reason to affirm the district court.

Second, even if Rule 104(a) should be limited as stated by the majority, Federal Rule of Evidence 403, relied upon by the district court in its Rule 104 decision, gives the district court broad power to exclude evidence if its probative value is substantially outweighed by a danger of “unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence.” FN2 All the valid evidence presented to the state in the non-adversarial proceeding for the birth certificate could have been presented in Evans's criminal trial. I would have thought that introducing a fraudulent document would be wasting the jury's time and confusing the issues. It was reasonable for the district court to exclude the delayed birth certificate under Rule 403. See Old Chief v. United States, 519 U.S. 172, 184–85, 117 S.Ct. 644, 136 L.Ed.2d 574 (1997) (performing a Rule 403 analysis requires the court to consider the probative value and prejudice associated with the admission of evidence alongside the probative value and prejudice associated with similar evidentiary alternatives). And our case law confirms that excluding an evidentiary exhibit under Rule 403 is permissible where the relevance of the document is predicated on a disputed factual hypothesis. Baker v. Delta Air Lines, Inc., 6 F.3d 632, 643 (9th Cir.1993). The standard for abuse of discretion under United States v. Hinkson, 585 F.3d 1247 (9th Cir.2009) (en banc), prevents us from reversing an evidence ruling if it is not “illogical, implausible, or without support in inferences that may be drawn from the facts in the record.” See United States v. Redlightning, 624 F.3d 1090, 1110 (9th Cir.2010) (citing Hinkson, 585 F.3d at 1261). Here, the district court's decision is logical and is supported by evidence that the certificate was gained by fraudulent documents and false testimony. Undue delay was likely to result from the certificate's admission. There was no abuse of discretion in applying Federal Rule of Evidence 403. That is a second reason to affirm the district court.

Third, even if the district court abused its broad discretion on evidence rulings despite the sound grounds for the fraudulent birth certificate's exclusion, I would not elevate this to the level of constitutional error and instead would conclude that any error was harmless.FN3 See United States v. Pridgen, 518 F.3d 87, 91–92 (1st Cir.2008) (stating the harmless-error standard). Evans cannot claim that exclusion of the delayed birth certificate blocked his defense because the court let him give testimony and offer valid documents supporting his claim of citizenship. See United States v. Stever, 603 F.3d 747, 755–57 (9th Cir.2010) (holding that there was constitutional error where “the sole evidence” on a major issue was erroneously excluded); see also United States v. Pineda–Doval, 614 F.3d 1019, 1032–33 (9th Cir.2010) (holding that there was constitutional error where a total exclusion of evidence wholly “denied the defendant the only argument that he had”). The ruling, even if assumed to be incorrect, did not create fundamental unfairness and a resulting due-process violation in the criminal trial. See United States v. Ramirez, 714 F.3d 1134, 1139 (9th Cir.2013) (holding that there was non-constitutional error). Because the error was not constitutional, reversal is improper so long as “it is more probable than not that the error did not materially affect the verdict.” See United States v. Wiggan, 700 F.3d 1204, 1215 (9th Cir.2012)(quoting Boyd v. City & Cnty. of S.F., 576 F.3d 938, 949 (9th Cir.2009)). Here Evans chose not to present much of the evidence offered in state court to obtain the delayed birth certificate. And the Government presented overwhelming evidence, including several fingerprint matches and photographic matches to an active immigration file and testimony from Evans's sister identifying him as Roman Ceniceros–Mora who was born in Mexico. Evans's testimony also revealed that he had previously committed birth-certificate fraud, that he had physical injuries consistent with those of Ceniceros–Mora, and that he had previously signed statements using Ceniceros–Mora's name. The arresting officer also stated that after Evans was given his Miranda warnings, he admitted to having been deported before and said, “[T]ime will tell; I will be back; I will be back.” The challenged ruling, if error, was harmless on all the evidence.FN4 That is a third reason to affirm the district court.

Hence I respectfully dissent and would affirm the district court.

&&&

 Evidence marshaling software MarshalPlan

Professor Jonathan Turley on the George Zimmerman Trial

In Why was Zimmerman overcharged? USA Today (July 14, 2013), Jonathan Turley writes:

"With the verdict, the Zimmerman case entered the realm of legal mythology -- a tale told by different groups in radically different ways for different meanings. Fax machines were activated with solicitations and sound bites long ago programmed for this moment. The legal standards long ago seemed to be lost to the social symbolism of the case.

"Criminal cases make for perfect and often dangerous vehicles for social expression. They allow longstanding social and racial issues to be personified in villains and victims. We simplify facts and characters -- discarding those facts that do not fit our narrative. We pile meanings on the outcome that soon make the actual murder secondary to the message. Zimmerman and Martin became proxies in our national debate over race. There was little patience or need for the niceties of rules of proof and adjudication."

Turley then recounts a variety of blunders by the prosecution but concludes:

"Ultimately, it was the case and not the prosecutors that were weak."

Turley then explains why he thinks the evidence did not support guilt beyond a reasonable doubt. But he ends with this observation:

"Of course, little of this matters in the wake of a high-profile case. The case and its characters long ago took on the qualities of legend. People will make what they will of the murder trial of Zimmerman. However, this jury proved that the justice system remains a matter not of legend but law."

&&& The dynamic evidence page

Evidence marshaling software MarshalPlan

Jurors and Lay Assessors in Trials in South Africa

The Pistorius case led journalists to discover that South Africa does not have the sort of jury system that is found in the United States and (in some trials) in the U.K.


"Review of the Law of Evidence," SOUTH AFRICAN LAW REFORM COMMISSION, Issue Paper 26, Project 126 (January 2008) (footnotes omitted): 2.9  Lay participation in the formal judicial system in South Africa dates back at  least to the nineteenth century where justices of the peace and occasionally elected  veldcornetten “administered law in many frontier areas”. Although prior to 1954 there was not an absolute colour bar in the vast majority of cases the jury was compromised of nine white men. Trial by jury in civil cases was abolished in 1926  and there was a steady decline of the use of juries in criminal trials and by the 1960’s less than one percent of criminal trials was by jury. Jury trials were abolished by  the Abolition of Juries Act 34 of 1969. In the 1970's and 80's there was minimal lay  participation in the formal judicial system. The 1990's saw the re-emergence of the  use of lay assessors in both the magistrates and superior courts. Section 34 of the Magistrates’ Court Act 32 of 1944 permits the court in civil actions, ”upon the  application of either party, to summon to its assistance one or two persons of skill  and experience in the matter to which the action relates who may be willing to sit and  act as assessors in an advisory capacity”. Section 93ter makes provision for the use of lay assessors in criminal trials. A magistrate presiding over a criminal trial may if he/she deems it expedient for the administration of justice, before any evidence has been led or in considering a community-based punishment in respect of any person who has been convicted of any offence, summon one or two assessors to assist him or her at the proceedings. However, the provisions are more peremptory in respect of murder trials in the regional court where the presiding officer must summon two assessors to assist him or her, unless the accused requests that the trial be proceeded with without assessors, in such a case the use of assessors is within the discretion of the presiding officer. In the High court it is generally within the presiding officer’s discretion whether to sit with an assessor in criminal matters. Lay assessors are used in a number of civil tribunals.
&&&
The Commission considered the question of the appropriate relationship between the law of evidence, on the one hand, and juries and assessors, respectively, on the other hand. The Commission wisely discussed the differences and similarities between the common system of trial by jury and South Africa's current assessor system (footnotes omitted): 2.10 Professor SE van der Merwe succinctly summarises the distinction between jurors and assessors as follows:    “Assessors in lower courts and in the Supreme Court can to some extent be  compared with jurors as they are all finders of fact and do not decide legal issues. But our system of adjudication differs materially from trial by jury. The role of jurors can briefly be summarized as follows: jurors are lay people and sole finders of fact. They listen to the evidence and hear arguments, and they receive a summing-up and instructions from the presiding judicial officer: They are then called upon in their capacity as sole finders of fact to consider  and reach their verdict in the absence of the presiding judicial officer. And they are not required to advance reasons in support of their verdict. But in our system the judge or magistrate is at all times either a sole finder of fact or, where assessors are involved, a co-finder of fact. A judge must give reasons for his verdict. Magistrates almost invariably do give reasons for their verdict and, failing which, they may in certain circumstances be legally required to do so. It is true that the function of assessors can be compared with the function of jurors, because the function of assessor - with one exception - is also limited to fact finding. But assessors - unlike a jury - must give reasons for their verdict. They either agree or disagree with the presiding judicial officer’s reasons and finding, and in the event of a disagreement must furnish their own reasons in a separate judgment which is read out in court by the presiding judicial officer. And assessors - unlike jurors - are under constant and immediate judicial guidance in the sense that a judge (or magistrate) and the assessors involved in the trial have joint deliberations in reaching their respective verdicts. During these deliberations the presiding judicial officer can and must draw the attention of assessors - who of course may be lay people - to certain rules which govern the evaluation of evidence, for example, the cautionary rule, the rules governing inferences drawn from circumstantial evidence, and those rules which determine the effect of an accused's silence on the evaluation of the prosecution’s prima facie case.”
2.11 The absence of a jury and the somewhat different role of lay assessors in our courts as joint fact finders who are subject to the continual guidance of the court and who are required to give reasons for their decisions calls into question whether our jury based rules of evidence remain appropriate.
&&&
The Commission discussed some interesting general questions -- or, in any event, general questions that interest me. For example, in its Conclusion the Commission stated: 5.  FORMUALTING [sic] PRINCIPLES FOR REFORM: QUESTIONS FOR COMMENT Χ What is the scope of the law of evidence? Should the focus of evidence law be exclusively on the trial or should other stages of the process be considered as well? Χ Should the exclusionary rules directed at controlling juries in the exercise of their fact finding function be re-placed by judicial discretion?  Χ To what extent should relevance and weight be regulated?  Χ To what extent should  public and social interests be reflected in evidence law?  Χ Should there be different rules for different courts and tribunals? Χ What should be the primary purpose of the rules of evidence in the trial process? In particular to what extent should evidence law facilitate all or any of the following policies:  -  rationality and truth-finding?  - party freedom?  - procedural fairness?  - public interest?  - efficiency and finality?
&&&
The Commission discussed the views of, inter alia, William L. Twining, John Henry Wigmore, Kenneth Culp Davis, and John Jackson.
&&&
More later.
&&&
The dynamic evidence page
Evidence marshaling software MarshalPlan

More on the Law-Fact Distinction

In my 1983 revision of Wigmore's Treatise -- Wigmore on Evidence Section 1 n. 2 (P. Tillers rev. 1983) -- I wrote:

The belief in a clear distinction between questions of law and questions of fact and the view that juries generally should decide only questions of fact are of relatively recent vintage. See Nelson, The Americanization of the Common Law: The Impact of Legal Change on Massachusetts Society, 1760-1830, 28-30, 165-174 (1975); Horwitz, The Transformation of American Law, 1780-1860 (1977). See also Arnold, A Historical Inquiry into the Right to Trial by Jury in Complex Civil Litigation, 128 U. Pa. L. Rev. 829, 835 (1980) ("In such a world [of the late eighteenth century] law is a fact like any other: all that is necessary for the resolution of a dispute is for intelligent and moral people, free from the temptations of corruption, to apply their minds to it in a reasonably diligent fashion"). On the distinction between law and fact in medieval England, see Arnold, Law and Fact in the Medieval Jury and Trial: Out of Sight, Out of Mind, 18 Am. J. Legal Hist. 267, 279-280 (1974) ("But for medieval people, especially those who found themselves on the bench or on the jury in a common-law court, the law simply was not regarded as consisting of external commands but of enforceable rights discoverable by logic and observation. These rights were not beyond the ken of lay people but were there for any and all to discover. `Law was once a fact,' Max Radin wrote, and a fact not too difficult to ascertain.' In such a world the distinction between law and fact in tort law is for the academic lawyer; and it would be four hundred years before one appeared"). If one is to judge the matter by academic literature, the distinction between law and fact was well established when the first edition of this Treatise appeared in 1904. See. e.g., Thayer, "Law and Fact" in Jury Trials, 4 Harv. L. Rev. 147 (1890); Thayer, A Preliminary Treatise on Evidence 183262 (1898). (The distinction is still generally regarded as basic. See, e.g., Damaska, Presentation of Evidence and Factfinding Precision, 123 U. Pa. L. Rev. 1083, 1086 (1975).) Wigmore's theoretical perspective was drawn from English empiricism, and his definition of evidence reflects his participation in that intellectual tradition. Wigmore's definition of evidence closely resembles that of Jeremy Bentham (quoted in the text). And Bentham, like Wigmore, thought that there was a basic difference between law and fact. See, e.g., 1 Bentham, Rationale of Judicial Evidence 25 (Mill ed. 1827) ("Whatever be the decision by which a cause or suit at law is . . . terminated, — this decision has for its subject matter two constantly concomitant points or questions, — the point or question of law, and the point or question of fact. So far as regards the question of fact, the decision, in so far as it is just, depends upon and is governed by the evidence"). Wigmore recognized that there were problematic aspects to the distinction between law and fact. See the discussion in the text. Thayer had already discussed some of the difficulties with the distinction, showing that it was not always readily made. Thayer. Preliminary Treatise on Evidence 183-262 (1898); Thayer, "Law and Fact" in Jury Trials, 4 Harv. L. Rev. 147 (1890). Wigmore nevertheless maintained that the distinction between law and fact is both basic and legitimate, notwithstanding any difficulties of interpretation and application. See discussion in text. The mysteries of the distinction between law and fact are deeper than Wigmore's discussion suggests. Much legal literature, in a "realistic" vein, as well as a great deal of literature on epistemology, has emphasized the "arbitrary" or "creative" elements present even in the most primitive factual judgments. There is also a large body of legal literature, again in a "realistic" vein, that has emphasized the extent to which the formulation of "legal" judgments, doctrines, principles, and rules is sensitive to (judicial) assessments of the "facts," both in general and in the particular case. These views suggest that all factual assessments involve a normative component; that all normative analysis (broadly understood) inextricably involves factual assessments; and that it is in principle not possible to draw a sharp line between the two types of analysis and decisionmaking. The distinction between law and fact seems designed to differentiate those types of questions as to which the submission of evidence is not useful or proper. The view that it is appropriate and useful to receive evidence on questions of fact and not on questions of law seems to rest on the premise that questions of fact relate to questions concerning the existence or nonexistence of phenomena and questions of law involve determinations of policy as to which the admission of evidence is beside the point since such questions of social policy do not involve questions concerning the existence of some phenomenon or event. Today, however, it seems less clear that the value of evidence as to disputed questions may be assessed on this basis. Thus, for example, it is a familiar thesis in many branches of law, particularly in torts and in contracts, that many questions of "fact" submitted to juries for adjudication in reality present and involve questions of policy and of "law." Thus, a jury may be asked (by law) to decide whether a person exercised "reasonable prudence," and the matter in question may be treated as a factual question for purposes of allocating decisionmaking responsibilities between judge and jury. However, the characterization of a matter as factual for these purposes does not inexorably lead to the conclusion that the submission of evidence with respect to that matter is inappropriate or unhelpful. Thus, courts often do assert that the jury may or should consider an issue such as reasonable prudence or ordinary care in the light of ordinary or customary practice, and it then may become entirely appropriate to submit evidence at trial to inform the jury as to ordinary or customary practice. Cf. Treatise §2552 infra. Of course it is arguable that any such question regarding reasonable prudence as to which ordinary practice and custom are pertinent may and should be analytically decomposed into questions of policy or law and questions of fact. By this view, evidence as to the existence of customary practices is pertinent not to the problem of choosing or formulating the appropriate standard of behavior but to the question of whether a standard that incorporates reference to customary practice is or is not applicable to the factual circumstances of the situation. On this view, any other question of "fact" as signed to the jury for decision may be decomposed in like fashion into normative or legal decisions, on the one hand, and factual assessments, on the other, and it may then be clearly seen that the evidence submitted to the jury is pertinent only to the truly factual component of the "question of fact" submitted to the jury. While we cannot assess the latter response at any length here, we believe it is insufficient and simplistic. Even if we make the problematic assumption that issues such as "reasonableness" can be dissected into purely factual and purely normative (policymaking: "lawmaking") components, the ability to perform this analytical surgery does not demonstrate that evidence may not and should not be received with respect to the legal or normative component of any such mixed issue of law and fact. It is simply gratuitous to assume that information supplied by evidence cannot be useful for a decisionmaker contemplating a question of law or policy. (Cf. related discussion of this problem in § 4c infra in relation to administrative proceedings.) It might be said, in rejoinder, that the concept of evidence, by its nature, involves the use of the existence of one state of affairs (evidence) to demonstrate the existence or nonexistence of some other state of affairs in the world, some fact in issue (cf. the common understanding of relevancy, § 87 infra), but, whatever the merits of this view, it hardly demonstrates that information in the form of evidentiary submissions (as by a witness testifying) should not be given to the jury (or judge) when it is required to make a decision of policy. Furthermore, the premise of the rejoinder is probably incorrect. In many cases, investigations designed to resolve what are generally regarded as questions of fact aim not so much to determine the existence or nonexistence of some empirical phenomenon as to determine what sort of characterization of an empirical state of affairs is proper. Thus, for example, the existence of certain physical events involved in a controversy — the physical location of various persons or the uttering of certain sounds by various persons — may seem clear enough, and the question may then be what sort of intent one of the actors in the situation entertained. Not infrequently, as in contract cases, it will be appropriate and necessary to receive evidence (such as customary practice) not so much for the purpose of determining the existence of a particular thing (e.g., the "existence" of intent of a certain sort) but to determine, on the basis of evidence, what sort of meaning or significance should be ascribed to an actor, given the existence of various physical events that may not be in dispute. (The best example of this phenomenon may be the defense of insanity in a criminal prosecution. It is now generally said that defining insanity involves neither a scientific question nor a simple question of fact but requires that the jury determine, in the light of standards of fairness and culpability, whether the defendant may be fairly characterized as "insane." Yet, of course, we expect the jury to listen to expert psychiatric testimony to assist it in deciding what criteria to use in deciding to characterize a defendant's state of mind and not solely for the purpose of deciding whether facts do or do not exist that have a bearing on the standards of characterization it has decided to use. Of course, as this example of the insanity defense illustrates, it is often unclear whether the submission of evidence to the jury is designed to facilitate its description of events or, instead, its ascription of meaning to events; perhaps in a majority of investigations concerning matters such as intention the two are intermingled in some fashion.) To talk about factual investigations as though they involve only questions concerning the existence or nonexistence of some phenomenon or event may obscure the fact that we often answer the question, What happened? only by deciding how to characterize some events that are known to us. (An analogous thesis is the now-familiar claim in philosophy of science that facts are theory-dependent.) In short, in many cases a reasonably accurate description of what (probably) happened cannot be given unless the observer evaluates the significance of various events known to him (or that he assumes to be true); frequently — if not always — a factual investigation requires not only a determination of whether certain physical events occurred but also a determination of how such events should be interpreted or pieced together in order to answer adequately the question, What happened? The element of characterization or interpretation (or, if you prefer, ascription) present in factual investigations seems most prominent when factual questions relating to human intentions, purposes, motivations, and aims are raised. Cf. Damaska, Presentation of Evidence and Factfinding Precision, 123 U. Pa. L. Rev. 1083, 1085 (1975) (making a distinction between "external facts," such as the speed of a car, and "internal facts," such as knowledge, and tentatively suggesting that the process of proof may differ in the two cases even if both types of matters raise "factual" questions in some sense; however, interestingly enough, Damaska's discussion of factfinding precision is limited to proof of so-called external facts). It is arguable that a basic distinction exists between something like "natural phenomena," on the one hand, and "cultural and social phenomena," on the other hand, and that there is a corresponding distinction in the manner in which these two types of phenomena are investigated. Some writers have argued that a distinctive epistemology attaches to the understanding of social relations and interpersonal "events," apparently because of the fact that social relations, unlike natural phenomena, are constituted in part by what might be called interpersonal consciousness (or, if you prefer, symbolic interaction). The existence of a social event — a greeting, a leave-taking, or what have you — may be determined only if one knows the rules by which the actors attach significance or meaning to various events, and arguably, the methods we use to attempt to determine the significance and meaning attached by the actors to their actions may differ essentially from the methods we normally use to determine whether a given physical or natural event, not involving human intentions, occurred or did not occur. See generally Unger, Knowledge and Politics (1975); Habermas, Knowledge and Human Interests (Shapiro trans. 1971). (Of course in some cases, as with the more extreme forms of the objective theory of contracts, we purport not to concern ourselves with the actual intentions of the particular actors in the situation but rather engage in a process more akin to ascription than description. However, even here description is involved since we must be able to say and understand, for example, what people in the situation usually understand and intend — unless we want to make all talk about matters such as intent talk about a "fiction" because we do not believe that any things such as intent really exist in any sense.) It is pertinent to observe here that any analytical maneuvering that does show (contrary to our expectations) that there is indeed a clear distinction between "fact" and "law" (between factual and normative decisionmaking) does not necessarily show that the assignment of decisionmaking responsibilities to the jury concerning a matter such as "reasonableness" is therefore necessarily illegitimate, since in fact such matters and questions historically have frequently been submitted to the jury (see this note supra); it is also arguable on the merits that it is sometimes appropriate to assign "policy-making" responsibilities to the jury. From the perspective of evidentiary theory, any assignment of policymaking functions to the jury may seem anomalous and thus there may emerge an inclination to analyze putative "questions of fact" more precisely so that the policymaking aspects of any seeming question of fact may be reserved for decision by the judge, leaving only the factual components for resolution by the jury. However, this sort of attempt to discriminate more carefully between questions of fact and questions of law may well result in an illegitimate usurpation and impairment of the decisionmaking authority historically assigned to the jury.

&&&
The dynamic evidence page


Evidence marshaling software MarshalPlan

Eyewitness Identification

There have been interesting developments in the legal treatment of eyewitness identification evidence and I hope to discuss them here shortly. In the meantime keep several things in mind:

1. Although bad news is more striking than good news, keep in mind that eyewitness identifications are sometimes correct. In fancier parlance: the frequency of "hits" as well as of false positives is germane to the question of the appropriate legal treatment of eyewitness identifications.
2. A generation or two ago Dean McCormick said that a brick is not a wall. As far as I know, this remains true. Hence, to make a case for exclusion of eyewitness identification evidence in a specific case it is not sufficient to say or show that the challenged evidence has little probative value. There may be other evidence in the case and the other evidence may have probative value; and when the eyewitness identification evidence is added to the other evidence in the case about identity, all of the evidence taken together it may amount to quite a lot.
3. Some of the ailments of the criminal process may be traced to the usual lack of financial resources of the defense. One question to consider -- a difficult question -- is whether and to what extent the flaws generated by this lack of resources can be compensated for by rules of evidence requiring exclusion of evidence at trial or other trial remedies such as jury instructions.
4. We generally do not identify people only by their facial appearance. We also rely on matters such as gait.
5. Is it possible to empirically verify all of the factors that affect the accuracy of eyewitness identifications and the magnitude of the effect of such factors? If not, so what?  What follows?

&&&
The dynamic evidence page
Evidence marshaling software MarshalPlan

Canada Deals with Question of Competence of Severely Disabled Witnness

The decision is R. v. D.A.I., 2012 Supreme Court of Canada 5 (Feb. 19, 2012).

The case was a criminal trial for sexual assault.


The alleged victim was a 26 year-old woman, 22 at the time of the trial, with a mental age of a three- to six-year old child.
The trial judge barred the victim from testifying.
Defendant was acquitted. The Crown (the prosecution) appealed from the acquittal.
The Supreme Court of Candada reversed by 6-3 and ordered a new trial.
Chief Justice McLachlin, speaking for six members of the Court, said:

The issue of K.B.’s testimonial capacity was raised at trial, and the trial judge held a voir dire to determine whether she could be allowed to testify. K.B. and Dr. K., the defense’s expert witness, were the only ones to testify during the voir dire on competence. The Crown’s examination of K.B. demonstrated that she understood the difference between telling the truth and lying in concrete situations. However, the trial judge went beyond this to question K.B. on her understanding of the nature of truth and falsity, of moral and religious duties, and of the legal consequences of lying in court. K.B. was unable to respond adequately to these more abstract questions, to which she frequently answered “I don’t know” (A.R., vol. I, at pp. 117-19). Dr. K., a psychiatrist, testified for the defense. Dr. K’s opinion was formed without personal contact with K.B. It was based on school and medical records, as well as on K.B.’s behavior in her videotaped statement and during the voir dire. Dr. K. expressed the view that K.B. had “serious difficulty in differentiating the concept of truth and lie”, noted her low tolerance for frustration, and said, “I don’t think she had the ability to think what you’re asking and come up with an answer” (ibid., at pp. 159 and 161).

[snip,snip]

A second voir dire was held to decide on the Crown’s application for admitting K.B.’s out-of-court statements to the police and to her teacher, Ms. W. The teacher testified that K.B. would not intentionally lie, but that her ability to understand was more developed than her ability to express herself: “[t]his causes a lot of frustration for [K.B.], she frequently responds to questions by saying ‘I don’t know’” (ibid., at p. 176; see also pp. 184-85). Also, evidence was led corroborating K.B.’s allegations. A family friend testified that, while he was in D.A.I.’s room for another purpose, he found a Polaroid photo of K.B. with her breasts exposed and another photo of two unidentified people having sex. D.A.I.’s explanation of the first photo was that K.B. had flashed him while he was taking a photo of her. K.B.’s sister also testified that she had found such photos. However, she did not report it to her mother and the photos were not available at trial. K.B.’s sister also said she once saw D.A.I. touch K.B.’s breasts while she was lying on her bed.

The voir dire on hearsay admissibility was concluded by the trial judge’s dismissal of the Crown’s application. The trial judge rejected K.B.’s out-of-court statements to Ms. W. and to the police, holding that K.B.’s hearsay evidence was inadmissible because it was “unreliable, and its admission would seriously compromise the accused’s right to a fair trial” (2008 CarswellOnt 2638, at para. 57).

At trial, the judge concluded that while the remainder of the evidence raised “some serious suspicions” about D.A.I.’s conduct, it was too scant to support a conviction ((2008) CanLII 21725 (Ont. S.C.J.), at para. 11). The case essentially collapsed because of the trial judge’s ruling that K.B. was not competent to testify.

[snip, snip]

The first concept, and the one most relevant to this appeal, is the principle of competence to testify.  Competence addresses the question of whether a proposed witness has the capacity to provide evidence in a court of law.  The purpose of this principle is to exclude at the outset worthless testimony, on the ground that the witness lacks the basic capacity to communicate evidence to the court.  Competence is a threshold requirement. As a matter of course, witnesses are presumed to possess the basic “capacity” to testify. However, in the case of children or adults with mental disabilities, the party challenging the competence of a witness may be called on to show that there is an issue as to the capacity of the proposed witness. 

[snip, snip]

...I come to the provision at issue in this case, s. 16(3) of the Canada Evidence Act, which governs the capacity to testify of adults with mental disabilities. Section 16 provides:

16. (1) [Witness whose capacity is in question] If a proposed witness is a person of fourteen years of age or older whose mental capacity is challenged, the court shall, before permitting the person to give evidence, conduct an inquiry to determine

(a) whether the person understands the nature of an oath or a solemn affirmation; and

(b) whether the person is able to communicate the evidence.

[Testimony under oath or solemn affirmation] A person referred to in subsection (1) who understands the nature of an oath or a solemn affirmation and is able to communicate the evidence shall testify under oath or solemn affirmation.

[Testimony on promise to tell truth] A person referred to in subsection (1) who does not understand the nature of an oath or a solemn affirmation but is able to communicate the evidence may, notwithstanding any provision of any Act requiring an oath or a solemn affirmation, testify on promising to tell the truth.

[Inability to testify] A person referred to in subsection (1) who neither understands the nature of an oath or a solemn affirmation nor is able to communicate the evidence shall not testify.

[Burden as to capacity of witness] A party who challenges the mental capacity of a proposed witness of fourteen years of age or more has the burden of satisfying the court that there is an issue as to the capacity of the proposed witness to testify under an oath or a solemn affirmation.

Section 16(1) sets out what a judge must do when a challenge is raised.  First, the judge must determine “whether the person understands the nature of an oath or a solemn declaration” and “whether the person is able to communicate the evidence”: s. 16(1). If these requirements are met, the witness testifies under oath or affirmation, as other witnesses do: s. 16(2). If these requirements are not met, the judge moves on to s. 16(3). Section 16(3) provides that “[a] person hellip; who does not understand the nature of an oath or a solemn affirmation but is able to communicate the evidence may hellip; testify on promising to tell the truth.”

Section 16(1) sets out what a judge must do when a challenge is raised.  First, the judge must determine “whether the person understands the nature of an oath or a solemn declaration” and “whether the person is able to communicate the evidence”: s. 16(1). If these requirements are met, the witness testifies under oath or affirmation, as other witnesses do: s. 16(2). If these requirements are not met, the judge moves on to s. 16(3). Section 16(3) provides that “[a] person hellip; who does not understand the nature of an oath or a solemn affirmation but is able to communicate the evidence may hellip; testify on promising to tell the truth."

In brief, s. 16(1) provides that an adult witness whose competence to testify is challenged should testify under oath or affirmation, if the witness “understands the nature of an oath or a solemn affirmation” and can “communicate the evidence”. Here K.B. did not meet the first requirement. The inquiry therefore moved to s. 16(3), which states that if an adult witness cannot take the oath or affirm under s. 16(1), then she must be permitted to testify if she is “able to communicate the evidence” and promises to tell the truth. 

On its face, s. 16 says that in a case such as this where the witness cannot take the oath or affirm, the judge has only one further issue to consider - whether the witness can communicate the evidence.  If the answer to that question is yes, the judge must then ask the witness whether she promises to tell the truth.  If she does, she is competent to testify.  It is not necessary to inquire into whether the witness understands the duty to tell the truth. 

The respondent argues, however, that the plain words of s. 16(3) do not suffice.  They must be supplemented, it says, by the requirement that an adult witness with mental disabilities who cannot take an oath or affirm must not only be able to communicate the evidence and promise to tell the truth, but must also understand the nature of a promise to tell the truth.

I cannot accept this submission. ... 

First, as already mentioned, this interpretation goes beyond the words used by Parliament. ... The first and cardinal principle of statutory interpretation is that one must look to the plain words of the provision.  Where ambiguity arises, it may be necessary to resort to external factors to resolve the ambiguity: .... However, Parliament has clearly stated the requirements for finding adult witnesses with mental disabilities to be competent. Section 16 shows no ambiguity. 

Second, the history of s. 16 supports the view that Parliament intended to remove barriers that had prevented adults with mental disabilities from testifying prior to the 1987 amendments. ...

Justice McLachlin goes on in this vein at some length. Along the way she states:

The common law, upon which our current rules of evidence are founded, recognized a variety of rules governing the capacity to testify in different circumstances.  The golden thread uniting these varying and different rules is the principle that the evidence must meet a minimal threshold or reliability as a condition of being heard by a judge or jury.  Generally speaking, this threshold of reliability is met by establishing that the witness has the capacity to understand and answer the questions put to her capacity, and by bringing home to the witness the need to tell the truth by securing an oath, affirmation or promise.  There is no guarantee that any witness - even those of normal intelligence who can take the oath or affirm - will in fact tell the truth, all the truth, or nothing but the truth.  What the trial process seeks is merely a basic indication of reliability.

The Chief Justice's opinion is certainly work(wo)manlike.


Justice Binnie, speaking for three dissenters, said:

I agree with the Chief Justice that, in this case, “[t]wo potentially conflicting policies are in play”, the first being to “bring to justice” those accused of sexual abuse and the second being “to ensure a fair trial for the accused and to prevent wrongful convictions” (para. 65). In my view, by turning Parliament’s direction permitting a person “whose mental capacity is challenged” to testify only “on promising to tell the truth” into an empty formality, a mere mouthing of the words “I promise” without any inquiry as to whether the promise has any significance to the potential witness the majority judgment unacceptably dilutes the protection Parliament intended to provide to accused persons.

Chief Justice McLachlin quoted portions of the Crown's and the trial judge's questioning of the alleged victim during voir dire:

During the voir dire on K.B.’s testimonial capacity, the Crown posed a line of questions going to whether she could tell the difference between true and false factual statements in concrete circumstances. These were relevant to K.B.’s basic ability to communicate the evidence:

MR. SEMENOFF:

How old are you now, [K.B.]?

A: I’m 22, you know that.

Q: 22? When’s your birthday?

A: [Birth date].

Q: [Birth date].

Are you going to school now or are you done with school?

A: I’m not done in school yet.

Q: What school do you go to, [K.B.]?

A: [Name of school].

Q: How long -- do you know how long you’ve been going to [name of

school]?

A: I don’t know.

Q: Did you go to any school before you went to [name of school]?

A: From [name of previous school].

Q: From [name of previous school]. Okay.

Did you have a teacher from that school, a [Ms. W.]?

A: Ms. [R.].

Q: Oh, [R.]. And I call her [Ms. W.], do you know what her name is, is it [R.] or is it [Ms. W.]?

A: [R.].

Q: Okay.

hellip; [K.B.], if I were to tell you that the room that we’re in that the walls in the room are black, would that be a truth or a lie, [K.B.]?

A: A lie.  

Q: Why would it be a lie?  

A: It’s different colours in here.  

Q: There are different colours in here. What colour are the walls?  

A: Purple.  

Q: Purple.

Okay. If I were to tell you that the gown that I’m wearing that that is black, would that be a truth or a lie?  

A: The truth.  

Q: And why is that?  

A: I don’t know.  

Q: You don’t know.

Is it a good thing or a bad thing to tell the truth?  

A: Good thing.  

Q: Is it a good thing or a bad thing to tell a lie?  

A: Bad thing.

(A.R., vol. I, at pp. 111-13)

However, the trial judge went on to question K.B. on her understanding of what the meaning of truth, religious concepts, and the consequences of lying.

THE COURT:

hellip;Do you go to church, [K.B.]?

A: No.  

Q: No. Have you ever been taught about God or anything like that?  

A: No.  

Q: No? All right.

What happens if you steal something?  

A: I don’t know.  

Q: You don’t know. If you steal something and no one sees it, will anything happen to you? Nothing will happen. Why won’t anything happen?  

A: I don’t know.  

Q: You don’t know.

Tell me what you think about the truth.  

A: I don’t know.  

Q: You don’t know. All right. Is it important to tell the truth?  

A: I don’t know.  

Q: You don’t know. Tell me what a promise is when you make a --

A: I don’t know.  

Q: -- promise. What’s a promise?  

A: I don’t know.  

Q: You don’t know what a promise is.

Okay. Have you ever been in court before?  

A: Once.  

Q: Once? And do you think it’s an important thing to be in court?  

A: I don’t know.  

Q: You don’t know. All right.

Do you know what an oath is, to take an oath?  

A: I don’t know.  

Q: No.

Do you have any idea what it means to tell the truth?  

A: I don’t know.  

Q: You don’t know.’

If you tell a lie does anything happen to you? Nothing happens.  

A: No.

hellip;

THE COURT:

. . . Do you know why you’re here today?

A: I don’t know. To talk about [D.A.I.].

Q: Yes, and do you think that’s really important?  

A: Maybe yeah.  

Q: Maybe yeah?

Remember earlier I was asking you about a promise?  

A: No.  

Q: Have you ever made a promise to anybody?  

A: I don’t know.  

Q: That you promised you’ll be good, did you ever say that? Have you ever heard that expression “I promise to be good, mommy”?  

A: Okay.  

Q: All right. So you know what a promise is, that you’re going to do something the right way? Do you understand that?  

A: Okay.  

Q: Can you tell me whether you understand that, [K.B.]?  

A: I don’t know.  

Q: Does anything happen if you break a promise?  

A: I don’t know.  

Q: You told me you don’t go to church, right?  

A: Right.  

Q: And no one has ever told you about God; is that correct? No one has ever told you about God?  

A: No.  

Q: Has anyone ever told you that if you tell big lies you’ll go to jail?  

A: Right.  

Q: If you tell big lies will you go to jail? 

A: No.

I don't think the Chief Justice liked it very much that the trial judge questioned the witness about her religious beliefs. But that's just my conjecture.






&&&

The dynamic evidence page
Evidence marshaling software MarshalPlan