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Friday, February 8, 2008

Evidence And Ethics 10: Professor Imwinkelried's Clarifying the Curative Admissibility Doctrine: Using the Principles of Forfeiture and Deterrence to Shape the Relief for an Opponent's Evidentiary Misconduct

UC Davis School of Law Professor Edward J. Imwinkelried's contribution to the Evidence and Ethics Symposium is his article, Clarifying the Curative Admissibility Doctrine: Using the Principles of Forfeiture and Deterrence to Shape the Relief for an Opponent's Evidentiary Misconduct.  Professor Imwinkelried begins by noting that under the "doctrine, if the opposing attorney injects inadmissible evidence into the record, the trial judge may allow the injured party to respond in kind to cure the damage done by the introduction of the inadmissible evidence."  In determining whether and how to apply this doctrine, judges must ask themselves two questions:  (1) Should I permit the innocent party to respond with otherwise inadmissible rebuttal evidence, and (2) If so, how far should I go?  Unfortunately, as Imwinkelried notes, the parameters of this doctrine are poorly defined, with courts often blurring the distinctions between curative admissibility and related doctrines such as specific contradiction impeachment in answering these questions.

In Part I of his article, Imwinkelried argues that judges should look at the forfeiture principle in answering the initial question and the deterrence principle in answering the second.  In other words, in determining whether he should permit the innocent party to respond with otherwise inadmissible rebuttal evidence, the judge should focus on the prejudicial nature of the improperly admitted evidence, not the subjective intent of the party/attorney who admitted the wrongful evidence.  In determining how far he should go, the judge should be guided by what ruling will deter future evidentiary violations and encourage compliance with evidentiary norms.

In Part II, Imwinkelried considers whether his proposed method of applying the curative admissibility doctrine comports with the Federal Rules of Evidence.  He contends that while there was no express reference to "forfeiture" before 1997, the "forfeiture by wrongdoing" exception was added as Federal Rule of Evidence 804(b)(6) in 1997, which could fuel the argument that the drafters explicitly approved of the forfeiture concept in only one context, impliedly disapproving of its use in other contexts.  But he rejects this argument, looking at the rule's legislative history and how courts have continued to apply the forfeiture concept in other contexts post-1997.  He also raises and rejects a similar argument under Federal Rule of Evidence 402, concluding, inter alia, that evidence admitted under his forumlation of the curative admissibility doctrine would clearly be "relevant to the issue injected by the opposing attorney...."

My favorite part of the article, however, is Imwinkelried's last argument, which focuses on Federal Rule of Evidence 102, which states that the Federal Rules of Evidence "shall 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."  I have taken a keen interest in Rule 102 lately, but it is a rule which courts have almost never applied in large part because, as Imwinkelried notes, its "text is vague in the extreme."  And yet, its text must mean something, and Imwinkelried contends that we should define the phrase "justly determined" with reference to Federal Rule of Evidence 403, which states that "[a]lthough relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence."

Imwinkelried argues that the concept of "unfair prejudice" is kindred to the notion of "injustice."  Thus, focusing the curative admissibility doctrine's first question on "forfeiture" and thus the prejudicial nature of the improperly admitted evidence ensures that proceedings are "justly determined" under Rule 102. 

-CM

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