EvidenceProf Blog

Without Prejudice: Court Of Criminal Appeals Of Tennessee Finds Trial Court Improperly Failed To Weigh Prejudice In Felony Impeachment Ruling

Yesterday's post noted that Minnesota's "whole person" approach fails to take into account the particular probative value of a prior conviction. The recent opinion of the Court of Criminal Appeals of Tennessee in State v. Hall, 2009 WL 4642585 (Ten.Crim.App. 2009), dealt with the opposite problem: a court failing to take into the particular prejudicial effect of a prior conviction.

In Hall, a jury convicted Charles Hall, of two counts of aggravated robbery, and the trial court sentenced him to life without parole as a repeat violent offender. Hall thereafter appealed, claiming, inter alia, that that the trial court erred in ruling that eight prior aggravated robbery convictions would be admissible should the he choose to testify.

The Court of Criminal Appeals of Tennessee noted that the issue was governed by Tennessee Rule of Evidence 609(a), which states that:

For the purpose of attacking the credibility of a witness, evidence that the witness has been convicted of a crime may be admitted if the following procedures and conditions are satisfied:

(1) The witness must be asked about the conviction on cross-examination. If the witness denies having been convicted, the conviction may be established by public record. If the witness denies being the person named in the public record, identity may be established by other evidence.

(2) The crime must be punishable by death or imprisonment in excess of one year under the law under which the witness was convicted or, if not so punishable, the crime must have involved dishonesty or false statement.

(3) If the witness to be impeached is the accused in a criminal prosecution, the State must give the accused reasonable written notice of the impeaching conviction before trial, and the court upon request must determine that the conviction's probative value on credibility outweighs its unfair prejudicial effect on the substantive issues. The court may rule on the admissibility of such proof prior to the trial but in any event shall rule prior to the testimony of the accused. If the court makes a final determination that such proof is admissible for impeachment purposes, the accused need not actually testify at the trial to later challenge the propriety of the determination.

With impeachment, probative value is directly correlated to how much bearing the prior conviction has on witness (dis)honesty. Conversely, prejudicial effect is inversely correlated to how similar the prior conviction is to the crime charged. Why? The more similar the two, the more likely that the jury will misuse the prior conviction as propensity character evidence. Thus, in Hall, Hall's prior robbery convictions were highly prejudicial in his robbery trial because the jury likely would have used them to conclude, "Once a robber, always a robber."

The problem in Hall was that

[t]he trial court did not consider the similarity between the instant charge and the prior convictions when balancing probative value versus prejudicial effect....While crimes involving dishonesty are probative of the defendant's credibility, the probative value may not always outweigh the prejudicial effect. We conclude that the trial court erred in not considering whether the defendant's prior convictions were so similar that the jury might use the convictions as propensity evidence....

Nonetheless, the appellate court found that the prosecution presented overwhelming evidence of Hall's guilt and thus found harmless error and affirmed his conviction.

-CM

Just Forget It: Oklahoma Court Finds Calendar Entry About Nike Air Max 2 Shoe Purchase Admissible As A Recorded Recollection In Christmas Related Case

Like Federal Rule of Evidence 803(5), 12 O.S.2001 Section 2803(5) provides an exception to the rule against hearsay for:

A record concerning a matter about which a witness once had knowledge but now has insufficient recollection to testify fully and accurately, shown to have been made or adopted by the witness when the matter was fresh in the witness’s memory and to reflect that knowledge correctly. The record may be read into evidence but may not itself be received as an exhibit unless offered by an adverse party.  

As the recent opinion of the Court of Criminal Appeals of Oklahoma in Sanchez v. State, 2009 WL 4797497 (Okla.Crim.App. 2009), makes clear, the exact wording of this rule is very important. In order for a "recorded recollection" to be admissible, the witness does not need a significant lack of recollection, just an insufficient recollection to testify fully and accurately.

In Sanchez, Anthony Castillo Sanchez was convicted of murder in the first degree, rape in the first degree, and forcible sodomy based upon acts allegedly committed against Jewell Jean "Juli" Busken at her apartment after she had returned from exchanging Christmas gifts with her college friends.  At trial, evidence was presented

tending to show that shoe prints at the scene of the Busken murder were similar to a pair of Nike shoes owned by [Sanchez]. Investigators observed and photographed two pairs of shoe prints in the soil leading to where Juli Busken's body was found. One pair of shoe prints correlated to hiking boots worn by Ms. Busken. The other pair of shoe prints led down to the killing scene and then back toward the road. Police compared photographs of these prints to a variety of shoes and came to believe the soles were similar to the Nike Air Max 2. Photographs of the questioned shoe print were admitted at trial, along with inked imprints and acetate overlays of the Nike Air Max 2 shoes provided by the Nike Corporation. The State then presented testimony from [Sanchez]'s ex-girlfriend, Christin Sezter, who read to the jury an October 14, 1996, entry from her personal calendar indicating that she and [Sanchez] had purchased matching Nike shoes that day. The District Court also admitted the page from Ms. Setzer's calendar in evidence.

After he was convicted, Sanchez appealed, claiming, inter alia, that the prosecution failed to establish that Sezter had insufficient recollection before admitting her calendar entry as a recorded recollection. The Court of Criminal Appeals of Oklahoma disagreed, finding that

The witness testified that she remembered, independent of her calendar entry, the purchase of matching Nike shoes with [Sanchez] in 1996. On cross-examination, defense counsel elicited that police had shown the witness a pair of Nike Air Max 2 shoes and asked her if the shoes were similar to the ones bought by [Sanchez] in 1996. She testified the shoes shown to her by police were similar to [Sanchez]'s, but she could not positively say the shoes were the exact model purchased by [Sanchez]. While the evidence of [Sanchez]'s purchase of the shoes came from the witness' personal knowledge, it is apparent that the witness could not have remembered the specific date in October, 1996, on which the shoes were purchased over a decade earlier, without reference to the entry in her calendar. For this purpose, the witness' reading of the calendar entry was admissible under the hearsay exception for a past recollection recorded.

In other words, even though Sezter did not have significant lack of recollection, she had an insufficient recollection to testify fully and accurately, rendering the calendar note admissible as a recorded recollection. Of course, as the above language of the rule makes clear, this merely meant that the prosecution could have had Sezter read the note to the jury; the prosecution should not have been allowed to admit the note as an exhibit to the jury. The Court of Criminal Appeals thus acknowledged that the trial court erred in this regard but found that this error was harmless.

-CM

Later On, We'll Conspire: Court Of Appeals Of Indiana Notes That Statements After A Crime Has Been Perpetrated Cannot Be Co-Conspirator Admissions

Like its federal counterpart, Indiana Rule of Evidence 801(d)(2)(E) provides that

[a] statement is not hearsay if...[t]he statement is offered against a party and is... a statement by a co-conspirator of a party during the course and in furtherance of the conspiracy.

As the text of this Rule makes clear, the Rule only covers statements made during the course of (and in furtherance of) a conspiracy and does not cover statements made after the conspiracy has been effected and the crime has been perpetrated. And that is exactly what the Court of Appeals of Indiana found in determining that the trial court erred in admitting an alleged co-conspirator admission in its recent opinion in French v. State, 2009 WL 4842607 (Ind.App. 2009). I thus agree with the court's conclusion on that issue, but I am not sure that I agree with the court's conclusion that this error was harmless.

In French, Anthony French was convicted of murder and conspiracy to committ murder. The victim of that murder was Teresa French, Anthony's estranged wife, and the evidence presented at trial established that

French told [Jess David] Woods about the situation with Teresa and that the way to end his problems was to have Teresa killed. Woods...told French he could help him. French told Woods that he wanted Teresa killed in the garage at the Cromer Street residence because "he didn't want the house shot up or blood all over the place."...French wanted Teresa killed before all of his property was sold and his marriage was dissolved. He also wanted her killed while the three children were out of the house, and while he was at work. [Oren] Johnson lent French $2500.00, which French gave to Woods as a down payment on the killing. Johnson overheard the agreement that French would pay Woods $5000.00 to "tak[e] Teresa off the face of this earth."

Woods later showed French a .22 caliber pistol with a homemade silencer and an attached canvas bag that caught the ejected shells. French and Woods shot off the gun in Johnson's backyard in early May 1993. French told Woods that this was the gun that would help them get away with murder. French also told Woods to lure Teresa into the garage by posing as a housing inspector who needed to look at the garage for his report.

In the spring of 1993, French told long-time friend Rick Engle and co-worker Joe Haskins that Teresa had filed a dissolution petition and that he was going to kill her. He also told Hank Roe, a neighbor at the Cromer Street residence, that he was losing his house and boat and that he was going to kill Teresa so he could have everything. French also told Roe to keep his girlfriend away from the Cromer Street house.

The closing for the sale of the Cromer Street house was scheduled for May 14, 1993, and the final dissolution hearing was scheduled for June 8, 1993. On the morning of May 13, 1993, Teresa was at home alone. Her two youngest children were out of town with her mother, and her oldest child was at school. French was at work at Borg Warner. At approximately 10:25 a.m., Teresa was talking on the phone to her friend Ginger Engle when a man wearing a suit knocked at the door. Engle overheard the man tell Teresa he was an inspector. Teresa told Ginger she would call her back. Teresa's body was found later that day in the garage. She had been shot multiple times in the head and chest with a .22. No shell casings were found at the scene.

The French opinion doesn't tell us exactly how all of these facts were established, but it does tell us that

at trial, the court allowed Woods' former spouse, Mary Dabbs, to testify over French's objection that in 1997, she and Woods went to Johnson's house and she overheard Johnson and Woods talking about Teresa's murder. On the way home, Dabbs asked Woods what he had been talking about. Woods pushed Dabbs against the car window and told her that he had killed Teresa and that he would kill her too if she ever told anyone what had happened. Woods told Dabbs that he went over to the Frenches' house dressed in a suit, and that Teresa thought he was some kind of inspector. He further told Dabbs that he killed Teresa in the garage. Dabbs also testified that she and Woods subsequently visited Terry Fisher in Indianapolis who was supposed to have gotten rid of the gun for Woods. Fisher still had the gun, and Woods told him to "move it on down the line, get rid of it."

After he was convicted, French appealed, claiming that Dabbs' testimony was improperly admitted because Woods' statements did not constitute co-conspirator admissions. The Court of Appeals of Indiana agreed, finding that

Here, Teresa was murdered several years before Woods made the statements about which Dabbs was permitted to testify. Thus, the statements were made after the conspiracy had been effected and the crime had been perpetrated, not during its course. The trial court therefore erred in allowing Dabbs to testify about these statements.

Nonetheless, the court found that this error was harmless, concluding "that Dabbs' testimony was merely cumulative of other testimony that Woods impersonated a housing inspector and murdered Teresa in the garage." Now if this other testimony was testimony by eyewitnesses who saw the crime or testimony by witnesses who heard a similar admission, I would agree. But if the other testimony was not that strong, I have difficulty agreeing with a finding of harmless error.

-CM 

Mistaken Identification: Supreme Court Of Utah Reverses Past Precedent, Allows Expert Testimony On Inaccuracy Of Eyewitness Identifications

I have done several posts on this blog (here, here, here, here, and here) about the inaccuracy of regular and cross-racial eyewitness identifications and whether expert testimony about this inaccuracy should be allowed. My general sense is that most courts allow such expert testimony although a decent number of courts, such as the Eleventh Circuit and Minnesota courts, preclude it. Now, based upon the recent opinion of the Supreme Court of Utah in State v. Clopten, 2009 WL 4877404 (Utah 2009), we can add Utah courts to the list of courts that allow such expert testimony.

In Clopten, Deon Lomax Clopten, an African-American man,

was convicted of first-degree murder for the shooting of Tony Fuailemaa outside a Salt Lake City nightclub. At trial, Clopten maintained that someone else-a man named Freddie White-was responsible for the shooting. The testimony of several individuals who witnessed the murder and who identified Clopten as the perpetrator countered this assertion. In the absence of strong physical or forensic evidence against Clopten, the State leaned heavily on the eyewitness testimony to secure the conviction.

While the trial court admitted this eyewitness identification testimony, it precluded Clopten from presenting the testimony of

Dr. David Dodd, an expert on eyewitness identification. Clopten intended to elicit testimony from Dr. Dodd regarding various factors that can affect the accuracy of eyewitness identifications, including cross-racial identification, the impact of violence and stress during an event, the tendency to focus on a weapon rather than an individual's facial features, and the suggestive nature of certain identification procedures used by police.

On Clopten's subsequent appeal, the Supreme Court of Utah noted that prior Utah precedent had created a de facto presumption against the admission of expert testimony on eyewitness (mis)identification. In State v. Long, 721 P.2d 483, 490 (Utah 1986), the Utah Supremes did acknowledge that “[a]lthough research has convincingly demonstrated the weaknesses inherent in eyewitness identification, jurors are, for the most part, unaware of these problems.” Nonetheless, despite recognizing that "a cautionary instruction regarding the accuracy of the identification" was plainly not a panacea, the court "left undisturbed previous holdings that discouraged the use of expert testimony as an alternative to jury instructions."  

In Clopten, the Utah Supremes determined that this presumption had to end. According to the court,

"'[T]he vagaries of eyewitness identification are well known; the annals of criminal law are rife with instances of mistaken identification.'"...Decades of study, both before and particularly after Long, have established that eyewitnesses are prone to identifying the wrong person as the perpetrator of a crime, particularly when certain factors are present....For example, people identify members of their own race with greater accuracy than they do members of a different race....In addition, accuracy is significantly affected by factors such as the amount of time the culprit was in view, lighting conditions, use of a disguise, distinctiveness of the culprit's appearance, and the presence of a weapon or other distractions....Moreover, there is little doubt that juries are generally unaware of these deficiencies in human perception and memory and thus give great weight to eyewitness identifications....Indeed, juries seemed to be swayed the most by the confidence of an eyewitness, even though such confidence correlates only weakly with accuracy....That the empirical data is conclusive on these matters is not disputed by either party in this case and has not been questioned by this court in the decisions that followed Long.  (emphasis added).

That left the court with the question of "whether expert testimony is generally necessary to adequately educate a jury regarding these inherent deficiencies" or whether the existing methods -- cross-examination of eyewitnesses and cautionary instructions -- are sufficient. According to the court, expert testimony is generally necessary and 

performs two beneficial functions. First, it teaches jurors about certain factors-such as “weapon focus” and the weak correlation between confidence and accuracy-that have a strong but counterintuitive impact on the reliability of an eyewitness. In other words, the testimony enables jurors to avoid certain common pitfalls, such as believing that a witness's statement of certainty is a reliable indicator of accuracy. Second, it assists jurors by quantifying what most people already know. An expert may discuss, for example, the degree to which accuracy is affected by a disguise or a long lapse between the crime and the identification. Importantly, expert testimony does not unfairly favor the defendant by making the jury skeptical of all eyewitnesses. In fact, when a witness sees the perpetrator under favorable conditions, expert testimony actually makes jurors more likely to convict. When expert testimony is used correctly, the end result is a jury that is better able to reach a just decision.

The court found that these functions were essential because (a) cross-examination may be ineffective when the eyewitness has made a mistaken identification in good faith, and (b) "research...has shown that a cautionary instruction does little to help a jury spot a mistaken identification." The court also found that the majority of other courts at the state and federal levels had recognized that eyewitness expert testimony is both reliable and helpful to the jury. This finding thus allowed the court to conclude that eyewitness testimony by a qualified expert is in accord with Utah Rule of Evidence 702.

Applying this conclusion to the case before it, the Supreme Court of Utah found that the trial court abused its discretion by precluding Dr. Dodd from testifying, holding that

the circumstances found in the Clopten trial are exactly those under which the testimony of an eyewitness expert is most helpful to a jury. Dr. Dodd, the proffered expert in this case, could have testified about research into how eyewitness identification of a stranger is affected by stress, disguises, darkness and length of exposure. He could have quantified the impact of factors such as weapon focus and cross-racial identification. Dr. Dodd could also have testified as to the impact that comments made by police officers may have on an eyewitness making an identification. Additionally, he could have discussed a common phenomenon in which witnesses fill gaps in their memory with information obtained later and thus, over time, become more and more certain of identifications that may be inaccurate. All of these factors were present here, and thorough testimony by a qualified expert as to their nature would have significantly assisted the jury in evaluating the accuracy of the State's most important witnesses. In addition, the critical importance of the eyewitnesses here forces the conclusion that the proffered testimony might have had a "substantial influence in bringing about a different verdict." It was therefore unreasonable for the trial court to rule that such expert testimony would be superfluous. While we acknowledge that the trial court followed established precedent, we hold that the court of appeals erred in concluding that the exclusion of Dr. Dodd's testimony was not an abuse of discretion.

-CM

The Best Of Everything, Take 3: Evidence Professors Submit Amicus Brief In Best Evidence Case

A few days ago, I posted an entry about the filing of a petition for a writ of certiorari with the Supreme Court in United States v. Smith, 2009 WL 1452045 (4th Cir. 2009), the case in which I think that the Fourth Circuit made an erroneous Best Evidence ruling. Thereafter, Matthew R. Segal, the Assistant Public Defender who filed the petition, forwarded me an amicus brief submitted in support of the petition by Georgetown University Law Center  Professor Paul Rothstein and University of California, Berkeley, School of Law Professor Eleanor Swift. I strongly agree with the points made in the brief and have provided a link below from which reader can download the brief.

Download Amicus Brief

-CM

Make Me Whole, Take 4: Court Of Appeals Of Minnesota Calls Out Supreme Court Of Minnesota Over "Whole Person" Approach To Impeachment

Wow! I have railed against Minnesota's "whole person" approach to the felony conviction impeachment rule on several occasions, with my my most recent post on the topic coming a few days ago. Well, it appears that someone agrees with me. That someone? The Court of Appeals of Minnesota in its recent opinion in State v. Peters, 2009 WL 4795971 (Minn.App. 2009).

In Peters, Melvin Peters was convicted of third-degree burglary. At trial, after Peters testified, the trial court permitted the prosecution to impeach Peters through evidence of his prior felony conviction for violating an order for protection obtained against him by D.H., the same person whose home Peters allegedly burglarized. On appeal, Peters claimed that the trial court admitted this conviction in violation of Minnesota Rule of Evidence 404(a), which states that Evidence of a person’s character or a trait of character is not admissible for the purpose of proving action in conformity therewith on a particular occasion."  

The Court of Appeals of Minnesota, however, noted that evidence of the conviction could have been admissible under Minnesota Rule of Evidence 609(a)(1), which states that:

For the purpose of attacking the credibility of a witness, evidence that the witness has been convicted of a crime shall be admitted only if the crime (1) was punishable by death or imprisonment in excess of one year under the law under which the witness was convicted, and the court determines that the probative value of admitting this evidence outweighs its prejudicial effect.

So, according to the Court of Appeals, how much probative value did the conviction have for impeachment purposes? Its answer: "None." According to the court, 

Under a strict approach to rule 609(a)(1)..., it is not readily apparent that the crime of violation of an order for protection has any impeachment value. We strain to imagine how such a conviction can reflect on the likelihood that a witness will testify truthfully.

So the court reversed, right? Wrong. The appellate court proceeded to find that it could not

fault the district court for allowing this impeachment evidence because Minnesota generally has chosen to follow an impeachment rule that likely is at odds with rule 609(a)(1). In St. Paul v. DiBucci, 304 Minn. 97, 1000, 229 N.W.2d 507, 508 (1975), a case decided before the adoption of the code of evidence, the supreme court held that the rationale for allowing evidence of a prior conviction for impeachment is that the jury is entitled to see the "whole person" of the witness. That certainly appears to be a character-evidence rationale, for it invites the jury to see the witness as a criminal who committed a previous crime, or maybe crimes, and has done so again. In contrast,  rule 609 permits the jury to see a "limited person," that is, a person who has committed a crime that logically and reasonably shows something of the person's ability, capacity, or disposition for truth telling. Despite our view, DiBucci remains the law in Minnesota, and Peters's prior conviction of violation of an order for protection shows something of his "whole person" and does not run afoul of that law. The district court did not abuse its discretion in allowing the prior conviction into evidence for impeachment.

I will say it again. Wow! The Court of Appeals of Minnesota called out the Supreme Court of Minnesota. It held that the "whole person" approach is at odds with Minnesota Rule of Evidence 609(a)(1). And it held that by using this approach, Minnesota courts are improperly allowing for the admission of propensity character evidence. And you know what? It was absolutely right. Let's hope that the Minnesota Supremes finally realized that the emperor has no clothes and repudiates DiBucci and the "whole person" approach.

-CM 

Incomplete Ruling: Third Circuit Opinion Implies That Violations Of Rule 106 Can Never Lead To A Reversal On Appeal

Federal Rule of Evidence 106, the rule of completeness, provides that

When a writing or recorded statement or part thereof is introduced by a party, an adverse party may require the introduction at that time of any other part or any other writing or recorded statement which ought in fairness to be considered contemporaneously with it.

There is a split among courts as to whether this is merely a rule regarding timing or also a rule regarding admissibility. In other words, all courts agree that when a party introduce a writing or recorded statement or a part thereof, the Rule allows the opposing party to contemporaneously present any other part or any other writing or recorded statement, as long as the part or statement is otherwise admissible. Some courts claim, however, that the Rule also allows for the admission of any other part or any other writing or recorded statement, regardless of whether the part or statement is otherwise admissible. In other words, these courts find that the Rule can transform otherwise inadmissible evidence into admissible evidence. Other courts disagree with this conclusion, but, as noted, all courts agree that the Rule is a rule regarding timing. And yet, in its recent opinion in United States v. Evans, 2009 WL 4810545 (3rd Cir. 2009), the Third Circuit seemed to imply that an erroneous ruling precluding a party from contemporaneously presenting evidence can never form the basis for a reversal.

In Evans, Kenneth A. Evans was convicted of three counts of filing false tax returns and two counts of tax evasion. To prove that Evans committed these crimes, the prosecution presented into evidence, inter alia, the "Employee's Withholding Allowance Certificate," IRS Form W-4, completed by Evans in the years 2002, 2003, and 2004. Meanwhile, the trial court denied Evans' motion to contemporaneously "admit letters and a videotape Evans attached to his W-4s, including letters to his employer explaining his view that he had no income tax liability and instructing his employer not to withhold any taxes."

On Evans' subsequent appeal, the Third Circuit noted that the issue was governed by Federal Rule of Evidence 106 and noted that the contemporaneous admission of additional evidence is compelled under the Rule "'if it is necessary to (1) explain the admitted portion, (2) place the admitted portion in context, (3) avoid misleading the trier of fact, or (4) insure a fair and impartial understanding.'" 

The Third Circuit acknowledged Evans' argument "that failure to include his writings and the video with the Form W-4s gave the jury a distorted and misleading view, as Evans incorporated them specifically to provide his reasoning for completing the forms in the manner he did." Nonetheless, the Third Circuit agreed with the trial court that "the Form W-4 alone was not so misleading or unfairly prejudicial as to warrant application of Rule 106."

I have no problem with this holding of the court, but I do have a problem with the court's later conclusion. According to the court,

Even were we to assume this was an abuse of discretion, any conceivable error was harmless....Here, one of the letters attached to a Form W-4 was discussed in detail during cross-examination of Evans' employer's corporate counsel....Moreover, Evans testified about various letters he wrote to the IRS containing largely the same arguments he made in letters attached to the Form W-4s. Evans opined at length at trial about his reasons for completing the Form W-4s as he did. Therefore, any error was harmless.

What the court seemed to be saying was that any error by the district court in not allowing Evans to contemporaneously present evidence of his attachments to his W-4s was necessarily harmless because he was allowed to present this evidence at other points during trial. But the whole point of the rule of completeness is that, in some circumstances, it is unduly prejudicial to disallow an opposing party from giving the jury a contemporaneous, complete understanding of a statement introduced by the proponent. I thus question whether the Third Circuit would ever find that a violation of the Rule would ever lead to a reversal.

-CM

Article Of Interest: No Strict Rules Of Evidence In Labor And Employment Arbitration, By Professor Michael Z. Green

I have written several previous posts on this blog about cases in which the Federal Rules of Evidence or state counterparts do not apply (see, e.g., here, here, here, here, and here). What I have found in most of these cases, though, is that the judge will still look to the principles underlying the rules of evidence in making evidentiary rulings. For instance, in disability adjudications, many Administrative Law Judges make an inquiry similar to the Rule 702 inquiry in determining whether to admit vocational expert testimony (although there is a split on the issue). In a Board of Veterans' Appeals case from earlier this year, a court looked to Federal Rule of Evidence 803(7) for persuasive guidance on an evidentiary issue. And, under the residuum rule, many administrative judges will end up applying the hearsay rules to determine the propriety of administrative proceedings.

Before reading the recent terrific article, No Strict Rules of Evidence in Labor and Employment Arbitration, 15 Tex. Wesleyan L. Rev. 533 (2009), by Texas Wesleyan University School of Law Professor Michael Z. Green, I would have expected that the same held true in labor and employment arbitration proceedings. As the article makes clear, however, this has not been the case, and arbitrators need to change their ways.

In the introduction to the article, Professor Green lays out the the thesis for the article and what led him to write it. According to Professor Green,

As an evidence law professor and a labor and employment arbitrator, I have examined the complexity in applying the rules of evidence in an arbitration setting. My experience and research revealed a clear need to identify the appropriate considerations when applying the rules of evidence in arbitration proceedings. Both advocates and arbitrators can benefit from this clarity.

Professor Green then opens Part II of the article by noting that the issue of "[w]hether an arbitrator applies the rules of evidence usually depends on whether the parties have contractually agreed to do so." Of course, this begs the question of whether the rules of evidence should apply at arbitration proceedings, and Professor Green contends that "when arbitration occurs, as with bench trials, the need for strict compliance with the rules of evidence is obviated by the fact that there is no jury to be shielded from certain types of evidence." 

In fact, in Part II of the article, Professor Green contends that if arbitrators were to place too much emphasis on formal rules of evidence, it would take

away from some of the key reasons that parties agree to pursue resolution of their disputes through arbitration including informality, shorter time, and less costs. If the rules of evidence had to be strictly applied, this would make the arbitration process much more formalistic and it would add to the time and expense of completing the process which detracts from the purported benefits of arbitration.

As an example, Professor Green notes that

it has been argued that because of the therapeutic value of arbitration as a form of workplace dispute resolution, employees should be allowed to have some voice by telling their story even if it involves some aspects of information that would be excluded under the rules of evidence.

At the same time, Professor Green argues that 

this therapeutic value should also be balanced with the arbitrator's obligation to provide a fair and efficient hearing to all parties. The arbitrator should not allow all forms of evidence merely for its therapeutic value when this action could be perceived as acting with partiality to one side or to the arbitrator who benefits by receiving more compensation by extending the time for the hearing.

In Part IV of the article, however, Professor Green indicates that arbitrators are not engaging in this balancing. Rather, when an advocate objects to the admission of evidence during an administrative proceeding, the typical arbitrator response is to overrule the objection and merely say, "I'll take it for what it's worth." According to Professor Green, such rulings causes advocates to "lose confidence in the fairness or the arbitration process" and are "counterproductive to the goals of certainty along with the relatively inexpensive costs and speed in choosing arbitration to resolve the dispute." Professor Green thus posits that

arbitrators must say more than "I'll take it for what it is worth." Instead, arbitrators should tell the parties what he or she feels about the quality of the evidence based upon the arguments presented. An arbitrator could say the following in response to a hearsay objection: "Under the circumstances, this evidence will be admitted. However, based upon the arguments presented, this evidence will have little weight given its unreliability as hearsay that appears to have no appropriate exception."

Professor Green then concludes that

By admitting and considering the evidence for its limited value and communicating that to the parties, the arbitrator does not unnecessarily exclude evidence based upon rote application of the rules of evidence. The arbitrator also recognizes the underlying principles of various rules of evidence and informs the parties of how those principles may guide the arbitrator in assessing the evidence presented during the hearing. In adopting this approach, strict compliance with the rules of evidence would not be a component of arbitration. But, arbitrators could certainly apply the principles underlying the rules of evidence and respond to thorough evidentiary objections made by the parties' advocates by giving guidance as to how those principles will shape the arbitrator's consideration of the evidence in issue at the hearing. Then the benefits of informality, less costs, and certainty can still be adequately achieved in arbitration while recognizing that lack of judicial review, a focus on juror considerations, and the need for flexibility demands that literal application of the rules of evidence should not occur in labor and employment arbitration.

I highly recommend the article to those interested in this area of the law, and I especially hope that arbitrators read it and alter the way that they handle evidentiary issues. I sent an e-mail to Professor Green asking about what led him to write the article, and he responded,

I had joined a panel for one of the private ADR service providers a couple of years ago as a labor arbitrator and the service provider held a training session where they brought in advocates who represent both employers and unions.  One of their pet peeves involved concerns about arbitrators not responding to their legitimate evidentiary objections and merely saying, "I'll take it for what it is worth."  That was what led me to want to write the article. 

-CM