Author: Diana A. Sada, Trial Attorney & Evidence Lecturer
Editor: David C. Schott, Trial Attorney & Professor of Law
If you are a civil practitioner, should you approach learning the Rules of Evidence differently than your criminal practitioner counterparts? Should you bother listening to that criminal practitioner giving you advice about the Rules of Evidence?
The short answer is, “yes.”
One of the biggest misconceptions lawyers have is the assumption that the Rules of Evidence are as distinct as the Rules of Civil v. Criminal procedure. For that reason, many assume that learning evidence by using a criminal fact pattern (such as Trial Boom’s first case, The People v. J.W. Booth) is a narrow exercise if they are civil practitioners. To the contrary, the principles behind the Rules of Evidence are applied very similarly in civil and criminal cases. If you learn the application of evidence in either the civil or criminal arena, you can use that knowledge interchangeably with only a few distinctions to keep in mind.
Three-quarters of the rules make NO distinction between criminal and civil cases.
Many of the rules that do make distinctions are intuitive, while others are simply inconsequential distinctions for the purpose of trial (e.g. compensation of experts).
Additionally, many rules do not actually distinguish the application of the rules in civil and criminal cases; rather, those rules apply exclusively in criminal OR civil cases.
Here is a breakdown of the Rules:
There are 11 articles in the Federal Rules of Evidence. Within those 11 articles, there are 68 rules total with various exceptions and/or exemptions. Of all those rules, only 17 create distinctions or apply exclusively to civil or criminal.
That means 51 out of the 68 rules apply identically across the board.
Some differences may exist in how case law applies the rules. Nonetheless, 51 of the rules themselves apply similarly, irrespective of whether the case is civil or criminal.
So what does this mean? Rules are Rules!
Here are two examples to illustrate:
Fed. R. Evid. 404(a)(1) prohibits the introduction of a person’s character or character trait to prove “propensity” (i.e., that the person is acting in conformity with that trait on a particular occasion). If you look at the language of the rule, you will notice that 404(a)(2) is a subsection that applies only in the criminal context. Under this subsection, a criminal defendant is permitted to introduce evidence of a pertinent character trait in a criminal case. While this subsection does not apply in civil cases, the prohibition of using character evidence, which is the essence of the rule, applies similarly in both types of cases. Additionally, knowledge of the entirety of the rule, even if you only practice civil, comes in handy when dealing with opposing counsel who may not be an evidence wiz like you. In the event opposing counsel is attempting to use that subsection in a civil case, your knowledge gives you the tools to lodge a well-articulated objection.
Fed. R. Evid. 404(b)(1) prohibits the introduction of instances of conduct to prove character. This prohibition is applicable in BOTH criminal and civil cases. Thus, learning 404(b) in a criminal context helps you in the civil context and vice versa. The distinction between the two types of cases is that 404(b)(2) places additional requirements in criminal cases relating to notice.
Generally, Rule 404(b) is not frequently used in civil cases because issues such as motive, identity, intent, etc. are not usually elements of civil claims or defenses. However, nothing in 404(b) prohibits its use in a civil case. In fact, it can often be used in civil cases involving intentional torts, or cases where notice, ownership, existence of a dangerous situation, or other claims are in play.
Assume you are trying to learn this rule by reading a criminal case involving a charge for reckless driving causing injuries. In that case, Mr. Smith hit a pedestrian in a school zone while he was speeding. Investigating Mr. Smith’s background reveals that he had previously been cited for speeding in that same school zone about one month before the accident. You also learn that the prosecutor successfully argued for the inclusion of this prior bad driving pursuant to 404(b)(2). The prosecutor wanted to use that prior bad driving to prove that Mr. Smith knew this was a school zone. In other words, it was not being introduced to show that because Mr. Smith was a bad driver before, he was a bad driver in this occasion. Rather, it was used for knowledge. Analysis of these facts in the civil context is nearly the same.
To illustrate, turn the fact pattern above into a negligence case where the family of the injured pedestrian is suing Mr. Smith for damages. That family’s lawyer (you) can use nearly the same argument as the prosecutor to introduce Mr. Smith’s prior speeding ticket to show he knew this was a school zone.