Working in the criminal court system, I’ve gotten the chance to learn all sorts of “interesting” things. Over the years, I’ve discovered things that most people will never get the chance to learn. For example, I know the best place to hide cocaine from the police (it’s called “crack” for a reason), I know what an autopsy smells like (think “wet garbage”), and I know three ways to avoid a D.U.I. (the best one? Call a cab.)
But one of the most useful things I’ve learned is how to break into houses.
Ideally, if you’re a house burglar, you want homeowners to leave the front door unlocked, so you can walk straight inside and take what you want. All things considered, this is the absolute best way to break into a house, because you can do it without arousing too much suspicion. But what happens when homeowners don’t cooperate by leaving the front door unlocked? Does that mean the burglar can’t break into the house? (“Dangit, the door’s locked! I guess I’ll have to go get an honest job.”) While some burglars might be dissuaded by a locked front door, good burglars know that there are lots of ways to get inside. If the front door is locked, they’ll try to get inside through the back door, through a side door, through the garage, through a window… Some burglars have even climbed down chimneys!
The important lesson you need to remember is this: It doesn’t matter to the burglars how they get inside the home — it only matters that they get inside.
You’re probably thinking, “Ok, that’s great, but how does that help me win my next trial?”
Here’s how that lesson helps you: The next time you attempt to admit exhibits into evidence, you need to think like a burglar.
“So I should break into my opponent’s office and steal his case file?”
No, nothing like that. Thinking like a burglar means that it doesn’t matter how you get your exhibit admitted into evidence — it only matters that it gets admitted.
Recently I was helping a friend who needed to get a store surveillance tape admitted into evidence. Unfortunately, there was a problem locating the convenience store clerk, and without her testimony, it looked like he wouldn’t be able to lay a proper predicate for the tape’s admissibility.
But just because the front door was locked didn’t mean there wasn’t another way to break into the house…
After a little bit of brainstorming, he came up with two additional ways to get the video admitted. The first idea was to call the convenience store manager as a records custodian (because every single sales transaction was contemporaneously captured on tape) and introduce the video as a business record. The second idea, which worked successfully, was to authenticate the tape through another witness, a woman who had walked out of the store before any of the events took place. Although she hadn’t ever watched the videotape or physically handled the tape, she was able to identify herself walking into the store and successfully authenticated the video.
How many different ways can you admit your evidence? Do you have a backup plan in case the judge excludes your evidence on one evidentiary ground? Let’s say that you’re trying to admit a witness’s oral statement into evidence. First, you try to argue that it fits into one of these hearsay exceptions:
- A spontaneous statement;
- An excited utterance;
- A statement describing a then existing mental, emotional, or physical condition;
- A statement for the purposes of medical diagnosis or treatment;
- A statement against interest; or
- A statement under belief of impending death.
If the judge doesn’t agree with any of those arguments, does that mean the jury won’t ever hear the statement? Maybe, maybe not. Think creatively, and you still might be able to get this statement before the jury.
Maybe the statement is independently admissible as the language of a contract? Maybe the statement was relied upon by an expert in developing her opinion? If your client heard the witness’s statement and acted accordingly, could you argue that the statement isn’t hearsay? (“Judge, the witness’s statement isn’t being offered for the truth of the matter asserted. It doesn’t matter whether or not the witness’s statement is true — it’s being offered to put my client’s actions in context and show why he did what he did.”) Or maybe you could argue that the statement be admitted for a limited purpose.
But let’s say that after all of your efforts, the judge still decides, “That statement is inadmissible.” Does that mean that the jury will never hear the statement? Not necessarily. If the witness testifies, maybe you could impeach the witness with the statement during cross-examination. You could argue that the statement is a prior inconsistent statement, or that it shows bias or prejudice.
The most important thing to remember is, it doesn’t matter why the jury gets to hear the statement, so long as they get to hear it. As Winston Churchill said, “Never give in. Never give in. Never, never, never, never — in nothing, great or small, large or petty — never give in, except to convictions of honor and good sense. Never yield to force. Never yield to the apparently overwhelming might of the enemy.” Think creatively, and list every possible method you could use to make your exhibit admissible.
Most of the time, you probably won’t need to rely on more than a single argument to get your exhibit admitted. But for those rare occasions when you need to go through the back door, through a window, or even down a chimney to get your exhibit admitted, you’ll be glad that you were so tenacious.