Teachers' Manual to Green, Nesson & Murray, Problems, Cases and Materials on Evidence, 3rd Edition.

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A. Materiality (3)

Problem- King Solomon's Judgment (Kings 3:16) (3)

The point:

Relevance is a relational concept. You cannot tell whether something is relevant without knowing what it is you are trying to decide.

Answer and Analysis:

This was one of Professor Chadbourn's favorite problems, and the story has provided much grist for clergymen's and philosophers' mills for centuries. From an evidence teacher's point of view, the problem is used to point out that the relevance of the evidence depends on what the issue is that is being decided.

One of the most important things for students to understand is the purpose for which a particular item of evidence is offered. This is obviously vital when there is a question of the evidence's relevance, but it may also be critically important when a hearsay, best evidence privilege, or expert opinion issue is raised. Before one can answer the question "What is this evidence offered for?" one has to know what the issues in the case are. Sometimes the apparent issues are not the real issues. This may occur when the substantive law is unclear, changing or is perceived to point to an intolerable result in the specific case. The task of the law student and lawyer is to figure out what the issues really are and how to prove them. The problems King Solomon's Judgment, The Pizza, The Unopened Drum of Paint and Time Travel to Old Salem and the associated readings raise this point.

Professor Chadboum to the contrary notwithstanding, Solomon actually may have been deciding who was the real mother. The reason for this revisionary position is the sequence in which the two women speak. After the first woman conceded the child to the second, why would the second say to divide the child unless she were not the real mother, had lost her child and was bitter, and wanted everyone else to be in the same rotten situation she was in? If the child were hers, she could just have stayed silent and received her child.

An interesting variation on the Solomonic judgment is Brecht's Caucasian Chalk Circle. Again, the dispute is over a child. One of the disputants is the natural mother, who abandoned the child years earlier in order to escape an oncoming army. The mother wants the child now that the war is over in order to receive the revenues of an estate to which he is the heir. The other disputant is the kitchen maid who stayed behind and raised the child. Even though there is no question who the biological mother is, the judge tells each woman to grab an arm; whoever wins the tug-of-war by pulling the child out of the circle, keeps the child. The kitchen maid can't hold on; she keeps letting go to avoid hurting the child. The natural mother pulls the child out of the circle. The judge awards the child to the kitchen maid.

The material at pages 16-25 is designed to provide students with a very basic exposure to induction, deduction and inferential proof in law courts. In anticipation of that material, you may want to ask what kind of reasoning Solomon employed, deductive or inductive, and what the difference is between these two forms of logic. As pointed out later, virtually all judicial proof rests on inductive reasoning, but may be restated in deductive form.

Tanner v. United States, 483 U.S. 107 (1987)(7)

The Case of the Drunken Jury

This extraordinary insight into the malfunctioning of a jury is useful at this point in the course for several reasons. First, it is a harsh dose of reality for idealistic students who come to the class with elevated expectations about the adjudicatory system. Can TRUTH really be the goal of the system when the decision is put in the hands of a wild partying jury?

Second, Tanner demonstrates the extent to which the rules that govern the system, including the Rules of Evidence, and in this case Rule 606(b), serve to protect and preserve the system as a system, even perhaps at the cost of justice and truth in a particular case. Note that the issue here is only whether an evidentiary hearing will be held on the allegations of juror misconduct, but even that is refused. Why? The sanctity of the "jury as black box" is essential to the deference given to the judgments of juries, and Tanner demonstrates the extent we go to preserve that sanctity. This is made clear by the statement in the majority opinion that, "There is little doubt that post-verdict investigation into juror misconduct would in some instances lead to the invalidation of verdicts reached after irresponsible or improper juror behavior. It is not at all clear, however, that the jury system could survive such efforts to perfect it." Isn't Justice O'Connor really telling us that the Court is willing to trade off Tanners right to a fair jury in this case for preservation of the jury system in the long run?

Third, if pressed further, the case reveals some real-life dynamics about the trial process that perhaps make the decision more understandable. How did the information about the juror misconduct come to the attention of the court in the first place? In an affidavit from defense counsel who supposedly received an "unsolicited telephone call from one of the trial jurors." A crisis of conscious? Hmmmmmm?! Then there is another "unsolicited visit" by another juror to defense counsel. This seems like an exceptionally contrite jury. Note that Tanner's counsel had observed one of the jurors in a "giggley" mood during the trial, but did not bring it to anyone's attention. Why not? Cynical answer: The verdict wasn't in yet. Would any of this alleged misconduct have come to light if defendants had been acquitted? Is this just a post-verdict tactic by zealous defense counsel, a kind of "Custer's Last Stand"? If this tactic is allowed in this case, won't it become commonplace after every acquittal, at least if defendant has the

means to pay counsel to pursue this avenue of attack? Seen in this light, perhaps the majority opinion is more understandable. On the other hand, isn't there a line below which the jury system is not worth preserving, as the dissent suggests?

But why is this case in the opening section on relevance? Simply to demonstrate that not only is relevance a logical and relational concept, it has meaning in.law only in context and that context is the adjudicatory system with all its flaws and imperfections. In other words, once evidence is admitted, relevance is whatever the jury says is relevant, no matter how imperfect the functioning of the jury.

Problem -The Pizza (13)

The point:

Facts must be "of consequence to the determination of the action" (Rule 401) (i.e., "material") for them to be relevant.

Answer and Analysis:

Eating a pizza while operating a machine might be contributory negligence. But contributory negligence is not an issue in workers' compensation cases because workers' compensation provides compensation without regard to fault. Objection sustained. Thus, one must know the legal issues in a case before one can say whether evidence about a fact is "of consequence to the action." This is the familiar requirement of materiality. Under the federal rules, the requirement of materiality is subsumed in Rule 401 under the general concept of relevance, reinforcing the point that relevance is not only a rational concept, it is a legally substantive or definitive one also.

The same point is made by the last question in Problem - Neither a Borrower nor a Lender Be later in the book. In that problem, the defendant has pleaded that a note alleged to be his is a forgery. At trial, defendant offers a receipt. A receipt is irrelevant because defendant's theory of the case, as set out in the pleadings, is that the note is not his, not that he paid it.

Further discussion:

How do you determine whether evidence is material? The standard answer is that one looks to the pleadings, substantive law, and other evidence in the case. But the law is constantly in flux. New theories of liability are continuously being created while familiar theories are modified, discarded or disguised. In court, the judge may ask counsel for an explanation of what she is trying to prove with particular evidence. The lawyer had better have a firm idea of the theory of her case, or of what the judge thinks the legal theory is, when she responds.

A hypothetical that demonstrates this point is suggested by People v. Wing, 32 Cal. App. 3d 197, 107 Cal. Rptr.. 836 (1973) where a defendant charged with forging a check to obtain cash from a grocer offered evidence that he made restitution to the grocer a week after the incident. The trial court's exclusion of the offered evidence was upheld on the grounds that restitution was not material to either the act, or criminal intent elements of the crime of forgery. The situation might have been different, the court said, if defendant had contended that he had a good faith belief that he had authority to sign the check. Absent any such showing, restitution is immaterial.

Problem - The Defective Unopened Drum of Paint (13)

The point:

The operative substantive law sometimes can be understood only by understanding the actual, as opposed to the ostensible, rules of relevance that define it.

Answer and Analysis:

This problem is taken from the Union Paint & Varnish Co. v. Dean, 48 R.I. 288, 137 A. 469 (1927). In the actual case, the parties were reversed: the manufacturer sued in assumpsit to recover the price of the second drum from the plaintiff, who had purchased on sixty days' credit and thereafter discovered that the first drum had destroyed his roof. The trial judge excluded the evidence about the first drum as res inter 'os acta and directed a verdict for the manufacturer. The Rhode Island Supreme Court reversed, but it is unclear on what basis. The court simply stated that a person who bought the same paint earlier and discovered not only that it did not conform to the warranty but actually injured the roof "might well hesitate before using more of the same brand when he had no reason to expect the second lot to be any better than the first." 48 R.I. at 291. The case is discussed in James, Relevance. Probabilily and the Law, 29 CAL. L. REV. 689, 692-693 (1941), other portions of which are reproduced in the text.

Note how changing the substantive rule also changes the mode of reasoning from inductive to deductive. If the issue is whether the second drum is defective, evidence as to quality of the first drum can only be used inductively. But if the issue is whether P purchased a second drum of paint prior to notice that a drum of the same kind of paint caused leaks in her roof, then evidence that the first drum of paint was defective supports a deductive argument.

Which kind of reasoning is more powerful -- deductive or inductive? Deductive reasoning, if valid, is extremely powerful -- in fact, it is airtight. Inductive reasoning always requires an inductive leap. Yet all deductive reasoning requires induction in formulating the major premise, so all legal reasoning is inductively based. See Notes at pages 41-44.

Problem - Time Travel to Old Salem (15)

The point

Relevance depends not only on what one is trying to prove but also on the starting assumptions one makes about the nature of the world.

Answer and Analysis:

This is a problem about relevance "from whose point of view." We must figure out whose point of view we are talking about before we can say what relevance means. Do we see the problem of "relevance" from the point of view of the victim, the defendant, the jury, the supposedly much more "knowing" judge, or of society at large or a particular political part of the polity?

Even though the evidence is based totally on superstition, it is very relevant to the defendants' guilt whether the defendants (1) believed in dunking as a valid test and (2) believed that they were witches (whatever that meant in Old Salem). For more on witchcraft, see Demos, Entertaining Satan. The evidence would then be indicative of a guilty state of mind which would be relevant to the issue of guilt. From the time traveler's point of view, even though you might recognize the independent relevance of this evidence from the defendants' point of view if you were convinced that they believed in the validity of the test, you might nevertheless want to exclude it because of course, the factfinder, whoever that may be, will not be able to know for sure why the defendants refused the dunking. Perhaps the defendants understood that the test was superstition, but also knew it was likely to be fatal regardless of their guilt or innocence.

Further discussion:

The witch-dunking problem is similar to one in Broun & Meisenholder, Problems in Evidence 1 (1973) and bears conceptual likeness to State v. Wisdom, 119 Mo. 539, 24 S.W. 1047 (1894), which considered evidence of the accused's refusal to approach the body of the deceased (this is known as the "ordeal of the bier" and is based on the superstition that the body would begin to bleed anew in the presence of the killer).

The witch-dunking problem is a stronger case for exclusion than State v. Wisdom because of the danger of the dunking test even to an innocent person. A non believer would have far better reason to refuse non believer the dunking test than a non believer in Wisdom would have to refuse the ordeal of the bier. Since one cannot be physically hurt by the ordeal of the bier, why would an innocent person refuse it? A non believer might well refuse to engage in the test because even though he believed it was nonsense, it still could be dangerously incriminating if for some reason the corpse appears bloody to an already hysterical and bloodthirsty crowd.

In State v. Mottram, the court held that a prosecution witness' refusal to take a lie detector test as inadmissible as evidence touching on his credibility. The court stated:

The worth of evidence of refusal or willingness to take a lie detector test rests, in our opinion, upon a general acceptance of the worth of evidence of the result of such a test. The result does not have the accuracy entitling it to admission in evidence. It follows that a refusal or willingness to take a test of which the result would have been without value in evidence, likewise has no value for the factfinder.

Mottram is a clearer case for exclusion than Wisdom for two reasons. First, in Mottram the witness's refusal to take the test corresponds to the official policy that such tests are unreliable and inadmissible. Second, as the court noted, in Mottram the proponent of the evidence sought to measure the witness's conduct "against a machine popularly believed to operate on scientific principles, but as yet unaccepted as an accurate instrument to determine truth." In Time Travel and Wisdom, the conduct was based on superstitious belief Thus, the danger of the jury's confusing the witness's conduct with the reliability of the underlying process could lead to greater prejudice in Mottram.

Mottram suggests some interesting variations. For example, suppose the defendant offers evidence of his own willingness to take a lie detector test in a jurisdiction where lie detector evidence is inadmissible? Should the defendant be able to offer such evidence? Does it make any difference if the defendant does not know that such evidence is inadmissible? Can the defendant change his mind and move to exclude the results of the test if they are unfavorable to him?

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