The Legal Advocate

A blog brought to you by the national institute for trial advocacy

Handing Narrative Evidence at Trial: Not an Easy Task

Posted On By

written by NITA guest bloggers Federica Turetta and Professor Michael J. Dale

Trials allow parties to persuade the judge or jurors by recounting their version of the historical facts. The National Institute for Trial Advocacy (NITA) describes this process as “storytelling.” However, in addition to persuasiveness, a story presented at trial obviously must consist of admissible evidence. This then requires the lawyer to present witnesses who can describe what happened in a way that avoids objection.

There are least two different ways to address a question on direct examination. A lawyer may frame a question in such a way as to elicit a very specific answer from the witness. Alternately, the lawyer can invite the witness to explain her story in her own words[1].

Usually, witness examination proceeds in question-and-answer format. This approach ensures that opposing counsel has the opportunity to present objections to the question before the answer is given[2]. For this reason, a problem can arise when the lawyer asks the witness, generally, to tell the jurors what happened[3]. The problem with this mode of interrogation—the narrative question—is that it calls for a narrative answer.

A narrative answer is one that continues at some length in the absence of question. A narrative question and answer create a serious problem for opposing counsel because the opposing counsel can object only after the jurors have heard all or part of the answer[4]. In other words, opposing counsel cannot prepare an objection based on the question. It is something in the content of the answer that is objectionable.

Unfortunately, it is not easy to define the term narrative evidence. Indeed, neither the Federal Rules of Evidence nor state evidence codes provide any specific definition, leaving its meaning and admissibility to the discretion of the judge. The absence of any specific rule leads to another question. On what basis does the judge exercise discretion to sustain an objection to testimony as narrative? One knows that under Federal Rule of Evidence 611(a), the judge, in controlling the mode of interrogating the witness, must balance the probative value of the narrative evidence against the prejudice of exposing the jury to inadmissible evidence[5]. The balancing and the control over the mode of examining witnesses and presenting evidence are essential to render those procedures effective in determining the truth. American case law has developed some common factors helpful in understanding how the judge exercises her discretion in balancing the evidence[6].

For example, the judge can decide whether the witness has demonstrated any propensity testify to about inadmissible matters[7]. Another situation in which a judge might exercise discretion in allowing the introduction of narrative evidence is whether the use of such evidence affects the objecting party’s substantial right under the principle of undue prejudice[8]. Thus, under Federal Rules of Evidence 403, the use of relevant evidence, regardless of whether it is in narrative form, is outweighed only by the danger of unfair prejudice[9]. In the absence of this prejudice, the use of narrative evidence is per se harmless[10].

Another issue involving the introduction of narrative evidence arises when its use does not produce a factual outcome different from what it otherwise would have been had the evidence come in through question-and-answer format[11]. In other words, both the introduction of evidence in question-and-answer format and in a narrative format would have led to the same result. To reach this conclusion, the judge has to evaluate the weight of all the other evidence to determine whether the party offering the evidence objected to on narrative grounds would have been in the same position without introducing the narrative evidence[12].

There are, however, theories that underlie the positive aspects of the narrative evidence. Indeed, in United States v. Pless, the court found that “[t]here is . . . nothing particularly unusual, or incorrect, in a procedure of letting a witness relate pertinent information in a narrative form as long as it stays within the bounds of pertinency and materiality.”[13]

In addition, as the reported case law demonstrates, in the absence of any specific rule of evidence, it is within the sole discretion of the trial judge to control the form of examination of witnesses. Thus, it is in the judge’s discretion to determine whether a witness will be required to testify by a specific question and answer or in narrative format, and the judge’s decision is reviewable only for abuse of discretion[14].

Therefore, the only way to avoid the introduction of narrative evidence is through the prompt use of an objection. Opposing counsel must then make a motion to strike the objectionable portion of the narrative answer and ask that the jurors be admonished to disregard it. As NITA teaches, the purpose of objecting is to prevent the introduction or contemplation of inadmissible information at the time the information is provided[15]. The objection, obviously, must be timely. The party objecting to narrative testimony can neither obtain retroactive benefit from a subsequent objection nor broaden the scope of such objection[16].

Sometimes, the objection to narrative evidence has the effect of misleading the questioning party into believing that the evidence is inadmissible in its entirety[17]. The use of a series of successful objections could lead the examining party to give up on the question and the area of inquiry[18]. This is because every time an objection to a question calling for a narrative response is sustained, the objecting party has convinced the court and the examining lawyer that he otherwise will be deprived of the right to object until it is too late[19]. Although it should not, this atmosphere in the courtroom can consequently lead the party examining lawyer to fail to establish a critical line of testimony[20]. The response of the examining lawyer should be to return to the question-and-answer format of eliciting testimony.

Another situation in which judges usually overrule the objection to a question calling for a narrative answer is when the evidence and means of interrogation of a witness have already been submitted to the opposing party. Under Rule 75(c) of the Federal Rules of Civil Procedure, a party can request the use of evidence in narrative form, providing at the same time, copies of the testimony to the other party[21]. When the party asking for the introduction of evidence in narrative form complies with the requirement of Rule 75(c), the opposing party is still allowed thirty days to object to the testimony or propose amendments that can be in either narrative or question-and-answer form[22]. Any objection or amendments must be submitted to the judge for approval[23]. Consequently, the failure to comply with the prescribed time period bars the opposing party from later raising objection regarding the testimony in narrative form[24].

However, probably the leading factor that may influence the judge’s decision in employing discretion in allowing narrative evidence is whether the case is being tried to a jury. The only reality that counts in a case tried in front of a jury is the jury’s reality[25]. “The jury perception of reality is the reality.”[26] Therefore, all the communication inside the courtroom must be juror centered[27]. A good story, well told, can make a difference between winning or losing a case. Jurors listen, remember, and are molded by it, fitting the evidence into the story that makes the most sense to them[28]. Consequently, it is fundamental to plan and execute the introduction of evidence from the jury’s point of view[29]. If the subject is not persuasive for the jury, it is not worth pursuing at all[30]. Evidence in narrative form, if it is to be used, must be both admissible and persuasive. The effect of inadmissible evidence on the jury is greater than on a judge. A judge, by definition, is impartial. Therefore, he should be better able to handle the introduction of inadmissible evidence. The same cannot be said for jurors, who may make decisions based in part upon narrative evidence they heard but which was stricken after the fact pursuant to an objection. The goal of every lawyer is to get sufficient autonomy from the judge on the content of the examination for it to be persuasive to the jurors. This may or may not a lead to the use of narrative evidence.

For all these reasons, judges exercise substantial discretion in the admissibility of narrative evidence when a case is tried in front of a jury. The effect on the jurors may be catastrophic because a narrative answer heard first by jurors may not give opposing counsel a reasonable opportunity to make a timely and effective objection.

Finally, a brief comment may be helpful when the testimony is by an expert witness. Federal Rule of Evidence 702 permits an expert to testify in the form of an opinion when scientific, technical, or other specialized knowledge will be helpful to understand or to determine a fact in issue[31]. As the Rule provides, a witness can be qualified as an expert when he has greater knowledge, skill, experience, training, or education than an average person[32]. His qualifications, opinions, and the bases for those opinions should be informative evidence for the jurors to understand unfamiliar terms and concepts. It is sometimes impossible, or at least very difficult, to conduct the examination in the question-and-answer format. The technical nature of the issue involved may require the expert to testify in a narrative form in order to render the information understandable to an average person and perhaps to a judge. In a situation like this, however, an objection can be raised when the expert witness, instead of relying on relevant special skills, is merely trying to introduce evidence that would not be otherwise admissible[33]. Indeed, the testimony of an expert witness is still subject to the relevant test analysis under Federal Rule of Evidence 403[34].

In conclusion, there is no single factor or specific evidentiary rule to follow when dealing with the introduction of narrative evidence. Its admissibility is in the discretion of the judge. The best system to follow, then, is to object at the outset when one believes inadmissible evidence will come in through the narrative. If that is unsuccessful, one should object to each inadmissible portion of the narrative and move to have it stricken and the jurors admonished to disregard it.

Federica Turetta is a graduate of Roma Tre University, Rome, Italy, and a dual degree student at Nova Southeastern University College of Law, where she is a research assistant to Professor Michael J. Dale. She can be reached at federicaturetta@gmail.com.

Michael J. Dale is a member of the faculty at Nova Southeastern University Shepard Broad College of Law. Professor Dale teaches at NITA programs in both public and in-house settings. In 2009, he received the Robert Oliphant Award from NITA for his service to the organization. He can be reached at dalem@nova.edu. Click here to read more articles co-authored by Professor Dale’s research assistants.

————————————————————————————————————————-
[1] Examination of Witnesses § 3:9, Westlaw (database updated May 2014).
[2] Justice Mark B. Simons, Other Objections to Form of Question—Calls for a Narrative Answer § 3:35, Westlaw (database updated Jan. 2017).
[3] Id.
[4] John Wesley Hall, Jr., Trial Handbook for Arkansas Lawyers § 32:3, Westlaw (database updated Nov. 2016).
[5] Fed. R. Evid. 611(a).
[6] Significantly, here is no equivalent legal institution like case law precedent in most of the European systems. For example, in Italy, Rule 511 of the Code of Criminal Procedure (“c.p.p.”) regulates which evidence can be introduced through the reading of some of the materials already present in the Pre-Discovery Folder (“Fascicolo del Dibattimento”). The reading of the material in a narrative form is disposed under the discretion of the judge. However, the in person examination of the witness is always preferred. Furthermore, there as some limits to the narrative reading of some evidence; for example, the as is reading of some documents, like petitions or motions, can be used only to verify the legal basis to move forward with the process. Therefore, their content, in narrative form, cannot be used to reach a verdict. Rule 511 c.p.p., most of the time, must be read together with Rule 514 c.p.p. Rule 514 c.p.p. regulates, more specifically, which evidence, in narrative form, can be introduce in the process.
[7] Examination of Witnesses § 11:11, Westlaw (database updated Sept. 2016).
[8] United States v. Silva, 748 F.2d 263, 264 (5th Cir. 1984).
[9] Fed. R. Evid. 403.
[10] Silva, 748 F.2d at 264.
[11] Hall, supra note 4.
[12] People v. Dickman, 253 N.E.2d 546, 547 ̶ 48 (Ill. App. 1969); see also Goldsmith v. Newhouse, 72 P. 809, 810 (Colo. App. 1903).
[13] United States v. Pless, 982 F.2d 1118, 1123 (7th Cir. 1992).
[14] State v. Wren, 498 S.W.2d 806, 810 (Mo. App. 1973).
[15] Steven Lubet & J. C. Lore, Modern Trial Advocacy: Analysis & Practice 232 (National Institute of Trial Advocacy, 5th ed. 2015).
[16] Id.
[17] James W. McElhaney, Trial Notebook 39, 534 (American Bar Association, 3rd ed. 1994).
[18] Id.
[19] Id.
[20] Id.
[21] Fed. R. Civ. P. 75(c).
[22] Hall v. Gordon, 119 F.2d 463, 464 (D.C. Cir. 1941).
[23] Id.
[24] Id.
[25] Thomas A. Mauet, Trial Techniques 23 ̶ 24 (Wolters Kluwer, 8th ed. 2010).
[26] Id.
[27] Id.
[28] Id.
[29] Id.
[30] Id.
[31] Fed. R. Evid. 702.
[32] Id.
[33] See generally Charles H. Rose, Fundamental Trial Advocacy 240 ̶ 54 (2007).
[34] Fed. R. Evid. 403.

Leave a Reply

Your email address will not be published. Required fields are marked *

NITA’s team of practicing lawyers, professors and judges from around the nation dedicates its efforts to the training and development of skilled and ethical legal advocates to improve the adversarial justice system.

NITA’s Goals are to:

  • Promote justice through effective and ethical advocacy.
  • Train and mentor lawyers to be competent and ethical advocates in pursuit of justice.
  • Develop and teach trial advocacy skills to support and promote the effective and fair administration of justice.
Feature Products

Follow

Get every new post on this blog delivered to your Inbox.

Join other followers: