by Judge Gordon Shumaker (Ret.)
Judge Gordon Shumaker (ret.) has served as a trial judge, an appellate judge, and an adjunct professor of Evidence and Trial Advocacy at several law schools. He was a member of the 2006 Supreme Court Advisory Committee for the Rules of Evidence, is a contributing author of the Minnesota Courtroom Evidence Deskbook, and has taught at and written materials for many continuing education courses for lawyers and judges. He views the rules of evidence as litigation tools and his goal is to make key rules accessible to even the infrequent litigator.
Bringing his incredible knowledge and insight from his years as both a trial and appellate court judge, Judge Gordon Shumaker (Ret.) wrote this manual to be an easy-to-use guide to evidence for judges and attorneys. This practical evidence manual gives guidance on how to analyze common evidentiary issues, what key points to be aware of and important factors to consider when ruling on evidentiary issues or when presenting evidence to the court. Full of great judicial insight and tips, this book is written for trial judges and judicial officers, as well as practicing attorneys.
The Primacy of Judicial Discretion
Rules – MRE 102-1002; Scope – Investigation of the nature of judicial discretion, thoughts on exceeding discretion, and guidance on the limits of discretion; Judge Alert – Judicial discretion is broad but not unlimited. There must always be a plausible basis in a rule or principle for its proper exercise.
The Challenge of Neutrality
Rules – MRE 102 & 611(a); Scope – Considerations of the critical importance of judicial neutrality and its relation to the truthseeking function of trials; Judge Alert – Because evidentiary rulings can often affect the outcome of a case, it is imperative that all rulings be made impartially.
Rules – MRE 403 & 611; Scope – General overview of judge’s function as trial manager, and tools for managing and controlling the way evidence is presented; Judge Alert – The trial process works best if the judge assumes the role of a vigilant manager who refrains from unnecessarily interfering with the presentation of the evidence.
Rules – MRE 104(a), 602, 702, 801(d)(2)(D) & (E), 803 (1), (6), (8), (1), (19), (20), & (21), 804(a) & (b)(2), 901(a), (902), & 1004; Scope – Definition and functions of foundation; need for foundation for all evidence; and judicial duty to disclose and rule; Judge Alert – Unless waived or stipulated to, all evidence must be supported by foundation, the adequacy of which is to be determined by the judge in the exercise of discretion.
Burden of Persuasion and Standards
Rules – No express rules; Scope – Statement of the principle that the proponent of any proposition respecting the admission or exclusion of evidence has the burden of supporting the proposition; Judge Alert – For complicated evidentiary issues, the judge acts properly by requiring the proponent to meet his burden rather than simply deferring to the judge.
Division of Functions Between Judge and Jury
Rules – MRE 104; Scope – Description of the judge’s preliminary role as to offers of evidence; Judge Alert – The judge’s personal belief as to the weight and credibility of evidence is ordinarily irrelevant and should not become the criterion for admissibility.
Admissibility Versus Weight
Rules – MRE 402, 403, 412, 602, 609, 612, 802; Scope – Recognizing judge’s domain of admissibility and jury’s domain of weight; and what is included in “weight”; Judge Alert – The broad principle underlying the concept of admissibility is that the judge should allow evidence that is reasonably helpful and reliable and that does not violate an express rule or offend some policy goal.
Rulings on Objections and Evidentiary Motions
Rules – MRE 103; Scope – Survey of common recurring objections and rulings; Judge Alert – The judge has a duty to rule on objections and to disclose the grounds of the rulings if requested and if the grounds are not apparent, but the judge is not required to explain evidentiary rulings to the advocates.
Rulings on Relevancy Issues
Rules – MRE 401, 402, & 104(b); Scope – How to determine what evidence is relevant; and rulings on conditional relevancy; Judge Alert – Nothing is relevant in the abstract but rather evidence becomes relevant only if it has a relationship to a fact of consequence in the case; and nearly always the concern is as to circumstantial evidence for which a “link” must be found.
Rulings on Rule 403 Issues
Rules – MRE 403, 404(b), 412(1), 608(c), 609(a)(1), & 609(b); Scope – Exploration of the uses of this discretionary “master rule” and identification of rules that do not apply the Rule 403 balancing test; Judge Alert – The most challenging aspect of Rule 403 is the determination of unfairly prejudicial evidence. The rule of thumb is that evidence is unfairly prejudicial if it invites a verdict on something other than the proper evidentiary ingredients of the case, such as inflamed emotions or the desire to punish.
Rulings on Issues of Character Evidence Under MRE 404(a)
Rules – MRE 404(a); Scope – Recognizing character evidence and considering the judge’s obligations; Judge Alert – The purpose for which the evidence will be offered is dispositive under MRE 404(a). If the purpose—stated or implied—is to invite an inference that a person acted in conformity with his character on a particular occasion, the evidence is inadmissible unless one of the exceptions identified in this rule applies.
Rulings on MRE 404(b) “Other Acts”/Spreigl Issues
Rules – MRE 404(b); Scope – Determining applicability of “other acts” evidence; and applying the balancing test; Judge Alert – MRE 404(b) is not an exception to the character-evidence rule but rather allows evidence of acts other than the one being litigated for various relevant purposes that do not amount to inviting a character-evidence inference. The legitimacy of purpose is critical.
Rulings on Issues of Habit and Routine Practice
Rules – MRE 406; Scope – Distinction of habit/routine practice evidence from character evidence; and requirements for admissibility; Judge Alert – The key to applying MRE 406 is determining whether certain conduct can legitimately be called habitual or routine. And the two core ingredients are identical stimulus and identical response.
Rulings on Admissibliity of Lay Witness Testimony
Rules – MRE 602 & 701; Scope – Understanding the foundation for lay witness testimony and the rule regarding lay witness opinion and inference; Judge Alert – A lay witness is permitted to testify to relevant facts that he perceived through the exercise of one or more senses. He is also permitted to state opinions and draw inferences if they are derived from his sensory perceptions and are virtually the only way the witness can intelligibly express those perceptions.
Rulings on Admissibility of Expert Evidence
Rules – MRE 702, 703, 704, & 705; Scope – Admissibility of, and limitations upon, expert testimony; Judge Alert – Helpfulness is the sine qua non of expert testimony. Given a proper subject and a qualified expert, the general rule is that expert testimony that will help the jury more fully, clearly and meaningfully understand the evidence is admissible.
Rulings on Impeachment Issues
Rules – MRE 607, 608, 609, & 613; Scope – Review of the ways in which witnesses may be impeached and the rules governing impeachment procedures; Judge Alert – As soon as a witness swears or affirms to tell the truth, his credibility is in issue and is never collateral. In addition to showing defects in the witness’s perception, memory or narration, counsel may impeach with bias, prior inconsistent statements, bad character for truthfulness, and prior criminal conviction.
Rulings on Issues Related to Documents and Other Exhibits
Rules – MRE 106, 612, 901, 803(5), 613(a), 803(6), 803(8), 803(7), 803(10), 803(11) – (24), 902, & 1002-1006; Scope – Review of rules relating to all types of exhibits and foundations required for admissibility; Judge Alert – As to the admissibility of exhibits, the judge’s role is to decide whether there are sufficient foundational facts to support the jury’s finding that the exhibit is what its proponent claims it is. The foundations illustrated in MRE 901(b) are sufficient to satisfy this requirement.
Rulings on Hearsay Issues
Rules – MRE Article VIII; Scope – Applying the hearsay definition; the prior statements and party statements rules; three categories of hearsay exceptions and their foundations; multiple hearsay; the hearsay impeachment rule; and the Crawford rule and its relation to certain hearsay issues; Judge Alert – The clearest “red flag” that a hearsay issue is about to be raised is any question that asks a witness to repeat a statement made orally, in writing, or by nonverbal conduct, by anyone, at another time and place.
Rulings on Issues Relating to Special Relevancy Under MRE 407 through 412
Rules – MRE 407, 408, 409, 410, 411, & 412; Scope – Overview of the special relevancy rules with emphasis on foundation required for applicability; Judge Alert – These rules primarily reflect policy limitations on admissibility of certain evidence, most importantly subsequent remedial measures, settlement negotiations, plea bargains, and victims’ prior sexual conduct in sex offense prosecutions (the “Rape Shield” rule).
Rulings on Issues Relating to Judicial Notice
Rules – MRE 201; Scope – When and how judicial notice is used; Judge Alert – Judicial notice is a useful tool for expediting a civil trial and may be exercised sua sponte, but strictly in accordance with the rule.
Minnesota Rules of Evidence