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Missouri Evidentiary Foundations - 3rd Edition - Hardcover
Missouri Evidentiary Foundations - 3rd Edition - Electronic
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CHAPTER 11
SUBSTITUTES FOR EVIDENCE
§ 11.01 Introduction
The previous ten chapters analyze the legal restrictions on the process of
admitting evidence during a trial. However, there are substitutes for
conventional evidence: the parties may stipulate to certain propositions; the
judge may judicially notice a proposition; or the jurors themselves may be
taken outside the courtroom to view a scene or object that is relevant to the
case. This chapter discusses the limitations on those substitutes.
§ 11.02 Stipulations
[1] The Doctrine
It is very common for the parties to stipulate before or during a trial. A
stipulation can save both parties time, and by stipulating in the jury’s presence,
a party can attempt to create the impression in the jurors’ minds that he or she
is a reasonable, fair person.
There are several types of stipulations. For example, the parties may
stipulate to a continuance. One type of evidentiary stipulation is an agreement
that a particular evidentiary foundation or predicate exists. For example, after
having a letter marked as an exhibit for identification, the proponent may ask,
out of the hearing of the jury, if opposing counsel is willing to stipulate to the
authenticity of the letter. Or, the opposing counsel may volunteer to stipulate to
certain evidentiary foundations. Such stipulations may be partial. For example,
the opposing counsel may stipulate that the letter is authentic, but may be
unwilling to waive possible hearsay objections.
We are concerned primarily with two other types of evidentiary
stipulations. The first is a stipulation of fact—the parties agree that a certain
fact is so or that a certain event occurred. If the parties enter a stipulation of
fact, neither party can ordinarily introduce evidence to contradict the stipulated
fact. As the United States Supreme Court recognized in Old Chief v. United
States,1 the mere offer to stipulate to a fact can reduce the proponent’s need to
resort to an item of evidence to prove the fact; the offer of the stipulation
makes the evidence more vulnerable to an objection based on legal relevance.
The second type of stipulation is a stipulation of expected testimony—the
parties agree that if a particular person were present in court as a witness, the
person would give certain testimony. The parties are not stipulating that the
testimony is truthful, correct or admissible—the parties may introduce evidence
to contradict what the person would testify to, and they may object if particular
portions of the stipulated testimony are objectionable under the rules of
evidence. The parties are agreeing upon only what the person’s testimony
would be if the person appeared and testified in court.
CHAPTER 11
SUBSTITUTES FOR EVIDENCE
___________
SYNOPSIS
§ 11.01 Introduction
§ 11.02 Stipulations
[1] The Doctrine
[2] Elements of the Foundation
[3] Sample Foundations
§ 11.03 Judicial Notice
[1] The Doctrine
[2] Sample Foundations
§ 11.04 Jury Views
[1] The Doctrine
[2] Elements of the Foundation
[3] Sample Foundation
John C. O'Brien is a Professor of Law at Saint Louis University School of Law, where he has been a member of the full-time faculty since 1975. He has taught a wide variety of courses, notably Evidence and Trial Advocacy. Prior to joining the faculty, Mr. O'Brien spent several years in law practice, mainly in the District of Columbia and Illinois. Mr. O'Brien graduated from the Harvard Law School in 1967 and is admitted to practice law in Missouri, Illinois, New York, and the District of Columbia. He has authored or co-authored several books on evidence law, including the first and second editions of Missouri Evidentiary Foundations. Mr. O'Brien has also authored four editions of the book, Missouri Law of Evidence.
Thomas Lee Stewart is the Director of Trial Advocacy, Assistant Clinical Professor of Law at Saint Louis University School of Law. Prior to joining the faculty in 2009, Mr. Stewart spent 23 years in private practice as a civil trial lawyer handling products liability, medical negligence and toxic tort cases. He is licensed to practice law in the state of Missouri and state of Illinois. Mr. Stewart is the 1997 recipient of the Lon O. Hocker Memorial Trial Lawyer Award given by the Missouri Bar Foundation.
Edward J. Imwinkelried is the Edward L. Barrett, Jr. Professor of Law and Director of Trial Advocacy at the University of California, Davis. He formerly taught at Washington University in St. Louis and the University of San Diego. He has visited at the University of Illinois, the Ohio State University, the University of Houston, and University College of Dublin. Mr. Imwinkelried is the author of over 100 law review articles and 20 books, including EVIDENTIARY FOUNDATIONS (8th ed. 2012). He has lectured in 46 states to groups of judges, attorneys, and scientists. He is the expert testimony columnist for NATIONAL LAW JOURNAL.
