Monthly Archives: June 2017

Limiting the Damage

So you lose an evidentiary argument and the court allows some potentially prejudicial evidence to be presented for some narrow purpose such as bias, impeachment or to show intent, similar plan, motive or scheme.  So what should you do?  

Indiana follows “the rule of multiple admissibility” endorsed by the evidence treatises of both Whitmore and McCormick. Under this rule, evidence that is admissible for one purpose is admissible, even though it might be excluded from consideration by the jury if it was offered for another improper purpose.  The opponent of the evidence is protected, not by exclusion of the evidence, but instead by the use of a limiting instruction. Indiana Evidence Rule 105 provides:

 “If the court admits evidence that is admissible against a party or for a purpose—but not against another party or for another purpose—the court, on timely request, must restrict the evidence to its proper scope and instruct the jury accordingly.”

The party seeking to limit the evidence has the duty to request the instruction. Small v. State, 736 N.E.2d 742, 746 (Ind. 2000) (observing “a trial court has no affirmative duty to admonish a jury sua sponte as to such evidentiary matters”).  As a result you should ask the court to specifically define the area of use and address inappropriate inferences or uses which are prohibited.  Indiana Pattern Instruction No. 527 Evidence Admitted for a Limited Purposes states:

During the trial, I instructed you to consider certain evidence only for specific, limited purposes. You must consider that evidence only for those limited purposes.

Evidence relevant for some legitimate purpose,  can only be excluded if it violates the precepts of Indiana Rule of Evidence 403.  Under this rule, the danger of unfair prejudice has to substantially outweigh the evidence’s probative value in order to exclude it, thereby tipping the scales in favor of admissibility.

Keep these thoughts in mind the next time you need to limit the damage…

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Admissibility and the Burden of Proof are as Different as Apples and Oranges…

In a recent case, the Indiana Court of Appeals held that a nurse practitioner can provide expert medical testimony in areas previously reserved to only medical doctors.  In the decision from the Indiana Court of Appeals it allowed a Nurse Practitioner to testify as an expert witnesses in a soft-tissue case. See the link below:

http://publicaccess.courts.in.gov/Appellate/Document?id=186f4912-5b99-4061-8760-648e61c69cb5

In the decision,the Indiana Court of Appeals held that a nurse practitioner may testify that an injury was consistent with being injured in a particular way, but could go no further unless they witnesses the injury occur.

What is admissible and the admissibility standard applied are different than the quantum of evidence required to meet the necessary burden of proof and avoid a directed verdict. For example under our evidentiary rules relevance is determined by:

Rule 401. Test for Relevant Evidence

Evidence is relevant if: (a) it has any tendency to make a fact more or less probable than it would be without the evidence; and (b) the fact is of consequence in determining the action.

Admissibility for evidentiary purposes requires you to meet a very low threshold as seen above under IRE 401.  As a result, I would stick with a “reasonable degree of medical probability” in formulating medical/legal questions needed to establish an essential element of your claim. A particular medical finding could be consistent with multiple diagnoses. A mere possibility makes a finding consistent, but not necessarily probable.  So exercise discretion.  

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