Introduction to District of Columbia Rules of Evidence
The District of Columbia Rules of Evidence are a set of regulations that govern the use of evidentiary materials during proceedings in the courts of the District of Columbia. The proper admission of evidentiary materials is critical to the justice system; if evidence is improperly admitted, the resulting verdict can be compromised because one side was given an unfair advantage based on relevant evidence that should not have been considered.
Like most states, the District of Columbia has adopted rules governing the use of an extensive range of evidentiary materials. Topics covered include , but are not limited to, the introduction of witnesses, the use of expert testimony, and the topic of admissibility of hearsay. In some cases, other rules apply to more specific evidentiary materials, such as educational records, medical records and national security information.
Ultimately, the purpose of these rules is the same as that behind federal rules of evidence: to ensure a fair, just and proper trial. While they are similar to those used in federal proceedings, DC Rules of Evidence do differ slightly.
Fundamental Principles of District of Columbia Evidence Law
In the District of Columbia, evidence is considered relevant if it has a tendency to make the existence of a fact more or less likely than it would be without the evidence. As a result, relevant evidence is generally admissible, except in situations where a statute or the rules of evidence expressly prohibit its use. The rules of evidence exclude relevant evidence that would create a substantial risk of unfair prejudice, confuse or mislead the jury, cause undue delay, or waste time. Speaking generally, if the evidence tends to prove or disprove any of the facts at issue, it is likely relevant and likely admissible.
While the fundamental purpose of evidence is to advance the ball on the truth, the District of Columbia has placed limits on the admissibility of certain types of evidence. Certain categories of evidence are sometimes considered as less probative or reliable (e.g., witness character/credibility, opinions, hearsay, etc.). The idea is that these types of evidence are less deserving of admission. Courts consider whether the evidence is prejudicial (meaning it might confuse or mislead the jury) and whether the evidence’s probative value is substantially outweighed by the danger of unfair prejudice. If the risk of unfair prejudice is high, the court will likely exclude it from the trial.
Even relevant evidence can be deemed inadmissible if it is protected by privilege or statutorily inadmissible. For example, privileged communications (attorney-client, independent medical examination, doctor-patient, etc.) are generally protected at trial. Privileged communications may even be protected from pretrial discovery in some instances.
Types of Evidence Admissible in District of Columbia Courts
In DC courts, there are two main types of evidence: testimonial and physical. Testimonial evidence is usually given in the form of depositions or testimony under oath. Deposition testimony is usually recorded in some way, so that in case the individual cannot testify at trial, his or her statements will appear before the judge and jury.
Physicial evidence is either documentary or actual physical items. Documentary evidence is data or information recorded on paper or stored digitally. Examples of documentary evidence include letters, memos, photographs, audiotapes and videotapes.
A more common example of physical evidence is an object that has physical substance – an example would be a weapon. Physical evidence is typically passed around or shown to a jury through the testimony of a witness. Documentary evidence, unlike physical evidence, may also be submitted to the judge to review prior to the trial; this is called discovery.
Discovery is a pre-trial process during which each party may obtain relevant evidence. Parties may obtain evidence through written questions, production of documents, or oral testimony. These methods are called interrogatories, production requests, and depositions, respectively.
Hearsay and Hearsay Exceptions in the District of Columbia
Hearsay is defined in DC as any statement not made under oath that is offered in court to prove the truth of the matter asserted. If the statement is not being offered to show the truth of the matter, then it is not hearsay. It is, for example, present senses impression which are exempt from the rules of hearsay under Black’s Law Dictionary which defines them as "a statement describing or explaining an event or condition made while or immediately after the declarant perceived it." However, if it does not fall into one of the many exceptions to the hearsay rule, it will usually be inadmissible at trial.
Hearsay, as other rules of evidence, does have exceptions. For example, statements made by a party-opponent can be admissible even if they do constitute hearsay. Similarly, excited utterances are exempt from the hearsay rule and are defined as "a statement relating to a startling event or condition made while the declarant was under the stress or excitement it caused." Statements made by a child under the belief of impending death are also exempt from the hearsay rule. In the most general sense, statements made by a declarant under the belief that his death was "imminent should be recounted by those who observed or perceived that belief," as explained by DC hearsay law.
Expert Witnesses and Expert Testimony
A prerequisite to the admission of expert evidence is the qualification of the witness as an expert. Qualifications of an expert are generally based on the person’s education and practical experience in a particular field. In Commonwealth v. McMillan, the Court held that a witness testified as an expert if the testimony was based on his knowledge, skill, experience, training, or education. However, the District of Columbia has long recognized the "totality of the circumstances" test as an appropriate substitute for the per se admissibility ruled in McMillan.
The D.C. Court of Appeals has held that the trial court is required to independently evaluate the reliability of scientific evidence prior to the admission of such evidence. The party offering the expert must establish four factors in order for the expert testimony to be admitted. Evidence based on expertise may be established by: (1) knowledge, skill, experience, training, or education; (2) whether the theory or technique has been tested; (3) the existence of standards controlling the technique’s operation; and (4) the technique’s general acceptance within the relevant community, although it is not necessary that all four factors be present. However, while McMillan set forth a per se rule , the Court in Raker v. Corvis Corporation left the door open for the application of other tests to the admissibility of expert testimony. The majority held that expert testimony involving scientific or technical matters must be preceded by an established methodology, and that once this threshold issue is set, admission is governed by D.C. Code § 11-1709 and other applicable rules.
In Raker, the plaintiff appealed from a judgment of the Superior Court in favor of the defendants on his claim of breach of warranty, idemnification, and breach of contract. Plaintiff alleged that a laser plate; a tool designed for use in precision laser machining operations performed on a flexible circuit board printed circuit board assembly (PCB), caused his peripheral neuropathy condition. The Court determined that the trial court erred in excluding the testimony of Dr. Baird since his testimony rested on an acceptable methodology. The Court distinguished between general medical testimony and expert testimony involving scientific issues. The key distinction is that the latter testimony must include an underlying scientific basis such that the legal and factual conclusions are based on information whose accuracy is generally accepted. The totality of the circumstances test was accepted by the court and relied on the five factors previously applied in Barlow v. International Harvester Company.
Privileges Under the District of Columbia Rules of Evidence
The District of Columbia Rules of Evidence recognizes several evidentiary privileges that protect certain communications from disclosure during the course of a criminal trial in the District of Columbia.
Attorney-Client Privilege: The District recognizes the attorney-client privilege. Under the attorney-client privilege, an attorney generally cannot be forced to disclose confidential communications to the attorney by the client when those communications are meant for the purpose of seeking legal advice from the attorney. The attorney-client privilege therefore shields from disclosure communications between an attorney and her client when the communications were both intended to be confidential and were made in order to facilitate providing legal advice to the client. There are certain exceptions to the scope of the attorney-client privilege, including the crime-fraud exception, the crime-fraud exception, and the joint client exception, among others.
Spousal Privilege: The District recognizes spousal privileges, including both the spousal testimonial privilege and the spousal communication privilege. Under the spousal testimonial privilege, one spouse can refuse to testify against the other spouse. Under the spousal communication privilege, communication between spouses during their marriage are generally inadmissible. But there are many exceptions to the spousal privileges, meaning the privileges are usually not absolutely admissible.
Rules of Evidence and their Effect on District of Columbia Trials
Not surprisingly, the rules of evidence have a profound impact on how litigation is conducted—that is, the fundamental process to achieve a resolution of a dispute through the District of Columbia courts. Here, we examine what is meant by the term "rules of evidence," the strategy involved in persuading others (the court and jury) that our position is the only one that makes sense, and the role of the judge in making rulings.
We begin by examining what is meant by the term "rules of evidence." The term "evidence" includes all the means of proof, capable in law, which are submitted to the comprehension of the court or jury as the means of establishing facts, and which may be legally submitted to the court or jury for its action with respect to a particular fact or issue in the case.
The entirety of the District of Columbia’s evidentiary scheme is set forth in the District of Columbia Rules of Evidence (D.C. RE). While many states have common law-based rules of evidence (that is, rules that have evolved over years, even decades, through appellate decisions), D.C. RE includes a comprehensive set of "federally based" rules of evidence, focused on and derived from the Federal Rules of Evidence (FRE) and supplemented by a limited number of D.C.-based evidentiary rules, in addition to that portion of the D.C. Code that speaks to evidentiary issues, e.g., admissibility of medical records.
It is important to understand that while the D.C. RE uses the FRE as a model only in terms of content and organization, in practice, the FRE is quite different. Although the FRE and the D.C. RE may have the same name and appear to be similar in many respects, that is where the similarities end. First, the FRE is not as substantive as the D.C. RE. Once each Federal Rules Advisory Committee review cycle is complete, the committees submit proposed changes to Congress for approval. If no action is taken within a specified period, the Congress rules take effect. This process has created a patchwork evidentiary backdrop, whereby some rules have never been updated (or were changed to meet the requirements of a former legal standard), some rules were removed countless years ago and then later reinstated, and some rules were changed to reflect Committee recommendations but were never adopted by Congress. As a result, the FRE is in constant flux. Second, unlike the FRE, which does not apply in all cases pending in all the district courts in the United States, the D.C. RE applies in all cases heard in D.C., regardless of the context. Any case filed in a D.C. court will follow D.C. RE.
The relevancy of the D.C. RE to the outcome of the case cannot be overstated. It is the D.C. RE that identifies what evidence—the content of which, even in a case tried to a jury—is still subject to judicial determination about whether it is admissible and, thus, admissible. Put simply, if something is not admissible into evidence, you cannot present it to the judge or jury for consideration. For instance, if we seek to admit medical records (which are a form of hearsay), we must first show either: (1) that there is a relationship between the medical records and the injury at issue; or (2) that the medical records consist of facts observed by a previously disclosed person or group without opinion or inference. Notably, there are many types of evidence found admissible even though such evidence is not permissible under the D.C. RE. For instance, statements of use or opinion by witnesses regarding the use of a product or device are admissible in most cases, and, perhaps most importantly, physical evidence is admitted without issue (e.g., photographs, videos, audio recordings or product samples).
The D.C. RE governs what is admissible as well as what is not admissible. The rules require motions to be made before trial in order to address evidentiary issues that could result in witness testimony being excluded or circumscribed. This critical procedural consideration focuses the parties’ attention on the issues and evidence of concern, allows the parties to prepare their cases accordingly, and allows the court to rule on the admissibility of the evidence, often in advance of trial, when a ruling provides the most benefit.
Ultimately, the main objective of any trial is to present competent evidence (testimony of witnesses and physical evidence) to serve as the basis of the court’s (or jury’s) resolution of the factual issues in dispute. Those facts, in turn, form the basis of the court’s decision (and/or the jury’s verdict). Whether or not we achieve this goal is dependent, in part, on our understanding of the rules governing what evidence is admissible and what is not.
Equally important, we must appreciate the role of the judge in ruling on various evidentiary issues. Our focused understanding of the evidentiary rules is important because we must persuade the judge to rule in our favor, precluding the introduction of certain evidence and/or allowing the introduction of specific evidence into the record. In some cases, the judge will allow us to make an offer of proof (the presentation of the evidence that you wish to put into the record, e.g., readings from a deposition) outside the presence of the jury. We then place the evidence into the, ostensibly, permanent record, and the judge will complete the ruling at a later date, potentially after trial. In many cases, the offer of proof allows us to prepare our trial strategy, knowing what the judge will and will not allow us to present.
Recent Developments in the District of Columbia Rules of Evidence
The rules of evidence are not static, and the District of Columbia Rules of Evidence are subject to amendments and updates over time. Recent changes to the DC Rules of Evidence are no exception. While amendments to the Rules are, of course, a concern for attorneys in active practice, a Rule change could also affect their clients in significant and less than obvious ways – which could, in turn, lead to more innocent clients be charged with serious crimes or suffering serious civil harm because of how judges deal with the change in Rules and apply them to their particular case.
The District of Columbia Court of Appeals, which is unique in the nation as a court on the "federal" circuit level, has the exclusive authority to amend the Rules of Evidence. The Court may do so at any time, but often the Court reviews the Rules in a comprehensive manner after one or more Rules Committees’ recommendations that such a review is warranted, and the District’s legislature and/or the Council of the District of Columbia may provide input, as well.
The last complete overhaul of the DC Rules of Evidence took place in 2000. Maryland’s state courts , by contrast, adopted the Federal Rules of Evidence in 1965. The District Court for the District of Columbia follows the Federal Rules of Evidence.
In 2006 – 2007, the Committee on Evidence of the District of Columbia Court of Appeals proposed a number of amendments to the Rules of Evidence, including several changes to existing Rules, relaxing of the rule concerning polygraph evidence, adoption of Rules concerning expert witness testimony, and adoption of new Rules concerning testimony by non-expert witnesses in civil cases. The Court adopted some of the amendments, but held the others in abeyance pending the completion of "empirical studies designed to provide the Court and the public with the benefit of scientific data regarding the issues studied." Those studies have since been completed and further amendments to the Rules of Evidence are anticipated, but have not yet been adopted.
The DC Court of Appeals’ Committee on Evidence continues to monitor developments relating to the Rules of Evidence and to propose amendments as necessary.