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87 Judicature 51 (2003-2004)
Rethinking the Rules of Evidentiary Admissibility in Non-Jury Trials: Another View

handle is hein.journals/judica87 and id is 53 raw text is: View point by DANNA HENDRIX AND DAN SLAYTON Rethinking the rules of evidentiary admissibility in non-jury trials: another view Protecting pro se litigants should not come at the expense of those fundamental principles upon which the rules of evidence are based, and the protections they provide. John Sheldon and Peter Murray's article, Rethinking the rules of evi- dentiary admissibility in non-jury tri- als (Judicature, March-April 2003) was very thought-provoking. It is our contention, though, that while the premise of their article was well- intentioned, its practical implication missed the point of why courts have the rules of evidence Sheldon and Murray wish to abolish. Consider the examples they used to shore up their view that the rules of evidence do not allow for fair tri- als. In the landlord/tenant example, the tenant wished to call the land- lord a liar (or use the defense of deceit'). The tenant wanted to introduce examples of the landlord's misrepresentations in similar evic- tion proceedings, ostensibly made in front of a judge. The landlord's attorney successfully objected, argu- ing that this evidence violated Rules 404, Character Evidence Not Admissible to Prove Conduct; Rule 602, Lack of Personal Knowledge; 1. We are not aware of a jurisdiction recogniz- ing the defense of deceit, which appears to be simply the act of calling the opposing side a liar, but for purposes of our response we accept Shel- don and Murray's contention that some jurisdic- tion may recognize this defense. and Rule 802, the Hearsay Rule. This example is then used to call into question the inability of the tenant to present the truth of their case due to the rules of evidence acting as a stumbling block. Yet nowhere do Sheldon and Mur- ray address the fundamental ques- tion of why we have these rules: that these rules are a shield to protect pro se lit- igants against unsubstantiated accusa- tions. Fundamental fairness to all parties is the touchstone of our trial system. While Sheldon and Murray have anecdotally argued that the rules were not fairly applied to the hapless tenant, they failed to explain why the application of these rules did not promote fairness to the landlord. Fundamental fairness In order to exemplify the fairness aspect of the rules of evidence, we must explore the nature of the pro- ceedings used by Sheldon and Mur- ray to support their conclusion. In Arizona, for example, landlord-ten- ant cases must be heard within a maximum of five to seven days after the filing of the forcible detainer. They may be continued only a maxi- mum of three days in justice courts and five days in superior courts. Given that the hearing must be held with such rapidity, is it fair to allow a tenant to assert all kinds of accusa- tions without knowing their accu- racy, the basis of those accusations, and allowing notice to the landlord in order to prepare a defense against them? Sheldon and Murray's advo- cacy of repealing the rules does not address this basic question, nor do they offer any remedy for those ambushed by such accusations. In many rural jurisdictions where there are only one or two full-time justice courtjudges, ajudge will most likely have already presided over the very cases for which the tenant wishes to show the landlord's deceit. Assume that the judge has already decided that the landlord complied with the law, and that in three forcible detainer actions ten- ants A, B, and C breached the lease. Tenants A, B, and C, at each of their hearings, were allowed to present evidence and a defense. The judge heard the evidence and ruled in favor of the landlord. Under Shel- don and Murray's proposal, a judge must allow a new defendant/tenant to bring unsupported accusations against the landlord about matters already heard and decided. Missing from Sheldon and Mur- ray's call for the abolition of rules that would prevent this evidence from coming in is how abolition would promote confidence in our trial process. How is confidence instilled in our courts if judges must listen to accusations brought by ten- ant D (who has no personal knowl- edge of the truth of those accusations regarding the landlord's dealings with tenants A, B, and C, September-October 2003 Volume 87, Number 2 JUDICATURE 51

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