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7 Trial Judges J. 1 (1968)

handle is hein.journals/judgej7 and id is 1 raw text is: JANUARY, 1968 Vol. 7, No. 1 01 . . . . . - . .. . - . 0 --_ IMPROPER EVIDENCE IN NONJURY TRIALS By JUSTICE BRUCE F. BEILFUSS Supreme Court, Madison, Wisconsin It has been estimated that at least five out of six trials in American courts are without juries. In these instances the trial judge has the dual role of applying the law, both substantive and procedural, and finding the ultimate facts. A problem that confronts the trial judge is to what extent he should admit evidence that would be excluded in a jury trial. In spite of the fact that the great majority of the cases are tried without a jury we have but one standard of evidentiary rules designed, in our historical setting, for jury trials. Their purpose is to keep from the ears and minds of jurors evidence which experi- ence and tradition have decreed to be untrustworthy in our quest to determine the true facts. Many Justice Bruce Beifuss students of the problem have criticized our rules of evidence as being unrealistically restrictive, based upon historical accident, and not in keeping with the sophis- tication of modern juries. The rules are also criticized for not recognizing the difference in the ability of a juror and a trained trial judge in evaluating evidence. The contention, in this regard, is that rules of evidence should be formulated and adopted to give a trial judge more latitude and discretion than the jury rules permit. While there may be merit in the complaints about our rules of evidence, the fact remains that we have but one standard of evidentiary exclusionary rules for jury and nonjury cases alike. (We are not here concerned with administrative tribunal procedures.) In the trial of nonjury cases the practice of ad- mitting evidence which would be improper in a jury case is prevalent in most jurisdictions, although a few states require the trial judges to apply the exclusionary rules of evidence in jury and nonjury cases alike. In many states, as well as most federal circuits, the appellate court in reviewing the record of the trial court uses the presumption that the trial court based its findings and judgment solely upon the competent evidence received and that it disregarded all incompe- tent evidence. If the record reveals any competent evidence to support the findings, they are sustained. Other courts utilize the presumption under the harmless error rule by stating that if there is competent evidence to sustain the finding the admission of improper evi- dence is harmless error. The reasons most often used to justify the pre- sumption are: that the trial judge as distinguished from the jury knows the rules of evidence and will, in his deliberation, exclude improper and untrustworthy proof in finding ultimate facts; that his training and experience better qualify him to evaluate the credibility of the wit- nesses, the weight of the evidence, and its probative value; that by forgoing objections and argument much trial time is saved; and that if competent and material evidence is excluded it can constitute reversible error. The arguments usually made against the presump- tion are: that trial judges are not all of equal training, experience and competence; that there is no certainty that judges can exclude improper evidence from their deliberations any better than jurors; that in close factual determinations the appellate court cannot know whether the trial court acted upon improper evidence; that to hear considerable immaterial and incompetent evidence does not in fact save time; and that the trial attorney cannot properly prepare for trial or challenge improper evidence at the trial if the rules of evidence are not adhered to. (Continued on page 5) A Family Sociologist Appraises the Value of a Woman's Life By WILLAM F. KENKEL, Professor of Sociology University of Kentucky About a year and a half ago I was asked to prepare an appraisal and to testify concerning the monetary worth of a wife and mother who was wrongfully killed in an automobile accident. I have testified regarding the monetary worth of a man's life who was wrongfully killed and 1 have pre- pared several appraisals for cases that were settled out of court. This article will explain how a family sociologist prepares ap- praisals regarding the monetary worth of a human life. Sociology has been defined as a body of scientific knowledge William F. Kenkel about human relationships. The concern of sociology, therefore, is with human interaction, with man's be- havior in relation to other men. Sociology is not, of course, the only field of knowledge that deals with human behavior. The uniqueness of sociology lies in its approach to human behavior, its focus upon the interaction of two or more people. The family sociolo- gist is concerned with the reciprocal influence and interaction between and among family members. The (Continued on page 3) CONTENTS, page 2 Trial Judges'Journal

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