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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