Evidence Course
Cardozo Law
School
Professor Peter
Tillers
Note on Background Evidence
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Evidence Course
Cardozo Law
School
Professor Peter
Tillers
Note on Background Evidence
The material found below is an edited version of "treatise material" -- a portion of a lengthy note in a treatise -- that I (Peter Tillers) wrote and published many years ago. I have deleted some material in the note but I have not tried to improve the organization of the original note material and I have not tried to lighten the "magisterial" (ponderous) prose that I used in the original note.
Please note that the material below -- the edited version of a portion of my original note on background evidence -- does not take into account developments after 1982. In particular, there is no mention in the below material of Old Chief v. United States, 519 U.S. 172 (1997) , a decision that we will consider in a week or so. (Please see the course syllabus.)
If you wish to read the original note material on background evidence in its full glory (or girth), please see 1 John Henry Wigmore, EVIDENCE IN TRIALS AT COMMON LAW § 9 n. 1, at 658-662 (P. Tillers rev., 1983).
3. Admissibility of background evidence. The exclusionary force of the principle of relevancy is also significantly moderated by the principle that the trial judge has the authority to admit "background evidence." See, e.g., ... Conway v. Chemical Leaman Tank Lines, Inc., 525 F.2d 927, 930, modified, 540 F.2d 837 (5th Cir. 1976) (now a well-known decision, which held that "background information" is admissible under Rules 401 and 402 of the Federal Rules of Evidence; court relied on a portion of Advisory Committee's Note to Rule 401, which states: "The fact to which the evidence is directed need not be in dispute. ... Evidence which is essentially background in nature can scarcely be said to involve disputed matter, yet it is universally offered and admitted as an aid to understanding"; Conway has attracted some commentary (see discussions by Professor Travers and Wellborn, cited infra this note)).
But cf. Independent Iron Works, Inc. v. United States Steel Corp., 322 F.2d 656, 669-670 (9th Cir. 1963) (civil action for alleged violations of antitrust laws; plaintiff sought to introduce extensive evidence to show manner in which defendants conducted their business before time of alleged violations):
"Part of such evidence consisted of proof of the manner in which U.S. Steel and Bethlehem had distributed steel to plaintiff and others prior to 1955, the period in issue. Plaintiff's counsel, at a pre-trial conference, stated that this would be offered as collateral proof of plaintiff's charges of conspiracy and monopolization and that it related to 28 jobs carried on from 1950 through 1954. The judge, however, demurred, observing that the evidence was of limited use and that its introduction would require a tremendous amount of trial time. Thereupon counsel, stating that they could reduce the number, selected nine of the jobs initially proposed. However, the judge considered that nine were too many and, by pre-trial order, limited plaintiff to proof of two &emdash; the so-called 13th Street Freeway job undertaken by plaintiff in 1953, and the University of California Teaching Hospital job performed by the Moore Dry Dock Company.
"The admission of collateral evidence is a matter addressed to the discretion of the trial judge (United States v. Socony-Vacuum Oil Co., 310 U.S. 150, 230, 60 S. Ct. 811, 84 L. Ed. 1129 (1940)), and we are clear that here the rulings complained of did not constitute an abuse of discretion.
"In the words of Justice Holmes, the reason for excluding such evidence is 'a purely practical one, &emdash; a concession to the shortness of life.' Reeve v. Dennett, 145 Mass. 23, 28, 11 N.E. 938, 944 (1887). It is manifest from the transcript of the pre-trial conferences, where the subject was discussed at length, that an excursion into each of these incidental matters could and probably would result in a tremendous proliferation of proof which would literally overwhelm the jury with diversionary facts and extend the trial interminably. The Judicial Conference of the United States, in its Report on Procedure in Anti-trust and Other Protracted Cases (1951), has frowned upon a liberal exercise of judicial discretion in allowing collateral proof saying 'Such evidence as is merely "possibly helpful," or which merely supplies "atmosphere" or "background," may be rigidly excluded,' a view to which we heartily subscribe" (footnotes omitted).
The view that background evidence is admissible has been criticized. Professor [Arthur] Travers has said that Conway's reliance on the Advisory Committee's Note to Federal Rule of Evidence 401 was "arguably" erroneous because the decision of the Advisory Committee to permit proof on undisputed matter was "not to convert inadmissible evidence into admissible evidence" (Travers, An Essay on the Determination of Relevancy under the Federal Rules of Evidence, 1977 Ariz. St. L.J. 327, 345 & n.36). On this interpretation, the Advisory Committee meant to permit the introduction of relevant evidence on a material but undisputed issue but did not mean to admit evidence that is irrelevant to any material issue, disputed or not. (The Advisory Committee, however, was probably inspired by Professor McCormick's view of this matter (see Wellborn, The Federal Rules of Evidence and the Application of State Law in the Federal Courts, 55 Tex. L. Rev. 371 (1977), infra), which is characterized by a broader assertion that background evidence is admissible. And Professor Travers himself took the position that the admissibility of background evidence should be evaluated under the standards of Federal Rule of Evidence 403 and that in general such background evidence should be admitted if it produces no "serious ill effects" (1977 Ariz St. L.J. at 346).)
Professor Wellborn has argued more broadly that it is unwise to proclaim that background evidence is admissible. Wellborn, The Federal Rules of Evidence and the Application of State Law in the Federal Courts, 55 Tex. L. Rev. 371, 382 (1977) ("Although the [Advisory] Committee did not cite him at this point [in its Note to Rule 401], Dean McCormick invented the idea [citing and quoting from McCormick, A Handbook of the Law of Evidence §152 (1954)]. This is questionable doctrine. First, especially as put by McCormick, it undercuts Thayer's first principle &emdash; 'a presupposition involved in the very conception of a rational system of evidence' &emdash; that matter irrelevant in the usual sense, 'not bearing on the dispute, however defined,' may not be received. Second, it is a superfluity that inherently tends, if recognized, to restrict the legitimate reach of relevancy as originally conceived; a properly expansive concept of logical relevancy encompasses evidence of the kind McCormick described, and conception that excludes it is too narrow. Evidence need not itself be in dispute to bear on a disputed matter in important ways [and evidence not itself in dispute is] simply one step further away in a chain of inferences from the disputed facts that the proponent seeks to prove or disprove. As noted above, the State practice in Conway strains the concept of relevant evidence. By attempting to duplicate that practice, the federal court also, I fear, strained the concept of relevancy" (footnotes omitted)). For expression of a similar sentiment, see Green, Relevancy and Its Limits, 1969 Law & Soc. Ord. 533, 536 n.21.
The main effect of the admissibility of background evidence is to weaken the exclusionary force of the relevancy principle. Is Professor Wellborn right in his opinion that the admissibility of such background evidence is a potentially dangerous "superfluity?" It has been said that the jury must know the setting of a controversy in order to evaluate the evidence submitted to it. (See citations infra and supra.) In a practical sense, this fact hardly seems decisive since the traditional rules of evidence &emdash; which did not explicitly recognize the admissibility of background evidence &emdash; did not prevent parties from introducing preliminary evidence showing the setting or framework in which the controversy at hand arose. On theoretical grounds, however, the necessity of background evidence, not itself directly "relevant," may be defended as a necessity. This is because it is in fact always necessary to place a transaction or controversy into some sort of setting or framework before any sense can be made out of the evidence submitted to the jury. (To give or even frame an answer, we must know how to pose the question.) And in many such cases &emdash; if not in most of these cases &emdash; it will not be possible, except through tortured reasoning, to show how every particular fact constituting the background against which disputed evidence and issues are assessed is "relevant"; it will not be possible, in short, to describe how every part of a setting for a controversy makes some fact in issue more or less probable. To be sure, any part of the background may turn out to have some identifiable bearing on the probability of some fact in issue, and it is also true that "background" facts may themselves be or become the subject of controversy at trial. But these realities do not change the fact that at a trial the story has to start somewhere and that preliminary and background descriptions of the events in question are not inadmissible merely because it is not possible to gauge in any realistic or meaningful way whether such background information alters the assessment of some particular controverted fact. (In a broad &emdash; but almost meaningless &emdash; sense, it may be said that such background evidence is "conditionally relevant" ... since, by hypothesis, the existence of such background facts is necessary to appreciate the relevance and significance of evidence thought to have a bearing on a disputed fact in issue.)
Seen from the perspective just described, it is apparent that the admission of background evidence is a routine practice and that there is good reason for such a practice. See United States v. Roberts, 548 F.2d 665, 67 (6th Cir.), cert. denied, 431 U.S. 931 (1977) (... "The jury is entitled to know the 'setting of a case. It cannot be expected to make its decision in a void &emdash; without knowledge of the time, place and circumstances of the acts which form the basis of the charge." ...).
Notwithstanding the necessity for some type of background evidence, there are serious difficulties with the maxim recognizing the admissibility of such evidence. The difficulty, in part, arises because those who advocate the maxim have more than this bare theoretical necessity in mind. They have in mind, for example, that it is useful for the jury, in some way, to know something of the color and flavor of the facts surrounding the controversy and, perhaps, of the parties to the controversy. The feeling suggested is that it is wise and useful to give the jury a "real world" sense &emdash; rather than a bare-bones description &emdash; of the setting in which the controversy arose; the premise seems to be that a "rich" description of events is useful because those seemingly independently irrelevant events may somehow, in a way not always expressly describable, will assist the jury in its evaluation of the evidence and in its understanding of the controversy. This view &emdash; if it is what inspires the belief in the value of background evidence &emdash; is by no means patently wrong, but it does pose a serious (and not yet recognized) problem for the traditional premises of the system of exclusionary rules, particularly the relevancy principle, which is expressly designed (for various reasons) precisely to provide the jury with a "bare-bones" description of the controversy and to screen out all evidence to which no expressly identifiable value may be attached at the time of its admission. This sort of exclusionary practice finds its traditional justification in the belief that there is always some danger that irrelevant evidence may be misused by the jury ... and that the job of the judge is to control the admission of such evidence in order to prevent such misuse and any resulting "misdecision." This theory of the basis of exclusionary practices cannot work well, if at all, if it is supposed that in many cases the judge is incapable of estimating precisely what value given evidence has but can only say that in some way &emdash; which he cannot clearly describe &emdash; the evidence may prove useful because it gives the jury a "feel" for the setting of the controversy. It is for this reason not surprising that the admissibility of background evidence is often particularly stressed when controversies involving complex economic issues present themselves. In many such instances the law is so ill-defined or the material issues are so ill-defined that probably no one, including the judge, is quite able to say with any clarity what the material issues or facts of consequence are. In this state of affairs, of course, it may be difficult, and perhaps impossible ..., to say whether evidence is relevant or irrelevant; no one is quite certain what is in dispute, and thus no one can quite say whether given evidence affects the probability of a fact of consequence that is in dispute in the controversy. In years past, the liberality in standards of admissibility resulting from this situation was seen as generating no palpable or significant harm ..., but in recent years growing impatience with the glacial pace and the great expense of complex economic litigation and of administrative processes has led to an awareness that overgenerous emphasis on the admissibility of background evidence may have a capacity to do great harm. ...
We have noted above that the main significance of the broader version of the principle of the admissibility of background evidence is to relax the standard of relevancy normally employed, but the imprecision of the notion of background evidence seems to have seduced a few trial courts into supposing, at least provisionally, that evidence normally inadmissible by exclusionary rules other than the relevancy principle may be admitted as background. This use of the notion of background evidence, however, is quite improper. To make such use of the notion effectively abandons the elaborate system of the exclusionary rules, since, in principle, almost any kind of evidence somehow related to the transactions involved in a lawsuit may be described as "background." The precise point of many exclusionary rules is to exclude from the jury's consideration certain categories of evidence that may be reasonably viewed as useful "background" by a detached observer. Appellate court generally have not lost sight of this point. See, e.g., International Shoe Mach. Corp. v. United Shoe Mach. Corp., 315 F.2d 449, 459 (1st Cir. 1963) (private antitrust action for treble damages; court rejected argument of plaintiff that government decree showing prior antitrust violations by defendant might be admitted as "background evidence"; court said: "Whether admitted purely as 'background' evidence or not, evidence of a judicial determination of prior illegal conduct on the part of the defendant cannot help but have a great emotional impact on a jury"; ...); ....
The term "background evidence" sometimes refers to "evidence" such as charts and diagrams, which are designed to improve and facilitate the jury's analysis and synthesis of the various pieces of evidence presented to the jury. That such things should be called evidence at all is interesting since such a practice tends to undermine the view that evidence, unlike legal argument and logic, is properly aimed at proof of facts and is not something which demonstrates what sorts of inferences should be drawn from the evidence presented or which suggests how the various pieces of evidence and facts presented to the jury should be combined to make the sort of tapestry a proponent of the evidence desires to establish. ... In the view of the reviser, there is, however, nothing anomalous or improper in treating illustrative diagrams and the like as evidence since there is in fact no rigid dichotomy (nor should there be) between the use of evidence as the basis for factual inference and the use of evidence to improve the process of factual inference. The existence of scientific bodies and methods of knowledge, as well as of other bodies of specialized knowledge and techniques, should demonstrate beyond doubt that it is both possible and useful to aid the jury in the drawing of inferences by offering them "real instruction" through evidence about different methods that may be used to interpret the evidence before it.
The most restricted form of the principle of the admissibility of background evidence is that which simply affirms that evidence relevant to a material matter may be admitted at trial even though the parties, by stipulation or otherwise, have somehow established the existence or nonexistence of that material fact. The Advisory Committee's Note to Federal Rule of Evidence 401 ... clearly shows that Rule 401 was designed with this principle in mind, and the federal courts have readily given effect to this principle. [citations, along with parenthetical descriptions, omitted]
Some courts, following Wigmore ..., seem to have taken the view, however, that otherwise inadmissible evidence may be admitted with respect to a material matter that is not in dispute and that the admission of normally inadmissible evidence in such circumstances is not ground for reversal. Cf. State v. Carrillo, 82 N.M. 257, 479 P.2d 537 (N.M. Ct. App. 1970) .... Such reasoning, however, seems (in the opinion of the reviser) to be too facile since it disregards the possibility that some of this inadmissible evidence (e.g., character evidence) admitted for its bearing on an undisputed material matter will be (mis)used by the jury with respect to some other material matter that does remain in controversy in the lawsuit. Furthermore, it is not entirely clear that otherwise inadmissible evidence should be admitted with regard to an undisputed fact even if it is believed that there is no danger that the jury will use the evidence for any other issue in the case. Presumably, a trial judge allows evidence to be given on an undisputed matter because he is not convinced that the jury will take the fact in question as true merely because it is instructed to do so and therefore feels it is appropriate for a party to introduce evidence that is sufficient to establish that fact. If so, it may be hard to understand why the trial judge should permit a party to "establish" that "undisputed" fact to the jury's satisfaction by evidence that our legal system may regard as totally or almost totally worthless. The answer here may be that such evidence is in fact not normally regarded as entirely worthless and that, in any event, the party against whom the evidence has been offered has signified his willingness to have that undisputed fact found against him and therefore has no reason to complain if the trial judge permits the opposing party to introduce any evidence (with no discernible adverse side effects) that may effectively convince the factfinder to take its duty seriously and find the material fact in the manner required by the stipulation of the parties or by operation of law.