A View From the Bench Part II A Comparison of the Rules of Evidence and Trial Procedures In Federal and State Courts

Editor’s note: this is the second of a two-part article; last month’s piece focused on the hearsay rule.

The differences between the Federal and State rules of evidence and trial procedures are hardly confined to the hearsay rule. Below, I will discuss rules on unfairly prejudicial evidence, the role of the judge and expert testimony before giving an overview of some differences between Federal and State practice.

Rule 403
A major Rule impacting practice in the Federal court is FRE 403, entitled “Exclusion of Relevant Evidence on Grounds of Prejudice, Confusion or Waste of Time.” There is no comparable formal rule in the State courts.

Rule 403 reads as follows: “Al­though relevant, evidence may be ex-cluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading he jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.” The most important aspect to understand regarding Rule 403 is that it only bars evidence when its probative value is “substantially outweighed by the danger of unfair prejudice.” Emphasis is placed on the word “unfair” because all adverse evidence is “prejudicial.” “Unfair prejudice” exists only when the evidence creates the probability of an improper or irrational basis for the jury’s decision. The court will look at whether the evidence tends to elevate emotion over intellect, arousing extremes of horror or an impetus to punish.

Some examples of how the Rule works are found in United States v. Chandler, 996 F.2d 1073 (11th Cir. 1993) (in a drug conspiracy prosecution, evidence that the defendant had made threats against two people he suspected of stealing his drugs was not unfairly prejudicial) and United States v. Harvey, 991 F.2d 981 (2d Cir. 1993)(when the charge was purchasing child pornography through the mail, evidence of graphic adult pornography found at the defendant’s home was unfairly prejudicial because it was not a crime charged and would have inflamed the jury).

The most inflammatory and sometimes shocking evidence to be found in any court are photographs of injuries or death. Notwithstanding the emotion the depictions may evoke, however, such photographs are generally admitted and not deemed to be unfairly prejudicial if they are relevant to proof of the crime or tort at issue.

The Role of the Judge
As for the judge’s role during a Federal trial, it can be an active one. For example, Rule 614 provides that the judge may call witnesses on his or her own motion or at the suggestion of a party and may question a witness called by a party. Of particular interest is the provision that allows a party to object to the court’s questions or calling of a witness “at the time or the next available opportunity when the jury is not present. Rule 614(c).

There is no comparable rule in the State courts, although at one time State Supreme Court Justices has the right to call impartial medical witnesses to resolve certain witnesses. Even that past rule did not allow the use of the testimony at trial.

Expert Evidence – Frye or Daubert?
Since 1923, New York’s State courts have governed the admissibility of expert testimony by the standard established in Frye v. United States, 293 F. 2d 1013 (D.C. Cir. 1923). The Frye case involved the exclusion of expert testimony with regard to a primitive lie detector. The D.C. Circuit held that expert testimony was admissible only after the scientific principles upon which the testimony was based had gained general acceptance as reliable in its field. After the FRE’s were adopted in 1975, Federal courts determined the admissibility of expert testimony under Rule 702. The Rule’s language was not very different from the standard enunciated in Frye.

In 1993, a unanimous United States Supreme court held in Daubert v. Merrill Dow, 509 U.S. 597 (1993), that Frye no longer applied in Federal court. Admissibility of scientific evidence – now expanded to all expert testimony in all fields – does not depend on general acceptance in the field of expertise. Rather, the judge acts at gatekeeper and has to be assured that the evidence is reliable based on five factors, none of which is dispositive or exclusive. The Daubert factors require the judge to consider (1) whether the technique or theory can be or has been tested; (2) whether the theory or technique has been subject to peer review and publication; (3) the known or potential rate of error; (4) the existence and maintenance of standards and controls; and (5) the degree to which the theory or technique has been generally accepted in the scientific community.

Later, the United States Supreme Court ruled in Kumho Tire Co. v. Carmichael, 526 U.S. 137 (1999), that Daubert applies to all expert testimony in Federal courts. Then, in 2000, Rule 702 was amended to codify Daubert in a three-pronged test. Under the Rule’s current approach, the proponent must now show that (1) the expert relied on sufficient facts or data; (2) the expert utilized reliable principles or methods; and (3) the expert reliably applied those principles or methods to the facts of the case. There is no requirement that the expert have a particular degree, license or certification.

In New York State, Frye is still the rule, at least in theory. In 1994, the New York Court of Appeals stated that Daubert is inapplicable in State courts because the case’s reasoning was based on the Federal Rules of Evidence. People v. Wesley, 83 N.Y. 2d 417(1994). The Court of Appeals contrasted State law with the “liberal trend” and inclusionary thrust of the FRE’s. Yet, notwithstanding the Wesley case, State courts increasingly use the multiple term Frye/Daubert. Some decisions refer to trial judges as “gatekeepers” for expert testimony and, very interestingly, some State courts apply solely a Daubert analysis.

One of the aspects of Daubert that supposedly made it so significant was its recasting of the Federal judge’s role as gatekeeper of the types of expert evidence admitted, as opposed to relying on the principles’ acceptance by the scientific community, as originally articulated in Frye. In my view, however, the judge was always the gatekeeper, even pre-Daubert. It has been my observation that, contrary to some other learned opinions, the Daubert doctrine, which emphasizes judicial gatekeeping, actually may be the more restrictive approach. Application of the five Daubert factors gives judges more grounds for precluding expert testimony. By the same token, the Frye approach may allow expert testimony even when some Daubert factors are not present.

Personally, I generally take an inclusive ap­proach, only rejecting expert testimony when it is contrived to fit certain situations without any scientific reliability, or if it delves into factual matters that are within the jury’s province. In other words, if a party presents a witness who appears to have been more motivated by expert fees than scientific reliability, I will draw the line.

Federal courts employ a “pure” individual calendar system. One judge is assigned the case from the filing of the complaint through post-judgment proceedings, giving the judge great flexibility and knowledge of the case. With the fast track, a trial may be scheduled within a month. Each judge has individual procedural rules. For example, I ask attorneys to file briefs no longer than 25 pages and to use no footnotes.
In the Eastern District, all cases are automatically referred to a magistrate judge through the discovery, and the District Judge does not become directly involved until the case is ready for trial except for dispositive motions, such as one for summary judgment.
There are virtually no interlocutory appeals in Federal civil matters. State court is an entirely different story.
All civil matters in Federal court seeking less than $100,000 are required to undergo mandatory arbitration. The threshold amount in State court is substantially less, and applies generally only in the lower courts.
The jury demand in Federal court must be made together with the first pleading or within a short time after removal from the State court.
In a Federal court, as opposed to State court, jury selection is always conducted with judicial supervision, and the attorneys do not address the prospective jurors directly. The attorneys may submit question requests to the court. In the Eastern District, there is a district-wide jury pool that includes Brooklyn, Queens, Staten Island and both Long Island counties.

In civil cases, I have my law clerks conduct jury selection. There are no alternate jurors; every juror will deliberate. I usually use 10 jurors or 12 if I expect a longer trial. The minimum number of jurors in a civil case is six. If appropriate, I may request a stipulation that 5 jurors sit. The goal is to achieve a fair and impartial jury. There are 3 peremptory challenges per side, with discretion to increase that number if appropriate. In Federal court, the verdict must be unanimous; in State court, a 5/6th verdict is sufficient.

In criminal cases, the judge supervises voir dire, or the Magistrate Judge will do so. Defendants are entitled to 10 peremptory challenges and the government has 6, plus more for each side to select alternates.

There are usually no court officers or clerks in the courtroom during a Federal trial, in contrast to State practice. Attorneys must mark, handle and maintain their own exhibits. Even in criminal cases, when the potential for violence is not present, there may be no uniformed officers present during the trial, only a U.S. Marshall outside the jury room during deliberations.
Federal courts encourage the use of modern technology. All district court and appellate attorney filings and court notifications are performed electronically. Most documents are available on-line to anyone with a PACER account. In the courtroom, video depositions and testimony are not uncommon, particularly for expert witnesses and situations involving distantly located inmates. In addition, exhibits are often “published” to the jury through advanced technology, particularly in the well-equipped courthouse at Central Islip.
The taking of notes by jurors during trial is encouraged in Federal court, especially in complex cases. The court even provides pads and pens. I do not allow the jurors to ask questions during trial. Many times, trial lawyers intentionally decline to ask certain questions for tactical reasons and jurors should not intrude in that process, especially in a criminal case.
As for summations, in civil cases the judge determines the order, usually allowing a brief rebuttal by the plaintiff.
During jury deliberations in Federal court, the written charge is sent in with the jury. I always do that, and encourage the jurors to have loose-leaf books containing the evidence at their disposal during the trial and deliberations.

My Final Advice: Come to Federal Court
I want to encourage all of you to come to Federal court. When I was practicing law more than 30 years ago, I sometimes viewed some Federal judges as being inflexible. Those days are over. I predict that you will enjoy the experience, whether in a diversity case or one involving a Federal question. In my view, my colleagues in the Eastern District of New York are among the finest trial judges in the nation as measured by their scholarship, dedication and judicial temperament.

One avenue to experience the rewards of Federal court work is to take on pro bono cases. While working on a pro bono matter has its own unique benefits, financial rewards are also possible. A few years ago, I had a Section 1983 case and the plaintiff could not obtain an attorney after five years of trying. I appointed pro bono counsel and the jury rendered a verdict of $680,000 for the plaintiff. I awarded attorneys’ fees of $220,000 to pro bono counsel. In another case involving the notice requirement to employees before a plant closing, the jury rendered a verdict of $28,000 and I awarded $117,000 in counsel fees.

My final advice for those of you who plan to litigate cases in Federal court is that you learn the Federal Rules of Evidence, come prepared and arrive on time. If you can accomplish these reasonable goals, you will find yourself most welcome in the Federal courts.

United States District Judge Arthur D. Spatt formerly a New York State Supreme Court Justice, in the 10th Judicial District from 1978 to 1982. Administrative Judge of Nassau County, Associate Justice, the Appellate Division, from 1986 to 1989, and since 1989, United States District Judge, assuming senior status in 2004.