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Today, I want to talk about my three favorite code articles, La. C.E. Articles 401, 402, and 403. These three code articles—properly understood—are powerful tools in a litigator’s arsenal. Get to know these articles, backwards and forwards. Develop the habit of running every piece of evidence through the 401, 402, and 4dday major dividends. Below is a brief primer. Familiarize yourself, ask me questions, and thank me later.
First, the law:
Article 401. Definition of “relevant evidence”
“Relevant evidence” means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.
Article 402. Relevant evidence generally admissible; irrelevant evidence inadmissible.
All relevant evidence is admissible, except as otherwise provided by the Constitution of the United States, the Constitution of Louisiana, this Code of Evidence, or other legislation. Evidence which is not relevant is not admissible.
Article 403. Exclusion of relevant evidence on grounds of prejudice, confusion, or waste of time
Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, or waste of time.
Articles 401 and 402 work in concert to exclude all evidence that is not “relevant.”
Articles 401 and 402 are the ultimate gatekeeper articles. For some reason, visualizing things in terms of “little pots” or “evidence baskets” makes sense to me. Article 402 creates two baskets: the relevant evidence basket and the not relevant evidence basket.
Article 402 provides that relevant evidence is admissible, unless it’s inadmissible for some other reason (i.e., the federal constitution, the state constitution, the Code of Evidence, or some other law). Evidence that is not relevant is not admissible.
So, if a piece of evidence doesn’t meet the definition of “relevant evidence” found in Article 401, then it is not admissible under Article 402 and your inquiry ends.
Relevancy is not a high bar, but it IS a bar. Don’t trip over it. Don’t give your opponent a leg up.
The trial judge determines relevancy based on the purpose for which the evidence is offered. See State v. Lindsey, 351 So.2d 1178, 1180 (La. 1977). As the Louisiana Supreme Court explained in Lindsey, it is “crucial for counsel to state the purpose. This must be done contemporaneously with the offer of evidence so as to allow the judge to make an intelligent ruling.” Id.
La. C.E. art. 401 defines “relevant evidence” as “evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.”
This definition is broad but the words I have underlined are really important.
Always have a purpose in mind for every piece of evidence you want admitted.
If you are offering a piece of evidence, you must have the purpose for which you seek to admit that evidence firmly in your mind. Emphasize that the relevancy bar is a low one and that you clear that bar if the evidence has “any tendency to make the existence of any fact” of consequence more or less probable.
When I would prepare for trial as an ADA, I would make a list of my exhibits. For each item, I would have bullets for (1) the purpose for which I intended to offer the evidence, (2) the name of the witness through whom I intended to offer the evidence, (3) the special facts I would need to elicit to lay a foundation for the item’s admissibility, and (4) any objections I could anticipate my evidence eliciting. If you put that kind of thought and preparation into trial prep, getting your exhibits admitted is a breeze!
When objecting to relevance, state your objection then hush up!
If you want the court to exclude a piece of evidence on relevance grounds, make your relevancy objection but offer nothing more: “Objection. Relevance.” Then give your opponent the floor. It is your opponent’s burden to prove that the evidence he seeks to admit is relevant. He must state for the judge the purpose for which he seeks to offer a piece of evidence. See Lindsey, 351 So.2d at 1180. There’s a good chance that your silence after making the objection will catch your opponent off guard. Don’t give him a chance to collect his thoughts. Make your objection, then zip it!
Whenever I’m trying to get a piece of evidence excluded, I always focus on the “fact that is of consequence” language from La. C.E. Article 401. For instance, defense attorneys will often seek to admit evidence of prior accidents involving the Plaintiff, even when these accidents were years ago, involved no injuries and no treatment, and were fully and honestly disclosed by Plaintiff to the defense. In circumstances like this, I argue that evidence of this type does not tend to make any fact of consequence more or less probable. The only thing it tends to prove is that Plaintiff is accident-prone—a fact which is not of consequence to the litigation.
If the court finds the evidence relevant, always look to La. C.E. Article 403.
Assuming your opponent clears the “relevancy” hurdle, you can and should still seek to have the evidence excluded because “its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, or waste of time.” La. C.E. Article 403 (emphasis added). Memorize this standard. Too many lawyers—with this law in mind—fumble over it, arguing, “Judge, this evidence is prejudicial to my client!” That’s not the standard and, if you telegraph to the judge that you think it is, you’ve already lost some major credibility points.
To understand how this article applies, it’s helpful to think about it like an evidence scale. On one side of the scale, you have all of the evidence concerning each element of each claim/defense. On the other side of the scale, you have the danger of unfair prejudice, the risk the jury might confuse the issue or be misled, and the scarce resources of the court. In conducting this analysis, it’s critical to keep in mind the purpose for which the evidence is being offered.
To illustrate this point, I’m going to use an example involving prior convictions. Just note that La. C.E. Article 609(A)(1) has its own built in balancing test such that a felony conviction in the last 10 years is only admissible if the court determines “the probative value of admitting this evidence outweighs prejudicial effect to the party.”
Leaving this caveat aside, let’s say Plaintiff and Defendant are in a terrible car accident. The case goes to trial, and Defendant intends to testify. During discovery, Defendant truthfully disclosed to Plaintiff’s counsel that 9 years earlier he was convicted of aggravated cruelty to an animal, which is a felony. Defendant suspects that Plaintiff’s counsel will question him about this conviction.
Under La. C.E. Article 609(A), the name of a conviction (but no details!) and the date of the conviction is potentially admissible for the purpose of attacking Defendant’s credibility (i.e., his character for truthfulness). The aggravated cruelty to an animal conviction is potentially admissible because it is a felony conviction within the last ten years. However, a court would very likely conclude that the probative value of this evidence is substantially outweighed by the risk of unfair prejudice. Under this hypo, this prior conviction is only relevant for the purpose of attacking Defendant’s credibility. But, the probative value of this evidence is low as to Defendant’s character for truthfulness given the nature of this crime (i.e., it’s not a crime involving dishonesty) and given how long ago the conviction occurred (close to the 10 year cleansing period set forth in La. C.E. Article 609(B)). On the other hand, the risk of unfair prejudice to the Defendant is enormous. If the court permits the evidence to be admitted, there’s a high risk jurors may find him liable simply because they are animal lovers.
Change the facts. Let’s say the civil litigation now involves a claim against a Defendant for maiming Plaintiff’s dog. Defendant claims he would never harm one of God’s creatures. Plaintiff learns during discovery that Defendant has a previous conviction—this time 1 year ago—for aggravated cruelty to an animal. Plaintiff believes this evidence is admissible if Defendant takes the stand under La. C.E. Article 609 as to Defendant’s character for truthfulness (Note: depending on the underlying circumstances, the facts underlying the conviction may also be admissible under La. C.E. Article 404(B), regardless of whether Defendant decides to testify). Under these circumstances, a court may very well find this aggravated cruelty to an animal conviction admissible because—whatever the prejudice to Defendant—the probative value of the evidence is now substantial. The conviction was recent, and it bears directly on Defendant’s assertion that he could not be liable in this matter because he would never harm an animal.
Any time you object to the relevancy of a piece of evidence under Articles 401 and 402, you should also object to its admissibility under Article 403. These objections work in concert and can be used to great effect in advocating for your clients!
Evidence was my favorite class in law school. I still find evidentiary issues to be the ones I enjoy the most. I am always delighted to answer evidentiary questions so, if you have them, shoot me an e-mail or comment on this blog post.
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