Ten with Ben: Episode 9 – The Truth, The Whole Truth, And Nothing But The Truth

The truth, the whole truth, and nothing but the truth.

Hi, I’m Ben Schwartz,

Today we are going to do a video about the truth, the whole truth, and nothing but the truth. If you’ve been watching my videos, you know that I am a jury trial lawyer, it is what I do for a living. It is what I have been doing for almost 20 years at this point. When we swear in a witness at trial, we asked them to swear, or affirm, that they are going to tell the truth, the whole truth, and nothing but the truth. There is something about jury trial work that has been bothering me for a long time and so I am just going to put it out there.

If you are an attorney or if you are a judge, or a member of the general public, I would be interested to know what your thoughts are on this topic.

We ask jurors who are giving evidence, or giving testimony in our jury trial cases, or our personal injury cases or in criminal defense cases and other trials to tell the truth, the whole truth, and nothing but the truth. When it comes to the information that we give to the jurors, the judge, or trial lawyers involved in the case, when it comes to the information that we are giving to the jurors to make a decision in the case, we are not giving them the truth, the whole truth, and nothing but the truth, because the evidence rules do not allow us to do that.

I’m going to give you some examples and I want you to think this through. I would like to know, are we looking at things wrong? Do we not trust the jury to come to the right result if they have all the information?

Here are some examples:

  1. Let’s say that we have a criminal case and a gentleman is at a restaurant. He has had too much to drink. He’s driving down the road and he’s weaving in and out of his lane. The police pull him over and he’s got classy eyes, reeks of alcohol – clearly he’s intoxicated. The police ask him to consent to a breathalyzer test and he refuses to consent. The police get a warrant to draw his blood and they use a blood test kit that is expired. This is an actual case that occurred in the state of Delaware. One of the attorneys in my Law Firm went to trial with it. They used an expired vial, it is called a vacutainer tube and because it was expired, the test was not valid. Now let’s say that case goes to trial with a jury. The judge is going to exclude the evidence of the blood test that shows that the person was over the legal limit, because the test was expired and it’s not legally evidentiary. From an evidentiary standpoint, it is not a valid test. It is not reliable enough to go to jury, but it is evidence, it could go to the jury. The jury could figure it out and determine if they think it is valid or not valid. That does not go the the jury, so maybe in this particular situation, the jury does not have a key piece of evidence they need in order to determine guilt or innocence.
  2. Let’s say that a defendant in a criminal case has a long criminal history and they’ve got many arrests, many convictions over the years. They get arrested again and they are brought to trial to answer for the crime that they have been charged with. That long criminal history is not going to make it to the jury. That jury is never going to hear about it.They are not going to hear about the prior drug dealing charge. They are not going to hear about the prior child abuse charge. They are not going to hear about any of that stuff, even though the individual was charged on all those cases. The reason is because we have evidence rule 404b. It says the prior bad acts, the prior crimes, are not admissible in order to prove that the accused, to prove that the defendant has a character that, from what you could infer, action and conformity therewith. So those prior convictions are not going to be coming into evidence. We are not giving the jury all of the information, we are editing out the information and giving them some if it. We are giving them what we deem relevant, what we deem not to be overly unfairly prejudicial.
  3. Let’s say that someone’s walking through an apartment complex. There is an area where there is damage to the walkway surface. It has been worn away over the years and no one’s done anything to maintain it or to fix it. As a result of the defect in the walkway surface, is a defect in the sidewalk, the person slips and falls. They get very seriously injured, they break their hip. They almost died. They spent months in the hospital recuperating and the medical bills are $400,000. They are traumatized for the rest of their life. Within days after the accident happening, the apartment complex went out and they fixed the surface, they patched it, they fixed it up and made it nice and smooth. Now nobody else is going to fall. That is called a subsequent remedial measure, they went out and they fixed it. The fact that they went out and fixed it is not admissible in the trial of that personal injury case to prove that there was something wrong with the sidewalk in the first place. Subsequent remedial measures are not generally admissible at trial, for that purpose.
  4. Let’s say there’s a car accident case. Someone gets rear-ended and they are severely injured. They file a lawsuit for personal injuries against the at-fault driver who rear-ended them. The at-fault driver has got a million dollars in insurance coverage. We are not going to tell the jury that there is any insurance coverage, much less the amount of the insurance coverage. The jury has to make a decision on how much to award the injured plaintiff, sort of in a vacuum, not knowing what (amount) of that award is going to be collectible, or even if there is insurance in the first place, out of which of verdict could be collected.

These are all examples of types of information that we withhold from jurors in personal injury cases and criminal cases.

The reason that we withhold it is because we’ve got these evidence rules that sort of, edit out the information that might not be perfectly reliable, that might not be completely relevant, or that might be unfairly prejudicial to one side or the other.

I want to ask you… you are watching this video, you might be an attorney, you might be a judge, you might be a member of the general public not involved in the legal profession. You might be a paralegal, or you might be a law student, we get a lot of good questions from folks. What do you think? Do you think, as attorneys and judges, do you think our paradigm, our view, is wrong and we should just trust jurors and give them all the information? Or do you think it’s right to edit the information that goes to the jury? I would be interested in having a conversation about this topic. I’ll be interested to know what you think. I’ve felt this way for a long time, ever since I started trying cases, that we should just trust our juries. We should just trust them and give them all the information and give them the most credible information we can. I’m interested to know what people think. Thanks for watching this episode, this has been another Ten with Ben episode. If you have questions for me, send me an email below or you can use the contact us form on this website. You can also comment on the video on YouTube. Thank you for watching.

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