Clients generally have no real understanding, when I discuss their upcoming trial, of what a jury is permitted to consider as evidence during a trial. What makes a horror movie more compelling is when the telephone call from the psychotic killer comes from inside the house to the victim. That is the “wow moment” of the horror movie. A jury trial is no different from a movie. The trial attorney wants to show the jury that “wow moment,” that critical piece of evidence that is the fulcrum upon which the case may turn. But trial judges are like football referees seeking to ensure that the players or trial attorneys are playing by a set of rules that supposedly make things fair to both sides. Thus, our courts have created rules of evidence that limit or exclude certain kinds of evidence from being heard by juries. Often, it is the evidence that an experienced trial attorney keeps a jury from hearing that wins the day. The rules of evidence are designed to limit juries from hearing certain kinds of evidence that might overly inflame or be prejudicial to one side.

There was a time before the rules of evidence when juries and trial judges, conscientiously performing their duty in ascertaining the facts, were allowed to use their common sense and appreciation of what is fair and just. An easy example might be if a jury was deciding what is obscene and what is not obscene. That day is vanishing because recently courts have been fighting windmills over the definition of the simplest words. As a reflection of our society, what is obscene has become blurred. Any reasonable person on the street will tell you the meaning of the word “obscene.” But there are courts that still cannot define or describe obscenity without employing polysyllabic words enmeshed in complicated verbiage of unending modifications and nuances, which finally leave the juror quite confused.

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