NCJ Number
151713
Journal
Trial Volume: 30 Issue: 9 Dated: (September 1994) Pages: 32-39
Date Published
1994
Length
8 pages
Annotation
This article argues that evidence of lawful conduct by a litigant and of an attorney's pretrial discovery misconduct should be admissible.
Abstract
In criminal cases, the courts often admit testimony regarding the defendant's pretrial misconduct, arguing that such misconduct proves the defendant's consciousness of guilt. In civil cases, however, the courts have been reluctant to invoke the admission-by-conduct doctrine against litigants. At trial, this author contends, a litigant should be allowed to treat the opposition's pretrial discovery obstructionism as an admission by conduct of their position in the litigation. In the short term, the courts will probably continue to uphold the advocate-witness prohibition. Yet support for the prohibition is eroding and there are growing doubts about the wisdom of using an evidentiary exclusionary rule to enforce it. The admission-by-conduct theory will help deter both clients and their attorneys from pretrial misconduct if that evidence becomes admissible in court. 48 notes