A Pale Stipulation (Continued from page 11)
the parties have mutually assented. In
The Court of Appeals deter- mined that photographs taken of the victim while alive were subject to the same evidentiary analysis as other types of pho- tographs. After holding that the probative value of these “in life” photographs was not substantially outweighed by the dan- ger of unfair prejudice, the Court next addressed the defendant’s contention that the photographs should not have been admitted because the defendant had stipu- lated to the victim’s identity.32 As was the case in Briggs, the Court
Broberg, the defendant appealed convic- tions, inter alia, for homicide by motor vehicle and reckless driving and con- tended that the trial court erred in admitting various photographs of the vic- tim because they were unfairly prejudicial, and furthermore, irrelevant, because the defendant had stipulated to the victim’s identity.31
of Appeals refused to adopt an absolute rule on the admissibility of evidence that is offered to prove a stipulated fact: the
31
342 Md. at 552, 677 A.2d at 605. Three justices dissented on the ground that the is- sues addressed by the Court were not prop- erly preserved for appeal in the certiorari pe- tition or cross-petition filed. Id. at 565-575, 677 A.2d at 612-617.
32
Id. at 556-558, 677 A.2d at 606-608. Pre- liminarily, the Court considered whether the parties had entered into a stipulation. The record contained conflicting information regarding the nature and extent of the stipu- lation. The record was clear that the defense counsel had repeatedly offered to stipulate to the identity of the victim and claimed that the State had assented; it was not entirely clear whether the State’s Attorney had as- sented to the stipulation at one stage of the action. The trial judge appears to have con- cluded on the record that the parties had so stipulated. However, there was no record of in chambers discussions of the stipulation with the court. The Court of Appeals cau- tioned of the “need to state the precise terms of the stipulation on the record,” and to like- wise ensure that mutual assent is demon- strated. 342 Md. at 561 n. 11, 677 A.2d at 611 n. 11.
“courts must often balance the compet- ing interests of the parties.” While the “party who offers to stipulate is entitled to obtain the benefit of his bargain, i.e., preventing the use of inflammatory evi- dence,” the party “benefiting from the stipulation…may also be entitled to the ‘legitimate moral force of his evidence.’”33 The Court of Appeals concluded that the trial judge should retain the discretion to determine whether extrinsic evidence may be admitted to prove a stipulated fact. In exercising that discretion, the Court indicated that the trial courts should consider, inter alia:
(1) the intent of the parties, if any, regarding the presentation of the proffered evidence; (2) the incre- mental probative value of the evidence as compared to the stipu- lation (i.e., where the evidence provides greater detail than the stipulation); and (3) the potential unfair prejudicial impact of the proffered evidence.34
The Court held that the stipulation as to the eleven year old victim’s identity did not preclude admission of the “in life” photos as an alternative form of informa- tion regarding identity.35
Although the
relevance of the photographs derived from their use to prove the victim’s identity, which was stipulated, that stipulation did “not deprive the photographs of all rel- evance.” It explained: Photographs are inherently cumu- lative, whether used to illustrate testimony or, as in this case, in sup- port of a stipulation. We affirm the position…that photographs need not possess “essential evidentiary value” to be admissible. (citation omitted).36
Furthermore photo- graphic evidence ordinarily does 33
Id. at 569, 677 A.2d at 609 (quoting 9 WIGMORE ON EVIDENCE, § 2591 at 824-25 (Chadbourn rev. 1981 & 1990 Supp.).
34
Id. at 560, 677 A.2d at 609. The standard for appellate review is whether the trial court abused this discretion. Id., 677 A.2d at 610. 35Id. at 558-565, 677 A. 2d at 609-612.
36
Id. at 565, 677 A.2d at 612 (quoting Bedford v. State, 317 Md. 659, 677, 566 A.2d 111, 120 (1989).
37
Id. at 565, 677 A.2d at 612 (relying on Johnson v. State, 303 Md. 487, 504, 495 A.2d 1, 9 (1985).
38
Id. at 565, 677 A.2d at 612 (quoting WIGMORE, supra, § 2591 at 825). To the same effect, see Daniels v. United States, 738 A.2d 240, (D.C. 1999); McCart v. State, 765 So. 2d 21, 26 (Crim App. Ala. 2000); Duncan v. State, 624 So.2d 1084 (Crim. App. Ala. 1993); State v. Harvey,358 So.2d 1224 (La. 1978).
39
See, e.g, United States v. Grassi, 602 F.2d 1192, 1197 (5th Cir. 1979), in which the United States Court of Appeals concluded: It could also be argued that the offer of a stipulation, as a matter of law totally evis- cerates the probative value of a piece of evi- dence relevant to the matter stipulated and thus mandates exclusion of that evidence under Rule 403. The effect of adopting this opposite extreme in construing the Rule would be to require a party to accept any stipulation offered by his opponent and would allow a part to control the proof pre- sented by his opponent at trial. We reject this construction of Rule 403.
not provide the factfinder with new information, but rather with an al- ternative form of information. (citation omitted).37
The trial judge
had discretion to determine whether this alternative form of in- formation regarding the identity of the victim was “wholly needless under the circumstances.”38 There have been no decisions in Mary- land involving a factual scenario comparable to that in Briggs (i.e. address- ing whether a party can be forced to accept the opposing party’s stipulation). Yet the refusal of the Court of Appeals in Broberg to fashion a hard and fast rule precluding a party from offering evidence of a fact stipulated by the other party would sug- gest that it would also be inclined to refuse to adopt a rule requiring a party to accept a unilateral stipulation. Broberg, more- over, makes as much sense in the civil context as it does in the criminal. Parties should have the right to fashion their own cases and to prevent opposing counsel from disrupting a thoughtful and well- crafted presentation of evidence at trial with last minute, begrudging stipula- tions.39
12
Trial Reporter
Summer 2003
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