A Pale Stipulation (Continued from page 7)
court had “abundant authority” to achieve the same result under the Federal Rules of Evidence.11 While acknowledging its authority to compel acceptance of a stipulation, the dis- trict court nevertheless determined that “no absolute rule” should be adopted in favor of either acceptance or rejection of the pro- posed stipulation.12
It concluded that,
while it “may well be that the trial court has the authority to order one party to ac- cept a stipulation offered by an opposing party, this should not be done without care- fully considering” the following factors: (1) the importance of the facts in question to the case of the party opposing the stipulation (for ex- ample, is the fact of modest relevance or central to the case); (2) the nature of the stipulation, and whether it is qualified or condi- tional; (3) the scope of the proposed stipulation (stipulation to a specific fact or item of evidence as opposed to a stipulation to one or more ele- ments of a claim or defense); and (4) the impact of the stipulation, if ordered, on the burden of persua- sion borne by the party resisting the stipulation.13
12Id. at 374. 13Id, at 371-72 (emphasis added). The trial
court found “most helpful” the position taken by treatise author, Michael H. Gra- ham, HANDBOOK OF FEDERAL EVIDENCE, § 403.1 at 261-262 (4th ed. 1996): In evaluating the incremental probative value of the proffered evidence, the fact that the opponent has offered to stipu- late or is not disputing the proposition for which the evidence is being offered should be considered. However, the fact that the proposition is not being disputed is not alone dispositive; the proponent of the evidence is entitled to have the court also consider the fair and legitimate weight introduction of the evidence would have upon the trier of fact.”
The court pointed out that other commen- tators did not favor a hard and fast rule of acceptance or exclusion. Briggs, 174 F. R. D. at 374 (discussing: 2 Jack B. Weinstein & Margaret A. Berger, WEINSTEIN’S FEDERAL EVIDENCE, § 403.04 [3] (2d ed. 1997)(“If the probative value test is met, admission of prejudicial evidence may be proper in some instances even though the party against whom it is offered expressly agreed to stipu- late to the proposition for which it is offered, as the stipulation itself may not provide the jury the same probative force as the evidence
8
With respect to the first factor, the trial
court assesses whether the facts stipulated are collateral or central to the opposing party’s case. With respect to the second factor, the trial court considers the type of stipulation being offered and the vary- ing effects of different forms of stipulation. 14
The third factor addresses
the sweep of the stipulation. Is the party stipulating that a certain fact is true, or is the form of stipulation more conditional, i.e., that a witness, if called to testify, would testify to the particular fact? In the latter case, opposing counsel can still argue that the witness is not credible. Is the stipulation one for the pending ac- tion only or may it be used as an evidentiary admission in other proceed- ings?
Judge
Grimm offered an illustration to demon- strate why the fourth factor “can be most significant” to the plaintiff: Imagine the difference in the per- suasive impact of a stipulation that an automobile accident resulted in the “totaling” of the plaintiff’s car and head injuries to the plaintiff as
itself;” “Rule 403 would appear to make it proper for the court to consider the defendant’s offer to stipulate as one element in the balancing required in exercising its discretion to exclude relevant evidence.”); 22 Charles Alan Wright & Kenneth W. Gra- ham, Jr., FEDERAL PRACTICE AND PROCEDURE, § 5194, at 198-199 (1978)(“Although there is authority that suggests that the trial judge should compel the prosecution to accept such stipulations, the weight of authority in federal courts seems to hold that the defen- dant has no right to have his stipulation ac- cepted.”); Lynn McClain, MARYLAND EVI- DENCE, STATE AND FEDERAL, § 401.1, at 263- 64 (1987)(“One may, for tactical reasons, wish to make certain allegations, admissions, or stipulations, so as either to open up areas for helpful evidence or to foreclose subject areas as to which one believes live evidence would be more damaging than an admission or stipulation…One’s making an admission or entering into a stipulation…will not nec- essarily preclude one’s opponent from offer- ing evidence of the fact. The court, in its discretion, may allow the admission of other evidence if it has determined that the evi- dence would provide a significant gain in probative value over the proof of only the stipulation or admission.”).
14
The trial court distinguished substantive ju- dicial admissions from admissions in plead- ings (procedural), admissions under Fed. R. Civ. Pro. 36, and admissions of a party op- ponent (Fed. R. Evid. 801 (d)(2)). Briggs, 174 F,R,D, at 373.
Trial Reporter
compared with the introduction of color photographs of the wreckage and the plaintiff bleeding from the head. In such a circumstance…to substitute a “naked” admission for proof of the facts by testimonial or other evidence “might have the ef- fect of eliminating from the evidence much of its fair and legiti- mate weight.”15
[citations omitted]
The fourth factor assesses the impact of the stipulation, if ordered, on the party resisting stipulation.
15
As one well known commentator notes, “‘a colorless admission by the opponent may sometimes have the effect of depriving the opponent of the legitimate moral force of his evi- dence; furthermore, a judicial admission may be cleverly made with grudging limitations or eva- sions or insinuations…so as to be technically but not practically a waiver of proof.’”16
Briggs, 174 F.R.D. at 373 (quoting Merchant v. Lymon, 828 F. Supp. 1048, 1065 (S.D.N.Y. 1993); also relying on 2 Jack B. Weinstein & Margaret A. Berger, WEINSTEIN’S FEDERAL EVIDENCE § 403.04 [3] at 403-44, n. 1 5 (2d ed. 1997).
16
Briggs, 174 F.R.D. at 373, n. 7 (quoting 1 Michael H. Graham, HANDBOOK OF FEDERAL EVIDENCE, § 403.1, at 263, n. 33 (4th Ed. 1996), quoting 9 Wigmore, Evidence, § 2591, at 589 (3d ed. 1940)(emphasis in original)). A myriad of federal and state cases have similarly quoted this passage in Graham’s treatise. See, e.g., United States v. Davis, 792 F.2d 1299, 1305 (5th Cir.), cert. denied, 479 U.S. 964 (1986)(“[w]e will not adopt an inflexible rule that allows a party by stipulation to prevent his adversary’s case from being presented in its appropriately full and real life context.”); United States v. Swiatek, 819 F.2d 721, 731 (7th Cir. 1987)(“A party may insist on proving a fact even when there has been an offer to stipu- late” because a “‘cold stipulation can deprive a party of the ‘legitimate moral force of his evidence’ …and can never fully substitute for tangible, physical evidence or the testi- mony of witnesses;” stipulation by defense as to explosiveness of bombs did not require exclusion of videotape of bombs defendant sold being exploded); Piper v. Barber Trans- portation Co.,112 N.W. 2d 329, (S. D. 1961)(in personal injury action, trial court did not err in receiving evidence of collision although defendant admitted liability be- cause a “colorless admission may have the effect of depriving party of legitimate moral force of his evidence”; evidence remained relevant to issues of damages and causation). Many courts have allowed the proposed proof despite one party’s willingness to stipu- late. See Lee v. Chicago Transit Authority, 659 N.E.2d 493, 506 (Ill. 1992)(in action by estate of trespasser killed when he came into
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