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February 12, 2015

UPDATED: In federal trial court testimony, can you sneak your witness's religion into evidence? Do you want to?

My business litigation practice over the years has been chiefly in federal courts before one of our roughly 900 appointed federal judges. Trials get conducted under the straightforward federal procedural (FRCP) and evidence (FRE) rules. Only occasionally are my clients in state courts where in my experiences most jurists (1) are popularly elected, (2) openly provincial, (3) not overly-concerned with legal scholarship and (4) have their thumbs up their asses. Call me an elitist, a bomb-thrower or disrespectful but I'm fed up with judges who don't give a damn--and federal judges usually do give a damn.

Anyway, I've long thought that nearly all evidence/mention of person's religion or 'church life' has zero place in the courtroom. Interestingly, one longstanding general evidence rule in support of that idea is coming up a great deal more in the last 10 years or so. Rule 610 of the FRE is brief. "Religious Beliefs or Opinions: Evidence of a witness’s religious beliefs or opinions is not admissible to attack or support the witness’s credibility."

It's a good rule. A witness while testifying should not mention his or her faith or religion ("I'm a Baptist" or "I attend the Church of the Final Thunder) or say things like "I was talking the other day with [Pastor Joe/my Bible Study Group]" as it tends to suggest that the witness is more worthy of belief or a "good" person as a result of the connection to a religion. For purposes other than supporting or attacking credibility, a witness's religion or indicia of that religion ("I was in church when my ex-wife was blown away") can come in as evidence and regularly does. Religion, church and church life are still a big part of the lives of many.

It's interesting to think about. I learned this witness rule (i.e., FRE Rule 610) 25 years ago in law school. But it has been only in the past 10 years or so witnesses, often aided by their attorneys, seem to be trying to score brownie points with a judge or jury by sneaking their religious life into the proceedings. Why? I have no idea--except to speculate that with some populations in America religion or faith is a kind of moral merit badge people think they need to be socially accepted. That may be true, for instance, in certain parts of the American south, Appalachia and the Midwest. And, sure enough, that's where you see it the most.

In Ann Arbor, Michigan, Madison, Wisconsin, the northwestern states, and several California counties, on the other hand, religion may be much less important--and even a bad thing to some jurors. There is a growing chorus of respectable people all over the world who think that every religion as embraced by some is unproductive if not a form of mental illness. America contains a few geographic areas where groups of these "progressive" anti-religion people seem to live, too.

The way to keep this information out as an indicia of character or credibility? That's easier. You will probably first hear this kind of testimony in depositions before trial. If it comes up, you can file a motion to exclude (or motion in limine) under Rule 610 before trial for an order that this kind of testimony will not come in as evidence. Failing that, you can object to the testimony as it comes in, move to strike, and ask the judge to tell the jury that they must disregard the testimony. You may want to think carefully about how you do it if you do it in front of a jury.*

*My thanks to two fine trial attorneys, Oregon's David Sugerman and New York City's Eric Turkewitz, for a few if not all of the better ideas in this post.

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Posted by JD Hull at February 12, 2015 09:28 AM

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