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Opening the Door to Inadmissible Evidence: A Trap for the Unwary

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by: Rjohnson • September 22, 2011 • no comments

A mildly-hostile trial court, i.e., a typical trial court, may let in otherwise inadmissible evidence because the defendant "opened the door" to its admission. A finding that the door has been opened is used to admit all manner of inadmissible evidence, and courts seem pretty happy with it because it carries with it overtones of waiver and fairness. Of course, anything at all is fair if the defendant waives the right to object, even if he didn't mean to.

I just recently received the state's brief in an appeal. At trial, the defense attorney asked a police officer witness whether "there was any evidence" on a certain point. (A more artful question would have been whether there was any evidence before the jury, or to present to the jury.) The state responded, in part, by calling a police officer to testify about the unavailable co-defendant's statements on hat point. The court let in the co-defendant's statements, in part because the defendant 'opened the door.'

Although the cases are a little fuzzy, 'opening the door' is usually a relevance doctrine. See State v. Tiner, 340 Or. 551 (2006) (evidence of the defendant's affiliation with a violent gang admissible to rebut defense evidence that he was peaceable.) That makes perfect sense to me, and it hardly requires a label; of course relevance is determined with respect to the evidence already offered. But as a relevance doctrine, 'opening the door,' sometimes called 'curative admissibility' does not change the ordinary rules of evidence; it's just a name for a specific application of the relevance rules.

Sometimes, however, it is used to permit the admission of inadmissible evidence. See Wynn v. Sundquist, 259 Or. 125, 136 (1971):

The underlying basis for the rule of 'invited error' is that where one party offers inadmissible evidence, which is received, the opponent may then offer similar facts whose only claim to admission is that they negative or explain or counterbalance the prior inadmissible evidence, presumably upon the same fact, subject matter or issue.

Although the Wynn court used the term "invited error," it is clear, in context, that it was talking about opening the door to admission of evidence. 'Invited error' is probably a different doctrine as the term is used now, relating to reviewability on appeal, but it also has a vague, fairness based, clean hands quality.

Wynn did not clearly permit the admission of inadmissible evidence, but subsequent cases have. State v. Adonri, 143 Or. App 298 (1996) approved the admission of evidence relating to a witness's truthful character in violation of OEC 608(1)(b). Under that rule, evidence for truthfulness is admissible only once a witness's truthful character is attacked. Adonri admitted that evidence, although the witness's truthful character had not been attacked, because the defendant had improperly buttressed his own truthfulness first. The Adonri court explained:

Because defendant was allowed to introduce inadmissible evidence about his truthful character, testimony that the child was a truthful person was admissible to counterbalance the equivalent testimony about defendant. Consequently, the trial court did not err in admitting the teacher's rebuttal testimony about the child's character for truthfulness.

On its facts, Wynn was dubious, but defensible. Adonri is just wrong. The Wynn court suggested (but did not really use on its facts) a brand-new rule permitting a party, aggrieved by the admission of inadmissible evidence, to fix the problem by offering its own inadmissible evidence, rather than by objecting to the admission in the first place. Wynn cites Wigmore and other scholarly sources rather than Oregon law, and Adonri extends it far beyond the issue presented in Wynn. Judge Warren's dissent in Adonri makes that point.

Federal courts, in discussing curative admissibility, also have some vague, tit-for-tat analysis permitting the admission of inadmissible evidence. See United States v. Cromer, 389 F3d 662, 678-9 (2004) (applying rule, citing cases.) Cromer strongly suggests that it is easier to open the door to evidence inadmissible under the evidence rules than to evidence inadmissible under Constitutional rules.

Oregon courts, however, have permitted the admission of Constitutionally-excluded evidence after finding that the defendant had opened the door. In State v. Miranda, 309 Or. 121 (1990), the defendant 'opened the door' to his inadmissible statements by inquiring on cross-examination into related statements. Miranda was cited in State v. Johnson 342 Or. 596 (2007) to rule that, in offering expert testimony about bloody footprints found at the scene, the defense opened the door to previously-suppressed evidence about his own boots. That still involved evidence that was inadmissible for non-evidence-code reasons, but it looks like an expansion of the rule from Miranda. It also looks like a poorly-analyzed waiver, which usually refers to a knowing, intentional act, rather than the inadvertence with which evidentiary doors are usually opened.

Finally, curative admissibility would be more likely to apply when the rules for admission are less precise. A trial court exercising its discretion, rather than applying a firm rule of law, (such as closing argument) can certainly consider whether the opposing party 'opened the door.' See Cler v. Providence Health Systems 349 Or. 481, 499 n. 7 (2010) (permitting closing argument that would be improper if it were not in response to prior improper argument.

Cases like Adonris and Johnson make it hard to know what a court will view as opening a door. If you're even close, you should ask for a ruling beforehand and outside the presence of the jury, and, if you don't like the ruling, object and make an offer of proof.