Virginia Benedict and Leonard Benedict v. United States

GUY, Circuit Judge,

dissenting.

Because I believe that the trial judge did not abuse the discretion vested in her to control the order in which the evidence is presented, I must respectfully dissent.

The Federal Rules of Evidence grant broad authority to trial judges to control the proceedings in federal courts.1 In discussing the supervisory powers of trial judges, the United States Supreme Court has stated:

The trial judge must meet situations as they arise and to do this must have broad power to cope with the complexities and contingencies inherent in the adversary process. To this end, he may determine generally the order in which parties will adduce proof; his determination will be reviewed only for abuse of discretion.

Geders v. United States, 425 U.S. 80, 85, 96 S.Ct. 1330, 1334, 47 L.Ed.2d 592 (1976). Relying on this pronouncement by the Supreme Court, this court has stated:

As the “governor of the trial for the purpose of assuring its proper conduct,” the district court exercises broad powers____ Absent an abuse of discretion, a reviewing court may not disturb the judgment of the district court respecting the introduction, presentation or exclusion of evidence or the interrogation of witnesses.

Martin v. Weaver, 666 F.2d 1013, 1020 (6th Cir.1981), cert. denied, 456 U.S. 962, 102 S.Ct. 2038, 72 L.Ed.2d 485 (1982) (citation omitted).

American courts have long recognized the authority of a trial judge to limit the scope of rebuttal testimony. As early as 1848 Chief Justice Shaw wrote:

We take it to be well settled that the order in which witnesses shall be called is a matter of discretion with the Court____ The orderly course of proceedings requires that the party whose business it is to go forward should bring *1431out the strength of his proof in the first instance; but it is competent for the judge, according to the nature of the case, to allow a party who has closed his case to introduce further evidence. This depends upon the circumstances of each particular case, and falls within the absolute discretion of the judge, to be exercised or not, as he may think proper.

Cushing v. Billings, 2 Cush. 158, 159 (Mass.1848) (quoted in 6 J. Wigmore, Evidence § 1873 at 676 (Chadbourne Rev. 1976)).

More recently, federal appellate courts have reiterated the deferential standard which should be applied when reviewing a trial judge’s ruling on the admissibility of rebuttal evidence.

It is well established that the admission of rebuttal evidence lies within the sound discretion of the trial court and appellate courts will not interfere with the trial court’s ruling unless there is a clear abuse of discretion. Indeed, great deference is accorded to the discretion and judgment of the trial court when granting and/or denying a party’s motion for rebuttal or surrebuttal testimony.

United States v. Gaertner, 705 F.2d 210, 217 (7th Cir.1983), cert. denied, 464 U.S. 1071, 104 S.Ct. 979, 79 L.Ed.2d 216 (1984) (citations omitted).

In United States v. Copeland, 295 F.2d 635 (4th Cir.1961), cert. denied, 368 U.S. 955, 82 S.Ct. 398, 7 L.Ed.2d 388 (1962), the Court of Appeals for the Fourth Circuit stated: “The order of the reception of evidence lies within the discretion of the Trial Judge, whose action will not be reversed on appeal unless it amounts to a gross abuse of discretion.” 295 F.2d at 636.

The Court of Appeals for the Eighth Circuit has stated:

Allowance of a party to present additional evidence on rebuttal depends upon the circumstances of the case and rests within the discretion of the individual most able to weigh the competing circumstances, the trial judge.
“[The appellate court] cannot retroactively substitute its discretion for that of the trial judge, who had the feel of the case, * * * ”

Skogen v. Dow Chemical Co., 375 F.2d 692, 705, 706 (8th Cir.1967) (citations omitted).

One commentator has recently stated: Once the judge exercises his power [to control the presentation of evidence], his decision is virtually immune to attack and will be overturned only in the rare case where the appellate court finds a clear abuse of discretion that seriously damaged a party’s right to a fair trial.

3 Weinstein’s Evidence, ¶ 611[01] p. 611-15 (1985) (Footnote omitted).

I preface my dissent with these quotations in order to emphasize the degree of latitude which should be given to a trial judge who is charged with the primary responsibility of ensuring that the proceedings are conducted in a fair and orderly manner.

As Judge Peck states in the majority opinion, “[t]he sole issue on appeal is whether the district court abused its discretion in not permitting the Benedicts to offer certain rebuttal testimony at trial.” At 1427. Several appellate courts have held that it is within the discretion of a trial judge to exclude evidence offered on rebuttal if such evidence should have been presented in the offering party’s case-in-chief. See, e.g., Emerick v. U.S. Suzuki Motor Corp., 750 F.2d 19, 22 (3rd Cir.1984); Allen v. Prince George’s County, Maryland, 737 F.2d 1299, 1305-1306 (4th Cir.1984); Baum v. Great Western Cities, Inc., 703 F.2d 1197, 1211 (10th Cir.1983); Page v. Barko Hydraulics, 673 F.2d 134, 140 (5th Cir.1982); Smith v. Conley, 584 F.2d 844, 846 (8th Cir.1978); Skogen v. Dow Chemical Co., 375 F.2d 692, 705-706 (8th Cir.1967).

The record reveals that the primary purpose of the proffered testimony was to establish through the use of a epidemiological data that Mrs. Benedict was still within the period of increased risk when she contracted GBS. Such evidence, based in part on scientific studies, is essential to proving *1432the element of causation. See Hosler v. United States, 718 F.2d 202 (6th Cir.1983), cert. denied, 469 U.S. 817, 105 S.Ct. 84, 83 L.Ed.2d 31 (1984). Therefore, Dr. Goldfield’s proferred testimony properly belonged in the Benedicts’ case-in-chief and it was within the discretion of the trial judge to exclude such testimony when it was offered for the first time in rebuttal.

. Fed.R.Evid. 611(a) provides:

The court shall exercise reasonable control over the mode and order of interrogating witnesses and representing evidence so as to (1) make the interrogation and presentation effective for the ascertainment of the truth, (2) avoid needless consumption of time, and (3) protect witnesses from harassment or undue embarrassment.