Evidentiary rules: Evidence the jury doesn’t know, and why

Evidentiary rules: Evidence the jury doesn’t know, and why

The rules of evidence sometimes prevent juries from knowing everything. Often, that is not a bad thing. But sometimes, it is.

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WASHINGTON, October 16, 2016 — In America, jury trials are common practice in both criminal and civil cases. In most criminal cases, a defendant has a right to a trial by jury. The exception is when the crime charged does not carry a lengthy jail sentence upon conviction. In civil cases, both sides generally can request that a jury decide the issues. Again the exception is smaller cases.

Jurors are supposed to be impartial. They are regarded as representative of the community and, in the course of a trial, are supposed to be provided with all of the information they need to decide the case before them fairly. However, the rules of evidence sometimes limit the information the jury is allowed to consider, and many people are surprised to learn that for that reason, juries do not always hear all the available information.

The reasons for withholding evidence are many. The primary reason is fairness to both sides of the dispute, and to both prosecution and defendant in criminal cases.

Differing from state to state, the laws of evidence control what information a jury can or cannot hear or see. Often, it is disagreement over evidence admissibility that produces heated disputes between attorneys.

When dealing with evidence issues, the first concern of courts is the concept of relevance. To be admissible, evidence must be relevant to the issues of the case. Judges decide if evidence is relevant. Judges however do not always have to decide, because they can rule that even if evidence is relevant, it would be too prejudicial, meaning that its introduction would outweigh its “probative value” to the overall case. Prejudicial evidence is evidence that might unfairly sway a jury to one side or the other.

A criminal trial alleging murder would be an example. Photographs of a gory murder scene might inflame a jury without providing useful evidence. The photographs might be excluded if their prejudicial effect outweighed their probative value: that is, their value in determining if the defendant was guilty or not.

Claims that the jury in this example did not get to see “all the evidence” are thus technically correct, but there would appear to be good reasons for the exclusion.

In the world of civil matters in dispute, there are also many good reasons jurors are not allowed to hear or see certain information. One such evidentiary rule remains a thorn in the side of plaintiffs. That rule prohibits juries from learning if the defendant had liability insurance.

World events change, and sometimes events can and should force changes in the law.

Given the millions and millions of dollars the insurance industry has spent trying to influence potential jurors, an evidentiary rule that favors them should be abandoned. Jurors should be allowed to know of the existence of insurance in civil trials.

Morgan & Morgan is a large law firm primarily based in Florida that handles a large number of cases involving injured people across nine states. Recently, the firm started running television advertisements that push the envelope on this specific evidentiary rule.

Insurance attorneys in Georgia are complaining about Morgan’s latest commercial, claiming it constitutes “jury tampering” in violation of the evidentiary rules governing the information jurors are allowed to hear.

The ad features law firm partner Matt Morgan, telling viewers he’s

“…going to tell you something the insurance companies don’t want you to know. In almost all of our car crash cases, the person who caused the crash has insurance but the jury is never allowed to know. I don’t think that’s fair. You might feel sorry for the at-fault driver because you think they will have to pay, but the insurance company pays for that driver’s lawyers, court costs and the verdict. Spread the word. Now you know.”

Georgia, like most states, prohibits a jury from learning whether a person has liability insurance.

Morgan & Morgan’s argument is that with this knowledge, a jury that may have voted for the defendant would then vote for the plaintiff because their verdict wouldn’t harm the defendant personally. Georgia’s law, like similar laws in most states, specifically prohibits mentioning insurance during trial, but it does not speak to television commercials not connected to any specific trial.

Insurance companies and defense attorneys love the prevailing evidentiary rule. Prohibiting the jury from knowing that the defendant has insurance is a very unfair (from the plaintiff’s perspective) evidentiary rule. The rule deprives jurors of important information, namely the ability of a defendant to pay if the juror finds that defendant responsible.

Too often defendants are let off of the hook because jurors “feel bad” for them. Too often those harmed do not get compensated because insurance companies have influenced jurors before they become jurors in exactly the same way the Georgia defense lawyers now object to the Morgan ad.

Insurance-sponsored television commercials are replete with references to “taking advantage of the insurance companies” and “consumer fraud” and “frivolous lawsuits.” After seeing these ads over and over, viewers are left with the impression that the insurance companies are the victims.

It is hard to swallow that insurers, making billions of dollars in profits annually, are victims when compared to those who suffer devastating, life altering injuries yet are still forced to fight to be compensated because the insurance industry does not want to accept responsibility.

John Morgan, the Morgan firm’s founding partner said:

“…the insurance industry has spent millions and millions of dollars buying influence and having laws enacted that are anti-consumer and spend hundreds of millions a year on TV ads with false promises and lies.

“Insurance defense lawyers want to play on unleveled playing fields… They would like to violate our First Amendment right to free speech. The ad only tells the truth. The insurance industry does not like the truth. I hope they sue us so that we can take this issue to the U.S. Supreme Court.”

If and when you are given the privilege of serving as a juror, remember that you may not hear or see all the evidence. Your job, however, is to accept the judge’s decision on those matters and determine the outcome as fairly as possible to both sides, given the information that was received during the trial. Judges tell jurors before they allow them to deliberate that they should consider all of the evidence.

They also tell them that they should use their common sense.


Paul A. Samakow is an attorney licensed in Maryland and Virginia, and has been practicing since 1980.  He represents injury victims and routinely battles insurance companies and big businesses that will not accept full responsibility for the harms and losses they cause. He can be reached at any time by calling 1-866-SAMAKOW (1-866-726-2569), via email, or through his website

His book “The 8 Critical Things Your Auto Accident Attorney Won’t Tell You” can be instantly downloaded, for free, on his website: http://www.samakowlaw.com/book.


Samakow has now also started a small business consulting firm. His new book “Step By Step, Achieve Small Business Success” is available at www.thebusinessanswer.com.

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