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 IMPROPER EVIDENCE IN NONJURY
TRIALS: BASIS FOR REVERSAL?

Charged under an Arizona statute with the illegal possession of mari-

juana, defendant, a Mexican national, waived a jury. At his trial before
a single judge, evidence was admitted proving that at the time of his
arrest defendant had in his wallet a gasoline credit card linking him
with a burglary for which he was to be tried separately. Also, the
prosecution was permitted to show that defendant had illegally entered
the United States. Having been found guilty, defendant appealed on
the ground that this evidence, admitted over the objection of his counsel,
required reversal. Since the Arizona constitution had only recently
been amended to permit nonjury criminal trials, the state supreme
court was facing for the first time the question of the effect of admitting
improper evidence in such trials. Conceding that "if this case had been
tried by a jury, we would reverse because of the admission of prejudicial
evidence of other crimes," the court nevertheless affirmed because this
was a nonjury trial. Sufficient competent evidence had been admitted,
and the improper admission of "other crimes" evidence was not revers-
ible error, since the trial judge was presumed to have disregarded it.,

I. THE SuNDRY PosrIoNs

The Arizona Supreme Court, in adopting the presumption that a
trial judge disregards all improper evidence, falls in line behind a num-
ber of state courts 2 and federal courts of appeals 3 Although the pre-
sumption is applied to the whole range of evidence problems, it is rarely
accompanied by any analysis. The premise seems to be that exclusion is
only necessary to protect the defendant from an irrational jury and is
not needed when the factfinder is a judge who can coolly and profes-
4
sionally reach his decision without considering the improper evidence.
A necessary concomitant of this position is that there must be enough
competent evidence to support the result; in testing whether this evi-
dence is sufficient, the appellate court applies the usual rules applicable
to jury trials.5
1 State v. Garda, 97 Ariz. X02, 397 P.2d 214 (1964).
2E g., People v. Colby, 27 Ill. 2d 273, 189 N.E.2d 317 (1963); Werner v.
Miller, 248 Minn. 75, 78 N.W.2d 63 (1956); State v. Blanton, iii Ohio App. iii,
17o N.E.2d 754 (r96o).
S..g., Skinner v. United States, 326 F.2d 594 (8th Cir. 3964); United States
v. Cain, 298 F.2d 934 (7th Cir.), cert. denied, 370 U.S. 902 (x962) ; United States
ex rel. Berkery v. Myers, 242 F. Supp. 5,5 (E-D. Pa. i965).
'See Commonwealth v. Berkery, 200 Pa. Super. 626, 19o A.2d 572 (1963),
cert. denied, 375 U.S. 966 (x964); McCoRvacx, EvmENcB § 60 (i954). McCormick
thinks one must be "misguided" to believe that a judge cannot exclude inadmissible
evidence from his mind. See id. § 6o, at x37-38 n.6.
' See, e.g., Terrell v. State, 21o Tenn. 632, 639, 361 S.W.2d 489, 492 (1962):
As we see it, when the case is tried, as here, without the intervention of a
 HARVARD LAW REVIEW J¥ol. 79:407

This "bald presumption" approach is not universally accepted.

Some courts demand more assurance that a trial judge has not included
improper evidence as a basis for his finding; they will affirm only if the
judge makes a statement to that effect at the end of the trial.0 And even
the basic premise is occasionally questioned. Unwilling to believe that
judges are somehow superior to juries and peculiarly immune to the
insidious effects of improper evidence, a few appellate courts apply the
7
exclusionary rules of evidence to jury and nonjury trials alike.
The Supreme Court has not taken any clear position on the status
of improper evidence in nonjury trials.8 However, a hint of the Court's
possible inclination to hold that a judge as factfinder would be unable
to disregard improper evidence is to be found in Wong Sun v. United
States, 9 a case involving the illegal possession of narcotics. The ques-
tion before the trier of fact in that case was whether there was adequate
corroborating evidence to permit reliance on defendant's own unsigned
statement. Possible corroborating evidence consisted of two items: a
quantity of seized narcotics that was dearly admissible but not directly
connected to Wong Sun; and a statement by a codefendant, one Blackie
Toy, that implicated Wong Sun but that had been admitted erroneously.
The Court reversed Wong Sun's conviction: 10
We cannot be certain . . . on this state of the record, that the trial
judge may not . . . have considered the contents of Toy's statement
as a source of corroboration. Petitioners raised as one ground of objec-
tion to the introduction of the statements the claim that each state-
ment, "even if it were a purported admission or confession or declara-
tion against interest of a defendant . . . would not be binding upon
the other defendant." The trial judge, in allowing the statements in,
apparently overruled all of petitioners' objections, including this one.
Thus we presume that he considered all portions of both statements
as bearing upon the guilt of both petitioners.
We intimate no view . . . as to whether the trial judge might have
found in the narcotics alone sufficient evidence to corroborate Wong
Sun's admissions . . . . But because he might, as the factfinder, have
found insufficient corroboration from the narcotics alone, we cannot
•be sure that the scales were not tipped in favor of conviction by reliance
upon the inadmissible Toy statement.
The effect of Wong Sun as a precedent is not clear since the Court
jury the question of whether or not admission of this testimony was error
is of no particular importance, because unless such incompetent evidence was
absolutely essential and necessary to a conviction it would be our duty to
review all the facts without regard to this incompetent testimony and then
decide
6
the case on the competent evidence.
E.g., Capitoli v. State, 175 So. 2d 210 (Fla. Dist. Ct. App. 1965) (court
intimated that without such a statement the result might have been different); State
v. Ryan, 48 Wash. 2d 304, 293 P.2d 399 (x956).
7 E.g., State v. Miller, 64 NJ. Super. 262, x6S A.2d 829 (Super. Ct. 196o);
People
8
v. Pickard, 22 Misc. 2d 566, i98 N.Y.S.2d 832 (Ct. Spec. Sess. ig6o).
When the evidence has been obtained or is sought to be admitted in deroga-
tion of a constitutional right, the Supreme Court does not distinguish between jury
and nonjury trials. See, e.g., Rochin v. California, 342 U.S. x65 (1952) (reversal
of trial judge in nonjury trial). This type of evidence is beyond the scope of this
Note.
937I U.S. 47, (1963).
"old.at 492-93.
19651 EVIDENCE IN NONJURY TRIALS

seemed to lay particular stress on the fact that mere possession is

sufficient to violate the narcotics statute. It emphasized that, when the
accused's possession of narcotics is proved solely by his own admis-
sions, particular care should be taken that the "requisite corroboration
be found among the evidence which is properly before the trier of
facts." " The narcotics were proper evidence, yet the Court did not
choose to rely upon the presumption that the trial judge considers only
that evidence which is competent; on the contrary, not knowing the
basis for the judge's finding, the Court reversed rather than risk
affirming a conviction that might have been grounded on improper
evidence. This reversal seems to indicate the Court's preference for
a presumption that would have the opposite effect from the one usually
espoused: when there is some chance that the trial judge may have
relied upon improper evidence, the judge should be presumed to have
so relied.

II. THE THEORIES OF REFusAL To RE ERSE

FOR ADMISSION OF IMPROPER EVIDENCE

A. Presuming That the Judge Will DisregardImproper Evidence

The presumption approach is generally stated in unashamedly broad
terms. It governs even when a judge says nothing during or after the
12
trial about improper evidence admitted over the objection of counsel.
In fact, as long as the judge makes no affirmative statement that he
considered the improper evidence, he will be affirmed. Since a judge
will frequently be reversed for excluding proper evidence, the pre-
sumption creates a considerable impetus to err on the side of overin-
clusion: a judge protects himself from reversal by overruling any
objection when admissibility is a close question. This approach also
encourages a judge to avoid making any statement of the evidence upon
which he relies, thus shielding from the appellate court his actual
belief as to the legitimacy of particular evidence.
The presumption approach presents the apparent anomaly of allow-
ing a judge to admit improper evidence and then presuming that he
has not considered it in making his decision. It is patently absurd to
assume that a judge who mistakenly thought that certain evidence was
admissible later knew enough to disregard it in arriving at his decision.
Yet the defenders of the presumption have been resourceful enough
to escape the force of this argument: they contend that an appellate
court presumes that the judge admitted the evidence knowing it to
be improper. It is said that the trial judge adopts such an extraordinary
procedure in order to save time that would otherwise be spent hearing
" Id. at 493.
2State v. Garcia, 97 Ariz. 102, 397 P.2d 214 (i 964), is typical. In that case,
the trial judge was silent as to whether he had considered the improper evidence.
Yet, this silence was irrelevant to the Arizona Supreme Court, since it did not
"clearly appear . . . that the finding would have been different if the evidence
of other crimes had not been admitted." 397 P.2d at 2x6. But see Moore v. State,
227 So. 2d 366 (Ala. Ct. App. 1959), aff'd mem., 27o Ala. 739, 117 So. 2d 368
(i96O).
 HARVARD LAW REVIEW IVol. 79:407

arguments on "nice" evidentiary points.1 3 One might question whether

time is, in fact, saved: there is a possibility that the mass of supposed
evidentiary material consumes more judicial listening time while it is
put into the record than would be taken up by arguments on its ad-
missibility. But more important, even if there is an argument for a
streamlined procedure in which the judge admits all evidence regard-
less of its merit, it seems wrong to presume that the evidence was
admitted in order to save time, and not because the judge made a
mistake. Moreover, if the trial judge is presumed to have disregarded
evidence that he earlier admitted, there may be a real injustice done
to the party who has offered that evidence: often the party will rely
upon the admission of particular evidence bearing on an issue, and
not advance other proof of the same point.
Some courts, no doubt expressing their distrust of the presumption,
require that competent evidence in such a case be "without conflict." 14
This requirement, which is generally a makeweight to salve the appellate
conscience, can be the source of no little confusion. In either a jury
or nonjury situation there can be evidence errors too unimportant to
justify reversal: it may appear very unlikely that exclusion of the
evidence in question would have led to a different result. If this is what
appellate courts mean when they apply the "without conflict" rule,
they are doing no more in the nonjury situation than they would in
the case of a jury trial. The rule should not, however, be used to
support the presumption that the judge disregarded improper evidence,
a point to which it is altogether irrelevant.
An additional argument is occasionally put forward in support of
the presumption: it is said that as a matter of trial mechanics a judge
must generally hear a portion of the evidence in question before he can
make an intelligent ruling on its admissibility. In view of this fact, the
argument runs, the only real alternatives are presuming that the judge
disregarded the evidence or reversing because he could not avoid hear-
ing it.' 5 Beneath this argument lurk a number of fallacies. For one
thing, there are many cases in which a judge is able to rule on admissi-
bility on the basis of a summary of the evidence, without viewing or
hearing it in all its distracting, heart-rending, and mind-poisoning detail.
Then, many evidence errors in jury trials are curable by means of an
instruction to the jury to disregard the tainted matter,10 and clearly
a judge is at least equally capable of disregarding such evidence. But
the presumption of infallibility is hardly an adequate substitute for a
curative instruction: it gives no indication that the trier of fact recog-
nized the inadmissibility, and it restricts the appellate court's inquiry
1" See McCorvncx, EVmENCE § 6o (954); Note, Applicability of Rules of
Evidence Where the Judge Is the Trier of Facts in an Action at Law, 42 HARV.
L. R V. 258, 259 (1928).
14 See, e.g., Pigford v. Billingsley, 264 Ala. 29, 84 So. 2d 664 (1956); People
v. Frenchwood, 28 Ill. 2d 139, i9o N.E.2d 767 (1963). At least one federal court
has adopted this approach. See Fennel v. United States, 32o F.2d 784 (D.C. Cir.
1963), in which the court stated, "were the evidence of guilt less strong, we would
feel obliged to reverse .... "
15 See i GREENILEA., EviDEmcE § 8ie (16th ed. 1899) ; THAYER, A PRELMINARY
TREAnSE ON EvIDENCE AT THE CommoN LAW 529 (1898).
16 Cf. i WIGMORS, EvWDENcE § 8o, at 250-I (3d ed. 1940).
1965] EVIDENCE IN NONJURY TRIALS

into whether proper rules of law were applied in reaching a decision.

When a curative instruction to the jury would not suffice, it may be
necessary to decide whether a judge's special training will enable him
to disregard that which a jury is thought unable to blot from its
collective mind. But it would seem better to inquire whether a particu-
lar judge made the effort than simply to presume that he did. The
argument from trial mechanics, then, demonstrates only that in non-
jury trials there is a need for special care on the part of the judge: he
must restrict his hearing of doubtful evidence to the essential minimum,
and he must articulate the basis for his findings. The argument does
not demonstrate that a judge must be assumed to have none of the
frailties possessed by a jury.

B. Requiring That the Judge State That He

DisregardedImproper Evidence
Two types of required statements may be discerned. Some juris-
dictions merely require a rote utterance at the end of the trial or
during the compilation of the record. 17 At best such a statement serves
only to remind the judge that there are rules of evidence and that he
is expected to follow them; the statement is of very little help to an
appellate court, since it gives no indication whether the trial judge has
even noted the presence of improper evidence. Of a different nature
is the repeated statement by the judge during the trial that, "I am
going to strike . . . [the improper statements] from the testimony
and not consider them." 's In this case, the issue is whether a trial judge
can proceed with judicial blinders effectively shutting out all that
he should not see. 19
It would seem possible to distinguish, at least at the extremes, be-
tween situations in which a judge might be assumed capable of dis-
regarding that which a jury could not, and situations in which such
an assumption would have no foundation. In a tort suit tried to a
jury, the disclosure of the fact that defendant carried insurance is
usually grounds for reversal. Yet it is plausible that a judge, trained
to realize that the legal relationship of the parties should not be affected
by the existence of insurance, will be able to disregard this disclosure.
On the other hand, suppose a criminal prosecution in which X, a
witness for the state, testifies that the defendant was in a certain place
at a certain time, and D, the defendant, denies being there. Suppose
1" See, e.g., Birmingham v. State, 228 Wis. 448, 279 N.W. i, 18 (1938),
in which the trial judge stated:
Now, I will decide this case absolutely on the relevant testimony in the case and
after having cut out so to speak all the irrelevant testimony that has been
admitted.
Now, on the facts in this case, I find the defendant guilty.
18 State v. Ryan, 48 Wash. 2d 304, 308, 293 P.2d 399, 401 (3956).
19 At least one experienced judge has expressed serious doubt that such a
completely objective judicial attitude is possible. See Frank, Say It With Music,
6i H.ARV. L. REv. 921, 923-24, 932 (1948): "In sum, his [the judge's] notion of
the facts comes from his subjective, fallible reaction to the subjective, fallible
reactions of the witness to the actual, objective facts . . . . A large component of
a trial judge's reaction is 'emotion.' That is why we hear often of the judge's
'intuition.'"
 HARVARD LAW REVIEW [VOL. 79:407

further that some improper evidence tends to substantiate X's testi-

mony. It stretches credulity to believe that any person, judge or
juryman, could "disregard" this evidence in deciding whether to be-
lieve X or D.
It has also been suggested that a trial judge ought to be required
to state just what competent evidence he relied upon in reaching his
decision. 20 Requiring such an affirmative statement has an advantage
over the "bald presumption" approach, and also over the requirement
that a judge state merely that he disregarded certain improper evidence.
An appellate court would not have to engage in any guesswork as to
the basis for the trial judge's finding. Moreover, this approach preserves
the lower court's appraisal of the witnesses' credibility - it is not
possible for the appellate court, seeking to justify a finding, to point
to evidence that has been rejected by the trial judge as not worthy
of belief.
The difficulty with the requirement that a judge state what evidence
he relied upon is that it asks the impossible: decisions are not reached
by processes of pure logical deduction from discrete pieces of evidence.
A bit of testimony that a judge did not say he relied upon might
nevertheless have influenced him, consciously or unconsciously, to be-
lieve or disbelieve a witness. 21 The factors that lead a trier of fact
to believe a witness or to decide what inferences should be drawn from
a particular piece of evidence are not subject to enumeration after
the trial. An explanation of a decision, therefore, must inevitably
be a forced and artificial affair, inadequately reflecting the real genesis
of conclusions reached. The litigant is protected far better if the judge
is forced to focus upon the question of exclusion and then is allowed
to ponder the remaining permissible evidence, utilizing that collection
of processes that has usually been entrusted to the jury precisely be-
cause its essence is not trained reason but human experience.

III. PRESUMING THAT THE JUDGE WILL PROPERLY APPRAISE

THE EVIDENCE
An alternative more frequently suggested by commentators than by
courts is for the appellate court to presume that the judge appraised
all of the admitted evidence in a sensible manner. Here the premise
is not that the judge can disregard improper material that might
sway a jury, but rather that a judge can give all evidence its proper
weight in a manner that is beyond the capability of an unskilled jury.
The judge is not presumed to have disregarded anything; in fact, he
has probably scrutinized the disputed evidence very closely in judging
its probative worth. Under this approach, then, the judge is not
presumed to be silently following the ordinary rules of evidence, but
is instead considered exempt from them. 22 Although this suggestion
1o See Note, Incompetent Evidence in Nonjury Trials: Ought We Presume That
It Has No Effect? 29 IND. LJ.446, 458-60 (1954).
2 See Maguire & Epstein, Rules of Evidence in Preliminary Controversies as to
Admissibility, 36 YALE L.J. xioi, ixlS (1927).
12 See, e.g., Davis, An Approach to Rules of Evidence for Nonjury Cases, go
A.B.J. 723, 725-26 (1964). McCormick also suggests this approach: "It might
 1965] EVIDENCE IN NONJURY TRIALS

is by no means new,23 it is frequently connnected with relatively new

formulations such as the Model Code of Evidence. It is usually pre-
sented as a natural conclusion following from the generally recognized
fact that the rules of evidence came in with the jury system; 24 the
reasoning is that when there is no jury the rules should not apply.
To the extent that a trial judge is in a better position than an
unskilled jury to evaluate certain evidence, this approach has merit.
But it should be noted that any supposed special capacity of a judge
to evaluate evidence must be sharply distinguished from his ability to
articulate and apply rules of law. In carrying out this latter "judicial"
function, a judge relies upon his training in centuries of legal experience;
in carrying out his factfinding function he must rely upon his own
experience in distinguishing truth from falsehood and strong inference
from weak inference. The fundamental question for any trier of fact
is whether the evidence presented establishes a sufficient probability that
the "ultimate fact" - X murdered Y, or X negligently injured Y - is
true. To answer this question, the trier of fact relies on his experience,
first in deciding what testimony he believes, and then in making
inferences from this testimony. The issue, then, is whether the judge
has any special experience that will enable him to deal with evidence
that a "lay" jury cannot properly evaluate.
There are situations in which a judge, by virtue of his experience in
conducting trials, may have superior factfinding capacities. Assume,
for example, a classic hearsay situation: X testifies that Y told him
that D stabbed V. Assume that the trier of fact, either judge or jury,
believes X, the witness. In this case a judge has an advantage over a
jury. He will instinctively discount Y's out-of-court statement because
his experience tells him of the value of cross-examination. He will
know enough to ask himself about Y's ability to observe, his ability
to remember, and his impartiality.25 On the other hand, some evidence,
such as testimony about other crimes committed by a defendant,
should not be presumed to be "properly appraised" by a trial judge.
There is nothing to indicate that the average judge's experience would
lead him to evaluate such testimony more accurately than the average
citizen could. More important, "other crimes" evidence is legally irrele-
vant regardless of whether it bears on the probability that a defendant is
have been more expedient if these [jury] rules [of evidence] had been, at least
in the main, discarded in trials before judges. Their professional experience in
valuing evidence greatly lessens the need for exclusionary rules." McCoPmncx,
EVIDENCE § 6o, at 137 ('954).
3
" The old common law principle was not to reverse unless the real truths of
the case had not been disclosed. Judges exercised broad discretion. See Wigmore,
New Trials for Erroneous Rulings Upon Evidence: A Practical Problem for
American Justice, 3 CoLurm. L. REV. 433 (i9o3). The Napoleonic codes also
emphasized "free" proof and "rational persuasion" rather than rigid rules., See
Love, The Applicability of the Rules of Evidence in Non-Jury Trials, 24 Rocry
MT.L. REv. 480, 481 (1952).
24 See, e.g., THAYER, op. cit. supra note ig, at 47, 266, 509.
15 This is not, however, an argument for wholly abandoning the hearsay rule
in nonjury trials: in any adversary system of justice this "mental cross-examina-
tion" by a judge is not a satisfactory substitute for actual cross-examination by
the opposing party. Yet when it is impossible to produce the speaking party in
court, there is perhaps reason for allowing a judge to take into account relevant
hearsay that would be kept from a jury.
 HARVARD LAW REVIEW [VO. 79:407

guilty: Anglo-American law simply does not permit a defendant to

be found guilty of one crime on the basis of proof of other crimes. As
long as this legal standard exists, a judge as trier of fact should be
forced to disregard such evidence entirely.

IV. APPLYING THE JURY RULES OF EVIDENCE IN NONJURY TRIALS

Any theory that attempts to lay down a system of nonjury rules

of evidence should be centrally concerned with the judge's special
competence as contrasted with that of a jury. It is thus essential that
a particular theory take into account the different classes of evidence
and a judge's special competence with respect to each class. However,
the various rationales that appellate courts use with respect to nonjury
trials do not recognize and provide for the different types of evidence.
This is their common and most serious shortcoming.
Perhaps out of a desire to avoid distinctions, a few jurisdictions
simply apply the jury rules of evidence to all trials, by judge as well
as by jury.26 The advantages of such a procedure are numerous.
Certain evidence that is incapable of any meaningful appraisal is
excluded. Judges are not expected to be superhuman, as they are
when required to render decisions not based in the smallest degree on
admitted inflammatory evidence; they can act with greater certainty,
using definite standards for admission, and can be forced to articulate
bases for their decisions. Counsel preparing for trial will be able to
plan their evidentiary tactics and to know what evidence they will have
to refute.
However, even this approach gives rise to questions because of the
unique framework of the nonjury trial. Since the trial judge must
give the initial evidentiary ruling as well as make the ultimate finding
of guilt, there remains the problem of avoiding the taint that is left
in the judge's mind by some evidence even after he has ruled it to be
inadmissible. As noted above, this problem arises only when it is
impossible either to rule on the evidence without hearing it in detail
or to forget it after having heard it. A possible solution to this problem
is suggested by the practice in military summary and special courts- 27
martial functioning under the Uniform Code of Military Justice.
In such proceedings military officers have operated in a dual capacity
as factfinders and judges for fifteen years, under rules of evidence more
carefully restrictive than the jury rules of evidence.28 The problem is
solved in this "jurisdiction" by relying upon the self-discipline of coun-
sel. A trial counsel (prosecuting attorney) in a court-martial knows
that the result of introducing even a small amount of improper evidence
is almost certain reversal; 20 it is therefore in his interest to be particu-

26 See cases cited note 7 supra.

27 IO U.S.C. §§ 801-940 (1964).
2
See generally U.S. DEPARTMENT OF DEFzNsE, MANUAL FOR COURTS-MARTIAL
236"-7 (95').
2 For example, the introduction of "other crimes" evidence is grounds for
automatic reversal. See id. at 244-45. However, evidence of other offenses of the
accused is admissible if it has "substantial value as tending to prove something
1965] EVIDENCE IN NONJURY TRIALS

larly careful as to the kind of evidence he brings before the court.

With a detailed knowledge of the rules of evidence, any attorney can
tread the narrow path and avoid reversible error; in close cases, he
can employ delicately worded summarized statements of the evidence
to be offered.
To be sure, relying on the self-discipline of counsel is not entirely
satisfactory: it leads to the abandoning of marginal evidence and dis-
courages litigation of close questions of evidence law. Ultimately,
therefore, it hinders the search for truth. Further, self-discipline cannot
be enforced by procedural sanctions in all cases unless the courts
are willing to impose penalties that are out of proportion to some
evidence errors. It is easy to say that nonjury rules of evidence should
be specially articulated with respect to each different type of evidence;
indeed, this would be the ideal, were it practicable. Short of a con-
certed undertaking to write a system of nonjury rules, 30 the most
satisfactory solution is probably to apply the jury rules of evidence
to all trials.
other than a fact to be inferred from the disposition of the accused .... " Id. at
245.3 °Perhaps
See Unitedthe
States v. Haimson, 5 U.S.C.M.A. 17 C.M.R.
208, now (1954).
federal uniform rules of evidence, under 208
preparation, can
be used as a medium for promulgating such rules.