Poetic Justice in Punishing the Evidentiary Misdeed of Knowingly Proffering Inadmissible Evidence

The civil procedure rules have been amended to curb pretrial discovery misconduct. The amendments may have deterred some such misconduct. However, the downside has been that the amendments have prompted expensive, time-consuming pretrial hearings which can make it more difficult for a litigant with a meritorious claim to reach trial. In some respects evidentiary misconduct at trial is an even more serious problem than pretrial discovery misconduct. The question is whether we can deter such misconduct without creating an impediment to a fair trial on the merits. To that end, this article proposes that in extreme cases, a litigant should be able to treat an opponent's knowing proffer of inadmissible evidence at trial as proof of the opposition's consciousness of the weakness of their position in the litigation.