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Evidence
Faulkner Law - Thomas Goode Jones School of Law
Skinner, Allison O'Neal

EVIDENCE – FALL 2011 – PROFESSOR SKINNER

v TEXTBOOK: EVIDENCE LAW AND PRACTICE – Friedland, Bergman, & Taslitz – 4th Edition

v INTRODUCTION TO EVIDENCE

Ø It is important to make sure the evidence you have is sufficient to meet the burden of proof for the particular charge.

Ø State the elements of the COA and then point out how the evidence proves each element.

Ø RELEVANT FEDERAL RULES

· FRE 106

Ø LAWSUITS AND RULES OF EVIDENCE

· THREE FUNCTIONS: each rule can be seen as advancing one or more of these functions.

§ Traffic: concern the smooth operation of the trial (ex. FRE 611)

§ Accuracy: promote truthful verdicts (ex. FRE 403)

§ Policy: advance external policies larger than the individual lawsuit (ex. FRE 501)

v AUTHENTICATION AND IDENTIFICATION

Ø RELEVANT FEDERAL RULES OF EVIDENCE

· FRE 901, 902, 1001, 1002, 1003, 1004, 1005, 1006, 1007, & 1008.

Ø REQUIREMENT OF AUTHENTICATION

· Authentication requires a basic showing that evidence is relevant to the case and, at least to a certain extent, reliable – that the evidence is what it purports to be.

· NOTE that 902 does not ensure the automatic admissibility of the evidence.

Ø PROCEDURE FOR AUTHENTICATION

· Three traditional questions to ask a witness for authentication purposes:

§ Do you recognize prosecution/plaintiff/defendant’s Exhibit X for identification purposes?

§ What is Exhibit X for identification purposes?

§ How do you recognize it?

· Real or documentary evidence can be modified or altered. A fourth question is usually required to ensure that the real or documentary evidence has not changed in such a way as to make it unfairly prejudicial:

§ (Real or Documentary Evidence): Witness, is Exhibit X for identification purposes in substantially the same condition as it was when you last saw it?

w If the witness says the evidence has been altered, the next question asked by counsel could probe what the differences are.

· For Representative Evidence, the inquiry focuses on the accuracy of the evidence, not on the likelihood of tampering. Further, the physical characteristics of an environment can change over time. Thus, a fourth question is required to authenticate representative evidence:

§ (Representative Evidence): Is Exhibit X for identification purposes a fair and accurate representation of what it depicts as of a particular time and date [when the incident in question occurred]?

· Authentication is not complete with the asking of the four “magic” questions. Instead, a chain of custody for the evidence must be shown as well.

§ Chain of Custody: the evidence is traced from its source, such as the crime scene or accident scene, all the way to the courtroom. The trace is intended to show that no custodian of the evidence has permitted alteration or tampering that would impugn the evidence’s authenticity.

§ Proof of chain of custody is not always necessary. When an item is unique, nonfungible, or readily identifiable, it does not need such a foundation.

· If evidence is authenticated, it may then be offered by a party into evidence at any time during the party’s case. The court will usually ask for objections prior to admitting the evidence.

· If admitted, it is the offering party’s responsibility to request that it be published (shown) to the jury.

v ROLES OF JUDGES, JURIES, AND ATTORNEYS AT TRIAL

Ø Three Main Characters at Trial:

· Judge: the gatekeeper. they ensure both parties an even playing field. we don’t like it when our referees get it wrong or are unfair.

§ Questions admissibility – after objection, Judge replies either Sustained or Overruled.

§ How does judge make a ruling? based on knowledge, reason and experience; using legal principles (FRE 104(a))

§ 104(b): judge can make a ruling based on conditional relevance. Asks… is there sufficient evidence that a reasonable juror COULD, not necessarily WOULD, find the facts exist.

· Jury: the “fact finders.” They hear and weigh evidence and apply the law to the facts using jury instructions, they are trier of the facts and determine guilt, liability, the extent of damages, etc.

§ the jury does not get to be the fact finder in all cases, such as judicial notice (rule 201, typically comes into play when referring to treatises, definitions, news periodicals, etc, that are generally accepted as being true and accurate). presumptions (rule 301)

· Attorneys: the attorney’s role is winning, representing the best interests of your client, recognize when you need to preserve the record for appeal, ethical responsibilities, officer of the court, laying the foundations for admissibility,

§ Objections: objecting when improper evidence is offered

§ Proffer: identifying substance of excluded evidence for the record

§ Plain error: rare, but when a failure to object or make a proffer, appellate court can cure.

· Example of Witness Questioning: what’s your name, where do you work, what do you do?, were you working the day of the incident?, what where you doing at the time?, what happened next, what did you see, where was the victim, how was victim positioned, what did you notice about her if anything… such as physical movements,

Ø ALL evidence is admissible unless objected to

Ø RELEVANT FEDERAL RULES OF EVIDENCE

· FRE 103 & 104

Ø THE TRIAL JUDGE’S ROLE

· The judge must ensure that the case progresses in an orderly and predictable fashion (FRE 611).

· It is the judge’s job to rule on evidentiary objections and on the admissibility of evidence.

· The rules give judges discretion in making evidentiary rulings, and constrain judges’ power. While judges can call witnesses (614) and even comment on the evidence, they must exclude both irrelevant evidence (402) and improper lay opinion testimony (701). Further, a federal judge’s ability to comment on the evidence is limited to the extent that it must not interfere w/ the jury’s fact-finding function.

· The rules prohibit judges from considering privileged information when making admissibility determinations (104(a)). Privileged information is consequently unique – judges cannot consider it when deciding whether evidence is admissible and a trier of fact cannot consider it when determining the facts of the case.

· QUESTIONS OF ADMISSIBILITY

§ Rule Foundation: Rule foundation admissibility questions, meaning whether the requirements of the rules are met, are governed by 104(a).

w Ex. The judge alone decides if an out-of-court statement meets the criteria for an excited utterance or whether an expert is basing her testimony on information “reasonably relied” on in the field, but it is the jury that decides whether to give that excited utterance or expert any credit or weight.

w The burden of supplying supporting evidence in rule foundation admissibility matters is generally on the party offering the evidence and requires a preponderance of proof.

w Supporting evidence is not governed by the rules themselves, with the exception of the rules of privilege (104(a)).

w The preponderance of proof includes credibility questions. The judge must resolve credibility questions should they arise.

§ Conditional Relevance: conditional relevance admissibility determinations are governed by 104(b) and have a different standard of admissibility.

w they involve facts surrounding the claimed event.

w Conditional relevance, also called relevance conditioned on fact, asks whether there is enough evidence to support a party’s claims about what the facts are.

w the judge simply must ask whether sufficient evidence has been introduced for a reasonable jury to find that the fact exists. If the judge concludes a reasonable jury could find – not necessarily would find – that the facts e

licable substantive law principles.

· PRESUMPTIONS (FRE 301)

§ Presumptions reflect rule makers’ desires that verdicts confirm to their conceptions of accuracy and rationality. Presumptions are an attempt to ensure that particular foundational facts always produce the same conclusions.

§ If circumstantial evidence is subject to a presumption, a judge or juror MUST draw the inference created by the presumption unless the party burdened by the presumption adequately rebuts it.

· JUDICIAL NOTICE (FRE 201)

§ when a judge concludes that a fact cannot be reasonably disputed, the judge may instruct jurors that they may accept that the fact is true. Judges can instruct jurors to accept facts as true even in the absence of formal proof, thereby saving parties the trouble of having to “prove the obvious.”

Ø BURDENS OF PROOF

· The FRE neither allocate burdens of proof nor set forth the degrees of proof required to prevail on a legal claim… they emanate from other sources.

· Initially, the burdened party bears the burden of production (aka “the burden of producing evidence” or ” the burden of going forward with evidence”). This means that the burdened party will lose its claim or defense as a matter of law unless the party produces evidence that, if believed, is sufficient to sustain a verdict in the party’s favor (i.e., evidence sufficient to constitute a “prima facie case”).

· The typical result is that the adversary offers conflicting evidence, and the judge or jurors consider both parties’ evidence when deciding whether the burdened party has carried its second burden. The issue of whether a burdened party has carried the burden of persuasion is a question of fact.

v RELEVANCE

Ø RELEVANT FEDERAL RULES OF EVIDENCE

· Rule 401, 402, & 104.

Ø THE IMPORTANCE OF RELEVANCE

· Relevancy is the first hurdle to admissibility. All evidence, with no exceptions must be relevant to be admissible. See FRE 402

· Relevance determinations also help with sorting evidence, dictating, for example, whether evidence applies to proving the case, impeaching a witness, or both.

· Relevant evidence still must overcome other exclusionary obstacles to qualify for admission, such as those concerning character, hearsay, privilege, and improper impeachment, among others. Relevancy serves as one of many prerequisites.

Ø DEFINING RELEVANCE

· the definition of relevance is often divided into two parts. Evidence is relative pursuant to FRE 401 if it is…

§ Probative: means to make something else more or less likely. All that is needed is one inference chain that bears on the case at hand. Further, evidence satisfies this standard even if it only makes the pertinent fact a tiny bit more or less likely.

§ A Fact of Consequence to the determination of the action: a fact that is helpful to resolving the suit, also sometimes described as a fact “properly provable” in the case. Facts of consequence include:

w an element of the cause of action, claim, or defense;

w the credibility of the witness; and

w background facts (e.g., helpful facts filing in gaps in the evidence).