Evidence Outline

 
Evidence, Spring 2014
Professor Phillip A Sechler
The Penn State University, Dickinson School of Law
Text Book: Fisher, Evidence (3d ed 2013)
 
 
I. Introduction
A.     Evidence law is about the limits we place on the information juries hear
1. Much of our task ahead is to plot the crooked
B.     Basic Issues of Presentation of Evidence
1. Division of Responsibility between the judge and the jury
a.       Jury trial – jury decides questions of fact
b.      Judge – decides questions of law
2. Questions of admissibility of evidence are questions of law – judge decides these matters
3. Many evidentiary issues are decided before trial through
a.       Motion in limine
b.      Pre-trial
4. Sometimes there will be questions of fact that hinge on whether or not the evidence will come in (fact issues are issues for jury, typically)
a.       The court will decide preliminary questions of fact going to the legal question of evidentiary admissibility
b.      The court is not bound by rules of evidence when making decisions of fact
c.       Preliminary hearings must be heard outside of the hearing of the jury
d.      Broad theory behind having a hearing outside of the purview of the jury: generally these
e.       evidentiary decisions are held outside of jury hearing in order to preserve the system of justice
C.     Once the Evidence gets in – either party can argue about the weight that should be attributed to the evidence
1. Weight and credibility is decided by the jury
D.    Error in admission or exclusion of evidence
1. In order to preserve for appeal
a.       Evidence error at trial will only be the basis of appeal if:
i.        The error involves a substantial right of a party in the trial (it mattered to the case)
ii.      Judge had to be notified of the error at the time of the error
(A)  Call attention to an error by
(1)   Objection
(2)   Offer of proof (explanation of what the evidence would have said and what its value is)
(B)  If the judge is not made aware then there is no basis for appeal
E.     On Appeal a case might be overruled on an evidentiary issue if the issue was:
1. A plain error
a.       An error that affects some substantial right of a party and would undercut the integrity of the judicial process if it was left uncorrected
2. Plain error rulings do not require that either party object/offer for proof
F.      If a party objects to evidence at the preliminary hearing level and the evidence is omitted/admitted – the party does not have to object to the evidence later on during the trial – the initial objection is sufficient to preserve the objection for appeal
G.    Evidence can be admitted and limited use at trial
1. Balance the weight of the evidence
2. Give instruction to the jury limiting the use of the evidence by the jury (as long as the objecting party requests a jury instruction)
 
H. RULE 106: Opening the Door
1. Concept of Rule 106 –
a.       If one side brings in portions of a writing or recording, on cross examination the other side may introduce other portions of the same writing or recording
2. Broader theme that runs throughout evidence rules
a.       Allows lawyer to introduce evidence right then on cross examination
i.        Cross examination is generally limited to the information brought up during initial questioning
ii.      Rule 106 allows additional evidence to come up during cross examination – do not have to wait until you have the opportunity to present your case
b.      Allows lawyers to bring into evidence things that might not come in otherwise
c.       Broader theme of evidence: if one party admits into evidence material that is being used in order to mislead the jury or create a misinterpretation of the facts – the rules of evidence will find a way to allow the other side to fill in the gaps and shine light on the full truth of the evidence
i.        Rules of evidence should not be used as a way to mislead jury and prevent opposing counsel from presenting the facts
ii.      If you open the door as to some aspect of the case the other side will have the opportunity to bring in evidence that relates to what you have opened the door to.
 
I.      RULE 201: Judicial Notice: court accepting the fact as true – instructing the jury to accept the truth of the matter – without requiring formal proof
1. Applies ONLY to adjudicative facts not legislative facts
a.       Adjudicative facts are: facts about the case that you need the jury to decide
i.        Judicial notice is used when the jury knows something is true but the court/lawyers want to call the juries attention to the information that they already know
ii.      It would be a waste of time to require a factual dispute and presentment of evidence to prove such a fact – so judicial notice is used as a way to get the fact in and not waste the court’s time
2. Court must take judicial notice if:
a.       Party requests the court take judicial notice and
b.      Party provides sufficient information
3. Types of information that can be judicially noted:
a.       Facts that are not subject to reasonable dispute because the fact is:
i.        Generally known OR
ii.      Determined by a source whose accuracy cannot be reasonably questioned
4. When a court can take judicial notice:
a.       On its own accord
b.      Party request + sufficient notice
c.       At any stage of the proceeding (except against a criminal defendant upon appeal)
5. Instructions to jury:
a.       Civil Case: accept the judicially noted fact as conclusive
b.      Criminal Case: may but need not accept the judicially noted fact as conclusive
i.        This is why you cant take judicial notice on appeal against a defenedant (because there is no jury – and the jury holds the right to take or not take judicial notice of facts against the defendant)
 
II. Questions
A.     Presentation of Evidence: RULE 611 Examining Witnesses and presenting evidence
1. Trial will begin with the Plaintiff or the Prosecution’s trial opening statements
2. Then the defense can provide their opening statements
3. Plaintiff or Prosecutor can have a case in rebuttal
4. Direct examination – cross examination – redirect opportunity for the party who calle