Evidence
the process of proof
what is evidence?
· The adversary system and the rules of evidence are the mechanisms we use to strike the complex balance between truth and the competing goals of the trial process. (3)
· For our purposes, the term evidence will refer mostly to the utterances of witnesses and the contents of documentary materials, illustrative exhibits, and “real” evidence. (5)
rule 102. purpose and construction
· These rules shall be construed to secure fairness in administration, elimination of unjustifiable expense and delay, and promotion of growth and development of the law of evidence to the end that the truth may be ascertained and proceedings justly determined.
presentation of evidence – limiting instructions
· Rule 105. Limited Admissibility
o When evidence which is admissible as to one party or for one purpose but not admissible as to another party or for another purpose is admitted, the court, upon request, shall restrict the evidence to its proper scope and instruct the jury accordingly.
· Weeks v. Angelone – There is a “presumption” that juries follow instructions.
appellate review of evidentiary issues
· Rule 103. Rulings on Evidence
o (a) Effect of erroneous ruling.-Error may not be predicated upon a ruling which admits or excludes evidence unless a substantial right of the party is affected, and
§ (1) Objection.-In case the ruling is one admitting evidence, a timely objection or motion to strike appears of record, stating the specific ground of objection, if the specific ground was not apparent from the context; or
§ (2) Offer of proof.-In case the ruling is one excluding evidence, the substance of the evidence was made known to the court by offer or was apparent from the context within which questions were asked.
o (b) Record of offer and ruling.-The court may add any other or further statement which shows the character of the evidence, the form in which it was offered, the objection made, and the ruling thereon. It may direct the making of an offer in question and answer form.
o (c) Hearing of jury.-In jury cases, proceedings shall be conducted, to the extent practicable, so as to prevent inadmissible evidence from being suggested to the jury by any means, such as making statements or offers of proof or asking questions in the hearing of the jury.
o (d) Plain error.-Nothing in this rule precludes taking notice of plain errors affecting substantial rights although they were not brought to the attention of the court.
· Successful appeal is a 3-step process (18-19)
1. Preserve the issue
2. The trial court erred
3. Error “affected a substantial right”
· Preserving the issue (make the record of) (19)
o Erroneous admissions
§ 1Timely objection w/ 2specific grounds
o Erroneous exclusion
§ Offer of proof
o Why?
§ Provides appellate court with record
o Exception – plain error
§ Affecting substantial rights
· Deference to trial court (22-23)
o Abuse of discretion standard
o Why? The trial court is in a better position because it also gets the context.
o “de novo” = error of law
sources of evidence and the nature of proof
· Witnesses
o The Requirements of Competency (25-41)
§ Rule 601. General Rule of Competency
· Every person is competent to be a witness except as otherwise provided in these rules. However, in civil actions and proceedings, with respect to an element of a claim or defense as to which State law supplies the rule of decision, the competency of a witness shall be determined in accordance with State law.
§ General Exceptions by State
· Infancy
· Dead Man’s Statutes
§ Rule 602. Competency of Judge as Witness
· The judge presiding at the trial may not testify in that trial as a witness. No objection need be made in order to preserve the point.
§ Rule 606. Competency of Juror as Witness
· (a) At the trial. A member of the jury may not testify as a witness before that jury in the trial of the case in which the juror is sitting. If the juror is called so to testify, the opposing party shall be afforded an opportunity to object out of the presence of the jury.
· (b) Inquiry into validity of verdict or indictment. Upon an inquiry into the validity of a verdict or indictment, a juror may not testify as to any matter or statement occurring during the course of the jury’s deliberations or to the effect of anything upon that or any other juror’s mind or emotions as influencing the juror to assent or dissent from the verdict or indictment or concerning the juror’s mental processes in connection therewith, except that a juror may testify on the question whether extraneous prejudicial information was improperly brought to the jury’s attention or whether any outside influence was improperly brought to bear upon any juror. Nor may a juror’s affidavit or evidence of any statement by the juror concerning a matter about which the juror would be precluded from testifying be received for these purposes.
§ Tanner v. United States – Jurors who used drugs and alcohol during deliberations were no more an “outside influence” than those afflicted with a virus, poorly prepared food, or lack of sleep.
§ Hypnosis and Competency
· The witness is per se competent.
· The witness is per se incompetent.
· The witness is competent if safeguards are employed.
o A psychiatrist or psychologist experienced with hypnosis and not regularly employed by the police conducts the session
o The session is recorded
o Before hypnosis, a detailed record is created of the witness’s then-existing recollection
o Only the hypnotist and the subject are present during the session.
· The witness is competent if, on balance, circumstances suggest reliability.
o The court may consider factors such as the use of procedural safeguards during hypnosis, the presence of suggestive statements or other cues during hypnosis, the presence of corroborating evidence, and the consistency of post- and pre-hypnosis testimony.
· People v. Shirley – The testimony of a witness who has undergone hypnosis for the purpose of restoring his memory of the events in issue is inadmissible as to all matters relating to those events, from the time of the hypnotic session forward.
· Rock v. Arkansas – A constitutional right outweighs interest in excluding unreliable evidence, including from third party witnesses.
o Personal Knowledge (41-
§ Rule 602. Lack of Personal Knowledge
· A witness may not testify to a matter unless evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter. Evidence to prove personal knowledge may, but need not, consist of the witness’ own testimony. This rule is subject to the provisions of Rule 703, relating to opinion testimony by expert witnesses.
§ Impl
s are applicable:
o (1) Writings and recordings. “Writings” and “recordings” consist of letters, words, or numbers, or their equivalent, set down by handwriting, typewriting, printing, photostating, photographing, magnetic impulse, mechanical or electronic recording, or other form of data compilation.
o (2) Photographs. “Photographs” include still photographs, X-ray films, video tapes, and motion pictures.
o (3) Original. An “original” of a writing or recording is the writing or recording itself or any counterpart intended to have the same effect by a person executing or issuing it. An “original” of a photograph includes the negative or any print therefrom. If data are stored in a computer or similar device, any printout or other output readable by sight, shown to reflect, the data accurately, is an “original.”
o (4) Duplicate. A “duplicate” is a counterpart produced by the same impression as the original, or from the same matrix, or by means of photography, including enlargements and miniatures, or by mechanical or electronic re-recording, or by chemical reproduction, or by other equivalent techniques which accurately reproduces the original.
§ Rule 1002. Requirement of Original
· To prove the content of a writing, recording, or photograph, the original writing, recording, or photograph is required, except as otherwise provided in these rules or by Act of Congress.
§ The scope of the best evidence doctrine limited in two ways.
· The doctrine does not apply to evidence about tangible items other than writings, recordings, and photographs.
· The doctrine is also limited in that it does not apply to all evidence concerning writings, recordings, and photographs.
§ Exceptions to the Best Evidence Rule
· Rule 1003. Admissibility of Duplicates
o A duplicate is admissible to the same extent as an original unless (1) a genuine question is raised as to the authenticity of the original or (2) in the circumstances it would be unfair to admit the duplicate in lieu of the original.
· Rule 1004. Admissibility of Other Evidence of Contents
o The original is not required, and other evidence of the contents of a writing, recording, or photograph is admissible if –
§ (1) Originals lost or destroyed.
§ (2) Originals not obtainable.
§ (3) Original in possession of opponent.
§ (4) Collateral matters.
· Rule 1006. Summaries
o The contents of voluminous writings, recordings, or photographs which cannot conveniently be examined in court may be presented in the form of a chart, summary, or calculation. The originals, or duplicates, shall be made available for examination or copying, or both, by other parties at reasonable time and place. The court may order that they be produced in court.
· Judicial Notice of Adjudicative Facts
