Evidence Outline

Evidence Outline- Spring 2014- Professor Carroll

I. Chapter 1: An Introduction to Evidence

a. The Anatomy of a Trial

i. Knowledge of which evid will be admissible allows to gauge the strength of her case, her opponent’s case, and the settlement value

ii. Breakdown of how a trial unfolds:

1. Pretrial motions:

a. Motions in limine- exclude inadm evide before trial; may request that prop of raise adm of evid outside of the jury’s presence before attempting introduction

b. Judge can defer ruling; adv must make sure that evid not offered in front of jury until judge ruled

i. Imp- very hard for jurors to unring the bell

2. Jury Selection and Instruction:

a. Jury selection:

i. Voir dire- judge/attys ask qs of potential jurors

ii. Attys use selection to come close to ideal jury

iii. Potential jurors can be dismissed b/c of (1) inability to be impartial; or through (2) peremptory challenges- need no reason but must not b/c of race or gender

b. Jury instructions- judge instructs jury of their role – jury decides questions of fact and must keep an open mind

3. Opening Statements:

a. When is the opening statement offered:

i. Party w/ BOP goes first

ii. Def may offer op stmt EITHER (1) after Pltf/Pros op stmt; OR (2) after Pltf/Pros rested their CIC

b. What is the opening statement:

i. Roadmap of what evidence will demonstrate

ii. Judge- latitude defining scope- stating what a witness will state or what an exhibit will show is proper; characterizing evid, trying to persuade the jury about a point is inapprop

4. Plaintiff/Prosecutor’s Case in Chief- test and evid okay ALA adm pursuant to the rules and survive any objs raised by Def

a. Narration planted during op stmt takes shape during exam/cross

b. Live test- call a witness; conduct direct w/ open ended qs for witness to express herself; Def cross-examines w/ leading qs to control witness and cred doubts emerge; judge may allow re-direct (limited to responding to new points raised on cross); judge may allow recross on new points raised on re-direct

c. Witness must be allowed to tell version of story in a credible manner for jury to have faith in her version

d. Atty not asking the questions can object

i. Goal- break up narration; assure that test reliable and relevant

ii. Objs in front of the jury (most) or sidebar (jury cant hear )

iii. Judge makes decision on obj:

1. Overruled- evidence admissible

2. Sustained- disregard q/a; strike answer

5. Motion for Acquittal (Crim) or Directed Verdict (Civil)-Def may ask, at close of Pltf/Pros CIC, to dismiss: Pltf/Pros has not met BOP to estab every elem

a. Judge’s std- whether suff evid exists that could justify a jury verdict in Pltf/Pros favor. If yes- motion denied.

6. Defendant’s CIC-

a. Def presents evid w/ same procedures of P CIC

b. If affirmative def presented- Def has burden to produce sufficient evid to survive a motion to dismiss

i. Crim- Pros may not receive judgment as matter of law due to Def’s 6th Am jury right

ii. Civil- move for DV

7. Rebuttal and Surrebuttal:

a. Pros- rebuttal evid confined to responding to Def’s evid

b. Def- surrebuttal evid lim to evid that responds to Pltf/Pros rebuttal evid

8. Directed Verdict Motions

9. Closing Arguments:

a. Party w/BOP offers first; Def follows, Pltf/Pros given opp to rebut

b. Goal- sum up evid for jury

c. Argue interpretations of evid in order to convince jury that your narrative is correct

10. Jury Instructions- judge instructs jury on app of law; judge determines how jury will be instructed through parties different instructions

11. Jury Deliberations- in secrecy;

a. Gen verdict- who wins and what remedy should result

b. Special verdict- answers series of qs crafted by judge; court will use answers to determine verdict

12. Post-Trial Motions and Entry of Judgment- loser may move of judg as MOL for a new trial; after judge rules, court will enter judgment on the verdict

b. Witnesses

i. Competency

1. FRE 601: Competency to Testify in Trial: Every person is competent to be a witness unless these rules provide otherwise. But in a civil case, state law governs the witness’s competency regarding a claim or defense for which state law supplies the rule of decision.

2. Second half of 601- Erie Doct: state proc rules apply to adjs of a state law claim

3. Low threshold- almost any witness deemed competent

4. Weight v. adm- almost all matters on witness cred go to weight

a. Just b/c good reason to q veracity/accuracy of test doesn’t mean witness is silenced- issues left for cross (Gazelle theory- something wrong w/ evid will come out on cross and unreliable evid weeded out. Get to present evid but give little weight)

b. Policy:

i. Efficiency- don’t want flood of pre-trial motions and judges making weight determinations

ii. Adversarial system- attorneys can point out to the jurors what evid is reliable

iii. Criticism- sacrifice truth fighting for reliance on adversaries by allowing all evid in

5. Test- Witness can testify ALA they (1) meet FRE 602 (personal knowledge) AND (2) 603 AND (3) are minimally capable of observing, recalling and communicating source of test

a. A judge qs witness outside presence of jury in order to estab threshold for competency is met

6. Limitations:

a. FRE 605- judge who is presiding at trial

b. FRE 606(a)- member of the jury at trial

c. FRE 601- state c