Wilks EVIDENCE OUTLINE Fall 2014
I. MODE & ORDER OF PRESENTING EVIDENCE
A. Rule 611: Control by the ct. = the ct. should exercise reasonable control over the mode & order of examining witnesses as well as the presentation of other evidence.
1. Rules 102 &611: Purpose = the purpose of proceedings should be towards the following ends:
a. “Effective ascertainment of the truth” and “securing of justice” b. Judicial efficiency = avoid wasting time
c. Protect witnesses from harassment and or undue embarrassment
2. Ct. may limit counsel’s “overtrying” a case = typically this is accomplished through the exercise of control / regulation over the following:
a. Number of witnesses
b. Amount of time spent on each witness
c. Length of opening & closing statements
3. Common objections:
a. Narrative Response = this objection is posed to a question of indefinite scope b/c such as question makes it difficult to anticipate whether or not the substance of the answer will be admissible.
i. Example = what happened the day of the murder?
b. Nonresponsive / Volunteered Statement = this objection is useful when the witnesses’ response extends beyond the specific information requested by the initial question.
i. Example = Q: Do you know the D? A: Yes, D beats his wife.
c. Assumes a Fact not in Evidence = when a question asserts a fact not yet established at trail, that question is objectionable.
i. Example = Q: Did you see D at the bar? A: Yes Q: After D had a few drinks did you see him leave?
d. Compound Question = when a single question seeks multiple answers it is objectionable due to the potential for jury confusion.
e. Ambiguous Question = a question that is not reasonably clear is objectionable due to the potential for confusion.
f. Asked & Answered = a judge has the discretion to exclude evidence that is a waste of time, e.g. a repeating information.
g. Cumulative = calling several witnesses to testify on the same issue or introducing numerous similar exhibits is objectionable as cumulative.
h. Misstatement of the Evidence = when the interrogator inaccurately describes evidence or draws his own inferences based on the evidence then that question is objectionable.
i. Argumentative = this objection is generally made in response to a rhetorical question that attempts to assert the interrogator’s own desired meaning or the implications of prior testimony.
i. Example = Q: Now why would you agree to such a stupid idea? (the assertion that the idea is stupid is argumentative)
j. Badgering the witness = this objection is appropriate when the interrogator is attempting to intimidate or harass the witness.
B. Form of Questions to Witnesses
1. Rule 611(c): Leading questions = a leading question is one that clearly suggests the desired response.
a. Not allowed on direct examination, except as necessary to develop a witnesses’ testimony.
i. Exceptions include = preliminary matters; when witness is a child; when changing subjects; when witness has communication problems; when refreshing recollection.
b. Generally allowed on cross-examination, unless the witness is a friendly witness, in which case leading is not allowed.
c. Types of leading questions:
i. Isn’t it true that…
ii. Ending a question with”…didn’t you?”
iii. Yes or no questions are often leading questions
iv. Questions that instruct the witness how to answer on material points
v. Questions that put into the mouth of the witness words to be echoed back.
C. Scope of Cross-Examination
1. Rule 611(b) = Cross-examination may not go beyond the subject matter of the direct examination or matters affecting witness credibility; the ct. has
consider other grounds not presented to the trial judge if later raised on appeal.
a. An objection based on “relevance” under Rule 402 does not preserve an error of “undue prejudice” under Rule 403.
6. Waiver rule = w/o a specific and timely objection, the matter is waived and will receive no consideration on appeal absent plain error.
7. Offer of proof = the proponent of excluded evidence must show in some fashion the substance of his proposed testimony in order to preserve the error on appeal.
a. Not required on cross-examination
A. Rule 601: Competency to Testify = every person is presumed competent unless the rules provide otherwise; in a civil case, state law governs witness competency.
1. Three requirements to be a witness = a witness must be able to:
a. Perceive the events first hand
b. Recall / remember the events
c. Communicate the facts with reasonable clarity
2. Competence v. Credibility = even the most traditional bases for excluding a witness as incompetent—such as insanity or infancy—are no longer specifically preserved by the Federal Rules.
a. Modern trend is to “let it in” = generally cts. prefer is to let the evidence in for what its worth and then follow it up with a cautionary jury instruction a/b the issue of credibility & the “weight” of testimony.
B. Competency of Jurors
1. At trial = a juror may not testify as a witness before the other jurors
2. During an inquiry into the validity of the verdict = a juror may not testify a/b any statement made or incident that occurred during deliberations.
a. Exceptions = a juror may testify a/b whether: