EVIDENCE/Wilkes Fall 1999
I. Mode and Order of Presentation
A. Control by the Court
1. Rule 102
Purpose and Construction- rules shall be construed to secure fairness in administration.
2. Rule 403
Exclusion of Relevant Evidence on the Grounds of Prejudice, Confusion, or Waste of Time.
3. Rule 611(a)
Mode and Order of Interrogation and Presentation- Control by Ct-
(a)(1) make it effective for ascertainment of the truth
(2) avoid needless consumption of time
(3) protect witnesses
4. U.S. v. Reaves
This is a tax fraud case. The Ct. limited the time for both sides- okay so long as the limits aren’t arbitrary.
The Purpose of Rules is to
a. Get to the Truth
c. Prevent Injustice
d. Fairness/Due Process
e. Preserve Confidential Relationships
B. Leading Questions
1. Rule 611(c)
Leading questions should not be used on direct except as necessary to develop witness’ testimony. A leading question is one which suggests the desired response
**Does it call for a yes or no answer
**Does it suggest the answer you want
4 exceptions- cross, hostile witness, adverse party, or witness identified by adverse party (maybe if child or incompetent).
2. Direct Exam
a. Straub v. Reading Co.
Leading questions were asked by P’s atty throughout his case. Jury was prejudiced by the conduct and the defense atty was left ineffective. When conduct runs the length of the trial and control is lost and a warped version of the issues goes to the jury, the verdict must be set aside. App. was denied a fair trial.
a. U.S. v. McKenna
The issue raised on appeal is the denial of right to effective confrontation by not employing leading questions. This goes to the mode, not the scope, of interrogation. Leading questions are not guaranteed by the Confrontation Cl.
C. Scope of Cross
1. Rule 611(b)
The scope of cross should be limited to the subject matter of the direct and matters affecting credibility.
TX- Wide Open Cross (English Rule)
2. The American Rule
a. Douglass v. State
Error is alleged due to the ct permitting the D to be crossed on certain letters that he had not referred to on direct. Content of the letters went to the truth of his defense for killing so the scope of cross was permissible
English Rule- anything may be brought out on cross.
3. Subject Matter of Direct
a. U.S. v. Segal
The D was forced to use transcripts, not allowed to play the recording, and was not allowed to refer to portions of the transcript that were not referred to on direct. Limit to the transcript was permissible but the limit as to what was offered on direct was unduly burdensome.
II. Objections and Offers of Proof
Rule 103 (Harmless Error
nsequences of Failure to Object with Specifity
1. Owen v. Patton
Error in admitting testimony was denied because even though it was prejudicial there was no objection, no motion to strike or request for special instruction and it was not plain error and there was no injustice as a result.
D. Offer of Proof
1. U.S. v. Winkle
Alleged error in excluding hearsay. Error may not be based on a ruling excluding evidence unless the substance of the evidence was made known to the ct by offer or was apparent. Ct’s won’t be too tough on cross, because you won’t know what the answer is going to be.
1. Rule 601
2. Competency v. Credibility
a. U.S. v. Bedonie
Witness produced inconsistent statements. How inconsistent must a witness be before he is incompetent to testify? The test is whether the witness has intelligence enough to make it worthwhile to hear him at all and whether he feels a duty to tell the truth.
A lawyer cannot be a witness in his own case, but the entire firm is not disqualified.
In civil actions, when state law applies, the