Evidence Outline – Wilks 2000
General questions: Criminal or civil? What forum? Who is the witness? Who is the examiner? What is the subject of the inquiry?
I. MODE AND ORDER OF PRESENTATION
A. Control by the court
1. Rule 102 – rules construed for fairness, eliminate delay, promote the search for truth
2. Rule 401 – fact is evidence (relevant) if it tends to prove or disprove a material issue in the pleading
3. Rule 403 – relevant evidence may be excluded if its probative value is outweighed by prejudice, confusion, cumulative, delay, waste of time (must be legally relevant)
4. Rule 611(a) – exercise reasonable control to make the search for truth effective, avoid wasting time, and protect witness
5. Relevance, opinion rule, hearsay rule, best evidence rule, competence
6. US v. Reaves: court may put time limits if it finds that there would be numerous, excessive, wasteful, and duplicative evidence. Public policy that the court’s time is a public commodity that must not be wasted.
7. OBJECTIONS: Narrative response, Nonresonsive/Voluntary statement, Assumes a fact not in evidence, Compound question, Ambiguous, Asked and answered, Cumulative, Misstatement of the evidence, Argumenative, Bangering the witness, Leading
B. Leading questions – a question that suggests a desired response
1. Rule 611(c) – not on direct except to develop the tesitmony, usually allowed on cross if hostile, adverse party, or identified with an adverse party.
2. Straub v. Reading Co.: conduct of counsel in the continuing calculated improper asking of leading questions allows a court to reverse judgment (generally they are harmless error)
3. US v. McKenna: court ruled that D could not lead on cross but gave wide latitude, only when witness was declared hostile then D could lead. But D rested case after the ruling and now appeals but this was not error (discretion).
C. The scope of cross
1. Rule 611(b) – limited to the subject matter of direct and credibility; court may permit other inquiry though. American rule is that it is limited to the subject matter of direct. English rule is that you can cross on anything.
2. Douglass v. State: on direct he alluded to defenses – but not asked about prison letters. On cross the letters were brought up, court said this was ok b/c they pertained to the subject matter (defenses) that were in direct.
3. US v. Segal: cross was improperly limited b/c the court did not allow certain tapes to be played, when on direct other tapes were played. Scope of the cross is measured by the subject matter of direct rather than by specific exhibits – all the recordings about the bribe offer were the subject matter here.
a. Credibility – established on direct a
Introduce a written statement
c. Introduce a written statement signed by witness
d. Excuse the jury and allow examination
A. Beyond credibility, it is a legal question to see if witness is even qualified at all
1. Evidence is inadmissible due to any exclusionary rule
2. Does witness have an interest in the litigation, have prior bad moral conduct, or lack of mental capacity
3. There are foundational requirements for a witness to testify
1. Rule 601 – every person is competent except as provided by these rules; judge rules on competency and the jury rules on credibility.
2. US v. Bedonie: witness gave inconsistent statements and D appeals to say the witness is incompetent b/c they are incredible. They are competent according to the rules, this is a credibility issue that was for the jury to weigh and determine.
a. Just b/c they are incredible does not mean they are incompetent
a. Rule 606 – jurors cannot testify in trial that they are sitting as jurors
i. Lawyers cannot testify in cases that are trying