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Evidence
Southern Illinois University School of Law
Behan, Christopher W.

Evidence
Prof. Behan
Fall 2011
 
Rule 102:  Purpose and Construction
These rules shall be construed to secure fairness in administration, elimination of unjustifiable expense and delay, and the promotion of growth and development of the law of evidence to the end that the trust may be ascertained and proceedings justly determined. 
·         Some rules aren’t written well and don’t achieve the purpose of 102.
 
Rule 611: Mode and Order of Interrogation and Presentation
(a) Control by Court.  The court shall exercise reasonable control over the mode and order of interrogating witnesses and presenting evidence so as to (1) make the interrogation and presentation effective for the ascertainment of the truth, (2) avoid needless consumption of time, and (3) protect witnesses from harassment or undue embarrassment.
(b) Scope of Cross-Examination.  Cross-examination should be limited to the subject matter of the direct examination and matters affecting the credibility of the witness. The court may, in the exercise of discretion, permit inquiry into additional matters as if on direct examination. 
(c) Leading Questions.  Leading questions should nto be used on the direct examination of a witness except as may be necessary to develop the witness’s testimony.  Ordinarily leading questions should be permitted on cross-examination.  When a party calls a hostile witness, an adverse party, or a witness identified with an adverse party, interrogation may be by leading questions.
·         Rule 611: All evidence comes through the witness.  Witnesses aren't just allowed to come in and tell their story. 
o    Witnesses often don't know what is significant in the case.
·         Almost all evidence comes in through a witness
·         Formal questioning procedures rather than narratives:
o    Direct examination. Open-ended questions.  Gives you the most information.
o    Cross-examination.  Close-ended questions. Gives advocate the most control in shaping the case.
·         Substance of information controlled by other rules of evidence.
o    Can't just have an open-ended question that would be answered by a narrative.
o    Leading question is one that suggests its own answer.  (calls for its own conclusion).  The advocate gets to testify through the witness.  Normally only used on cross examination. 
Rule 103: Rulings on Evidence
·         If an advocate believes her opponent's evidence violates the rules, she must object, or the issue is forfeited on appeal.   
·         If an objection comes too late or is vague, the issue is forfeited upon appeal.
·         Offers of Proof occur when an advocate tries to preserve the issue for appeal by putting on the record what evidence she would have offered absent the judge's ruling.
·         Judge has no sua sponte duty to correct evidentiary errors at trial.  (Latin: “of their own accord” –  describes an act of authority taken without formal prompting from another party.)
·         Only under the most limited circumstances will an appellate court give relief for evidentiary errors in the absence of an objection by the aggrieved party.
 
Evaluating Error on Appeal – 3 primary appellate doctrines apply in evaluating evidentiary errors.
·         (1) Abuse of discretion standard of review – Relief is only granted if the judge's decision was based on clearly erroneous finding of fact or an erroneous conclusion of law or manifested a clear error in judgment.
·         (2) Harmless Error Rule – AC grants relief only for evidentiary errors that affect the substantial rights of the parties.    AC examines errors in the light of the record as a whole. 
·         (3) Plain Error Rule – provides a narrow window for relief where the parties have failed to bring an evidentiary error to the attention of the trial court.  The error must affect a substantial right of a party and must be clearly obvious from the record.  It must also  affect the fairness, integrity or public reputation of judicial proceedings if left uncorrected.
Objections must be timely
As soon as error is apparent
·         Before an answer where possible.
·         Brock
·         Witness asked “What was the result of your conversation?”.  This question was standing in a line of questions that called for hearsay.   Advocate objects to the question based on hearsay, the judge overrules and says the advocate could have objected before the answer.
·         You must object as soon as you can.  Object before the answer is given.
Objection must be specific
ID problem (rule, not speech)
Object for right reasons
Gomez
D smuggled drugs into the country via his luggage.
Law enforcement thought D was suspicious because he only had 1 bag of luggage and paid for the ticket with cash.
Defense's objection was based on  hearsay and rule 404(b) (improper character evidence).
D really should of objected under Rule 403 – unfairly prejudicial.
Court says you can't change your basis for objection after the objection has been made – no error.
Court analyzes under Plain Error.  Found that there was no plain error.
Objection must be ruled upon
Tentative ruling
Definitive ruling. – any time there is a final or definitive ruling, you've potentially created an appealable issues.
If there's no definite ruling, the parties may forget about the issue and waive its appealability.
If you can get a definitive ruling from the judge, you don't have to continue to object. 
Motion to strike –  used where the objectionable nature of a witness's response is not readily apparent from the question.
 
·         Losing an objection
o    Need to preserve issue through appeal.
o    Offer of Proof – gives an explanation of what the information would be if the evidence was allowed to be entered.
·         Always must be done out of the hearing of the jury.
·         Used to make sure you preserve the issue for appeal.
·         Can encourage the judge to reconsider the objection.
·         A good offer of proof explains the legal grounds. 
·         The more specific you can be in your offer of proof, the better off you'll be on appeal.
·         Can make an oral offer of proof, have a documentary offer of proof, or ask a special hearing to question a witness for an offer of proof.
Types of Objections
      p. 329-331 List of Objections
 
If you get a definitive ruling from a judge on an evidentiary issue (usually a pre-trial ruling) then you don't have to raise the objection later in trial.   It's hard to get a judge to give you a definitive ruling.  Powerful incentive for judges not to give definitive ruling because the issue will be waived later when attorney forgets to object.
 
 
Rule 104: Preliminary Questions
(a) Questions of Admissibility Generally.  Preliminary questions concerning the qualification of a person to be a witness, the existences of a privilege or the admissibility of evidence shall be determined by the court subject to the provisions of subdivision (b).  In making its determination it is not bound by the rules of evidence except those with respect to privileges.
(b) Relevancy Conditioned on Fact.  When the relevancy of evidence depends upon the fulfillment of a condition of fact, the court shall admit upon or subject to, the introduction of evidence sufficient to support a finding of the fulfillment of the condition.
(c) Hearing of Jury.  Hearings on the admissibility of confessions shall in all cases be concluded out of the hearing of the jury.  Hearings on other preliminary matters shall be so conducted when the interests of justice require or when an accused is a witness and so requires.
(d) Testimony by Accused.  The accused does not, by testifying upon a preliminary matter, become subject to cross-examination as to other issues in the case.
(e) Weight and Credibility.  The rule does not limit the right of a party to introduce before the jury evidence relevant to weight or credibility.
      Concepts
·   Judge rules on legal issues.  (preliminary questions)
·   Rules of evidence don't apply at  a Rule 104 hearing (except privileges)
·   Accused can testify for limited purpose in a criminal case.
o    Gomez-Diaz (Ch. 3 p. 7)
·   D moves to suppress cocaine; says no consent
·   D wants to testify only to a yes/no question about whether he gave consent.   D didn't want to have to go through cross-examination on the subject of consent.
·   Refuses to testify; judge won't shield from cross
·   Issue is scope of cross under FRE 104(d).
·   Every single fact related to consent is open for cross-examination.
·   If D wants to contest the issue of consent, he must also submit himself to cross examination on the issue of consent.
o    Conditional Relevancy
·   Fact B is not relevant unless Fact A is proven.
·   “Frank stole Bob's car.”  Not relevant util you prove that Bo

that the introduction of the evidence violates the rule.
·         Judges don’t sua sponte step in and analyze evidence under rule 403.   Judges don’t want to be reversed.
·         Rule is a very jurisdiction specific rule.  Every jurisdiction has different balancing test based off 403.
o    Counsel can draft the judge's findings of evidence for the judge.  Draft the factors the judge will rely on for making his decision.
Hypotheticals
Civil sexual harrassment lawsuit arising from conduct in the workplace Defendant allegedly made lewed comments about P and propositioned her at work. In discovery, P learns that D subscribes to Maxim, Playboy, Hustler, and Penthouse. Is this evidence admissible?
The evidence is relevant.  Shows how D thinks of women.
D will argue under 403 that the evidence is unfairly prejudicial and will cause the jury to make an emotional decision. 
Murder case.  Prosecutor has over 100 photographic views of the body at different angles.  The pictures are graphic and horrifying to look at.  The murder occurred in public and there are over 20 witness. Prosecutor seeks to admit 50 photos at trial.  Also the testimony of all 20 witnesses (the testimony is essentially the same.) Admissible?  Why or Why not?
50 pictures have a cumulative effect.  Some pictures should be admitted, but not 50.
The testimony of 20 witnesses also has a cumulative effect.  What is the number of witnesses that would be required?
Civil products liability case against CarCo.  Car spontaneously combusted.    Had another brand of car be recalled for spontaneously combust before and they were able to retrofit. Does that show that it is feasible to retrofit the car that spontaneously combust?
Improper inference to draw from previous recall that the brand frequently has this problem.
Was D using a cell phone when he rear ended the P or was he paying attention. P's attorney creates a computer animated video purporting to show D's behavior just before and during impact. Admissible at trial?  Why or why not?
Is the video relevant under 401 and 402? Yes. It's possible that the incident occurred in that way.
Is it unfairly prejudical?  Yes.  It's only one version of how this happened. Would require the D to create six or seven different videos for different scenarios.  Will have a huge impact at trial.   The video could appear to present the facts as they occurred, when in reality, it's just one version of the facts shaded in a way to favor one side.
·         Old Chief Case – General rule: Prosecution and Defense is entitled under the Rules of Evidence to prove its case by evidence of its own choice.  Parties get to prove their case in the most efficient way.  Judge abused his discretion in this case.  The stipulation was another way to present the evidence without that much harm.  Given the limited circumstances of this case, the judge should have applied a different balancing test.  Look at not only what prosecutor wants to present, but all the other evidence that could be introduced in this case.    It's difficult to see how D could over come the prejudice of the felony that involved misuse of a weapon, when his current crime is misuse of a weapon.
·         403 Requires the judge to make a judgment call in away that he doesn't have to do with other rules.  It's a closer call when determining if something is unfairly prejudicial.  The decision is context specific.   Judge has a lot of discretion.  Judge needs to determine the balance between the probative value and prejudicial effect.