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Southern Illinois University School of Law
Behan, Christopher W.

Spring 2011
I.  Methods of adjudicating facts
·         Trial by combat or ordeal=pass a test, if innocent god would favor you
·         Civil law inquisitorial system
o   Judge decides-expert fact finder
o   Attorney’s assist judge to find truth
o   For criminal law it violates constitutional right to confrontation
o   More predictable
o   Similar to SS/disability law, modernly
§  Can rely on affidavits and reports not in evidence
·         Common law adversarial system
o   Trial by jury
§  Partisan Plaintiff/prosecution presentation AND
§  Partisan Defense presentation-à
·         Judges instructions and collective jury wisdom and experience-à
o   Legally and factually sound verdict
o   Rules of evidence and quality of advocates make a huge difference
o   Fuller view: supports FRE, if it goes as it should it works
o   Green view: does not support FRE, use rules to manipulate, best evidence available left out b/c of rules
·         FRE 102: Purpose and construction
o   Primary goals
§  Truth
§  Efficiency
§  Fairness
§  Justice
·         IL still uses common law rules of evidence
·         Witnesses, testimony and stories
o   What if they just talked?  All at the same time?
o   FRE 611=flow of information at trial
o   Almost all evidence comes in through a witness
o   Formal questioning procedures rather than narratives
§  Direct examination: open ended questions (don’t suggest answer)
§  Cross examination: close ended questions (suggest own answer)
·         Test’s witnesses knowledge
·         Substance of information controlled by other rules of evidence
·         FRE 103
o   FRE 103(a): What is error
§  No perfect trials due to discretionary nature
·         Deference to trial judge
·         Harmless error
·         Plain error
§  Types of error:
·         Substantive=violates rule of evidence, has bearing on trail
·         Constitutional=ex: confrontation
·         Form=ex: leading
§  Advocates role:
·         Close fight=what you have then and there, win at trial
·         Deep fight=set yourself up to win on appeal
·         Choice=waiver and forfeiture
o   Waiver=consciously and on record waive right
o   Forfeiture=don’t object when have right to, ignore issue
§  Attorneys responsible for errors; no harm no foul
·         Probably/may not yield a different result
·         If every error called, nothing would get done
o   FRE (1) and (2): Objections and rulings
§  Timely
·         As soon as error is apparent
·         Before answer where possible (where answer not apparent)
·         Brock
§  Specific
·         ID problem (rule, not speech)
·         Object for right reason (wrong reason not preserved for appeal)
·         Gomez
§  Ruled upon
·         Tentative ruling=takes something under advisement
o   Must make objection again to preserve for appeal
·         Definitive ruling=makes a ruling
o   Don’t have to raise objection again, it is preserved
·         Plain error=mistake so huge no one could have missed it at trail and substantially affects rights of parties
o   FRE (b): Curative actions
§  Motion to strike
·         After the bell is rung
·         T

to determining relevance
§  Pleadings and applicable law
§  Discovery
§  Theory of case
·         “We win because…”
·         Statement that captures factual and legal reasons in support of advocates case
§  Advocate must explain why evidence fits
o   Bilntzer
§  Inferences to be drawn from destruction of a document
§  Foundation
§  Discretion and relevance
o   Kelly
§  Relationship between evidence and COA
§  Courts often examine
·         FRE 403: Presumptive admissibility=if relevant, presumes it will come in
o   Must show evidence would unfairly prejudice and not come in (most attorneys get this wrong
o   Depends on context of ALL other evidence and whole story, very discretionary
o   Look at relevance, probative value and prejudice separately
o   Substantial impact on integrity of fact finding
§  Prejudice
§  Efficiency
o   BOP on opponent of evidence
o   Old Chief
§  Most instances order of proof/manner case presented is up to parties (common law principle)
§  Stipulation may hurt conventions of story telling
§  Consider evidence as
·         Island=each piece of evidence speaks for itself
·         OR all evidence available
o   Judge must consider these views and prejudice; they fear this the most
o   Can only define prejudicial contextually