Prof. Schroeder – Evidence – Spring 2014
1) FRE 102: Purpose & Construction
a. These rules shall be construed to secure fairness in administration, elimination of unjustifiable expense & delay, & promotion of growth & development of the law of evidence to the end that the truth may be ascertained & proceedings justly determined.
2) FRE 611: Mode & Order of Interrogation & Presentation
a. (a): Control by the Court
i. The court shall exercise reasonable control over the mode & order of interrogating Ws & presenting evidence so as to:
1. Make the interrogation & presentation effective for the ascertainment of the truth,
2. Avoid needless consumption of time, and
3. Protect Ws from harassment or undue embarrassment.
b. (b): Scope of Cross-Examination:
i. Cross-examination should be limited to the subject matter of the direct examination & matters affecting the credibility of the W.
ii. The court may, in its exercise of discretion, permit inquiry into additional matters as if on direct examination.
c. (c): Leading Questions:
i. Leading question SHOULD NOT be used on DIRECT examination of a W except as may be necessary to develop the W’s testimony.
ii. Ordinarily leading questions SHOULD BE PERMITTED on CROSS.
iii. When a party calls a hostile W, an adverse party, or a W identified w/ an adverse party, interrogation may be by leading questions.
3) PRECONDITIONS TO TESTIMONY
a. Basically, what are the requirements to be a W?
b. Requirements for Testimonial Evidence of a LAY WITNESS (i.e. non-expert):
i. W must take an OATH (FRE 603)
ii. W must testify from PERSONAL KNOWLEDGE (FRE 602)
iii. W must STATE FACTS RATHER THAN OPINIONS (FRE 701)
iv. W must be COMPETENT (FRE 601)
4) FRE 604 – Interpreters
a. An interpreter is subject to the provisions of these rules relating to the qualification as an expert & the administration of an oath/affirmation to make a true translation
5) FRE 603 – OATH OR AFFIRMATION
a. RULE: B/4 testifying, every W shall be required to declare that the W will testify truthfully, by oath or affirmation administered in a form calculated to awaken the W’s conscience & impress the W’s mind w/ the duty to do so
b. Just have to solemnly promise to tell the truth – don’t have to swear to god
6) FRE 602 – PERSONAL KNOWLEDGE
a. FRE 602 – Lack of Personal Knowledge
i. A W may not testify to a matter UNLESS evidence is introduced sufficient to support a finding that the W has personal knowledge of the matter.
ii. Evidence to prove personal knowledge may, but need not, consist of the W’s own testimony.
iii. This rule is subject to FRE 703 (opinion testimony of expert Ws)
b. Basically, Ws (other than experts) MUST HAVE PERSONAL KNOWLEDGE OF THE FACTS HE’S TESTIFYING ABOUT
i. Knowledge must be gained by the SENSES (i.e. sight, hearing, tasting, touching, etc)
1. Must testify as to what he saw, heard, or otherwise observed
a. EX: If you ask, was he intoxicated, W has no personal knowledge. A better question is did he appear intoxicated?
ii. Testimony DOES NOT have to be precise
c. LAY OPINION RULE:
1. Non-experts can only describe FACTS about which you have personal knowledge – NOT OPINIONS
a. Ex: If W observes ∆’s driving behavior leading to a crash, W may NOT testify that ∆ drove “very carelessly,” but must instead give more specific testimony (i.e. ∆’s estimated rate of speed, degree of attn, etc.)
2. Non expert Opinions that are excluded:
a. Standard of Care: W can’t express their opinions as to negligence/fault
b. Cause of Accident: Unless the event is the sort lay persons commonly form accurate opinions
c. Contracts: Existence of a K is a question of law & lay persons can’t testify thereto
d. Agency or Authorization: W can’t testify as to her agency/authority b/c it’s a question of law
ii. EXCEPTIONS TO LAY OPINION RULE:
1. FRE 701: Opinion Testimony by Lay Witnesses
a. If the W is not testifying as an expert, the W’s testimony in the form of opinions/inferences is limited to those opinions/inferences which are:
i. Rationally based on the perception of the W AND
ii. Helpful to a clear understanding of W’s testimony or the determination of a fact in issue AND
iii. Not based on scientific, technical, or other specialized knowledge w/in scope of 702 (i.e. expert testimony)
b. You’ve always been able to testify as to whether someone is intoxicated or whether speed was fast/slow
7) FRE 601 – COMPETENCY
a. FRE 601 – General Rule of Competency
i. Every person is competent to be a W EXCEPT as other wise provided in these rules.
ii. However, in civil actions & proceedings w/ respect to an element of a claim or defense as to which State law supplies the rule of decision, the competency of a W shall be determined in accordance w/ State law.
b. you’re COMPETENT as long as you can:
1. Recite = capable of expressing yourself as to be understood by the jury
iv. UNDERSTAND DUTY TO TESTIFY HONESTLY
1. Duty to Testify Honestly = Understand nature of telling the truth
c. Time of Competency: Only matters @ the time you are called to testify
i. Children & Mental Retardation:
a. Can testify as long as meet above requirements (so usually some age probably determine they can’t)
2. Profoundly retarded or the Mentally Ill:
a. Can testify as long as can observe, recall, recite & understand the obligation of telling the truth
3. JUDGES LOOK AT THESE ON A CASE-BY-CASE BASIS
ii. Criminals – Convicted felon may testify (couldn’t @ CL), although the conviction may affect the WEIGHT given to the testimony
1. CAN testify
2. FRE 610: Evidence of the beliefs/opinions of a W on matters of religion is NOT admissible for the purpose of showing that by reason of their nature the W’s credulity is impaired/enhanced
iv. Narcotic Addicts – Addiction might affec
necessary in the interest of justice,
An adverse party is entitled to have the writing produced @ the hearing, to inspect it, to cross-examine W thereon, & to introduce in evidence those portions which relate to the testimony of W.
2. If it’s claimed that the writing contains matters not related to the subject matter of the testimony, the court shall examine the writing IN CAMERA, excise any portions not so related, & order delivery of the remainder to the party entitled.
a. Any portion w/held over objections shall be preserved & made available to the appellate court in the even of an appeal.
3. If a writing is not produced or delivered pursuant to order under this rule, the court shall make any order justice requires, except that in criminal cases when the prosecution elects not to comply, the order shall be one striking the testimony or, if the court in its discretion determines that the interests of justice so require, declaring a mistrial.
ii. Basically, if a document has been consulted by W b/4 he took the stand, FRE give trial court discretion to order that the document be shown to the other side if “necessary in the interests of justice.”
1. Opposing counsel has right to see writing & cross using the writing
iii. Writing DOES NOT have to be written by W
1. Applies to both refreshing on the stand or b/4 testifying
9) SEQUESTRATION & OTHER EXCLUSION OF PERSONS
a. FRE 615 – Exclusion of Witnesses
i. @ the request of a party, the court shall order Ws excluded so they can’t hear the testimony of other Ws, & it may make the order of its own motion.
ii. Rule doesn’t authorize exclusion of:
1. A party who is a natural person OR
2. An officer or EE of a party which isn’t a natural person designated as its representative by its attorney OR
3. Person whose presence is shown by a party to be essential to the presentation of the party’s cause OR
4. Person authorized by statute to be present.
i. Judge determines admissibility – Jurors determine weight & credibility of what’s admitted
ii. Goals of FREs:
1. Save Time
2. Encourage Presentation of Reliable Information
3. Prevent Misuse (Jurors)
4. Basic Purpose: Effective (& accurate) fact finding
b. Basic Rule: If something is going to happen @ trial & you don’t like it, then you raise an objection.
i. Must be TIMELY & SPECIFIC
1. Make the objection @ the earliest possible opportunity