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Evidence
Southern Illinois University School of Law
Schroeder, WIlliam A.

Evidence Outline – Summer 2006 – Schroeder
 
I.       Taking Evidence – Evidence usually comes in the form of witness testimony. Objects introduced in trial must also be supported by witness testimony.
Most important thing: Rules of evidence are created to keep evidence in. Main question is whether a rational decision maker would want to know about the evidence. i.e. does it make sense that a jury would want to know this?
A.    Introduction – Structure of a Trial – Rule 611 permits the court to exercise reasonable control over the case
1.      Subsection (a) – allows court to control witnesses to:
a)      Make interrogation effective for ascertainment of truth
b)      Avoid needless consumption of time
c)      Protect witnesses from harassment or embarrassment
2.      Subsection (b) – limits the scope of Cross-X to subject matter of direct examination
3.      Subsection (c) – leading questions cannot be used on direct exam. Leading will be permitted on cross-X or when a hostile party.
4.      Opening Statement – only supposed to be a statement of what the evidence will show. NOT an argument about the trial itself. Usually in the form of a story.
a)      Prosecution usually goes first. Person trying to change the status quo goes first and last.
b)      Defense goes second. Is at a disadvantage b/c prosecution’s story is already in the juror’s minds.
c)      Prosecution has burden of persuasion and production. (not really burden of proof)
5.      P’s Case-in-chief – case that your side will argue putting forth all the evidence
a)      Direct examination – call your witnesses to ask them questions
1)      Leading questions are typically forbidden b/c it is your own witness and he should try to explain what went on
2)      Must prepare what witness will say
3)      Must have a witness sponsor an exhibit – must show that it was used or that it is a fair and accurate depiction of event
4)      Don’t want narrative questions. Want to have short questions that witness can respond to in short answers
b)      Cross Examination – other party will try to find flaws in the witness’s testimony
1)      Here, leading questions are not only allowed, they are encouraged.
2)      Originally, could ask witness whatever you want, but as you move from East to West, it is limited to the scope of what you asked.
c)      Redirect
1)      Limited to the scope of the cross
d)     Recross
1)      Limited to scope of the redirect, etc.
e)      This is like an inverted funnel where less and less can be presented each of the way down the ladder
6.      D’s Case-in-chief
a)      Before presenting his case, D moves for a directed verdict to preserve some issues for appeal
b)      Can do your opening statement after the prosecution represents his case, but not a good strategy.
c)      D’s case very similar in formula to the prosecution’s/plaintiff’s
7.      P’s case-in-rebuttal
8.      D’s case-in-rebuttal
9.      Closing argument/jury instructions
a)      Some judges give instructions before closing argument/others give it after. More modern rule is to do it before.
b)      Closing argument usually P/D/P. Others go D/P.
10. Objections – must be brought up to preserve the issue for appeal. You have to bring up to the judge the things that you don’t like. Judge won’t do it for you.
 
B.     Preconditions to Testimony – Personal Knowledge, the Lay Opinion Rule, the Oath, and Witness Competence
1.      Witness must be able to a) observe sensory impressions, b) recall them and c) recite them back
a)      At common law many different kinds of witnesses were thought to be incompetent such as the insane, children, convicted felons, etc.
2.      Rule 601 – Personal Knowledge – every person competent to be a witness (except where state law supplies rules of decision)
a)      Witness cannot testify to matter unless has personal knowledge to the matter which he must testify
b)      Witness not lacking personal knowledge simply b/c witness is not completely sure.
c)      If hear what another person said, then can say what the other person said, but can’t claim that witness saw event.
3.      Rule 603 – Every witness must tell the truth – balances out Rule 601 that anyone can testify
a)      Do not have to swear; just have to promise to tell the truth. If a person is mentally incompetent or can’t tell difference b/w fantasy & reality (e.g. children), then can’t testify b/c can’t tell the truth.
b)      Oath awakens people’s conscience to telling the truth
4.      Rule 604 – witness can have interpreter, but interpreter must make an oath that it is a true and accurate translation
5.      Rule 605, 606
a)      605 – judge may not testify at a trial where he is presiding
b)      606 – jurors may not testify in cases where they are serving as jurors
c)      606(b) – can’t bring in any evidence about the deliberations or about the juror’s mental processes
1)      No extraneous influences on the jury either like a juror trying to see if what the witnesses say really happened could actually happen (e.g. an electrician trying to see if a fire could really start that way)
2)      Can testify to these kinds of extraneous influences that might influence the jury.
3)      Can’t testify to things saying that a juror is drunk, etc.
6.      Rule 701 – gets rid of common law rule that a witness can only testify to the facts.
a)      A witness may testify to opinions only when limited to those opinions which (a) are rationally based on perception of witness; (b) helpful to a cl

ou waive your objection and issue for appeal
1.      Technical considerations for objecting
a)      To keep evidence out
b)      To get appellate court if trial court doesn’t rule for you
2.      Other reasons not technical
a)      Disrupt flow of case
b)      Eat up the clock
c)      Show the client that you are fighting for him
3.      Reasons NOT to object
a)      Evidence doesn’t hurt your side
b)      Avoid emphasizing harmful evidence
c)      If object too often, then judge and jury may get annoyed
4.      Motion in limine – if you think that other side is going to try to enter something that you don’t like, then you can make a motion ahead of time to keep it out
5.      Two things must do for proper objection
a)      Must object at the earliest possible opportunity
1)      Can’t object too soon or too late
b)      Must be specific and correct
1)      If give wrong reason, then haven’t objected at all
2)      If witness answers over objection, then must move to strike
c)      Must get judge to rule on objection. Can’t still object; must have ruling.
6.      Offer of proof – if there is an objection to evidence and want the evidence in, must show what the evidence will show to determine if it can be let in.
a)      Can do this during sidebar at the bench
b)      Or can do this in open court, but difficulty is asking jury to leave
7.      Usually an objection will not make a case reversible. Evidentiary rulings are often harmless error.
a)      To get trial court reversed it must be plain error, which must be:
1)      Error
2)      Objection and proper objection
3)      And burden of persuasion seems to reverse – burden is opponent that it did not affect substantial rights
b)      Won’t get a new trial unless ruling affects substantial rights
E.     Rule 104 – Preliminary Questions of Admissibility
1.      Decisions on Admissibility must be made by the judge
2.      Decisions on the WEIGHT of evidence are made by jury
3.      Objection and decision should be made outside hearing of jury
4.      Bench trials = special problem; judge makes admissibility & weight decisions
5.      Conditional admissibility – must show that evidence will later connect up to it