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

EVIDENCE
 
TAKING EVIDENCE
I.       Requirements To Be A Witness
a.       Competence (FRE 601)
                                                  i.      The ability to observe, recall, and recite
1.      Every person is considered competent to be a witness
a.       Must possess the ability to observe, recall, communicate and understand the obligation to tell the truth. 
2.      May impeach a witness as not competent
b.      Oath
                                                  i.      Before testifying every witness is required to declare that the witness will testify truthfully, by oath or affirmation administered in a form calculated to awaken the witness’ conscience and impress the witness’ mind with the duty to do so
1.      Form does not matter
a.       Just have to swear to tell the truth
2.      If unable to understand the oath then unable to testify
a.       Must understand that the undertaking is serious and have an obligation to do the right thing
c.       Personal Knowledge (FRE 602)
                                                  i.      A person may only testify to things that they perceived
1.      A witness may not testify to a matter unless evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter
a.       Does not necessarily mean precise knowledge
                                                ii.      Where a witness’ capacity is brought into question, the ultimate issue is whether a reasonable juror must believe that the person’s powers of perception, recollection, or narration are so deficient that it is not worth the time listening to his testimony.
                                              iii.      Exceptions
1.      Admissions
a.       May be used in evidence even if it is based on second information
2.      Opinions By Experts
a.       FRE 704(b)
                                                                                                                          i.      An expert witness may not give an opinion with respect to the mental state or condition of a defendant in a criminal case as to whether the defendant did or did not have the mental state or condition constituting an element of the crime charged or of a defense thereto.
b.      Lay witnesses are allowed very narrow opinions
                                                                                                                          i.      Lay witnesses opinions must be
1.      Rationally based on the perception of the witness
2.      Helpful to a clear understanding of the witness’ testimony or the determination of a fact in issue
                                                                                                                        ii.      Cannot Say:
1.      “He was angry”
a.       He appeared to be angry is acceptable
2.      “Defendant was at fault”
3.      Legal conclusions (“Defendant was insane”)
a.       Psychiatrist may testify that defendant was mentally ill at the time of the crime, but not that the defendant was unable to distinguish right from wrong
4.      Credibility of Witnesses
3.      Interpreters
a.       Interpreters are allowed
4.      Judges
a.       May not testify at a trial in which he or she presides
5.      Juror
a.       May not testify at a trial in which he or she is sitting
b.      Intrinsic evidence not allowed to impeach verdict
                                                                                                                          i.      Juror’s testimony that they did not understand, or were coerced is not allowed to impeach a verdict
c.       Extraneous evidence is allowed to impeach a verdict
                                                                                                                          i.      No extra-judicial information
1.      Ex: juror conducts an experiment, or looks up terms in dictionary
6.      Deadman’s Act
a.       In a civil action, if someone is deceased, may not testify if the action would diminish or enhance the deceased’s estate
                                                                                                                          i.      When the decedent is an opponent
d.      Example:
                                                  i.      Able is charged with arson in NY. The fire started at 3pm on Labor Day. At trial, Able calls his 8 year old son, Jimmy, who wants to testify that “I called my father around 4pm on Labor Day. It was a long distance call to Chicago. Uncle Sid answered, and said Dad was outside walking the dog. Prosecution objects: “This witness has no personal knowledge as a basis for his testimony”
1.      The testimony is relevant to the case. The boy “heard” his uncle and personal knowledge does NOT mean precise knowledge.
a.       Lay witnesses under FRE 702 may give opinion if it is rationally based on a perception and clear understanding of the testimony. FRE 701(b) if more precise sensory data are available and easy to convey, use them; if not, you may fill in with inferences
 
 
 
 
INTERROGATION
I.       Direct Examination
a.       Preparation of Witness
                                                  i.      May talk to witness in advance and determine what they have to say
1.      May also explain procedure and rehearse testimony
b.      No Leading Questions
                                                  i.      Allow direct examiner to tell the witness what to say
1.      Wish to hear testimony of witness and not lawyer
                                                ii.      Allowed when necessary to develop the witness’ testimony
1.      Ex: age, address, profession, spelling of name, calling attention to a specific date and time, and facts not in dispute
                                              iii.      Refreshing Recollection
1.      When necessary to develop the witness’ testimony
a.       Judge’s discretion
2.      Using a writing to refresh recollection
a.       Read report, sit report down, is your memory refreshed? Yes
                                                                                                                          i.      Opposing counsel has a right to see the writing, and cross using the writing
                                                                                                                        ii.    

le Information
                                                  i.      Forces parties and their lawyers to obtain and preserve evidence that might otherwise be lost or destroyed
c.       To Prevent Misuse
                                                  i.      Excludes evidence that may be particularly likely to lead the jury astray
d.      To Serve Goals Other Than Accurate Fact Finding
                                                  i.      Excludes evidence of particular types of conduct that are connected to the case so that people will be encouraged to do them without fear their conduct will be used against them in court
II.    Waiving, Preserving, and Reviewing Error
a.       General Principle
                                                  i.      To invoke an exclusionary rule of evidence, must make a timely and specific objection
b.      Evidence is Presumed Admissible
                                                  i.      If there is no specific rule excluding relevant evidence then it comes in
1.      Close calls go to the proponent of the evidence
c.       Parties Control the Case
                                                  i.      Frame the issues and present the evidence
1.      If neither side makes a claim, it is not heard
                                                ii.      Parties must object
1.      Object at the earliest time
a.       Must be specific, and must make the right objection
                                                                                                                          i.      If the objection is wrong, then it doesn’t count, and the proper reason for objection is waived
1.      If an answer is given must move to strike
d.      Waiving Objections
                                                  i.      The parties are not required to assert available objections
1.      If they do not, the evidence is presumed admissible
a.       Evidence that is admitted without objection may be fully relied on by the jury, even if it would have been reversible error to admit that evidence over a proper objection
2.      All that is needed for a waiver is silence as soon as the objectionable material is introduced
a.       Unless the judge allows a continuing objection, must object every time a witness is asked an objectionable question or gives an objectionable waiver
b.      Objection must be correct
                                                ii.      Other ways to waive
1.      Waiver in advance
Opening the door to the inadmissible evidence by presenting