Select Page

Southern Illinois University School of Law
Behan, Christopher W.

Fall 2010
Methods of Proof
–          Trial by Combat/Ordeal: pass a test for injury susceptibility
o   Antiquated: divine justice – if you win, God is on your side
–          Civil Law Inquisitorial System: judge questions witnesses/does investigation
o   Goal: discovery truth
o   Attorneys only do opening/closing, judge makes evidentiary decision
o   Modern Day: arbitration, administrative law, social security/disability hearings
o   Advantages: professional fact finder – regularity, efficiency, goal as truth
o   Disadvantages: bias experts, no explanation for intent, no right of confrontation (6th Amendment)
–          Adversarial Trial: trial by jury
o   Partisan Plaintiff/Prosecution Presentation: see justice done, represent best interests of their side
o   Partisan Defense Prosecution: mitigating factors
o   Judge’s Instruction + Collective Jury Wisdom = Legally/Factually Sound Verdict
o   Weakness: attorneys can be inept and have profound effect on justice
o   Pro (Fuller): adversarial best – best man wins
§  Wrestling analogy: 215 and above class isn’t fair
o   Con (Green): cynical – everyone manipulates circumstances and uses FRE to deceive other side by excluding necessary evidence
Goals of an Evidentiary System: Federal Rules of Evidence (FRE)
–          FRE 102: must get to the truth of the matter…
o   Not at all cost, avoid delay and be fair (Efficiency -> Justice)
o   Humans are mistake-prone, never get full truth
o   Look at truths, but preserve rights (Justice)
–          Indigent criminals must ask judge to appoint expert
Channeling Flow of Evidence
–          FRE 611: primary mechanisms for regulating information flow at trial
o   Almost all evidence comes in through the witnesses
o   Formal Questioning Procedure (rather than narratives)
§  Direct Examination: open-ended questions
§  Cross Examination: close-ended questions (leading)
o   Substance of information controlled by other FRE…
Evidentiary Errors
FRE 103: Error Defined
–          Effect of erroneous ruling: error may not be predicated upon ruling which admits or excludes evidence unless substantial right of the party is affected and there was objection, motion, etc.
–          Evidentiary Error: judge makes mistake allowing or excluding evidence from trial
–          Sometimes both parties can benefit from inadmissible evidence
–          Perfect trials are not guaranteed – judge has very broad discretion
o   Deference to trial judge and attorneys tactical choices
o   Attorneys have burden to identify evidentiary errors in court
Types of Error
–          Substantive: evidence violates substantive rule of evidence
o   i.e. Rape: evidence of victim being promiscuous is substantive
–          Constitutional: right of confrontation – party being denied right to the witness
o   Judge limits scope of witness, limits calling a witness altogether
–          Form: objections such as leading, compound questions
Advocate’s Role
–          “Close Fight”: goal is to win at trial level and not have to appeal
–          “Deep Fight”: setting yourself up to win on appeal
o   Must file motion (offer of proof) before trial
–          Waiver: conscious/on the record decision to waive something before trial
o   i.e. Old Chief: stipulate that offense was already committed
–          Forfeiture: not objecting when there is an opportunity to object
FRE 103: Objections and Rulings
–          Objections: must make timely objection or motion to strike that will appear on record, must state specific grounds of objection, no need to renew objection after ruling made
–          Timely
o   As soon as error is apparent
o   Before answer is possible
o   Brock: most of P’s questioning called for hearsay, but D didn’t object until question was detrimental to his part of trial
§  Ruling: should have objected earlier – can’t take good and object to bad
·         Transcripts don’t help, need to give judge deference
–          Specific Grounds
o   Identification problem (rule, not speech)
o   Object for the right reasons, not just to distract opposing counsel
o   Gomez-Norena: defense objects differently at trial level and at appeal level
§  Ruling: must use specific grounds, was timely, but not the right objection
–          Plain Error Rule: a mistake so colossal that no one could have noticed it at trial (very rare)
o   Clear and manifest error that substantially affects rights of parties
–          Definitive Ruling: judge’s ruling is final – don’t bring it up later (pre-trial motions vital)
–          Form Objections: ambiguous, argumentative, asked & answered, assumes facts not in evidence, compound question, harassing witness, leading (direct), narrative, repetitious, unintelligible
FRE 103: Curative Actions
–          Offer of Proof: in case ruling is one to exclude evidence, substance of evidence was made known to court by offer or was apparent from context within which questions were asked
o   When evidence is excluded, record of what it would have been is controlled by court, outside of jury
§  Gives judge opportunity to reconsider, appellate court something to use
–          Motion to Strike: after bell is rung, testimony is stricken, jury is instructed
FRE 104: Preliminary Question
–          Judge rules on legal issues: i.e. qualifications of expert, hearsay
–          Rules of evidence don’t apply at hearing: i.e. hearsay accepted, no telephone witnesses
–          Gomez-Diaz: no consent to x-ray cocaine seizure – D won’t testify to avoid cross-exam
o   Judge has discretion to make him testify – further ways to obtain consent
–          Condition Relevancy: Fact B is not relevant unless Fact A is proven
o   i.e. “Frank stole Bob’s car” – not relevant unless you prove Bob owns car
–          Huddleston: D stole videocassettes – P wants to offer prior theft of TVs
o   Conditional Relevance: can’t talk about whether cassettes were stolen unless the TV sets were stolen
o   Burden/Standard of Proof – reasonable juror
§  D: want

otion over fact
·         Anger, hostility, fear, etc.: graphic photos, hate groups, past crimes
–          Key Concepts
o   Presumptive admissibility
o   Substantial impact on integrity of fact-finding process: prejudice, efficienty
o   Burden opponent
–          403 at work: emotional reaction, accountable for something outside charges, revulsion/prejudice against Defendant
–          Misleading Evidence: relevant, but encourages decisions for the wrong reasons
–          Intrinsic Values of Court System: make sure jury makes right decision and doesn’t harbor unfair prejudice against parties
o   Rainfall in Utah comes in under 401, but never under 403 – value to court
–          Role of Judge: make decisions based on discretion
o   Hard to define “unfair”
o   Fear 403 the most, gives them most power, hard to make decisions sometimes
Old Chief v. US: assault with deadly weapon – bring in prior felony (details) not just stipulation
–          Prior crime also involved a firearm
–          Party with burden of proof is entitled to present case the way they want to – D doesn’t have this right
–          Process of receiving evidence and telling story: if the only thing being proved is legal status (felon), then all evidentiary options must be explored
Imwinkelreid Article
–          FRE 403 has resurrected common law rule of trial judge
o   Internal trial rule: don’t want to infer things and connect dots on own – can have prejudicial impact
–          Improper for judge to keep evidence out if he himself doesn’t believe a witness or has internal social policy to enforce in courtroom
–          Unclear standard on appeal: what is prejudicial to some is well-argued case to other judges
Enforcing Extrinsic Social Policy
FRE 407: Subsequent remedial measures aren’t admissible to prove negligence against Defendant
–          Remedial Measure: something that would have reduced likelihood that injury or harm would have occurred
o   i.e. repairs, adding safety features, firing inept employee
–          Social Policy: people less likely to correct mistakes if this evidence is admissible
o   Encourage people to fix their problems
–          Improper Inference: don’t want jury to think that fixing a problem is an admission of guilt
–          Exceptions
o   Showing ownership/control of product/property
o   Feasibility of precautionary measures – could it have been fixed?
o   Impeachment