Jones – Fall 2015
EVIDENCE OUTLINE
Presenting the Evidence
LCE art. 611 – Mode and order of interrogation and presentation
· Control by court
o Parties have primary responsibility of presenting the evidence & examining witnesses.
§ court cannot deny this opportunity
§ attorney determines what witnesses to call and what evidence is important
o Court has control over mode of interrogating witnesses and presenting evidence
§ To make the interrogation & presentation effective to ascertain truth
§ To avoid needless consumption of time; and
§ To protect witnesses from harassment or undue embarrassment
· Scope of cross-examination
o Witness may be cross-examined on any matter relevant to any issue in the case
o Including credibility
o Exception
§ Civil case
· Party to the case or person associated w/ party is called by opposing party
o Scope of cross-examination limited to matters testified on direct examination
o Unless the interests of justice otherwise require
· Leading Questions
o Direct exam
§ Generally should not be used
· This is because you want witness to tell own story so its more credible
· Best to ask open-ended ques that will result in direct answer
· Who, What, When
§ Except as necessary to develop testimony
§ And in examining expert on his opinion
§ BUT permitted when hostile witness is called
· Hostile witness, unwilling or unable to answer questions
· If testifying adverse to what was said in pretrial prep
o Ask for permission to treat as hostile
o Cross exam
§ Generally permitted
§ BUT not when cross exam is being done by own counsel
· Your time to shine
· Beat down and attack the credibility of the D
· Scope of redirect examination; recross examination
o After cross exam
§ Witness is subject to redirect exam
· Leading questions not allowed
· Many judges will permit them b/c witness already in frame of mind
§ On matters covered on cross-exam
§ & other matters per discretion of court
· if new matters are permitted then other party will get opportunity to recross on those matters
· Rebuttal evidence
o P in a civil case & state in crim case shall have right to rebut evidence brought by opponent
LCE art. 103 – Rulings on evidence
· Rule to preserve right to appeal an erroneous TC ruling related to admission of evidence.
· Effect of erroneous ruling
o TJ’s evidentiary ruling admitting or excluding evidence shall not be overturned
o Unless substantial right of party affected, AND
§ Substantial right is one that has a substantial effect on outcome of the case
§ Harmless error rule: the ruling had no substantial effect on outcome of case
· Erroneous ruling will usually be found to be harmless
· Ruling admitting evidence requirements: (i.e., objection overruled)
o When ruling is one admitting evidence:
o Timely objection
§ Meaning a contemporaneous objection
o Or motion to strike
§ When alleged erroneous evidence has been heard by jury, objecting party should move to strike and request court to instruct jury to disregard the evidence
· Ex. The defense counsel in a PI case asks D if he has insurance. The D quickly answers yes. P attorney requests motion to strike and requests judge to instruct jury to disregard evidence.
o State ground of objection; OR
o New basis for objection cannot be made on appeal
o If timely and specific objection is not made to ruling admitting evidence, objection is waiv
uestions of law
o Shall be determined by the court
o Conducted outside the hearing of jury when interest of justice requires
§ Child witnesses under the age of 12 – competency determined in judges chambers
o Weight and credibility of evidence is determined by jury
§ Jury deals with questions of fact
LCE art. 105 – Limited admissibility (limiting instruction)
· When evidence is admitted for a limited purpose, the court shall
· Upon request of a party
· Instruct the jury to consider the evidence for the purpose for which it was admitted
o Ex.: D is charged with second-degree murder of her husband. During x-examination D is asked if it was true that she was convicted of theft from her employer. The evidence is admissible to impeach D’s credibility, but not for its substantive value, that is, to prove that D is a thief. To limit the effect of D’s testimony the defense counsel can request the court to instruct the jury to limit her testimony about the theft to her credibility and not to show propensity to break the law.
o Use evidence for specific purpose for which it is offered
o “What can attorney do?” attorney can request to limit the scope of the evidence to this matter
o Distinguish from motion to strike: limiting instruction jury can only consider for specific purpose; motion to strike jury must disregard altogether
o In 404(B) question will always ask for this limiting instruction
