EVIDENCE
Kirgis – Fall 2012
I. TRIAL BASICS
· Trial is the process of getting evidence into the “box” for jury’s use to make conclusions on events. The verdict is the “truth.”
· Rule 102 Purpose and Construction: Rules of evidence need to be construed for fairness and efficiency
o if fair and efficient à some degree of truth and justice
o accept the uncertainty b/c trust adversarial system to collect the data and get it into evidence
§ parties decide what is offered into evidence, judge merely applies rule to be sure relevant and admissible.
a. Burdens of Proof
i. Burden of Production
o Must use relevant evidence that moves the case forward and is sufficient to support a finding (prima facie case)
§ Burden must be met to get evidence admitted.
ii. Burden of Persuasion
o Burden to convince the jury that the facts satisfy charge in your favor
§ You must meet this burden to get a favorable verdict.
§ Facts are such a way of justify the finding you want
§ Criminally = beyond a reasonable doubt of guilt
§ Civil = liable by a preponderance of the evidence
o Judge must believe there is enough evidence to be beyond a reasonable doubt or preponderance to allow it to go to jury.
o If the evidence is so overwhelming in favor of plaintiff à JMOL (only civil)
o If the evidence is underwhelming not sufficient à judge dismises (both civil and criminal).
iii. Role of the Judge
o Judge does not enforce RoE, parties must object for a judicial ruling if the evidence satisfies burden of production, relevant and admissible.
o May give limiting instruction when evidence only for limited purpose.
o Rule 104(a) Preliminary Questions: questions of admissibility (incl. competency of witness, qualification of experts, existence of privilege, hearsay, application of hearsay exceptions) is determined by court using a preponderance of the evidence but only when objections.
o Admitted if relevant based on preponderance of evidence
o Rule 104(b) Conditional Relevance: When the relevancy of evidence depends upon the fulfillment of a condition of fact, the court shall admit it upon, or subject to, the introduction of evidence sufficient to support a finding of the fulfillment of the condition.
o Judge will admit it if à sufficient to support a finding
b. Order of Proceedings
i. Voir Dire – jury selection
ii. Openings
o Roadmap for evidence you plan to admit (no law)
iii. Plaintiff Case in Chief (P direct and D cross)
o P has burden of production and persuasion
o If burdens not met (evidence sufficient to meet your desired end à dismissed)
iv. Defendant Case in Chief (D direct and P cross)
o At the end can make a motion to dismiss or directed verdict if case completely undermines P case in chief.
v. P case in rebuttal (nothing new just respond to D)
vi. D case in rebuttal (aka rejoinder to respond to P rebuttal)
vii. Closings (P then D then P’s rebuttal)
o Party with Burden of proof given advantage of having last word
viii. Jury Charge (judge instruction to jury on law to test if evidence proves it).
ix. Verdict
c. Objections and Offers of Proof; Motions in Limine
i. Motions In Limine
o Used to deal with significant evidentiary issues pre-trial but most issues are during trial.
ii. Rule 103 Rulings on Evidence: must object at time in order to appeal later (must preserve the record) and only reviewed if show a substantial right of the party is affected by admission or exclusion.
1. Objections – must be timely and state specific grounds if not apparent from context.
o Parties enforce the rules of evidence by objecting if they believe it is inadmissible per the rules. (no ruling if no objection)
o Timely – ASAP
§ Best if made before objectionable evidence gets onto the record so it never gets into mind of jury
§ Can’t go back in time to exclude evidence b/c effects the whole presentation throughout proceeding
o Specificity – spell out ground for objection so full record on appellate review
§ Get it right b/c bound to that ground argument on appeal and verbal so on the transcript
2. Offers of Proof – if P’s evidence is objected and excluded
i. P can proffer the substance of evidence on the record so appellate court can evaluate what was offered and whter it should have come in for jury’s consideration b/c exclusion effected someone’s rights (outside purview of jury)
3. VERY DIFFICULT TO GET REVERSAL:
II. IS THE EVIDENCE RELEVANT
a. Relevance & Materiality
i. Rule 401: “Relevant evidence” means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence [rule 402 all relevant evidence is admissible except if rule of constitution, congress, statute or other rule of evidence excludes it. If irrelevant it is not admissible]
1. Standard: Relevance = opportunity to make more or less probably (it is a minimal test) – “Does this evidence have “any tendency” to make the fact proponent is trying to prove more or less likely?”
· Evidence of prior occurrences are only relevant and admissible if there is a substantial similarity to current
2. Analysis (always ask):
· What does proponent intend to show by way of the evid?
· Whether the piece of evidence actually helps to prove the fact that it is being offered to prove: If I knew nothing of this fact and I learned this piece of evidence, would it change my point of view of whether this fact exists?
o If yes = relevant
· What is the chain of reasoning that a juror would have to go through in order to draw the conclusion desired?
ii. Materiality – is the fact that proponent trying to prove “of consequence” to the determination of the action
· Of consequence = goes to prove/disprove element of action, look to elements
· Material if it is tied in to prove a particular element
· Evidential fact – only relevant if of consequence to claim
o only show an element aft
onse – question calls for an open-ended narrative response
i. Risk to the atty b/c witness may go off script and talk about things that you didn’t want or excessive
1. Prohibited subject matter
2. Needless waste of time
3. Risk of talking about Hearsay
a. Can be stricken but can’t erase from jury’s memory
g. Compound Question – question includes 2 or more questions that would make the answer ambiguous
i. I.E.: “Did you see the victim on the night of the alleged robbery and did she seem upset?”
h. Mischaracterization of the Evidence – question that summarizes prior testimony in a way that distorts it and would affect the jury’s perception.
i. I.E.: “Mr. Jones, earlier you testified that you disregarded the puddle in aisle nine…” (assuming Mr. Jones did not testify)
i. Non-responsive – used by the atty asking the question to object to testimony that doesn’t answer q? asked
i. Typically used on a hostile witness.
2. Leading Questions (there is no specific definition) – but usually questions that hint at the answer
a. Rule 611(c): Leading questions should not be used on the direct examination of a witness except as may be necessary to develop the witness’s testimony. Ordinarily leading questions should be permitted on cross-examination. When a party calls a hostile witness, an adverse party, or a witness identifies with an adverse party, interrogation may be by leading questions.
b. I.E.: “Isn’t it true… night you were…?” – leading b/c suggest the answer.
i. Risk of false memory – witness would not remember own version of events and would adopt what the atty said.
c. Yes and No questions are usually NOT leading ?s.
i. Better to stick with “who, what, where, how and why” questions
d. Leading Qs are allowed with judge’s discretion:
i. Preliminary matters
ii. Where witness may have a failure or recognition or is lost
iii. Where only way to illicit an answer (i.e. child or mentally incapacitated)
iv. When a party calls a hostile witness – need a ruling from the judge
v. Judge will look to the witness’s motive à allow LQ
1. If natural inclination is to align with defendant à allow leading b/c inclined to refute what the prosecutor says
2. If witness inclined to agree w/ prosecutor à no leading allowed on P’s direct.
3. In a civil case P may call D as an adverse party therefore LQ allowed on direct (doesn’t happen in criminal b/c P can’t call D).
