Kirgis_Evidence_Fall_2010
THE TRIAL PROCESS.
Adversarial system: the parties have the responsibility to move the case to its conclusion.
Rule 102- Purpose and Construction: object of the rules is to make sure the process is efficient and smooth. The ultimate goal is the finding of truth, even though it may not be achieved in every situation.
Jury: evidence rules make sure the jury is treated properly.
– the jury looks at the data given to it only at trial and draws conclusions about the real world (about what actually happened)
– it then applies the law (jury instructions) to these conclusions
– the final result is the verdict; the verdict becomes the truth
Burdens of Proof
Burden of Production: the burden of going forward
o in the event of a tie, the party without the burden wins
o standard is the prima facie case: enough facts that support a finding of each element
o comes up before the jury draws conclusions – have the parties put in enough evidence to go forward? (has the party made its prima facie case?)
§ decided by the judge (on the basis of a SJ, DV, JNOV motion)
§ if not, the case is dismissed
Burden of Persuasion: the burden of tipping the balance in one’s favor
o usually the same party has the burden of production and persuasion
o standard for civil trials is a preponderance of evidence; for criminal it is proof beyond a reasonable doubt
o comes up before the verdict – have the elements of the claim or charge been satisfied?
§ Decided by the jury
§ In a civil case, the judge can take the verdict away from the jury if no reasonable jury would have found for the prevailing party
Judge: has to keep an eye on admission of evidence.
– there has to be some evidence supporting each element of the claim or charge.
– Evidence can be used for limited purposes (the judge will give limiting instructions; if these are ignored by the jury, the judge can dismiss the case)
Preliminary Questions
What kind of data can be brought in?
– primarily decisions made by the judge
– once in, the jury decides how much weight to attach
– burdens of proof mirror those at trial
Rule 104 – Preliminary Questions: should be determined by the court.
(a): For exclusionary rules of evidence, judge usually uses the POE standard.
Compentacy, Heresay, privilege, etc…
(b): For admission rules, judge uses a prima facie standard. Conditional relevancy: party must show sufficient evidence to support a finding that other evidence is relevant to admit the other evidence. The jury can ultimately conclude no relevancy once the evidence is admitted.
The parties are responsible for enforcing FRE, not the judge.
Rule 103 – Rulings on Evidence
(a)(1): must state a specific ground for the objection, objection must be timely. Can also make a motion to strike after the inadmissible evidence has come out. The ground must be specific so the reviewing judge on appeal knows what happened. Parties waive other objections if they raise only one specific objection. Ground doesn’t have to be specific if they are apparent from the context.
(2): if evidence is excluded, parties must make an offer of proof as to the substance of the evidence (unless obvious from the record) so the court on appeal can review the trial judge’s decision.
– an appeal may only be predicated on plain or prejudicial error. A substantial right of the defendant or witness must have been affected (harmless error does not affect the outcome of the case). There is a heightened standard for Const. error (beyond a reasonable doubt)
(d): plain error can be the basis for an appeal if so prejudicial or egregious, even if the parties did not object, as long as it affected a substantial right
Curative admissibility: party does not object to something that is objectionable and then admits related evidence of its own that is also objectionable.
– The other party cannot now object because it opened the door.
Motion in Limine: mechanism by which pivotal evidence questions are resolved ahead of time.
– FRE 103(a)(2): a party getting a definitive ruling does not need to raise the objection again to preserve for appeal (not clear whether this is the rule in NY)
Rule 401- Relevance: the basic condition for the introduction of any type of evidence (a rule of inclusion). Evidence is assumptively admissible unless there is something that excludes it (in Rule 403, for example). One piece of evidence can further a number of propositions.
Standard of relevancy: evidence must have any tendency to make the existence of the fact more or less probable. The fact must be of consequence to the determination of the action.
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? If yes, relevant.
Evidential Inferred Inferred Inferred Consequential
Fact Fact Fact Fact Fact
Direct v. Circumstantial evidence: no inferences with direct evidence, just the inference that the source is valid.
In situations where there is no evidence for a fact, the party has to show similar situations. (Ex. to show causation, show similar accidents happened in the same way)
– courts look for substantial similarity
– this is difficult when trying to prove the absence of something (Ex. absence of accidents on this roller coaster for X years)
Similar Occurrence Evidence
If evidence concerns some other time, some other event, or some other person, other than the parties involved in the case, general rule of thumb is that evidence will be inadmissible even though it might have some probative value.
Outweighed by factors [1-3] generally
5 specific areas where it might be admissible
1)
Plaintiffs accident history
Batman crashes into lamp post – suing the city claiming the placing of the lamp post created a dangerous condition — can the city introduce evidence that Batman has crashed into other items in the city?
NO – Only shows that he is litigious or accident prone (this is character evidence – a propensity for carelessness) – Not allowed to prove conduct on a particular occasion
YES- if the causation of the plaintiffs injuries is at issue – (ei) for the city to show Batman’s injuries occurred during another accident and not this one (CAUSATION OF HIS DAMAGES)
counsel to anticipate whether the witness will provide relevant, admissible testimony.
Compound question
Used when question contains two or more included questions, so that an answer will be ambiguous.
Example: did you see the victim on the night of the alleged robbery and did she seem upset?
Mischaracterizing the evidence
Used when counsel, when questioning a witness, summarized prior testimony in a way that distorts it.
Example: “Mr. Jones, earlier you testified that you disregarded the puddle in aisle nine…” (Assuming Mr. Jones did not so testify.)
Nonresponsive
Used by questioning attorney to object to testimony that does not answer the questions asked.
Leading questions
A question that assumes the answer
Example: a statement in the form of a question.
We want competent witnesses testifying so when leading questions are asked it is almost like putting words in the mouth of the witness
Judicial Notice
Jury notice: don’t have to introduce evidence on what is common knowledge. The jury already knows.
Judicial notice: important when you want to get before the jury something that is not common knowledge but is not really in dispute
– efficiency: don’t waste time litigating as to its existence
Rule 201 – Judicial Notice of Adjudicative Facts
(a): adjudicative facts are those that go to whatever is in dispute (who, what, where, why, how)
– legislative facts are those that the court considers in applying the law
(b): two categories of adjudicative facts
– facts generally known within the court’s jurisdiction
– facts capable of accurate determination
(e): opportunity to be heard – the other side can dispute, but must challenge the information given in support of notice
(f): can be done at any time, by either party.
(g) difference between criminal and civil cases. In civil, the jury must take the noticed fact as conclusive. In criminal, the jury may accept as conclusive the noticed fact.
Adjudicative facts are the facts that happened in the case at bar
Legislative facts are what the rule of law should be to have the best outcomes in the law going forward
Appellate notice: reviewing court can take notice of any fact the trial court could have noticed
– problem in a criminal case because this sidesteps the jury’s power to disregard the noticed fact, especially if notice of the fact by the appellate court would have the result of convicting the defendant.
– Need to ensure the jury has considered each element. But if the notice of the fact is in favor of the defendant, don’t have the same problem.
