EVIDENCE
Vincent Alexander
Fall 2015
California definition of “evidence”” – testimony, writings, material objects, or other things presented to the senses that are offered to prove the existence or nonexistence of a fact
The FRE do not apply in state court, though most state have adopted them.
– But, not New York – New York uses common law and a few statutes it has adopted.
– Unless otherwise told, assume NY rule is the same as FRE!
In a diversity action in federal court, the FRE apply, but the competency of witnesses is governed by state law (so this includes privileges)
Purposes of the FRE:
1) The jury needs to be protected
2) Adversarial system – the burden is on the litigants to gather evidence and determine what they want to present to best represent their clients. Lawyers make the record and preserve the record of evidence to object to evidence rulings.
3) Limits on appellate review
How do lawyers stand up to wrongly admitted or wrongly excluded evidence?
What is the technical procedure?
Rule 103 – Rulings on Evidence
(a) Preserving a Claim of Error. A party may claim error in a ruling to admit or exclude evidence only if the error affects a substantial right of the party and:
1) If the ruling admits evidence, the party, on the record:
A. Timely objects or moves to strike: and
B. States the specific ground, unless it was apparent from the context; or
2) If the ruling excludes evidence, the party informs the court of its substance by an offer of proof, unless the substance was apparent from the context.
(b) Not Needing to Renew an Objection or Offer of Proof. Once the court rules definitively on the record – either before or at trial – a party need not renew an objection or offer of proof to preserve a claim of error for appeal.
(c) Court’s Statement about the Ruling; Directing an Offer of Proof. The court may make any statement about the character or form of the evidence, the objection made, and the ruling. The court may direct that an offer of proof be made in question-and-answer form.
(d) Preventing the Jury from Hearing Inadmissible Evidence. To the extent practicable, the court must conduct a jury trial so that inadmissible evidence is not suggested to the jury by any means.
(e) Taking Notice of Plain Error. A court may take notice of a plain error affecting a substantial right, even if the claim of error was not properly preserved.
Appealing an Alleged Evidentiary Error:
Step 1. Preserve the issue for appeal
Ø Properly make a record – Rule 103(a) – timely objection and state grounds for objection
o “Timely” = stated as soon as the basis for objection is clear. Optimally, after a question is asked of a witness and before he provides an answer, though court will usually find a motion to strike an answer to be timely if it is made right after the answer is provided too.
Rationale: There is a presumption that a jury will follow the judge’s instructions regarding motions to strike and the like.
Ø Regarding exclusion of evidence, party must make an “offer of proof” = make record of what the substance of the excluded evidence would have been
o Often made outside presence of jury
o E.g. P’s attorney asks the sole witness “Who ran the red light?” D objects and court sustains. P has no other evidence and this is a crucial issue. Thus P can ask to approac
e 601 – Competency to Testify in General
Every person is competent to be a witness unless these rules provide otherwise. But in a civil case, state law governs the witness’s competency regarding a clam or defense for which state law supplies the rule of decision.
v Under common law, numerous categories of people were disqualified as incompetent witnesses: atheists, children, town drunks, etc.
v No longer the case today, but competency does NOT = credibility – many of the disqualified categories are now grounds for cross-examiner to attack credibility
o NOT based on religion though – Rule 610 – “Evidence of a witness’s religious beliefs or opinions is not admissible to attack or support the witness’s credibility”
Rationale: Attacking religion would be playing on the jury’s prejudices
v When state law applies:
o 1. The issue arises in a civil action or proceeding;
o 2. It concerns an element of a claim or defense; and
o 3. The claim of defense is one as to which state law supplies the applicable substantive rule
v Judges and jury members are incompetent – Rules 605 and 606 (exceptions relating to inquiries on the validity of a verdict)
The Competency of a Witness Whose Recollection Has Been Refreshed Through Hypnosis
Problems with hypnosis:
1) Witness is open to suggestion
2) Confabulation
3) Overconfidence
