Evidence Outline

Professor Alexander
St Johns Law

EVIDENCE OUTLINE
I. INTRODUCTION
A. THE TRIAL
1. Goals
§ discover the truth.
§ final settlement of controversies.
§ achieve catharsis by give parties opp to present opposing views and opinions.
§ maintain peace and social order.
2. Stages of Trial
§ Pre-Trial Motions
o motions in limine (at the threshold) – attempt to resolve impt issues outside the courtroom to avoid the jury from hearing questioned evidence before the court rules on its admissibility.
§ Jury Selection
§ Preliminary Jury Instructions
§ Opening Statements
o π or prosecution will usually go first.
o Δ can choose to wait until π has presented its case before giving opening statement à this is common.
· Δ has 2 advantages:
– gets to hear π’s opening statement and decide what evidence to offer from that, and
– if it waits to give OS until after π’s case, it can remind fact-finder of promises π made but did not keep.
§ Presentation of Evidence
o direct examination
· questioning by party who called the witness.
· goal is to allow fact-finder to listen to witness describe the facts.
o cross-examination
· questioning by opponent.
· want to cast doubt on the witness’s direct testimony.
· goal is to control witness à best way to do this is to ask leading questions.
o limiting instructions
· after ruling on an objection or motion, its sometimes necessary to instruct jury about the evidence.
· more effective if given at the time the evidence is offered, not until end of trial.
· courts have faith that juries will understand and abide by terms of these instructions.
§ Closing Arguments
§ Jury Instruction
3. Judge and Jury Functions
a. Judges
§ largely passive in the trial process – typically, only when the parties call on the Ct to rule on objections to evidence does the judge get involved.
§ determines what evidence jury may hear.
§ decides issues of law:
o relevance and materiality.
o admissibility and competence of evidence.
b. Jury
§ decides factual issues.
§ only hears what judge allows them to hear.
§ but evidence rules cannot regulate their consideration of facial expressions, body language, or tone of voice

B. EVIDENCE
1. Generally
§ evidence is the means, i.e., the data, by which we seek to ascertain what happened. à proof is the end result, i.e., we use evidence in order to achieve proof.
§ evidence refers mostly to the utterances of witnesses and the contents of documentary materials, illustrative exhibits, and real evidence. à two forms: testimonial and real evidence.
2. Federal Rules of Evidence – adopted in 1975.
§ more relaxed approach than the common law. (only NY, MA, and IL adhere to common law of evidence).
§ RULE 101: FRE govern proceedings in federal courts.
o state laws of evidence do NOT apply, even in diversity actions.
· exceptions – state law applies:
1) civil action w/ re to elements as to w/c state law applies the rule of decision, state competency law of a witness applies over FRE.
2) privileges, and
3) presumptions.
§ Reasons behind FRE:
1) shield jurors from unreliable evidence
2) adversary system – if you don’t take advantage of some rules, you waive them.
3) nature of appellate system – they only receive the black and white written record, not witness’ demeanor.
3. Rulings on Evidence

Fed. R. Evid. 103 Rulings on Evidence

(a) Effect of erroneous ruling. Error may NOT be predicated upon a ruling w/c admits or excludes evidence unless a substantial right of the party is affected, and
(1) Objection. In case the ruling is one admitting evidence, a timely objection or motion to strike appears of record, stating the specific ground of objection, if the specific ground was not apparent from the context; OR
(2) Offer of proof. In case the ruling is one excluding evidence, the substance of the evidence was made known to the court by offer or was apparent from the context w/in w/c questions were asked. Once the court makes a definitive ruling on the record admitting or excluding evidence, either at or before trial, a party need not renew an objection or offer of proof to preserve a claim of error for appeal.
(b) Record of offer and ruling. The court may add any other or further statement w/c shows the character of the evidence, the form in w/c it was offered, the objection made, and the ruling thereon. It may direct the making of an offer in question and answer form.
(c) Hearing of jury. In jury cases, proceedings shall be conducted, to the extent practicable, so as to prevent inadmissible evidence from being suggested to the jury by means, such as making statements or offers of proof or asking questions in the hearing of the jury.
(d) Plain error. Nothing in this rule precludes taking notice of plain errors affecting substantial rights although they were not brought to the attention of the court.

a. Objection
i. requirements
§ must show up in the record if it’s a ruling admitting evidence.
§ must be made timely.
o object before the witness answers so that the jury does not hear something they aren’t supposed to.
· but if the witness blurts out the answer before you can make the objection, make a motion to strike the witness’s answer.
– must be specific when making the m/strike, otherwise the point will be waived and the jury could rely upon what was said.
– after making motion, should also ask judge to instruct the jury to disregard the evidence b/c we indulge in the presumption that the jury will follow the judge’s instruction.
o we believe this b/c if we didn’t, every case would end in a mistrial considering how fast things go in trial, how fast people speak, etc.

§ must be specific:
o gives judge opp to think on it,
o gives the adversary a chance to fix it right now, and
o allows appellate ct to see the context in w/c the objection was made and the context of the particular rule.
b. Offer of Proof
§ purpose is to show what the evidence would have been if the judge had allowed it.
§ the jury is excused and it gets put on the record what the witness would have said in front of the jury.
o this can be time-consuming, but its necessary so that we can figure out if there was an error in the ruling, and if so, whether or not it would have made a difference.
c. Appellate review
i. Rule
§ if you do not make the record, there has been a waiver and the matter will not be reviewed on appeal.
§ an appellate court will only reverse a judgment if it holds both that the trial ct erred AND that the error affected a substantial right of the party (i.e., the error was prejudicial).
o so if the error was purely technical in nature or likely did not affect the jury’s deliberations or the outcome of the case, the court will deem the error “harmless.”
ii. standard of review
§ abuse of discretion (flexible) à this is a difficult standard b/c rules 403 and 611 give the trial ct flexibility since they are in a better position to evaluate the matter than appellate courts.
§ de novo (fixed)
d. Plain Error Exception
§ an error is plain if it is so obvious that a formal objection is not necessary to alert the trial ct to the problem.
§ so if the error is plain, an appellate court will review the issue even if the party did not make a timely objection or otherwise make a record for appeal.
C. WITNESSES – must be competent, have personal knowledge, and take an oath/affirmation in order to testify.
1. Competency