EVIDENCE FALL 2012-STEWART
I. Types of Evidence
a. Evidence means testimony, writings, material objects, or other things presented to the senses that are offered to prove the existence or nonexistence of a fact.
b. Oral Testimony: witnesses on stand
i. Fact Witness: eye witnesses that perceived an event central to the trial using any of the 5 senses.
· Need to have some kind of firsthand knowledge (foundation)
ii. Expert Witness:
· Use specialized knowledge to interpret evidence and explain it to the jury.
· Don’t need to have any kind of firsthand knowledge about the controversy in question. They just review the data and offer their expertise on the secondhand information.
iii. Character Witness:
· Do not testify about the facts directly at issue in the lawsuit; so don’t need any type of firsthand knowledge of the controversy at hand, just the character of the person they are testifying about.
· Only offer information about the good or bad character of a party or witness.
iv. Party Witness
· These are the individuals or organizations that oppose each other at trial
· Parties or victims are used as fact witnesses as long as they perceived something relevant to the litigation and are competent to testify.
· Criminal defendants have the right not to testify under 5th Amendment—self-incrimination.
a. Criminal def have right to confront accuser under 6th amendment, so P has to testify.
· Prosecutor can never testify at trial (just like an attorney who has attorney client privilege.)
c. Real Evidence
i. Any physical evidence that a party claims played a direct role in the controversy.
ii. No more real or important than other types of evidence.
iii. All real evidence must be authenticated, which the proponent does by offering some proof (usually oral testimony) that it’s what he claims it to be
· i.e. witness testifying that the item is the gun seized from D’s car.
iv. Persuasiveness: can be more persuasive to juries to see the actual item, so use it whenever you can.
v. Photographs: can be a demonstrative aid or real evidence, but are only evidence when it accurately reflects what really happened
d. Documents
i. Any type of writing or recording of information
ii. Must be authenticated to ensure that they are what the proponent claims they are.
iii. Examples: faxes, emails, receipts, wills, contracts, scraps of paper with written down information.
e. Demonstrative Evidence
i. Not something that played a role in the controversy.
ii. Not marked as real evidence
iii. Drawings, graphs, photographs, ppt slides, scale models, acting/actors
iv. Re-creation or imitation of what happened, so either party can misrepresent what really happened
f. Stipulation
i. Both parties agree on a fact=they stipulate=the fact is true for both purposes of litigation
ii. Both parties must agree to its exact language, and the judge or proponent reads the stipulation to the jury
iii. Not really a type of evidence but a pathway to admitting evidence
g. Judicial Notice
i. When fact is indisputably true, so trial judge takes judicial notice.
ii. Fact must be generally known or accurately and readily determined.
h. Photographs/Videos
i. Classified as either real evidence or demonstrative evidence (not their own category)
ii. Real evidence if depicts the events in controversy directly (the incident itself)!
· E.g. security camera recording of robbery, cell phone camera recording crime
iii. Real evidence more likely to be admitted than demonstrative evidence
II. Trial Structure
a. Pretrial Motions
i. Motions in limine: motions regarding whether or not information is admissible under the FRE.
· Advantages:
a. Knowing in advance what can and can’t be included can help attorneys plan for trial.
b. Allowed to make lengthy legal arguments for and against submissions (as opposed to during trial when arguments are brief).
c. If objections made during trial, jury will jump to conclusions that evidence is important when it might not be or it means more because the atty wanted to exclude it.
ii. Motion to suppress:
· Party filing is claiming that evidence was illegally obtained (not whether it will violate FRE)
iii. Motion for summary judgment
· Argue “that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.”
· Here, judges make a ruling about the evidence, not jury.
b. Opening Statement:
i. Tells a compelling story and reflects the evidence that will unfold during trial.
ii. Not evidence. Can’t use witnesses but may use demonstrative evidence like charts, slides, and other visual aids.
c. P’s Case in Chief (CIC)
i. Presents all evidence that comprises of the case
d. D’s CIC
i. After P’s CIC, D can move for judgment as matter of law. (Only granted if judge finds no reasonable jury could find for P (after examining all evidence in best possible light)).
· Rarely granted.
e. P’s Case in rebuttal / D’s Case in Rebuttal
f. Closing
i. Summation of arguments
III. Objections
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 [ZS1] of the party…
(1) if the ruling admits evidence, a party, on the record:
(A) timely[ZS2] objects or moves to strike[ZS3] ; and
(B) states the specific grounds, unless it was apparent from the context
(2) if the ruling excludes evidence, a party informs the court of its substance by an offer of proof[ZS4] , unless the substance was apparent from the context.
b. 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 appeals.
d. 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. A court may take notice of a plain error affecting a substantial right, even if the claim of error was not properly preserved.
· Judge’s ruling
o Sustain: judge agrees with an evidentiary objection and excludes the evidence.
o Overrule: judge disagrees with the objection and admits it.
o Redact: judge directs party to eliminate certain portions of the document that violates an evidentiary rule.
o Curative instruction: if admissible evidence inadvertently reaches jury, judge tells jury to disregard the evidence (and sometimes explains why).
o Limiting instruction: if evidence is admitted for a specific or limited purpose judge tells jury that it may be used for certain purposes and not for others.
§ Rule 105. Limiting evidence that is not admissible against other parties or for other purposes
If the court admits evidence that is admissible against a party or for a purpose –but not against another party or for another purpose—the court, on timely request, must[ZS5] restrict the evidence to its proper scope and instruct the jury accordingly.
· Sometimes can draw jury’s attention to damaging evidence rather than restrict it.
o Appellate courts rarely reverse trial decisions based on evidentiary issues alone.
§ Why?
· Appellate courts apply abuse of discretion standard, so the trial judge has discretion and will only be reversed if judge abused it. Seldom happens.
· Appellate judges reverse trial decision only if the error affected a “substantial right” of one of the parties. (103a)
o Affects substantial right only if there is a reasonable probability that, if the judge made the correct ruling, the outcome of the case would’ve been different.
o Most evidentiary missteps constitute harmless error.
o Only applied when judge misinterprets a Rule of Evidence or applies the wrong legal standard at trial.
i. Husband shot wife. Claimed it was an accident. Prosecutor introduced photos to debunk that defense. Although photos were gruesome and would illicit emotional reactions from jury, the photos were admitted because the purpose of introducing them was essential to the case, i.e. to debunk D’s defense.
ii. Mother murdered. Photos of children’s bloody handprints were introduced. Not admitted because other photos were enough, and the handprint photos would have outraged the jury, making it harder for them to weigh the evidence dispassionately. (Judges try to “split the difference” by allowing some photos and excluding the ones that are most prejudicial)
iii. Socially undesirable behavior:
· Evidence is usually not admitted because juror bias will lead them to view opponent negatively—unless it’s of consequence to the case. Ex: sexual orientation, spendthrifts, debt
· Ex: P introduces evidence of D’s opulent lifestyle. Admitted because it shows motive for their embezzlement.
· Ex: D was president of a gang. P sought to introduce Constitution which had a white-only provision for membership. Appellate court said trial judge abused discretion, because the prejudicial effect outweighed any probative value since there were other methods to show “unity of purpose” of gang. (jury would be clouded by racial issue if introduced)
· Ex: Ds charged with robbery, etc. P introduced evidence showing their hate for non-whites. Evidence was admitted because it was used to show that they only did the crimes in order to advance their membership within a white supremacist group. Despite prejudicial effect, the evidence was probative to prove motive.
iv. Flight:
· Evidence of suspect fleeing will not be admitted unless the probative value outweighs prejudicial effect. This is seldom the case, so unless D opens the door to having the evidence introduced, then it won’t be admitted.
a. E.g. D was supposed to surrender to cops but instead fled to FL for 4 years. At first, judge didn’t allow evidence of this. However, D addressed the 4-year delay in government bringing the case, so P was able to introduce evidence of his flight in order to right the prejudicial effect of what D addressed (so D was the one that increased the probative value of flight). (see page 80).
g. Undue delay, Wasting Time, and Cumulative Evidence (duplicating other evidence)
i. E.g. D lied to grand jury and investigators. At trial introduced a faulty memory defense and tried to offer a mountain of evidence about the stuff preoccupying his mind. Not admitted because it would waste time and confuse the jurors.
[ZS1]Only if there is a reasonable probability that outcome of the case would’ve been different if the judge made right ruling.
[ZS2]Must object to evidence as soon as the ground for objection is known or should have been known.
[ZS3]Objection occurs before the evidence fully emerges/is admitted.
Motion to strike occurs after the disputed evidence has already entered the record
[ZS4]Judges have discretion on what kind of offer of proof they want. If it’s a QA, the attorney can give the answer the witness would give or have the witness answer to judge.
[ZS5]Judge has no discretion; he must give the limiting instruction if party requests it.
[ZS6]Counterbalances the low threshold of 401 and 402
[ZS7]Unfair prejudice and confusing the issues objects aren’t usually invoked during a bench trial because judge is the fact finder. 3 is.
[ZS8]If it enflames the jury’s passions or introduces an improper basis for decision
E.g. real-time video event=damaging but not unfair!-as long as part has opportunity to cross examine the filmmaker about editing and perspective
