Evidence Outline

Evidence

O’Brien – Fall 2008

INTRODUCTION

A. Rules of Evidence FRE 101
1. FRE 101: Rules of Evidence apply to all US cases, non jury trials, but not grand juries or sentence proceedings
2. Non-jury cases: The judge will follow the FRE but may be more lenient – he may let in more evidence than would in a jury case feeling that he is not as subject to unfair prejudice or misleading information as the jury might be
B. Laying the foundation for admission of evidence
1. FRE 602: A witness may not testify to a matter unless evidence is introduced sufficient to support a finding that the witness had personal knowledge of the matter. Evidence to prove personal knowledge may, but need not, consist of the witness’ own testimony.
2. Need to establish facts that will qualify under the admissibility rules of evidence. Need to show relevance, why it should be admitted and why it qualifies under rules of evidence.
C. Objections to Evidence
1. Need to make objection: Rules of evidence only work if there is an objection – the party who contends that opposing counsel’s question is improper or that certain evidence should be excluded promptly advises the trial judge the contention and reasons for it.
2. Specific objection: it is recommended that any objection by accompanied by a reasonably specific statement of the grounds for it
3. Timely objection: An objection must be made as soon as the basis for it becomes apparent-failure to make a timely objection usually waives the objection.
4. Other pre-trial motions: lawyers can file a motion in limine (at the threshold) to ask the judge in advance to exclude controversial or unfairly prejudicial evidence.
a. The judge may be hesitant to exclude evidence in limine-may give a provisional ruling that opposing counsel is instructed not to refer to the matter in the presence of the jury-must approach the bench before anything is shown to the jury.
b. Impossible to unring a bell – judge wants to prevent the jury from being exposed to evidence that maybe inadmissible
c. FRE 103(a): if judge has overruled motion in limine, then don’t need to object again; the judge has made a definitive ruling
D. Offer of Evidence and Offer of Proof
1. Offer of Evidence: is tangible such as writings, photos, murder weapons, etc.
2. Offer of Proof: If you offer evidence and the judge sustains the objection, you need to do something further and preserve the point for appeal (so can determine error)
a. can come into play before or during an offer of evidence-usually during the examination of a witness on the stand. (examining attorney may make a specific offer of what he expects to prove by the answer of the witness)
3. Proper Offers of Proof:
a. What: Want to demonstrate what the evidence was
b. Purpose:the purpose of the evidence – to demonstrate relevance
c. Why:Why the evidence should be admitted over the objection
4. 2 purposes for offering proof:
a. 1) If properly made, an offer of proof will permit the trial court to make a fully informed and correct ruling on the objection.
b. 2) If the ruling is adverse to the introducing party, an adequate offer of proof is ordinarily essential to preserve the point for post-trial review.
· How to preserve my points for appeal- 1) make timely objections with specific grounds; 2) lay a proper foundation for evidence-if objection is sustained, 3) I want to make an offer of proof to allow me to raise the question. All of this will preserve the claim of error for appeal
· If didn’t preserve points for appeal: can ask for a plain error of review but this is rare
5. 3 Basic Ways of Making an Offer of Proof During a Witness Examination
a. Tangible Offer: Hand the exhibit to the court reporter to include in the trial record.
b. Witness Offer: FRE 103(b) Examining counsel makes their offer of proof through the witness. Counsel proceeds with questioning and the witnesses responses. Then the counsel will proceed to show the relevance
c. Lawyer Offer: FRE 103(c) During direct examination, if an objection rules out an answer then counsel can, and on the record, show what the witness’ answer would have been. This evidence is usually shown without the presence of the jury

GENERAL PROVISIONS
FRE 101: Scope: FRE applies to US cases and non jury trials, but not to grand juries or sentencing proceedings
FRE 102: Purpose;: the purpose of FRE is to secure fairness and ascertain the truth
FRE 103: Rulings on Evidence: error can’t be made unless there is a: (once court makes definitive ruling, objection is not necessary for preservation of appeal
FRE 103(a)(1): Proper objection: (timely, specific)
FRE 103(a)(2): Offer of proof: was made (the substance of the evidence was made known)
FRE 103(b): Record of offering and Ruling: court can add further statement which shows the character of evidence
FRE 103(c): Hearing of jury: need to prevent inadmissible evidence from being suggested to the jury (making statements, offers of proof, asking questions)
FRE 104(a): Preliminary Questions: court gets discretion concerning the qualifications of a person to be a witness, if there is a privilege, or if the evidence is admissible
FRE 104(b): Relevancy Conditioned on Fact: if evidence relevancy depends on a condition, the court should admit evidence once that condition is met
FRE 104(c): Hearings of jury: admissibility of confessions should be made out of the ears of jury. Other preliminary matters should be conducted with the interest of justice
FRE 104(d): Testimony by accused: accused can’t be subject to cross if they testify on a preliminary matter
FRE 104(e): Weight and credibility: can introduce evidence of weight and credibility
FRE 105: Limited Admissibility: the judge can use its discretion to limit the scope of the evidence
FRE 106: Remainder of Writings or Recorded Statements: if on party introduced writing or recorded statement, the other party can ask to introduce other writings or recordings.

General rules of Relevance

A. FRE 401:Relevant evidence means evidence that tends to make the existence of any fact more probably or less probably than it would be without the evidence. Evidence needs to prove or intend to prove some important fact to the action in the case. If not, then its not relevant. Need to tend to prove it; move the dial just a little.
1. Relevancy is a less stringent test than sufficiency
2. Move the dial: An item of evidence is relevant when it tends to prove or disprove, however slightly an issue at trial. Doesn’t have to prove the fact a whole lot, just needs to move the dial a little bit; evidence just needs to make fact more probably than without the evidence – KNAPP v. STATE.
3. Circumstances: The reasonable belief of a party needs to be examined based on the particular circumstances – this is what the cop believed ‘at the time’ and because of this, helped indicate whether the evidence is relevant or not – SHERROD v. BERRY
B. How do you know if it is relevant?
1. What is the issue for which the evidence is being offered?
2. Does the evidence offered make the truth of the issue more or less probable?
C. Evidence needs to be:
1. 1) Probative: make the proposition more (or less) likely than it would be without the evidence.
2. 2) Material: There must be a link between the factual proposition which evidence tends to establish and the substantive law (“of the consequence to the determination of the action”)
3. Summary: Evidence tending to make the existence of any fact of consequence to the determination of action (materiality) more or less probable than it would be without evidence (probativeness)
D. FRE 402: Evidence that is not relevant is not admissible; All relevant evidence is admissible, except as otherwise provided by the Constitution of the US, by Act of Congress, by thes