Lewis
Evidence
Fall 2010
EVIDENCE OUTLINE
EXAM STUFF:
àExpert testimony can make for great exam question
à4 h exam.
àAnswers should be written in accordance with FRE unless directed otherwise.
à30 MC Qs, each has 5 possible answers, pick BEST one. Have 2h for the MC, then Scantrons will be collected, but can go onto essays if finish MC early. Don’t jump to conclusions.
à3 essay Qs, have 2h total. 30 min on 1st one and 45 min on the other 2. Limited space. Should have about 2x as much as needed.
àMC is worth 50% and essays worth 50%
àthe examination instructions include this statement:”Answer all questions according to the Federal Rules of Evidence as interpreted and applied in a United States District Court.” We have seen that the common law is largely restated by the FRE. In some circumstances the FRE departed from the common law and we have discussed those departures. In some instances Illinois law and Missouri law varies from the FRE, and we have discussed some of those differences as well. This is all important context for understanding the FRE.
I. INTRODUCTION
àdefinition of evidence (Johnson case): Evidence consists of testimony of Ws, writings, material objects, or anything presented to the senses an offered to prove the existence or non-existence of a fact.
àStatements of attorneys made during trial are NOT evidence.
àAim of FRE is to attain accurate resolution of disputes—rules are structured around the Q: What is the effect on the accurate resolution of disputes of allowing a jury to consider this type of information?
àOver 40 states have adopted the FRE, but not MO or IL (but state SCs have approved various FRE)
II. TRIAL PROCESS
A. ORDER OF EVENTS AT TRIAL
1. Motions in Limine: Pre-trial motions made by the parties to obtain rulings on anticipated evidentiary problems. Outside of presence of jury. No provision in FRE.
àMay be filed by either PROPONENT OR OPPONENT OF EVIDENCE.
à If judge rules that an item NOT admissible, no attempt can be made at trial to get it admitted and jury will not hear about it at all.
àIf proponent thinks that admissibility of an item of evidence is in doubt, may want to get a pre-trial ruling so can know whether you need alternative evidence
2. Jury Selection
3. Preliminary Instructions to Jury
4. Opening statements: P goes first. Neither evidence nor argument—just a compact narrative of what attorney believes in GF the evidence will show. Argument is not permitted (i.e. conclusions or inferences derived from the evidence, contentions about legal rules, and comments about W credibility)
5. Presentation of Evidence
6. Post-evidence matters: Outside of presence of jury; e.g. D may make a motion for a DV; parties will argue over jury instructions at this phase
7. Closing arguments: Argument and discussion of law ARE permitted (contrast to opening statements); attorneys may only discuss facts based on evidence admitted at trial; may discuss jury instructions
8. Jury Instructions: Court may provide written copy to jury.
9. Jury Deliberations and Verdict: Jurors allowed to have exhibits with them in the jury room; can ask Qs about law or facts during deliberations, but will often get uninformative answers because parties probably won’t be able to agree on response and judge won’t want to create grounds for appeal. Unanimity required in federal criminal cases. Unanimity required in federal civil cases unless parties agree otherwise.
10. Post-Trial Motions
àThe verdict =/= the judgment. Verdict is jury’s ultimate decision. Judgment is the judicial act that concludes the case—usually a short document signed by judge, which may simply restate verdict or may include additional issues (e.g. injunctive relief). It is the judgment that has legal effects (e.g. res judicata). Judgment may differ from the verdict if the court grants a post-trial motion reversing the verdict
àMotion for JNOV and Motion for a new trial usually brought together by losing party. Appellate review of a jury trial is a review of the trial court’s decision denying one or both of these motions.
àMotion for JNOV grounds—considering evidence in light most favorable to non-moving party, no reasonable jury could have reached that verdict.
àMotion for new trial grounds: e.g. include erroneous instructions, excessiveness/inadequacy of damages, irregularities in trial or jury deliberations, erroneous admission or exclusion of evidence, verdict is against the weight of the evidence
B. ORDER OF PROOF (step 5 from §II.A.)
1. Gross Order: Governs presentation of proof by each party.
àThree stages: opening, presentation of evidence, closing.
àGeneral order:
àProsecutor or plaintiff presents his/her evidence first (because has burden of proof/production); must present evidence sufficient to prove each element of the c/a or crime charged
àP rests; court w
prejudice. Court says this was a tactic to circumvent the hearsay rule and thus was “mere subterfuge”.
· NOTE the court seems to announce a categorical rule of exclusion—impeachment should not be permitted when the prior inconsistent statement is the alleged confession for the crime which the D is being tried.
àLEADING QUESTIONS
àLEWIS’S TEST for leading questions: Ask whether a reasonable person would get the impression that the examiner desires one answer rather than another (e.g. Did the D not then assault the woman? Was the sound like the scream of a woman in fear or was it otherwise? The D’s car approached the intersection and proceeded through even though the light was red—is this how it happened?)
àGENERALLY NOT permitted on DIRECT, except as may be necessary to develop the W’s testimony (611(c)) (rationale: W is generally going to cooperate with the party that called him—therefore use of leading question would be unfair).
àEXCPETIONS: leading Qs may be necessary on DIRECT to
(1) develop the testimony of a W where it is more necessary; e.g., the W is a child, or someone with diminished mental capacity.
Or
(2) if Q goes to background information as to which there is no dispute
Or
(3) (611(c))—when the undue suggestive influence of a leading question would not be present
(1) the party calls a hostile/uncooperative W
àHostile W: a W that is presumed friendly/neutral when called to stand, but who, during questioning, demonstrates an attitude sufficiently hostile to the questioner to raise an inference of opposition to the examiner’s client or identification with the adverse party. Examining attorney can ask court to declare the W hostile
(2) the party calls an opposing/adverse party, or a W identified with an adverse party (e.g. the adverse party’s employee, agent, etc.)
àAfter direct examination of a hostile or adverse witness, the other party has right to do a “friendly cross-exam” where leading questions are ordinarily prohibited
