Evidence Outline

 
Evidence Musto Summer 2015
 
 
CHAPTER 2: TYPE OF COURTROOM EVIDENCE
 
Types of Evidence – 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.
 
1.      Oral Testimony – witnesses speaking from the witness stand.
a.       Fact Witnesses  – these are people who perceived facts related to the lawsuit and testify about those facts. Have firsthand knowledge about the controversy in question. Often referred to as “eyewitnesses.”
b.      Expert Witnesses – use specialized knowledge to interpret evidence or explain it to the jury.
c.       Character Witness – these witnesses do not testify about facts directly at issue in the lawsuit. Instead, they offer information about the good or bad character of a party or witness.
                                                               i.      The government is an abstract entity that cannot take the stand to testify against the defendant.
2.      Real Evidence – is any physical evidence that a party claims played a direct role in the controversy
                                                               i.      All real evidence must be authenticated – that is, the proponent must offer some proof that the piece of physical evidence is what she claims it to be.
3.      Documents – encompasses any type of writing or recording of information.
                                                               i.      These documents must be authenticated to ensure that they are what the proponent claims them to be.  The FRE require the party to admit the document itself into evidence (instead of testifying about this evidence) unless all available copies have been lost or destroyed.
4.      Demonstrative Evidence – It is a recreation or imitation of some aspect of the controversy used to illustrate concepts or facts to the jury. It is sometimes physical but, unlike real evidence, is not an object that played a role in the disputed events.
                                                               i.      It is monitored to insure that it does not mislead or distract the jury.
                                                             ii.      Hypo: Attorney uses a bat similar to the one involved in a battery to recreate the events and manner in which victim was hit.
5.      Stipulation – if both parties agree on a fact, they can stipulate that the fact is true for purposes of the litigation.  To introduce this evidence both parties must agree on its exact language.
6.      Judicial Notice – if a fact is indisputably true, the judge can take notice of this fact. It must be “generally known” or “accurately and readily determined” by consulting an unimpeachable source.
 
Note: Photographs and Videos
–          Photos and videos do not constitute their own category of evidence; depending on the context, they should be classified as either demonstrative evidence or real evidenceàif a photo or video depicts the events of a controversy directly, it constitutes real evidence.
–          Real Evidence is more readily admissible than demonstrative evidence. Of course, even real photographic or video evidence may be excluded if it is unduly graphic or will provoke an unwanted emotional reaction among jurors.
 
Circumstantial Evidence v. Direct Evidence
Circumstantial Evidence: is any evidence that requires the jury to make an inference connecting the evidence with a disputed fact.
Direct Evidence: requires no inferential bridge; it directly establishes a contested fact.
o   The distinction has no legal effect
o   Always look for evidence that requires the fewest possible inferences.
o   Hypo: Witness sees ∆ swinging a bat in front of π, witness closes eyes and when he opens them again, sees π bleedingà Here whether ∆ hit π with bat is circumstantial evidence; the eyewitness is direct evidence.
o   Note: Some circumstantial evidence (i.e. Fingerprint on a gun) can be stronger than direct evidence (i.e. eyewitness) depending on the case.
 
CHAPTER 3 : WHY, WHO, WHERE, WHEN
 
Evidentiary Rules Exclude Evidence:
1.      To protect the jury from misleading information
2.      To eliminate unnecessary delay and promote efficiency
3.      To protect a social interest, such as a confidential relationship
4.      To ensure that evidence is sufficiently reliable
 
RULE 101. SCOPE; DEFINITIONS
(a) Scope. These rules apply to proceedings in United States courts. The specific courts and proceedings to which the rules apply, along with exceptions, are set out in Rule 1101.
 
RULE 1101. APPLICABILITY OF THE RULES
(a) To Courts and Judges. These rules apply to proceedings before:
· United States district courts;
· United States bankruptcy and magistrate judges;
· United States courts of appeals;
· the United States Court of Federal Claims; and
· the district courts of Guam, the Virgin Islands, and the Northern Mariana Islands.
(b) To Cases and Proceedings. These rules apply in:
· civil cases and proceedings, including bankruptcy, admiralty, and maritime cases;
· criminal cases and proceedings; and
· contempt proceedings, except those in which the court may act summarily.
(c) Rules on Privilege. The rules on privilege apply to all stages of a case or proceeding.
(d) Exceptions. These rules — except for those on privilege — do not apply to the following:
(1) the court’s determination, under Rule 104(a), on a preliminary question of fact governing admissibility;
(2) grand-jury proceedings; and
(3) miscellaneous proceedings such as:
· extradition or rendition;
· issuing an arrest warrant, criminal summons, or search warrant;
· a preliminary examination in a criminal case;
· sentencing;
· granting or revoking probation or supervised release; and
· considering whether to release on bail or otherwise.
 
–          Summary contempt: proceeding to adjudicate contempt in immediate presence to the court.
–          Judges have the power to impose summary contempt when they directly witness contemptuous behavior.
–          Preliminary questions of fact occur before or after trial.
 
Points to know:
–  Supreme Court: Rules 101 and 1101, curiously, do not mention the Supreme Court of the United States; the FRE do not govern proceedings before that court. The FRE do not apply by their own terms to administrative agencies.
– The rules apply only to the main event of litigation: the trial
– Even when the FRE do not apply in their entirety, the rules governing privilege apply.
– Legislative History: Most rules were proposed by an Advisory Committee of experts, a few originated in Congress, but ALL have been enacted by Congress sometimes with changes to the AC’s proposals.
– Remember: Privilege rules apply to all proceedings.
 
CHAPTER 4: STRUCTURE OF A TRIAL
 
In the Courtroom – sequence for a typical jury trial
1.      Pretrial Motions – some of these motions focus