Evidence Outline

Evidence Outline – Spring 2016

Professor Moore

Chapter 2: Types of Courtroom Evidence; Chapter 3: Four W’s of the Federal Rules of Evidence; Chapter 4: Structure of a Trial

Types of Evidence

Testimony

Facts witnesses
Expert witnesses
Character witnesses

Real (tangible)
Documents
Demonstrative (illustrative)
The “view”

Allow the jury to go outside and see something

Stipulations

unconstested

Judicial Notice

An artificial division because the federal rules of evidence apply to all kinds of evidence
**Most important time of evidence is testimony
Who never appears as a witness?

Prosecutor*

The stick used to kill the victim is …

Real evidence*

Direct Evidence

Circumstantial Evidence

Evidence Inference Fact

“Defendant left town after stabbing” “Defendants guilty conscience” “Defendant stabbed victim”
“Defendant was washing bloody knife” “Guilty defendant washing knife” “Defendant stabbed victim”

Real evidence now includes video evidence with today’s technology
A plastic bag of powdered sugar at a cocaine trial probably is …

Demonstrative evidence*

The morning after the murder, the defendant left town wearing a disguise.Testimony by a witness who saw him is …

Circumstantial evidence*

The driver of the car is charged with criminal vandalism and assault.The store’s security video tape is:

Real evidence.*

Who wrote the Federal Rules of Evidence?

An Advisory Committee and Congress*

The Federal Rules of Evidence do NOT apply to proceedings…

In the U.S. Supreme Court*

Federal Rule of Evidence 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.

When do state courts follow the Federal Rules of Evidence?

If they have adopted the federal rules as their own*

Federal Rules v. Florida Rules

Federal Rule of Evidence 301. Presumptions in Civil Cases Generally
In a civil case, unless a federal statute or these rules provide otherwise, the party against whom a presumption is directed has the burden of producing evidence to rebut the presumption. But this rule does not shift the burden of persuasion, which remains on the party who had it originally.
Florida Evidence Section 90.301 Presumption defined; inferences.—
(1) For the purposes of this chapter, a presumption is an assumption of fact which the law makes from the existence of another fact or group of facts found or otherwise established.
(2) Except for presumptions that are conclusive under the law from which they arise, a presumption is rebuttable.
(3) Nothing in this chapter shall prevent the drawing of an inference that is appropriate.
(4) Sections 90.301-90.304 are applicable only in civil actions or proceedings.

What evidentiary rules apply in federal grand jury proceedings?

Only the privilege rules apply*

Federal Rule of Evidence 1101

(d) Exceptions. These rules–except for those on privilege–do not apply to the following:
. . .
(2) grand-jury proceedings . . .

What evidentiary rules apply during sentencing in federal court?

None of the FRE apply except the privilege rules*

Federal Rule of Evidence 1101

(d) Exceptions. These rules–except for those on privilege–do not apply to the following:
. . .
(3) miscellaneous proceedings such as:
. . .
• sentencing . . .

Chapter 5: Raising and Resolving Evidentiary Objections

103(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 of the party and:

(1) if the ruling admits evidence, a party, on the record:

(A) timely objects or moves to strike; and
(B) states the specific ground, unless it was apparent from the context . . .

You must make a timely and specific objection
If ruling admits:

(1) timely object and specific or
(2) move to strike if already admitted or said

Rationales for the requirements of timely and specific objections

Trial court needs opportunity to correct any error at that time.
Possible consent – appellant may have known there was error, but “lay in the weeds” hoping it would not harm case.
Adversarial system – it is counsel’s job to bring these matters to