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Evidence
Stetson University School of Law
Henderson, Carol

EVIDENCE
HENDERSON
2012



I. INTRODUCTION- Order
A. Appearance-
1. Presentment- is the Δ’s first appearance in court. Here, the Δ is read his legal rights and what he is being charged with. Here, the Δ says nothing. The judge will set the next court date, set bail, etc.
B. Preliminary Hearing- purpose is to screen the prosecutor’s decision to charge the Δ.
1. People present: judge, prosecutor, Δ, and defense attorney. Here, the prosecutor will call witnesses.
2. Will get the elements of the crime at this stage
3. Δ has the right to cross-examine the witnesses at this stage
4. Δ does not have an obligation to call any witnesses. The judge, at the end of the hearing, has to find that there is probable cause to believe that the Δ committed this crime
5. If no probable cause, the case is dismissed
6. If the judge does find probable cause, then the case is sent to the grand jury
7. (If not in a grand jury jurisdiction, the court will issue an “information”)
C. Grand Jury- Grand jury’s job is to decide whether there is sufficient evidence to support the charge. If no, charge is dropped. If yes, then the grand jury will issue an indictment. Prosecutor will file indictment with the court. (purpose is to protect the alleged criminal).
1. people present: prosecutor and grand jurors. (Δ nor defense attorney is present at the grand jury).
2. No formal cross-examination of these witnesses.
3. Witnesses are not permitted to have their attorney present at the grand jury.
D. Arraignment-This is the first time the Δ is asked to speak. This is where the Δ is formally asked to plead (guilty, not-guilty, no contest). No explanation is needed for the Δ’s pleading.
1. Present: Δ, prosecutor, defense attorney.
2. If guilty or no-contest: judge will decide sentencing.
3. If not-guilty: set trial date.
E. Pre-Trial-this is where motions can be made (to throw out evidence).
F. Trial-(this is where the course begins).
1. Jury-Voir Dire- procedure for selecting a jury. (procedure dependent on the court/jurisdiction). In some jurisdictions, the attorneys are allowed to ask the jury panel questions, other jurisdictions-the judge asks the questions. These questions are to see if the members are to be seated as members of the jury.
a.        Cause- challenge for cause. “For Cause” challenges are unlimited. Reasons: usually, the panel member is tainted in some way. If an attorney thinks that the panel member has a conflict, the attorney asks the judge to strike the panel member for cause.
b.       Peremptory- any or no reason to strike a panel member. For a 12 person jury, you usually get 3-4 peremptory strikes
G. Note- All of this is governed by the rules of criminal procedure.  All of the discovery and motions are governed by civil procedure.
H. Note- In federal court, the presentation of facts are governed by the federal rules of evidence. In state court, they are governed by the respective state’s rules of evidence.
I. FRE Scope-
1. FRE 101- Intro and scope
2. FRE 1101(d)- Exceptions:
a.        FRE do not apply to preliminary questions of fact, grand jury proceedings, or miscellaneous proceedings. However, the FRE applicable to privilege apply in any and all proceedings.
b.       Rule on the witnesses: FRE 615 “Exclusion of Witnesses”- at the request of a party, the court shall order witnesses excluded so that they cannot hear the testimony of other witnesses. This is mandatory. By request, the witnesses must be excluded.
J. Order at Trial-
1. Opening Statement- nothing said is evidence. Everything is “this is what we are going to prove”…and must include what the evidence is, but the opening statement itself if not evidence.
2. π Opening Statement
3. π Case-in-Chief
4. π- Witness #1- FRE 603- Oath- before testifying, the witness shall be required to declare, swear, or affirm that they will testify truthfully.
a.        Direct Examination by π- FRE 611(c)- leading questions (a question that suggests the answer) may not be used.
b.       Opponent can object to any leading question.
c.        When π calls a “hostile witness”-a witness associated with the other party, the π’s attorney can use leading questions.
d.       Examinations are only permitted to be in question/answer format…if the attorney asks an open ended question or asks an irrelevant question-the opposing party can object.
i.  The opposing attorney should object before the witness speaks, so that the jury does not hear it.
ii. If the witness says something impermissible (like hearsay), and the attorney didn’t know that impermissible evidence was coming, the opposing party can ask to have that stricken.
5. Cross by Δ- FRE 611(c,b)-Δ’s attorney is permitted to ask leading questions.
a.        FRE 611- Mode and Interrogation of Witnesses-the judge has the discretion to exercise the control of the interrogation of witnesses. This is done for to ascertain the truth, for time effectiveness, and to protect the witnesses from harassment or undue embarrassment.
6. Redirect by π-If any new information is brought up, the π can redirect.
7. Recross by Δ—
a.        Note-*This process can go about indefinitely, as long as new information is brought up
8. π Rest-
9. Δ Motions-
10. Objections-
a.        FRE 103(a)(1)- Give the judge the grounds for your objection and proof
i. Sustain-the judge agrees with the objection
ii. Overrule-judge does not agree with the objection
b.       Offer of Proof-allows the judge to reconsider the issue previously objected upon (and likely it was sustained)
i. FRE 103(a)(2)-you must object in order to preserve the issue for appeal. (some exceptions apply)
11. Δ Opening Statement
12. Δ Case-in-Chief
13. Δ Witness #1
a.        Direct by Δ
b.       Cross by π
c.        Redirect by Δ
d.       Recross by π
14. π Rebuttal
a.        π Witness #…
15. π and Δ Rest
16. Motions
17. Instructions
18. Closing Arguments (usually ends with the party that has the burden. This is jurisdiction dependent)
19. Verdict
K. FRE covered
1. 101
2. 1101
3. 615, 611 (a),(b),(c)
4. 603
5. 103 (a), (b)- if you want to preserve an issue for appeal, you must object and you must object specifically. How specific? Just need to state the basis for the objection. Doing this will also preserve your issue for appeal.
6. 401, 402, 403, 404, 405, 406
7. 105
Admissibility of Evidence
Admissibility Questions: Overall
1. What is the offered evidence?
2. Is it relevant? (401, 402)
3. Should it be excluded? (403) Consider alternative evidence
4. But government is entitled to prove its case

RELEVANCE- generally, all relevant evidence is admissible (unless it falls into an exception category). Evidence which is not relevant is not admissible (FRE 402). 
I. What is “Relevant Evidence”?- FRE 401- Evidence  having any tendency to make the existence of any fact that is of consequence to the determination of the action more or less probable and that evidence is properly provable in this case.
A. Direct v. Circumstantial Evidence- The evidence need not be direct to be relevant. Circumstantial evidence is also admissible (with exceptions).
1. Circumstantial Evidence is evidence of a collateral fact from which the existence or nonexistence of the facts in issue can be inferred
B. Contested Fact- The fact that the evidence lends to does not have to be contested to be admissible
C. Admissibility v. Credibility- The judge decides admissibility, the jury decides credibility. FRE 403 does not permit exclusion of evidence because the judge does not find it credible.
a. .*Weighing probative value against unfair prejudice means probative value with respect to a material fact if the evidence is believed, not the degree the court finds it believable
D. Questions to Ask under FRE 402:
1.What is the evidence?
2.What is the evidence offered to prove?
a. The evidence need not be in dispute to be relevant
3.Does the evidence make what it is offered to prove more or less probable? (probative value)
a. [Is #2 properly provable in this case?] b. There is no test to determine whether the evidence is probative. (Look to logic and general experience) Courts make factual assumptions in determining whether the evidence is probative.
4.Is what the evidence is being offered to prove of consequence to the determination of the action?
a. [Is #1 probable of #2?] II. EXCEPTIONS to the admissibility of Relevant evidence:
A. Propensity (Character) Evidence- Character evidence is NOT admissible
1.FRE 403- Evidence is inadmissible when the probative value (of the evidence) is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence. (Old Chief v. U.S.)
a. “Unfair Prejudice” means an undue tendency to suggest decision on an improper basis, commonly, though not necessarily, an emotional one
2.FRE 404(a)-Evidence of other crimes, wrongs, or acts is NOT admissible to prove the character of a person in order to show the current alleged crime is in conformity

show in order to introduce the specific instances for the other purpose (FRE 404(b) evidence)?
a) Trial judge must examine all the evidence and decide whether the JURY could reasonably find the facts (tv’s were stolen and Δ sold them) by a preponderance of the evidence..
b) If the judge decides if a jury could find by a preponderance of the evidence…then it is admissible (as long as a 404(b) determination is satisfied).
ii. 404(b)-Applies to both criminal and civil cases
iii. FRE 404(b) Analysis:
a) Could a jury find, by a preponderance of the evidence, that the evidence is sufficient to support a finding that Δ is responsible for the 1st act/offense?
b) If yes, is the evidence offered for a RELEVANT purpose other than propensity?
c) If yes, analyze FRE 403 balancing test
iv. EXAM TIP: Whenever a statement is relevant to prove a 404(b) instance such as intent, motive, plan, confusion, knowledge, or other relevant mental state…look to 803(3) (Hearsay exception- State of Mind) to see if admissible.
d. If Δ Was Previously Acquitted- If Δ was acquitted in criminal case and then later tried in civil case for either the same or different crime…..Acquittal of other crime as evidence is ADMISSIBLE …
i. Because the BoP required to admit the evidence in the 2nd case (civil) is significantly less (by a preponderance of evidence) than what was needed to find the Δ guilty in the 1st case (beyond a reasonable doubt) of which he was acquitted.
e. Character is an Essential Element- Character is an “essential element” only when it is an ultimate issue (i.e. in a defamation case)—and not being used as evidence of anything else.
i. When evidence of character is offered as circumstantial evidence to prove some other fact, then character is not an essential element.
ii. FRE 405(b)- If character is a relevant element of a claim or defense, you may prove that character evidence by opinion or reputation (by a character witness who testifies by opinion or rep.) OR by introducing evidence of relevant specific instances.
a) Δ can then rebut the testimony of good character
f. Exclusion Would Violate Δ’s Constitutional Right- [See later] i. 6th Am. Rights-evidence is admissible if exclusion of evidence would violate the Δ’s 6th Am. right to cross-examine his accuser. Need to confront witness and introduce evidence to impeach witness/establish motive to lie or is bias.
4. Protections for Δ against other crime evidence:
a. FRE 404(a)-no character evidence-IN CRIMINAL TRIAL ONLY
b. FRE 404(b) – evidence must be offered for a proper purpose-and not as propensity evidence
c. FRE 402/104(b) standard- any probative tendency
d. FRE 403- Balancing Test- (prejudicial effect)
e. FRE 105- limiting use-jury instruction
B. Habit Evidence- FRE 406-General Rule: Evidence of habit is RELEVANT to prove that person acted in conformity with the habit on a particular occasion. Admissible in criminal AND civil.
1.Character v. Habit-
a. Character-one’s disposition in respect to a generalized trait
b. Habit-one’s regular response to a repeated situation. Includes the routine practice of a person, organization or company.
i. Habit evidence is common in cases dealing with standard of care in negligence cases, or course of dealing/course of performance contracts cases
ii. EXAM TIP: In civil cases, cannot use prior crimes/wrongs to prove that Δ acted in conformity, BUT you can always argue that it is admissible as HABIT evidence