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Evidence
Stetson University School of Law
Rozelle, Susan D.

Short Evidence Outline—Rozelle—Fall 2009
I.                     Role of Judge/Jury
a.        Judges may call and interrogate witnesses—Rule 614
i.      May not assume role of advocate
1.       Should be careful if it involves key witness
2.       Could be reversible if affects outcome
b.       Juries should usually be discouraged from questioning witnesses
i.      May be able to if they write question and give it to judge
1.       Becoming more common
c.        Credibility is a question for the jury
II.                   Rule 103—Ruling on evidence
a.        103(a)—must be a substantial right of D affected before he can complain AND
i.      If admitting evidence, a timely objection/motion to strike stating specific ground
1.       Contemporaneous objection rule
2.       General objectionàdoes not preserve appeal
3.       Continuing objection if facts change
a.        Final ruling v. conditional ruling
4.       Policy: efficiency—puts burden on lawyers
ii.      If excluding evidence, offer of proof (proffers)
1.       Requires counsel to describe evidence
2.       Describe significance
3.       Identify grounds for admitting evidence
4.       Methods
a.        Most desirable—proponent examines witness on record (jury excused)
i.      Cross exam is allowed
b.       Middle ground—written statement signed by witness, entered into record
c.        Least—statement of counsel as to what testimony would be
b.       103(b)—judge can supplement records as needed
c.        103(c)—proceedings should be conducted to prevent inadmissible evidence from jury
d.       103(d)—plain error still applies
III.                 Rule 104—Preliminary questions
a.        Questions of Admissibility genereally (determined by Judge)
i.      Alwayss relevant issues
1.       We don’t think jury will disregard
ii.      Rules of evidence do not apply
1.       Except privilege
a.        Party must have some showing before judge will review allegedly privileged doctrine in camera
iii.      Ex. Whether person is qualified as a witness, existence of privilege, admissibility, etc
b.       Relevance Conditioned on Fact
i.      Judge is gatekeeper, given to jury
ii.      Judge asks “could a reasonable juror find…”
iii.      Does not assess credibility
iv.      Rules of evidence apply, jury is given only admissible evidence
v.      Preponderance standard
c.        Hearings on confessions shall be conducted outside presence of the jury
i.      Other hearings may or may not—discretion of judge
IV.                 Appeals
a.        D must testify in order to preserve appeal regarding an in limine ruling
i.      Otherwise, no complete record as to what testimony was/effect
1.       Further, if it was evidence of conviction, the government may not have ever brought it up
ii.      Would allow a D to always appeal—inefficient
iii.      Some states extend/limit this rule
b.       Once a D introduces evidence of prior conviction, cannot appeal in limine ruling admitting it
i.      D cant have it both ways of drawing out sting and still preserving appeal
ii.      Invited error doctrine—party introducing arguably inadmissible evidence cannot appeal
iii.      Note: this is only a Circuit opinion—some states extend the rule to cross examination, some do not follow it at all
iv.      Dissent thinks this is inconsistent with policy behind impeachment by previous conviction
V.                   Rule 105—Limited Admissibility
a.        Multiple admissibility doctrine—if evidence is offered and admitted properly for one purpose, it is still admissible even if it does not satisfy the rules as to another purpose
i.      FRE does not exclude sources of evidence, rather controls the purpose
ii.      May be proper to ask for a limiting instruction
1.       It is the lawyers duty—rule says “shall”
2.       Plain Error could still apply though
a.        Plain error can be raised sua sponte—rare
iii.      As long as there is sufficient evidence, the fact that there is illegal immaterial evidence or material evidence admitted does not require reversal where it is a bench trial
1.       Presumption: judge relies only on admissible evidence
2.       Erroneous exclusion is more harsh—treated same in bench and jury trials
3.       Practical effect—judges admit more evidence in bench trial
VI.                 Rule 611—Order of Proof
a.        Goals the court should seek in controlling mode and order or interrogating witnesses
i.      Ascertainment of truth
ii.      Efficiency
iii.      Protect witnesses from harassment/undue embarrassment
b.       Rule says nothing about order
i.      Party with burden typically goes first
1.       Then defense presents case
2.       Plaintiff may then rebut
3.       Defendant then sur-rebuts/rejoinder
a.        Process could go on forever, but testimony should be limited to scope of what was already said
ii.      Party with burden gets to open and close and sit closest to jury
1.       This is a right—not in discretion of judge
c.        Generally, plaintiff must put on all of his evidence before he rests—cannot reopen case after he rests
i.      However, can offer rebuttal evidence to D’s case
1.       Not merely contradictory/impeachment evidence
2.       Should be evidence of denial of some affirmative fact party is seeking to prove
a.        However, just because this evidence could be used in your case in chief does not make it improper for rebuttal
b.       May have to give notice to other side
ii.      Exception—district court can allow P to supply defects in evidence inadvertently occurring
d.       Reasons not to sandbag
i.      Have to get over directed verdict
ii.      D might not put on any case—then you will not get to put your best evidence on
iii.      Psychological advantage to bring out evidence first
iv.      Court has discretion after you rest
e.        Timing issues
i.      Judges have very broad discretion—rarely reversible error
ii.      Clean hands doctrine—if attorney makes mistake, probably not reversible. But if he tries to accommodate need and gives notice to court, might be
VII.               Rule 611(b)—Scope of Cross Examination
a.        Rule states it should be limited to subject matter of direct examinantion and matters affecting credibility. Judge has discretion for other matters.
i.      Actually interpreted pretty broadly
1.       Allows for all inferences and implications arising from direct
2.       This is the American Rule
a.        Cuts down on appelable issues
b.       Makes less confusing
c.        Judges have less discretion to limit cross-examination than allow extra
i.      Abuse of discretion standard
ii.      Wide-Open Wisconsin rule(Minority)
1.       Better for searching for the truth
2.       Advocated by scholars because it may cut down on time—witness will only have to appear once
b.       Trial judge cannot exercise discretion in arbitrary manner
VIII.             Rule 401—Relevancy
a.        Not an inherent characteristic of evidence
i.      Exists only as a relation between item of evidence and a matter properly provable in case
b.       Relevant If the evidence in any reasonable degree increases probability/improbability of fact

                                              i.      AND would shed any light upon the transaction
b.       Again, dissimilarity could lead to a jury issue or inadmissibility
c.        Observational bias—experiments should not have instruments involved which real parties did not
i.      Difficult because its hard to determine how people would have reacted in real life
ii.      Can be too prejudicial because seeing is believing
d.       Can be mitigated by dual experiment
XV.               Scientific Experiments
a.        Greater latitude with regard to similarity is given to experiments conduct for OBJECTIVE purpose as opposed to those made in anticipation of litigation
i.      Many times done by independent agency
b.       Phyiscal Fact Doctrine—will not allow evidence that contradicts undisputed facts
XVI.             Absence of Other Happenings
a.        OLD RULE—per se inadmissible
i.      Opposing counsel would be unable to respond to fraudulent/partial/mistaken testimony
b.       MODERN RULE—favors judicial discretion
i.      Still leaves many issues unanswered such as near misses
ii.      Negative Evidence Problem—saying you didn’t see something has no probative force
iii.      To make admissible
1.       Proffer must show that witness was in position or has such sources of knowledge that if event occurred, he would have seen/known about it
2.       Provides incentive for companies to acquire, record, and maintain info regarding performance of their products
XVII.           Rule 404(a)–Character Evidence in Civil Context
a.        Generally
i.      Big difference in criminal and civil context
ii.      Generally not admitted to prove someone acted in conformity with their character
iii.      2 ways to use
1.       Circumstantial use (conformity)
a.        Generally not allowed
b.       Recognition of free will
c.        Clearly relevant/but prejudicial
2.       Direct use
a.        When character is an essential element of the charge
b.       E.g. negligent entrustment
c.        Very rare
iv.      Presumption of inadmissibility does not extend to animals
v.      Presumptively injurious if admitted erroneously
vi.      Existence of a trait at a given time is evidence that it lasted for a reasonable time before/after
XVIII.         Rule 405—Methods of Proving Character
a.        Reputation/Opinion is always admissible
i.      Specific instances is allowed on cross-examination
b.       If essential element of charge/claim/defense, proof may also be made of specific instance
i.      “inquiry is available”–If you ask question about a specific act and witness lies, youre done
1.       No extrinsic evidence on collateral matter–efficiency
c.        Why are Specific Acts harder to get in?
i.      Can be overly persuasive—jury might want to punish based on prior act
ii.      Creates a side trial—waste of resources
XIX.              Rule 406—Habit Evidence