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Evidence
Stetson University School of Law
Latimer, Jerome C.

EVIDENCE OUTLINE FOR LATIMER

Trial Stuff
– Rule 611(c): Mode and Order of Interrogation
o Leading questions are for cross examination, not direct, unless
§ Hostile witness
§ Unwilling or biased witness
§ Child witness or adult with communication problems
§ Witness whose recollection is exhausted

– Under 806, if a party against whom the hearsay is being admitted calls the declarant as a witness, he can approach the declarant with leading questions as to the statement made

– Florida Judges cannot comment on the weight of the evidence or suggest that some evidence is more important than other evidence

Authentication
– Reinforcing what the court is seeing
o Witness identifying a gun used in a crime by the identifying mark on the gun
– Steps
o Identification of Evidence
o When and where did you see the evidence
o How do you know this is the evidence you saw before
o Is it substantially the same condition now that you found it in before? If not, what changed?
§ Just because it changed does not mean it is inadmissible
– Rule 901(a)
o The authentication requirement is satisfied by the offering of evidence sufficient to support a finding that the matter in question is what its proponent claims it to be
§ Ex: before a contract signed by the ▲ is admitted, there must be evidence offered to authenticate that the signature is of the ▲

Silent Witness: Photographs…just check the accuracy of the chain of events and the accuracy of the process of developing the film

– Rule 104(b): Relevancy conditioned on fact
o Item is not relevant unless it is authorized to be what it is being offered as. The proponent must offer enough proof to enable an exhibit to be authentic but cannot show the exhibit to the jury until it has been ruled admissible.

– Chain of Custody
o Purpose is to establish that the item being introduced into evidence has not been altered or replaced…the item is what it purports to be
§ Ex: a gun offered as the gun used in a murder is the gun used and not a look alike gun that somehow got mixed up with the original gun
o Must be able to account for each link in the chain if it is something that could be altered such as film or drugs, blood, etc.

– Rule 902 Self Authentication
o Extrinsic evidence of authenticity as a condition precedent to admissibility is not required for
§ Domestic public documents under seal
§ Domestic public documents not under seal
§ Foreign public documents
§ Certified copies of public records
§ Official publications
§ Newspapers and periodicals
§ Trade Inscriptions
§ Acknowledged documents

Preservation of Error
– Contemporaneous Objections
o Harmful and erroneous rulings will be sustained unless the specific contentions of the complaing party are made known to the trial judge in a timely fashion
– 3 Ingredients to the Contemporaneous Objection Rule (103)
o There must be an objection
o Objection must contain the specific contentions of why the evidence is inadmissible to satisfy the preservation requirement
§ Specific Objection states that the specific contentions of why the evidence is inadmissible to satisfy the preservation requirement
§ General Objection is when you simply state there is an objection but do not specify the reason
· If the objection is overruled and the evidence is admitted, the evidence is likely to remain admitted throughout the appeals process because the lawyer failed to give specific grounds for the inadmissibility of the evidence
o Objection must be timely
§ The point where the inadmissibility of the evidence becomes initially apparent
– If you make a contemporaneous objection originally, then that objection will be applied to any evidence that comes from the same source, same subject matter, and the same grounds, so you do not have to re-raise your objection
– 103: If the complaining party completely fails to make an objection at all, he waives t

nce to be relevant. If you can see an inference or detect it, then it is relevant

– Rule 402: Irrelevant evidence properly objected to is inadmissible

– Rule 403: Exclusion of Relevant Evidence on Grounds of Prejudice, Confusion, Waste of Time
o Balancing Test
o To get to step 403, you must have already gone through 401 and 402 and it must have survived both.
o Although the evidence is relevant, it may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of issues, misleading the jury, undue delay, waste of time, or cumulative evidence
§ Florida does not have waste of time provision. However, they Florida judges can control the mode and order of evidence to avoid waste of time according to FEC 612(1b)

o Rule 404: Character Evidence
§ Evidence of a person’s character is not admissible to prove that he acted in conformity
· Skip the balancing test and go straight from 402 to 404 and then use 403 as a last ditch effort such as modus operandi to balance it out
§ Can tie into 403 in that evidence of a person’s character is inadmissible to show that the person acted in conformity with that character on the specified occasion
· Ties into 403 because the admittance of this evidence could be extremely prejudicial to the defendant
§ There are some exceptions as to when this evidence may be admissible
· ▲ can show evidence and then Π can rebut the evidence of a pertinent trait of the accused
· ▲ can show evidence and then the Π can rebut the evidence of a pertinent trait of the victim