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Stetson University School of Law
Seigel, Michael

1.             Why Rules of Evidence?-
1.                  Why Evidence Law at All?-
·         many reasons, but only five standout-
·         (1) mistrust of juries is the single overriding reason for the law of evidence
·         ex- hearsay doctrine exists b/c we believe that a lay jury (an amateur factfinder) cannot do a good job evaluating statements made outside its presence
·         (2) to serve substantive policies relating to the matter being litigated
·         ex- rules that set and allocate burdens of persuasion
·         (3) to further substantive policies unrelated to the matter in litigation- what we may call extrinsic substantive policies
·         ex- typically rules in this category seek to affect behavior or quality of life outside the ct room privileges
·         (4) to ensure accurate factfinding
·         ex- rules governing authentication of documents and things (‘laying the foundation’) and the Best Evidence doctrine exist largely to ensure accuracy- to force litigants and cts to be careful
·         (5) to control the scope and duration of trials, b/c they must run their course w/ reasonable dispatch
·         achieving resolution is itself valuable, even if it is not perfect
·         for example- Rule 403 permits the judge to exclude evidence that would be otherwise admissible, simply b/c it would take more time than it is worth and might confuse the jury
2.                  Why Rules Rather Than Common Law?-
·         code sets forth the bulk of the law of evidence in 63 short provisions
·   Success of the Rules-
·         in part b/c of their brevity and simplicity that the Fed Rules have become so influential
·         quality and widespread success
·         they apply in Fed Cts across the land in both criminal and civil cases, and generally they apply regardless whether fed or state law supplies the rule of decision
·         however, state evidence rules are applied in fed cts in limited areas
·         42 states have adopted codes closely modeled after the Fed Rules
·   Pre-Rules evidence law-
·         numerous efforts to codify evidence law preceded the Fed Rules; four are notable
·   The Rules-
·         Committee labored more than eight years, publishing two drafts
·         By accident of history, the Rules arrived at Congress as the Watergate scandal was erupting
·         privilege provisions in the Rules attracted immediate attention
·         Congress saw the Rules as an encroachment by the other branch
·         Congress held hearings, scrutinized the Rules, changed them substantially and finally enacted the changed version in statutory form
·         most significant among congressional changes- deletion of the privileges rules, leaving privilege to common law evolution
·         in 2007, US Judicial Conference approved a new proposed Rule 502 on waiver of attorney-client privilege and work product protection
2.             What Happens at Trial-
1.                  Jury Selection-
·         in most jurisdictions a jury panel has been assembled when lawyers enter the ct room on the first day of trial
·         often 12, but often as few as six; plus two alternates
·         ‘voir dire’- ct and counsel try to find out whether any members of the panel should not serve in the case at hand
·         if a juror is related to a party by blood, marriage, or business, or is ‘prejudiced’ on one or another issue or against one or another party, he should be excluded ‘for cause’
·         each party has a fixed number of ‘peremptory’ challenges (often 3) which can be for any reason at all
·         in state cts, lawyers often conduct voir dire
·         in fed cts and many states, voir dire is conducted by the judge
2.                  Opening Statement-
·         party bearing the burden of persuasion has right to make first opening statement
·         if ct permits, may delay until the other party has presented her case and rested- rarely done
·         summary of the ‘facts’; points out the direction and themes of the case/argument
·         jury learns background facts
·         such humanizing information may garner sympathetic reaction
3.                  Presentation of Proof-
·         ordinarily the party w/ the burden of persuasion goes first, followed by his adversary, and each may have additional turns if needed
·         ‘case-in-chief’- first appearance for each party
·         has to establish everything that must be proven in order to win, reserving only what he may need to rebut whatever his opponent presents
·         when finished, he ‘rests’ and yields the stage
·         during CinC- cases are built on ‘direct examinations’
·         introduces tangible evidence- also known as ‘demonstrative evidence’
·   thus objects actually involved in the events in litigation are called real evidence, and are almost always admitted
·   writings are called ‘documentary’ evidence and they are so common that special rules apply
·         after both parties have presented their ‘case-in-chief’, then they may present their case-in-rebuttal
·         after direct examination of each witness is completed, the opponent gets a turn to ask questions, this time by ‘cross-examination’
·         when cross-examination is finished, the calling party may engage in ‘redirect’ examination, and then adversary may again cross-exa

eneral verdict’
·         sometimes in civil cases the jury answers special interrogatories which ensures that the jury addresses and resolves particular issues
·         in criminal cases, where the death penalty is possible, the jury may retire a second time to deliberate and recommend punishment
9.                  Judgment and Post-Trial Motions-
·         after the verdict is announced, the ct enters judgment
·         time for appeal begins to run, and a judgment awarding relief becomes effective in that sense that if can be ‘expected’ against property owned by the defendant
·         in criminal cases in which the jury returns a ‘not guilty’- defendant is released from custody immediately
·         where ‘guilty’- judgment is signed and entered after a sentencing hearing
·         post-trial motions present the parties w/ last opportunity to obtain the result they have sought
·         routinely losing parties in civil cases move for judgment as a matter of law, requesting in the alternative a new trial
·         fed ct and in many states such motions must be made not later than ten days after entry of judgment
·         defense in criminal cases moves for a judgment of acquittal- once again subject to time limits
·         other kinds of post-trial motions-
·         ‘clerical’ or ‘ministerial’ mistakes in the judgment and motions for permission to interview jurors
·         others seek to begin the contest anew such as motions to reopen on account of ‘newly discovered evidence’
10.               Appellate Review-
·         Fed cts and most state judicial systems adhere to the principle of finality, under which appellate review may be had only at the end of the case, when the trial ct has entered a ‘final judgment’
·         party may obtain full appellate review only if it has ‘preserved’ its claim of error by stating its position promptly and clearly at trial
appellate review may lead to relief, but only if the reviewing ct concludes both that the trial ct erred and that the error probably affected substantial rights of the appellant, hence that the error was ‘reversible’ rather than merely ‘harmless’