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Evidence
Stetson University School of Law
Latimer, Jerome C.

Introduction: Evidence
Why Rules of Evidence?
A. Jury Mistrust
·         Judges resisted jury system
·         first created rules of competency
Ex 1: Competency – Do Assignment 1
Not competent meant ineligible to be received into evidence, to testify
Witness had some clear defect that would enable the jury to use the information
Incompetent People: 
1.      convicted felons, fraud, lying
2.      the accused – can’t trust jury to see past their stake
3.      spouses – for or against the other spouse
4.      Children under fourteen
5.      Any party to any case or any witness with a pecuniary interest in the case
Transferred to a Rule of Impeachment.
Ex 2. Hearsay Rules
Hearsay – an out of court statement offered in court to prove the fact asserted. 
There are a whole lot of exceptions
Ex. 3. Character Evidence
B. Enhance the Accuracy of the Truth Determination Process
Ex 1. Best Evidence Rule – Original Documents
When you try to prove what a document with important merit says or depicts, you need an original copy.
Document definition is very broad.
Where it is not needed for accuracy, it is excepted, as in when the document is destroyed, held by an adverse party, or otherwise beyond the reach of court.
Ex. 2 Opinion Rules
Lets the jury draw the inferences
Does not allow editorializing
Applied only where it makes sense – where there is no justification for the opinion. There are exceptions – lay witnesses and experts
Ex. 3 Impeachment Rules – Bring out their interests
Ex. 4: Questioning of Witnesses (see Outside Assignment p. 9)
C. Promote Finality
Example Rules: 
Res judicata, stare decisis, double jeopardy. What is necessary to preserve the record? Admission by consent – no objection means its O.K.
Harmless error rule
605-606 – Anti Impeachment of Verdict Rule
D. Promote Efficiency
Time is of the essence – need to speed things up
Example 1: Presentation of Evidence and Judicial Notice
offers of proof
self authenticating documents
copies of documents
Example 2: Excludes of Relevant Evidence on Grounds of Prejudice
Rule 403, The Court can exclude evidence on grounds of unfair confusion, waste of time, undue delay, etc.
E. Promote Policy Concerns (other public policy)
It is often used to promote narrow policy concerns
Example 1: Subsequent Remedial Measures
Policy – actions that are inconsistent with trial position are excluded
Measures taken after an event (like fixing a broken step) that if before would have prevented it are not admissible to prove negligence or culpable conduct
Examples are 408 (Compromise and Offers to Compromise) 409 (Payment of Medical or Similar Expenses), 410 (Offers to plead guilty)
Example 2: Privileges
Privilege rules protect important relationships 
Sometimes the public policy implemented by such rules actually diminishes the accuracy of the truth determining process.
Rules proposed in 75 were rejected on privilege so Fed only has general rule and lets common law rule
When using state substantive law in federal court, you use state evidence code.
Privileges like attorney-client, husband-wife, doctor-patient protect relationships
II. Codification: Why Codify Rules at All?
Why not use the Common Law?
1.      Evidence law is important to be understood and applied fairly, easily and quickly
2.      Uniformity and consistency
3.      Mistrust of the courts in developing the law
However, even though the language may be exactly the same, the interpretation can differ widely, Ex. Fed and FL Character Impeachment rules are the same text but are interpreted VERY differently.
What is the Consequence of Codification
Changes Common Law
Ex.   Deleted Rule 505 Rejected Spousal Privilege In the common Law
Common Law: Spousal Immunity Rule: Spouse can’t be allowed to testify against spouse if now married
FL Coded Rule: Marital Communication Priv.: Prevent disclosure of a confidential communication during the marriage. 
Who the Authority:
·         Supreme Court must make rules of procedure, Legislature can only repeal them.
·         Legislature can make substantive evidence rules. Not valid until Supreme Court adopts them if they have procedure.
·         Supreme court enacts them, but reserves the right to change them on a case by case basis
·         You may be able to step around a rule if it is not proper
What Happens At Trial
1. Voir Dire – an interrogation to determine qualifications of a person to act
FL: You speak directly to the jurors
You have challenges for cause and preemptory
Peremptory challenges now have to state a reason if challenged because they think it is racial
2. Opening Statements
“The evidence will show, coming attractions”
3. Presentation of Proof
Try to Create an accurate Mold
Methods to Present proof:
1.      viva voce – live witness (as a category) hearsay (substitute)
2.      documentary evidence – memoralizations of human expression
3.      real evidence – the real thing, the missing arm. You must authenticate real evidence. Usually excluded because it is prejudicial
4.      demonstrative evidence – demonstrates the real thing. Ex. statistical summary, model. Jury gets another immediate sense reaction. Sometimes prejudicial
Examinations
Direct Examination
1.      Who calls the witness
2.      Scope is relevancy – any matter relevant and admissible
3.      No Leading on Direct – witness is friendly with examiner and will react correctly to suggestive questions
·         If the witness is unfriendly, adverse party, associated with the adverse party, or there is a defect in the witness; immature incompetent (children, elderly, incompetent) leading may be possible
·         Read Bell Case very Carefully, Porter Case
Cross Examination
You can lead, but court can shut down use of leading questions if it has the earmarks of a direct examination. Exceptions are not as well delineated.
4. Trial Motions
JMOL, Judgment of Acquittal
Court will look at the motion in light most favorable to the person against whom the motion has been made
Must find that no reasonable juror could find …
5. Closing Argument
3.250 Fl has a special exception that the person, D offering no testimony in his own behalf shall be entitled to the concluding argument before the jury.
6. Instructions to the Jury
During the trial: 
1.       Limiting – 105, 108 Whatever evidence in a trial is in for one purpose, but not another, the court should let it come in and then restrict its purpose. One but not the other.
2.       Cautionary – Suggesting the parameters
3.      Curative – Instructs the jury to disregard it (but often they can’t)

Guide 2: Preservation of Error
I. Objections:
Frequently Encountered Objections
1.      Asked and answered – When question has response and has a reasonable chance to expose falsehood yet they keep asking
2.      Assumes facts not in evidence – where question gives information not already stated
3.      Argumentative – grandstanding, Can’t be taking seriously because of tone, etc.
4.      Compound
5.      Leading the witness – counsel on direct tells witness what to say
6.      Misleading – question mistakes the evidence of the case
7.      Speculation
8.      Ambiguous, uncertain and unintelligible – Can’t be understood
9.      Non-responsive to the Question – Does not answer a question directed at a specific point.
10.The general objection – does not preserve the issue for review if the objection is overruled.
Elements
1.      There must be an F (Attorneys can determine how/extent) that rules will apply.
2.      Make them understandable and palpable
3.      Object in a tactical manner
4.      Ethics – Use your objections ethically
5.      Timeliness – “at earliest reasonable opportunity – contemporaneous
6.      Have ground – Include a statement of underlying reason
7.      Be specific – Specify what the objector seeks to exclude
8.      Request relief – You must also make a request for relief – “I want the answer stricken”
·         Motion to strike really doesn’t do anything without a Instruction for the jury to disregard
Ethical Considerations
·         You can’t object to improperly influence the jury
·         No alluding to matters not in evidence
Gamble – D gets permission to use past crime to impeach. D does. P objects saying that it has “nothing to do with the issue of guilt.” improper and deliberate and cure was insufficient. New trial ordered.
The Contemporaneous Objection Rule
“Harmful and erroneous rulings will be sustained unless the specific contentions of the complaining party are made known to the trial judge in a timely fashion.”
·         You don’t want to have the contemporaneous F doctrine operate.
·         “Int

ffer
5.      Timely- the proffer must also be timely.
Demonstrating
Demonstrating to judge exactly what he is prepared to admit if it was allowed. Fair opportunity to get his chance to preserve the record. See 90;104 (1)(b) & 103(a)(3), (b)
·         Enables F to be refined
·         Enables the judicial decision making on appeal
·         When an F has been made, the proponent must show his evidence is admissible
·         You can use the question/answer (like testimony) format to offer the evidence – this is the most through offer of proof.
What to do to preserve when AdP F to part but is directed to the whole and court sustains and excludes a whole package?
1.      Proffer the whole if you believe the F is wrong to the whole
2.      if you believe F is wrong to the whole but is valid to part, proffer whole and specifically ID the parts that the F should not rule off. Proffer separately
Caveats:
1.      Gar v. State: – Proffers are necessary for appeals court to determine whether testimony is relevant and material. Trial court errs in refusing to allow proffer especially where testimony is excluded and attorney asks to allow a proffer.
2.      Johnson v. State – You can’t wait to proffer until after your motion for judgment is denied. It is too little too late. This may work only if the court and AdP agreed.
3.      O’Shea v. O’Shea – No proffer is necessary where context is apparent, witness evidence is rejected as a class or where court says offer would be unavailing / ceremonial.
IV. Packaged Evidence and Preservation of Error
What? Numerous facts in one response. Same subject matter, dying declaration, letters, books, documents.
How to Object?
1. Specify all  specific F you have to the package as a whole. (justifies exclusion of the whole)
2. PLUS: make all specific F you have to any part of the package with specific questioned part of the whole? (specifically direct judge to the part)
WHY? 
If you object to whole, but should have been part, it is sustained anyway, even where part that is correct should be excluded. (Where there is any material that can come in.
What to do to preserve when AdP F to part but is directed to the whole and court sustains and excludes a whole package?
1.      Proffer the whole if you believe the F is wrong to the whole
2.      if you believe F is wrong to the whole but is valid to part, proffer whole and specifically ID the parts that the F should not rule off. Proffer separately
Proffering Individual Questions
What to do?
You must describe the content of the expected answer, even on cross. The nature of the disclosure may depend on the liberality of discovery.
direct – you should know what the answer would be – CL- you must describe the exact nature of the answer expected
cross – you don’t know what the answer will be – CL you had to describe your purpose for asking the question Now this is changed due to extensive discovery.
V. Consequences of Evidential Error
Imperfections – Why Things get Reversed
1.      Slippery or complex rules – mistakes that make a real difference
2.      Vague rules
3.      Adversary system
Adaptive Techniques
1.      Appraising error on the merits
·         Must effect a substantial right
·         Evidence must cause the effect
Relevance
Introduction
1.      relevance is a relational concept, it carries meaning only in context.
2.      Context is developed partly by applicable substantive law and partly by the issues that the parties raise.