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Stetson University School of Law
Kionka, Edward J.

I. Philosophy and History of American Evidence Law
A. Introduction
1) California Evidence Code defines evidence as “testimony, material objects, and other things presented to the senses that are offered to prove the existence or nonexistence of a fact.”
B. The Adversary System
1) Judge is fundamentally an umpire
2) The discovery mechanisms ordinarily do not come into play until a party invokes them and specifically requests discovery by the other party.
3) Partisan attorneys representing opposing parties exercise primary control over the course of pretrial discovery and evidentiary presentation.
C. The Use of Lay Jurors
1) We are committed to the jury system
2) Our evidence law is a product of the jury system where ordinary untrained citizens are acting as judges of fact.
3) Common law sometimes excludes evidence altogether
(a) I.e., common law judges doubted that lay jurors were sophisticated enough to detect fraud and perjury. That doubt is one reason the courts fashioned authentication requirement.
D. Evidentiary Rules Base on External Social Policies
1) Court created 14th Amendment, unreasonable search and seizure, just for social policy reasons
2) Including privileged information – attorney client confidentiality – freer flow of information for external policy reasons
E. Other Reasons for Evidentiary Rules
1) Enables lawyers to make more money
2) Prevents non-lawyer from truing their own cases
3) Provides employment for law professors
4) Reduces confusion (logical and legal relevancy, order of proof).
5) Economy of time
6) Probative value vs. other consideration
7) Fairness to witnesses
8) Assurance of genuineness – evidence is what it purports to be
9) Right to test credibility and trustworthiness of that evidence (hearsay, competency, and impeachment).
10) External policy decisions – constitution exclusionary rules
F. A Research Agenda for the Future
1) Assumptions based upon human nature
2) Now we have forensic scientists to study human behavior
3) Internal vs. external validity
(a) External validity arise out of difference between the two settings – the research setting and the target setting
G. The History of American Evidence Law
1) Introduction
2) Prior to Federals Rules
3) The Federal Rules of Evidence
(a) Introduction
(b) History
(c) Today
H. The Debate Over Codifying Evidence Law
II. Evidence: Types, Sources, and Substitutes
A. The Types of Information to Which the Evidentiary Rules Are Applied
1) Testimony
2) Writings, materials, or other things presented – all demonstrative items
B. The Sources of Evidence Law
1) Constitutions
(a) Key Provisions –
(1) 4th Amendment – Unreasonable Search and Seizure
(2) 5th Amendment – Privilege against self incrimination
(3) 6th Amendment – Right to counsel
(b) Above three enforceable on the states through the 14th Amendment
(1) 14th Amendment – Due process clause
2) Statutes and Statutory Interpretation
(a) Components of Legislative history in descending order of importance:
(1) Rules prescribe by the Supreme Court
(2) Advisory Committee’s Notes
(3) Congressional Materials
(b) Inflexible to change – if needs to be changed, need to go through legislative process for correction – will only apply to future cases
3) Court Rules
(a) Federal Rules of Evidence
(b) Courts can create their own rules
(c) Courts and Congress had input into the Rules, adopted by the Courts
(d) Court creates a committee to create rules – appoint lawyers, judges, and one or two professors to extract rules from the common law and other applicable law
(e) Once rule is adopted, probably need to have a committee to review for any changes if changes are needed – need to appoint a committee or have a standing committee.
(f) Committee studies the rules, make changes, sends recommendations to the court – courts rely on committees
(g) Once rules are in place, they are pretty inflexible –cannot change on the fly.
4) The Common Law
(a) Law common to the entire realm
(b) We adopted common law of England
C. Substitutes for Evidence: Other Methods of Establishing Facts
1) Judicial Notice – The Judge notes the existence of a fact and instructs the jury that the fact exists
(a) Judicial Notice of Facts – Adjudicative facts – facts to which the law is applied in the process of adjudication – these are the facts that normally go to the jury.
(1) Matters of Common Knowledge – generally known within the territorial jurisdiction of the trial court
(2) Verifiable Certainty – capable of accurate and ready determination by resort to sources whose accuracy cannot reasonable be questioned. Is today the 25th of July? May not be sure, but can look at a calendar.
(3) Highly Probably Facts – Virtually indisputable – very easy to prove, your opponent will not really contest it – not really needed to define it, just go ahead and prove it.
(b) Judicial Notice of Law – The courts use this as a vehicle for feeding legal authority into the decision making process. – Only really comes up in the forum of foreign law
2) Other Methods of Establishing Facts
(a) Stipulation
(b) Judicial Admission – 2 Types
(1) Before trial in a civil case, a party can formally request another party admit a specific fact
(2) Judicial admission where a party on the record states a fact that the court will treat as binding on the other party – Joe is a citizen of Morena.
(c) Preclusive prior fact determination – A fact conclusively decided in another proceeding
III. The Chronology of a Trial
A. Introduction
B. The Organization of the Trial as a Whole
1) Jury Selection
2) Opening Statement
3) The Plaintiff’s or Prosecutor’s Case-in-Chief
4) Defense Motion for Nonsuit or Directed Verdict
5) The Defense’s Case-in-Chief or the Case in Defense
6) Plaintiff’s Motion for Directed Verdict
7) The Plaintiff’s or Prosecutor’s Rebuttal
8) The Defense Surrebuttal or Rejoinder
9) Witnesses Called by the Trial Judge
(a) Court appointed expert – almost never used – judges do not want to put their thumb on the scale – if there are differing views on experts, there is a reason for that
(b) Rule 614(a)
10) Witnesses Requested by the Jurors
11) Closing Argument or Summation
(a) Attorneys may argue credibility, namely, why the jurors should believe their witnesses and disbelieve the opponents.
(b) Attorneys may argue historical inference from the circumstantial evidence
(c) Attorney may argue that the jury should apply the law to the facts in a particular fashion.
12) The Judge’s Instructions or Charge to the Jury
(a) Admissibility Instructions – Judicial instruction on the test to use to determine the admissibility of the evidence. – Rare
(b) Corroboration Instructions –A corroboration instruction formally limits the juror’s discretion in evaluating the weight of an accomplice’s testimony. – Rare
(c) Cautionary Instructions – Instruction to jury to be wary in evaluating the weight of particular testimony – be skeptical in evaluation testimony of accomplice – Common
(d) Limiting Instructions – Specifies for the jury the permissible and impermissible uses of the item of evidence – Rule 105 – Rule of Limited Admissibility – When evidence which is admissible as to one party or for one purpose but not admissible as to another party or for another purpose is admitted, the court, upon request, shall restrict the evidence to its proper scope and instruct the jury accordingly.
(1) If entitled, there is no judicial discretion
(2) Only could use convictions to test credibility of witness, for example
(3) Up to proponent counsel to specify purpose – the proponent set the relevancy
(4) Motion in limine – a motion made before the start of a trial requesting that the judge rule that certain evidence may, or may not, be introduced to the jury in a trial.
(e) Curative Instructions – Directs the jurors to disregard something if they have already heard it – If a witness blurts something out, a curative instruction would be to ignore that inadmissible piece of evidence
(f) Sufficiency Instructions – Instructions provided regarding the ultimate burden of proof on the facts.
13) Federal rules are primarily procedural
(a) Some would be substantive – parol
(b) Highest court in that state has plenary power to create rules in the state
(c) What rule apply in Erie – Federal rules are procedural, state rules provide substantive – even in diversity cases – there are some exceptions
(1) Issues where drafter believed state policy was important enough to use
IV. The Examination of a Witness
A. The Order of the Examination of a Witness
1) Sequestration or Exclusion of Witnesses
(a) Rule 615 Exclusion of Witnesses
(b) Reason – witness could fine tune their testimony based upon other testimony – memory could be different for many people – we remember things selectively, remember things selectively
(c) You are entitled to have witnesses excluded during testimony
(d) Exception

(3) Expert witness
(4) In sensitive area, to avoid witness from testifying to incompetent or prejudicial matter
(5) Where memory of witness has been exhausted and additional information is needed
(6) Children or people not fluent in English
3) Questions Calling for a Narrative Response
(a) If person would be a good witness
(b) If a person is not a good speaker, or if they have a propensity to blurt out inadmissible evidence, probably would not be a good narrative speaker
4) Argumentative Questions
(a) Intended to make an argument to the jury, not to elicit evidence.
5) Types of objections
(a) Question assumes a fact not in evidence
(b) Counsel is misquoting the witness
(c) The question is ambiguous
(d) Counsel is making a statement not asking a question
(e) Asked and answered
(1) Repetition of a point would tend to make people believe the point
(f) Objection – argumentative – not offered to elicit evidence
6) You can only ask one question at a time
7) When you give a witness an open ended question on cross examination, you give him a chance to rehabilitate his testimony
V. The Role of Judge, Jury, and Attorneys
A. The Role of the Proponent of an Item of Evidence
1) Pretrial
(a) The attorneys representing the opposing parties are the primary moves in the process of determining the admissibility of the item of evidence.
2) Trial
(a) Marking the exhibit and showing it to the opponent and witness
(b) The foundation or predicate – testimony authenticating it
(1) Opponent can only object once you have offered it for admission
(c) The formal tender or motion for admission
(d) The publication of the exhibit to the jury
(e) The offer of proof
(1) Rule 103(a)(2) –the substance of the evidence was made known to the court by offer or was apparent from the context within which questions were asked
(2) Proponent must make offer to preserve issue for appeal.
(3) 3 parts
(1) Offer of proof for record
(2) Second sentence, purpose, relevancy of evidence
(3) Third sentence, argument for admissibility
(4) Not really any discretion for judge to deny offer of proof
B. The Role of the Opponent of an Item of Evidence
1) Pretrial
(a) Motion to suppress – Opponent must file a suppression motion before the case is even assigned a trial judge – a constitutional ground for excluding evidence
(b) Motion in limine to exclude –constitutional ground – excluding evidence from prior convictions – if the evidence is insufficient for intoxication, could exclude all references to drinking by making a motion in limine.
(1) Must renew objection at trial
2) Trial
(a) What procedural device may the opponent use to assert the ground for excluding the evidence?
(1) Objection – must be specific
(2) Motion to Strike
(b) When should the opponent assert the ground?
(1) Before the examiner poses the next question
(c) How should the opponent phrase the objection or motion?
(1) Timely and specific
(2) Should specify the part and on whose behalf
(d) The basis or bases of the objection
(1) Rule 103(a)(1) – Objection – In case the ruling is on admitting evidence, a timely objection or motion to strike appears of record, stating the specific ground of objection, if the specific ground was not apparent from the context.
C. The Role of the Trial Judge
1) Questions of Law – The trial judge must decide pure questions of law.
(a) Sometimes, judges also resolve question of law that have a fact component
2) Preliminary Facts Conditioning the Admissibility of Evidence
(a) Rule 104
Two types of preliminary