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Evidence
Stetson University School of Law
Latimer, Jerome C.

I.       INTRODUCTION:
A.     Why do we have evidence law at all? Evidence law is created by individuals to further public policy and political interest; therefore the law is dynamic.
1.Jury Mistrust:
a.       One of the major areas is common law rules of competency-a jury can’t be trusted to properly evaluate disability, so people were barred from testifying because they were “incompetent”
i.        Example-Jury couldn’t be trusted to evaluate and take into account testimony by those with a pecuniary interest in a case
b.Most of these common law rules have been removed, BUT a few remain…
c.       Opponent can reveal factors that might cause a witness to lie-rule of impeachment-so juries can decide whether or not to trust them
d.      “Dead Man Statute”-a witness can’t testify to an oral communication with the deceased against the executor in Florida probate cases.
e.       Common law-spouse was incompetent to testify for or against spouse; not credible testimony-today this has been eliminated.
i. Instead, there are rules of spousal privilege.
f.       Florida-Marital Communication Privilege-a spouse can prevent their spouse or another person from testifying to a communication between spouses
g.Children under the age of 14 were previously thought to be incompetent. Today, intelligence and not age is the determining factor. This is for children and mentally handicapped people.
i. But the threshold for incompetence is very low today.
h.      Article 6 in the Florida Evidence Code and the Federal Rules of Evidence says that every one is competent, except when they don’t meet the intellectual requirements laid out in the statute.
i. Ability to take and understand oath.
ii.At time of perception, must have had the ability to receive accurate sensory perceptions of event (at least one sense)
iii.    Recollection ability of what was perceived.
iv.    Must be able to minimally communicate what they perceive-through an interpreter if necessary.
v.Also, the judge presiding over the case cannot testify and the jurors in the case cannot testify (but there are exceptions for jurors).
i.        Hearsay: An out of court statement offered by a litigant to prove the truth of what is asserted.
i.        The idea behind it is the judge’s mistrust of the jury’s ability to evaluate testimony accurately.
ii.      Now most of these statements are kept out through the judge.
j.        §404 FRE and FEC-character rules
i.        Evidence of a person’s character is inadmissible (with exceptions).
k.      §403 FRE and FEC-pragmatic relevancy
i.        Evidence cannot get to the jury if it has no probative value-if the value is outweighed by it’s potential to confuse, prejudice, or mislead the jury
ii.      More evidence is excluded by §403 than any other rule of evidence
2.      Enhance the truth-determining process:
a.       “Best evidence rule”-deals only with documents
b.Definition of document is broad (VIN #, tombstone, etc.)
c.Law doesn’t require you to enter the better evidence; the law allows the litigants to select what they think is the best.
d.But where you are trying to use a document, you must bring the original document, not a copy
e.       Opinion Rule- Article 7 FRE and FEC
f.Nobody can generalize where specificity is possible-you must stick to the facts and let the jury draw inferences where it is appropriate.
i.        Exceptions-lay and expert witnesses-only if the inference requires specialized knowledge
g.       Collective facts rule-layperson can express an opinion because he can’t tell the facts in an equal way
3.Finality:
a.       Because judicial resources are limited, we must end litigation.
b.      Contemporaneous evidence rule-must object to error at the time it is made in order to appeal.
c.But, if the error is fundamental, it may be looked at regardless of objection at the time it was made.
d.Harmless Error Rule-even if an error occurred, it was harmless and shouldn’t be appealed.
4.      Efficiency:
a.       Article 2- Judicial notice-indisputable facts don’t need to be proved; the judge will take note of them.
b.      Article 9- Rules concerning self-authentication-if it looks to be valid, we will accept it as authentic, unless the other party presents evidence that it’s not.
c.       §408- Compromise and Offers to Compromise are inadmissible because settlement is encouraged
5.Other Public Policy Issues Behind Rules of Evidence:
a.       Encourage removing of harm so others won’t be hurt
b.§407- Subsequent Remedial Measures-the fact you did something to correct a condition on your property after someone was hurt does not prove negligence.
c.       Promote free exercise of religion/religious communication
d.§505- Clergymen/Penitent Privilege
e.Florida’s rule is in place to protect the penitent, but other states do it differently
f.Eavesdroppers and people essential to the communication can be silenced
g.Previously there was an exception for cases of child sex abuse, but this is no longer an exception
B.     Why codify the rules of evidence?
1.      Reasons:
a.       Greater uniformity
b.      Accessibility
c.       Provided opportunities for reformers to discard archaic/problematic rules of evidence
2.      Difficult Process:
a.       At the turn of the century, Professor Wigmore made the first serious attempt at codification; he died without seeing a single jurisdiction adopt his plan. His evidence rules were multi-volume, complex, and convoluted.
i.        1940s-American Law Institute Mode Code; very radical and technical and was not adopted.
ii.      1953-Uniform Rules of Evidence-shorter, less technical; adopted by some state, but not widely
iii.    1965-California Evidence Code; successful and made modifications to common law
3.      Federal Rules of Evidence:
a.       Committee appointed to write and propose them; led by Albert Jenner
b.      Revision/codification of Law of Evidence proposed during Watergate scandal
c.       Majority of the package was adopted, but some were deleted and superseded-rules were changed and modified significantly, before being adopted in statutory form
d.      Today, 41 states, Puerto Rico and Guam have adopted state rules of evidence, primarily modeled after the FRE
e.       NY, CA, IL-did not model their rules after the FRE, but many principles are similar
4.      Florida Evidence Code:
a.       1976-Florida legislature adopted rules of evidence modeled after FRE; didn’t
b.      The rules didn’t go into effect until 1979, after lawyers/judges were given the opportunity to provide feedback, but little feedback was given
c.       In the Federal jurisdiction, Congress has original jurisdiction over the rules of procedure
d.      Florida’s Constitution has division of powers enumerated and gives the Florida Supreme Court exclusive original jurisdiction to adopt RULES OF PROCEDURE!!!!
e.       The only power of the Florida legislature is that they can repeal a rule by a supermajority vote.
f.       The legislature governs the RULES OF SUBSTANCE and the FL Supreme Court governs the rules of procedure, so the Supreme Court decided to adopt the rules in a blanket way and the legislature did the same.
g.       You can always argue that the branch of government that passed the rule did not have the authority to do so!
C.     What happens at trial?
1.Jury Selection (voir dire)
a.       Each party may challenge any number of jurors for cause and the judge decides each challenge (related to a party, prejudiced, etc.).
b.      Each party has a fixed number of “peremptory” challenges (3), which allow him to exclude potential jurors for any reason at all, without stating the reason.
2.Opening Statement
a.       Lawyer presents an overview.
b.      Party w/ burden of persuasion goes first and opponent follows.
3.Order of the Presentation of Proof
a.       Π presents case-in-chief
b.      Δ presents case-in-chief
c.       Π presents case-in-rebuttal
d.      Δ presents case-in-rebuttal
e.       Each side presents further cases-in-rebuttal, until parties are satisfied or judge decides there is repetition
4.      Order of Examination
a.Direct examination by the calling party
b.Cross-examination by the adverse party
c.Redirect examination by the calling party
d.Re-cross by the adverse party
e.Further redirect and re-cross as may be necessar

alling party’s case caused by the opponent’s cross-examination.
G.     FRE 614– Calling & Interrogation of Witnesses by Court
H.     Calling by court – The court MAY, on its own motion or at the suggestions of a party, call witnesses, and all parties are entitled to CROSS-EXAMINE witnesses thus called.
I.        Interrogation by court – The court MAY interrogate witnesses, whether called by itself or by a party.
J.       Objections– Objections to the calling of witnesses by the court or to interrogation by it may be made at the time or at the next available opportunity when the jury is not present.
K.     FEC 90.106 Summing up and comment by judge – A judge MAY NOT sum up the evidence or comment to the jury upon the weight of the evidence, the credibility of the witness, or the guilt of the accused.

III. AUTHENTICATION:
A.     REAL EVIDENCE:  refers to tangible things directly involved in the transactions or events in litigation. (the defective steering wheel, weapon used in homicide)
a.       Apart from writings, the law of evidence ordinarily DOES NOT require production of such items, and their existence and nature may be established by testimonial account.
b.      However, the BEST EVIDENCE DOCTRINE generally does require the introduction of writings (or an excuse for nor producing them) and all such items are generally considered relevant.
c.       Items of REAL EVIDENCE are likely to be admitted unless practical considerations preclude receipt.
i.      -The proponent’s task in getting them admitted is to lay the necessary foundation.
d.      Real evidence is authenticated when the exhibit is the same item involved in the real event. The condition of the exhibit must not have changed since the relevant occurrence or, if it has changed, the changed condition must be explained.
B.     Steps in AUTHENTICATION process:
i.      What is it? – Identification
ii.      How do you know it’s the same evidence? – markings, distinguishing features, etc.
iii.      Is evidence in substantially the same condition? – If not, then you must explain any changes in condition. Just b/c evidence is substantially changed does not preclude its introduction into evidence. The substantial change just must be explained.
C.     FUNGIBLE EVIDENCE – evidence that cannot be distinguished from other similar items (blood, cocaine, guns).
a.       If mark distinguishing marks on evidence, then you render the evidence non-fungible.
b.      For the admissibility of real evidence, it may be necessary to establish a CHAIN OF CUSTODY, in which each witness who handled the evidence is a link in the chain and each link must be accounted for. It must be shown that the evidence was kept in proper custody and not changed.
c.       When dealing with FUNGIBLE EVIDENCE, the only way to prove it is what it purports to be is to show where its been. – CHAIN OF CUSTODY.
i.      When there is no evidence of tampering, a presumption arises that the police officers properly have discharged their official duties in a regular manner.
ii.      The burden then shifts to the opponent to show that something went wrong in the chain of custody.
d.      Once evidence is accepted by the court, you usually request leave of the court to PUBLISH it to the jury.
If you cannot immediately authenticate evidence, then under FRE 104(b), FEC 90