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Evidence
SUNY Buffalo Law School
Sullivan, Winnifred F.

·         2/9/09
o   Juries actions and thinking affects evidence law
o   Most evidence law comes from statutory law
o   Hill v. Roe, pg. 138
§ Hill and daughter were driving, and rear ended by construction worker
§ Car caught on fire and daughter eventually died
§ Negligence, personal injury and wrongful death…against Ralph workers employer Jack Roe
·         Negligence, cause, and damages
§ Personal injury – strict product liability and wrongful death, against polecat
·         Causation, product was defective
§ Misrepresentation, for Debra and Cindy Hill against Polecat
§ Need to know what the elements of the cause of action are
§ Types of evidence to survive negligence claim
·         How prove liability?
o   Expert witnesses?
o   Witness
o   Camera
o   Driving record, his status at the time of the accident
o   Ms. Hill on the stand
·         How prove causation?
o   Police report
§ Product Liability
·         Engineer
·         Industry standards
§ Misrepresentation
·         Warranties
·         Advertisements
§ What about changes made by the manufacturer?
·         Usually remedial changes aren’t admissible
§ What about the things the child said before she died?
·         No chance to cross examine
§ What about the father testifying?
§ What about a video recreation?
·         Show you are an expert at taking the physical evidence and using it towards making a recreation
o   Devitt v. State of morena
§ Paterson claims Devitt stabbed him
§ Devitt claims he accidently stabbed him with a linoleum knife
§ What do you have to prove to survive a directed verdict
·         Battery
o   Intentionally and knowingly caused harm
o   Expert witnesses
o   Place of the wound, how was wound likely inflicted?
o   Weapon
o   Neighbor
o   Drunkenness
·         Aggravated Battery
·         Attempted Theft
o   Fingerprints
o   Daughter testimony
·         Day 2
o   Examination of a witness
§ Sequestration or Exclusion of Witnesses
·         Means exclude a witness from a courtroom
·         Rule 615
o   Constitutional issues for a defendant, has a right to participate in his own defense
·         Rule 601, everyone is competent to be a witness?
·         611(a), control by court….exercise reasonable control over the mode and order of interrogating witnesses and presenting evidence…
·         4-2, say he will see other testimony of other witnesses and be tainted,
·         Orders the witness not to discuss his or her testimony with other witnesses in the cause
o   Having him there would help
·         Hill case, expert witness about reconstruction, 615(3)? Refer to something before he testifies…counter another expert
o   Expert has to put in a report, so he couldn’t really change what he has said
·         Disqualify the witness, not automatic in some jurisdictions, U.S. v. English 3 step rule
·         Rule 614(b) court may interrogate witnesses, whether called by itself or by a party
§ Direct, Cross, Redirect, and Recross Examinations
·         CA evidence code 772 phases, 760 direct, 761 cross exam., 762 redirect exam. , 764 recross-exam.
§ Questions by the Trial Judge
·         614 Calling and Interrogation of Witnesses by courts
o   (b) Interrogation by court. The court may interrogate witnesses whether called by itself or by a party
o   (c) Objections
·         U.s. v. Hickman
o   Defendants contended that the conduct of the trial judge made it impossible for them to get a fair trial on the charges of possession of firearms by felons and possession of marijuana and violated their U.S. Const. amend VI rights. The court found that in this one day trial, the trial judge interrupted approximately 250 times, including interrupting defense counsel’s opening statement, questioning witnesses extensively, and ruling on objections without any objection being made by counsel. The court also found that the trial judge rehabilitated a prosecution witness, restricted cross-examination by defense counsel, and had an anti-defendant demeanor. Because the trial judge’s participation clearly was not impartial and infringed on defendants’ rights of cross-examination, the court concluded that defendants had not had a fair trial and reversed and remanded for a new trial
o   Judge took over the prosecutor’s cross examination of a witness.
o   Three tests, asked one by one if they were conclusive and witness had to say no
o   Here the prosecutor would have recrossed the witness
§ Instead the judge played the role
§ Questions by the Petit Jurors
·         Jurors can request that the judge call additional witnesses and also may request that questions be posed to any witness
·         Growing trend to allow jurors to ask q’s
§ Excusing the Witness
o   The Scope of the Examination of a Witness
§ Direct Exam
·         Any evidence logically relevant to any material fact of consequence in the case
§ Cross Exam
·         The Split of Authority over the Proper Scope of Cross-Exam
o   Majority – Rule 611(b) cross should be limited to the subject matter of the direct exam and matters affecting the credibility of the witness
o   Mino

r to recognize the voice has not been established
o   Say you lose, you can make an offer of proof, 103(b), do it at a bench conference
§ Like a mini brief, you are telling the judge further foundational evidence, what the evidence will show
§ What if the evidence was in the form of a letter?
·         Pg. 98 goes through how to present it
§ The Role of the Opponent of an item of Evidence
·         Pretrial
·         Motion to Suppress, Mapp v. Ohio
o   Rule of Crim Pro. 41
·         Motion to in limine to exclude
o   Non-constitutional challenges
·         Trial
o   Objection
o   Timely
§ Before the answer, can interrupt but be apologetic
o   Specific
o   Must specify the reason for the objection , Rule 103
o   U.s. v. Fendley
§ Tax evasion
§ A computer print out offered by the government
§ Said multiple grounds, but he was not specific enough for the grounds he stated
·         Failed to state the business records exception
o    
o   The moving party must testify at trial to preserve the issue for appeal
§ Luce v. Us.
§ The Role of the Trial Judge
·         Questions of Law
·         Preliminary Facts Conditioning the Admissibility of Evidence
·         104(a)
·         Problem Devitt, 104(b)
o   Who decides whether the evidence is authentic?
§ 104(b), whether there has been evidence sufficient whether there can be a finding of authenticity or not
o   The jury decides whether the witness is believable
o   Lab test is hearsay, who decides if was made at or near the time
§ Legal fact…different than authenticity…have you made the legal requirements
·         Problem 5-7
o   104(c)
o   Completely separate, good for a question in limine
o   If it is on the admissibility of confession it is a constitutional issue,
§ The role of the Petit Jurors
·         Questions of Law
o   Sparf v. U.s., the market trend has been toward depriving the jury of authority decide issues of law
·         Questions of Fact on the Historical Merits
·         Preliminary Questions of Fact Conditioning Admissibility