Select Page

Temple University School of Law
Sonenshein, David A.

Evidence – Fall 2011
Prof. Sonenshein

I.                    BASICS OF THE TRIAL
a.       Basics
i.      Studying  when evidence is admissible and not admissible
ii.      Rules of admissibility of documents
iii.      Putting the rules in context
a.       Client comes through door with problem
b.      You are asking pertinent questions-already thinking about rules of evidence [admissibility, etc.] c.       Mistake many practicing lawyers make is that they don't think about the rules of evidence until the last minute [hearsay problems, etc.] b.      Order of the Trial:
i.      P goes first– offer of direct or prima facie case
ii.      D puts in responsive case
iii.      P can do rebuttal
iv.      D can do rejoinder [answer to the rebuttal] c.       Examination of Witnesses:
i.      Direct Examination – ask your witness to tell their story
1.       Scope – anything relevant to the law suit
ii.      Cross Examination – other side asks their questions (every D has right to cross)
1.       Scope – Limited to things brought out on direct + impeachment
a.       Impeachment = credibility attack on the witness = 90% of cross
b.      So important b/c once you reach trial both sides are pretty certain of their case – about persuading the jury – so credibility is key
iii.      Re-direct Examination – limited – party who called the witness first has a chance to rehabilitate what was done on cross
1.       Scope – Can only bring up what was brought up in cross –
a.       Cannot use this for if you forgot something on direct
iv.      Re-cross – limited even more – party who crossed has chance again
1.       Scope – only what was brought up on re-direct
d.      Evidence – a knowable fact or group of facts considered with a view to its being offered before a legal tribunal for the purpose of producing a persuasion – positive or negative – as to the truth of a proposition on which the determination of the tribunal is to be asked
i.      Not legal or logical principles
ii.      Admissible if it is relevant, material and competent
e.      Division of power:
i.      Admissibility – judge’s decision
ii.      Weight – jury’s decision
f.        Kinds of evidence –
i.      Testimonial evidence (most common)
1.       Person gets on the stand, takes and oath and tells a story
2.       Witness authenticates themselves by confirming their name and address
ii.      Real evidence
1.       The thing itself – the gun, the contract
a.       Must be authenticated
2.       Some independent fact by inference from which the persuasion is to be produced
iii.      Demonstrative evidence (illustrative)
1.       Someone does a demonstration – physical, mechanical or computer generated model of what happened
a.       Should be substantially similar in courtroom to the actual events so the results are probative
2.       Photo of the scene
3.       USS v. Town of Oyster Bay- Could show that the conditions in the courtroom were not substantially similar to the scene of the accident but it could be shown during cross examination. The physical features of the sign assembly as well as the principles of mechanics involved in the demonstration were well within the experience and comprehension of an average juror. Its probative worth could be independently weighed by the jurors themselves.
g.       FRE 103 – Rulings on Evidence –
i.      Objections – Challenge the admission of evidence. Objections must be stated as soon as the nature of the question or answer becomes apparent as objectionable
1.       If you don’t object the evidence comes in – the judge relies on the lawyers to say what they don’t want and why
2.       If you don’t object, absent plain error affecting substantial rights, appellate consideration is waived
3.       Objections:
a.       I object on the ground that
i.      Compound question-asked more than one question
1.       If sustained ask two questions
ii.      Argumentative-
1.       Not asking the witness to really respond
a.       Any time you see an attorney saying a series of facts and asking them to agree, that is not appropriate – it is in fact a closing argument in the guise of a question.
2.       But if the question is sustained, then the other side will just rephrase and as a series of questions with nuance and tone added, is far more powerful.
iii.      Leading question
1.       If sustained rephrase the question in a non-leading way
2.       Never walk away if your question was objected to because of the form it was made – not the substance. Find another way to ask that same question
iv.       Hearsay
1.       Not yet read into testimony/the record
v.      Calling for a narrative response
vi.      Judicial Notice
1.        The judge’s personal knowledge isn’t important, you can only take judicial notice of something generally known in the community.
2.       Here is another aspect of JN – when a fact is so easily and readily verifiable when referenced to a document, the judge can take JN. (ex: not going to need a police report to take notice of Sept. 11)
a.         It is either so generally or so readily available that everyone can
b.      trust it as fact (so obvious)
c.        But the other side can object and request that the point be litigated

vii.      Move to strike the witnesses answer on the ground that
1.       Improper character evidence
4.       Forms of Responses:
a.       The evidence is admissible because [] 5.       Problem is that the objection and motion to strike will highlight
the testimony you don’t want the jury to hear – so in the real world
you might want to let it go
i.             Offer of Proof – showing on the record by statement of counsel or otherwise of the substance of a witness’s testimony that would have been given but for a ruling of a trial judge to exclude such testimony.
6.        To appeal on evidence not admitted – must make an offer of proof if the answer is not yet on the record of what the answer would have been – otherwise the appellate court won’t know the answer
7.       Done outside hearing of jury [do it sidebar so the jury doesn’t hear] 8.       Or if already heard – judge asks jury to strike the information from their minds
9.       Offers of Proof:
a.       Counsel can ask the witness to state what testimony would have been
b.      Counsel can state what the testimony would have been
c.       Counsel can submit a prepared, written statement of the testimony
h.      FRE 104 – Preliminary Questions
i.      Questions of admissibility – qualification of person to be witness, existence of privilege or admissibility of evidence are determined by the court
ii.      When relevancy of evidence depends on condition of fact, the court should admit it subject to the introduction of evidence sufficient to support a finding of fulfillment of the condition
i.         FRE 106 – Rule of Completeness –
i.      When a writing or recorded statement, or a part of it, is offered by a party, the other party may require introduction at that time of any other part or any other writing or recorded statement which should in fairness be considered contemporaneously with it
ii.      Fairness rule about giving it all to jury at same time to fully understand
j.        FRE 201 – Judicial Notice- A fact is generally known in the jurisdiction where the case is being tried of that is capable of ready and certain verification may be proved by requesting the court to judicially notice the fact. Judicially noticed facts do not require proof by presentation of evidence.
i.      Judicially noticed fact is one not subject to reasonable dispute, either:
1.       Generally known within the territorial jurisdiction of the trial court
2.       Or capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned
ii.      Must be generally known in the district, not just that judge knows something
1.       Is a short cut to proof – ask judge to take judicial notice of an adjudicative fact so you don’t have to bring in expert
2.       Can’t take judicial notice of legislative facts – have to bring the law in
iii.      I object to the court taking judicial notice of X because:
1.       It is not generally known in this jurisdiction and/or
2.       It is open to dispute and not capable of ready and certain verification
3.       However, on cross you can ask the same question again
iv.      Form of Response
1.       Judicial notice is generally known by people in this local jurisdiction and to require other proof would waste time of the court
2.       It is capable of ready and certain verification by resort to authoritative sources that have been provided to the court
v.      Adjudicative facts – facts that are in issue in the trial of a given case
1.       Varacoe v. Lee- The actual fact is that Mission Street, between Twentieth and Twenty-second Streets, is a business district, within the definition of the Motor Vehicle Act, beyond any possibility of question. The character of Mission Street is well known to San Franciscans.
2.       State v. Graham- The principle of Radio Detecting and Rangin

                                                                       iii.      Because the witness is hostile, is an adverse party or is identified with adverse party if they have a commonality of interest in the outcome of the suit or if the association arises out of a relationship such as familial or employment
iv.      On cross (unless it was allowed on direct for adverse or hostile witness)
1.       Stahl v. Sun Microsystems, Inc.- previous employer who had an ongoing relationship with a key witness who attended the trial on behalf of Sun
7.       I object, counsel is misquoting the witness- A question may be objected to as misquoting the witness when it states, as a factual premise, that the witness has previously testified to certain information when in fact the witness has not.
i.      Frequently available during cross examination
1.       The objection is designed to prevent opposing counsel from shading or misstating the testimony of the witness as it has previously been given.
b.      Form of Response
i.      The witness previously testified to [] 8.       I object, the question calls for a narrative response- A question can be objected to as calling for a narrative if it is unfocused as to particular information that is sought and calls for a mere recitation of what a witness knows without benefit of specific questions.
i.      Question allows witness to testify to anything in a general area – doesn’t give counsel a chance to object before objectionable testimony is given
ii.      This objection seeks to prevent the situation where the question does not provide counsel with notice of potential objectionable testimony by a witness
b.      Form of Response
i.      The witness is testifying to relevant and admissible matters
9.       I move to strike the answer of the witness as non-responsive- An answer that exceeds the scope of the question or fails to respond to a question may be the subject of a motion to strike as nonresponsive by questioning counsel. The objection is available to only to questioning counsel.
i.      Used more on cross when the witness fails to respond directly to the question posed
ii.      Questioning counsel has the right to require the witness to respond to legitimate questions.
b.      Forms of Response
i.      The answer of the witness is responsive to the question

10.   I object to the attempt to refresh the witness’s recollection in the absence of a demonstrated failure of memory. I object to the witness reading from the exhibit used to refresh his recollection because (a) it is not in evidence; and (b) it is hearsay- Where a witness has a failure of memory, the witness’s memory may be refreshed by showing the witness a document or other item that revives the witness’s memory. The witness may then testify from a refreshed or revived recollection.
a.       Forms or Response
i.      The witness as shown failure of memory, and I am attempting to refresh his recollection pursuant to rule 612
ii.      The exhibit used to refresh the witness’s recollection is already in evidence and is either
1.       Not hearsay; or
2.       The exhibit meets an exception to the hearsay rule