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Evidence
Temple University School of Law
Bocchino, Anthony J.

 
EVIDENCE
BOCCHINO
FALL 2013



I.                     Preliminary Matters
a.        Objections
i.      Definition
1.        Objection challenge admission of evidence
2.       Absent plain error, failure to object waives appellate consideration of error
ii.      Rules
1.        Rule 103: Rulings on Evidence
a.        a) preserving a claim of error: a party may claim error in a ruling to admit or exclude evidence only if the error affects a substantial right of the party and:
i.      1) if the ruling admits evidence, a party, on the record:
1.        A) timely object or moves to strike; and
2.       B) states the specific ground, unless it was apparent from the context; or
ii.      2) if the ruling excludes evidence, a party informs the court of its substance by an offer of proof, unless the substance was apparent from the context
b.       b) not needing to renew an objection or offer of proof: once the court rules definitively on the record – either before or at trial – a party need not renew an objection or offer of proof to preserve a claim of error for appeal
c.        c) court’s statement about the rulings; directing an offer of proof: the court may make any statement about the character or form of the evidence, the objection made, and the ruling. The court may direct that an offer of proof be made in question and answer form.
d.       d) preventing the jury from hearing inadmissible evidence: to the extent practicable, the court must conduct a jury trial so that the inadmissible evidence is not suggested to the jury by any means.
e.       e) taking notice of plain error: a court may take notice of a plain error affecting a substantial right, even if the claim of error was not properly preserved.
iii.      Explanation
1.        Plain error: errors in the admission of evidence that are clear and obvious and hat so substantially affect the rights of the complaining party as to fundamentally prejudice it.
2.       Objecting counsel must state, in specific terms, the reason the evidence is not relevant, material, or competent.
3.        Objections must be timely – contemporaneous objection rule
a.        If your objection is to a question, objection must be made before the answer is given
b.       If motion to strike is to an answer, motion must be made before the next question
c.        Exception: the quick answer
4.       Where the court makes a definitive ruling in limine to admit or exclude evidence, there is no need to renew the objection or offer of proof at trial when the evidence is or would have been offered
5.        If objection is to a question, opponent need only object and state specific grounds
a.        If objection is to answer, opponent must make a motion to strike
iv.      Examples
1.        Proper objection
a.        Objection to a document as incompetent because it is hearsay
b.       Objection to evidence of a prior act as irrelevant because it is offered to prove propensity
c.        Objection to evidence of the contents of a phone call as incompetent because of the lack of authentication of the person allegedly making the phone call.
b.       Offers of proof
i.      Definition
1.        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
ii.      Rules
1.        Rule 103: Rulings on Evidence
a.        a) preserving a claim of error: a party may claim error in a ruling to admit or exclude evidence only if the error affects a substantial right of the party and:
i.      2) if the ruling excludes evidence, a party informs the court of its substance by an offer of proof, unless the substance was apparent from the context
b.       b) not needing to renew an objection or offer of proof: once the court rules definitively on the record – either before or at trial – a party need not renew an objection or offer of proof to preserve a claim of error for appeal
c.        c) court’s statement about the rulings; directing an offer of proof: the court may make any statement about the character or form of the evidence, the objection made, and the ruling. The court may direct that an offer of proof be made in question and answer form.
iii.      Explanation
1.        Offer of proof provides the record with the witness’s answer to the objected to question
2.       Must be made outside the hearing of the jury
a.        Witness can state the testimony
b.       Lawyer can state the substance of witness’s testimony
c.        Lawyer can provide a prepared written statement of the witness’s testimony
3.        Must make an offer of proof to preserve an issue for appeal when evidence is excluded
c.        Role of Judge and Jury
i.      Rules
1.        Rule 104: Preliminary Questions
a.        a) in general: the court must decide any preliminary question about whether a witness is qualified, a privilege exists, or evidence is admissible. In so deciding, the court is not bound by evidence rules, except those on privilege.
b.       b) relevance that depends on a fact: when the relevance of evidence depends on whether a fact exists, proof must be introduced sufficient to support a finding that the fact does exist. The court may admit the proposed evidence on the condition that the proof be introduced later.
c.        c) conducting a hearing so that the jury cannot hear it: the court must conduct any hearing on a preliminary question so that the jury cannot hear it if:
i.      1) the hearing involves the admissibility of a confession;
ii.      2) a defendant in a criminal case is a witness and so requests; or
iii.      3) justice so requires
d.       d) cross examining a defendant in a criminal case: by testifying on a preliminary question, a defendant in a criminal case does not become subject to cross-examination on other issues in the case
e.       e) evidence relevant to weight and credibility: this rule does not limit a party’s right to introduce before the jury evidence that is relevant to the weight or credibility of other evidence.
2.       Rule 611: Mode and Order of Examining Witnesses and Presenting Evidence
a.        a) control by the court; purposes: the court should exercise reasonable control over the mode and order of examining witnesses and presenting evidence so as to:
i.      1) make those procedures effective for determining the truth;
ii.      2) avoid wasting time; and
iii.      3) protect witnesses from harassment or undue embarrassment
b.       b) scope of cross examination: cross-examination should not go beyond the subject matter of the direct examination and matters affecting the witness’s credibility. The court may allow inquiry into additional matters as if on direct examination.
c.        c) leading questions: leading questions should not be used on direct examination except as necessary to develop the witness’s testimony. Ordinarily, the court should allow leading questions:
i.      1) on cross examination; and
ii.      2) when a party calls a hostile witness, an adverse party, or a witness identified with an adverse party.
ii.      Explanation
1.        The judge must decide any preliminary questions, as a matter of law
a.        Ex: competency of witness
2.       The judge must determine whether a privilege exists – this is also a preliminary question of admissibility
a.        Ex: lawyer, doctor, religious leader
3.        When judge is making determination that relevance of the evidence depends on future evidence not yet introduced, counsel needs to present evidence to support a finding that the fact does exist
a.        There must be sufficient evidence of the foundational fact such that a reasonable jury could find by preponderance of the evidence that the fact exists (lowest quantum of proof)
4.       There is a bias in favor of admissibility
d.       Judicial Notice
i.      Definition
1.        A fact that is generally known in the jurisdiction where the case is being tried or 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.
ii.      Rules
1.        Rule 201: Judicial Notice of Adjudicative Facts
a.        a) scope: this rule governs judicial notice of an adjudicative fact only, not a legislative fact
b.       b) kinds of facts that may be judicially noticed: the court may judicially notice a fact that is not subject to reasonable dispute because it:
i.      1) is generally known within the trial court’s territorial jurisdiction; or
ii.      2) can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned
c.        c) taking notice: the court –
i.      1) may take judicial notice on its own; or
ii.      2) must take judicial notice if a party requests it and the court is supplied with the necessary information
d.       d) timing: the court may take judicial notice at any stage of the proceeding
e.       e) opportunity to be heard: on timely request, a party is entitled to be heard on the propriety of taking judicial notice and the nature of the fact to be noticed. If the court takes judicial notice before notifying a party, the party, on request, is still entitled to be heard.
f.         f) instructing the jury: in a civil case, the court must instruct the jury to accept the noticed fact as conclusive. In a criminal case, the court must instruct the jury that it may or may not accept the noticed fact as conclusive.
iii.      Explanation
1.        May be taken at any time – from pretrial through the appellate level
2.       Applies only to adjudicative facts – facts that are at issue in the trial of a given case
3.        Facts generally known in trial jurisdiction
a.        Must be generally known, not merely known by judge, even if judge doesn’t know
4.       Facts capable of ready and certain verification by reference to authoritative source
a.        Authoritative source must be provided
b.       Opponent may provide a contrary authoritative source
5.        Where court is provided with authoritative sources that prove the fact, judicial notice on request is mandatory
6.       Mandatory for jury in civil cases, not mandatory for jury in c

2.       Admissible
3.        Inadmissible
a.        Where a child is not having difficulty responding the questions, leading questions are not allowed
b.       A question that goes to the heart of one of the criteria for qualifying a child witness (appreciation of the nature of the oath) cannot be asked via leading question.
g.       First Hand Knowledge
i.      Definition
1.        A witness may testify only about matters about which he has personal or firsthand knowledge. In other words, a witness may testify only about matters that the witness has perceived through one of the senses.
ii.      Rules
1.        Rule 602: Need for Personal Knowledge
a.        A witness may testify to a matter only if evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter. Evidence to prove personal knowledge may consist of the witness’s own testimony. This rule doesn’t apply to a witness’s expert testimony under 703.
2.       Rule 612: Writing Used to Refresh a Witness’s Memory
a.        a) scope: this rule gives an adverse party certain options when a witness uses a writing to refresh memory:
i.      1) while testifying; or
ii.      2) before testifying, if the court decides that justice requires the party to have those options.
b.       b) Adverse party’s options; deleting unrelated matter: unless 18 USC § 3500 provides otherwise in a criminal case, an adverse party is entitled to have the writing produced at the hearing, to inspect it, to cross-examine the witness about it, and to introduce in evidence any portion that relates to the witness’s testimony. If the producing party claim that the writing includes unrelated matter, the court must examine the writing in camera, delete any unrelated portion, and order that the rest be delivered to the adverse party. Any portion deleted over objection must be preserved for the record.
c.        c) failure to produce or deliver the writing: if a writing is not produced or is not delivered a ordered, the court may issue any appropriate order. But if the prosecution does not comply in a criminal case, the court must strike the witness’s testimony or – if justice so requires – declare a mistrial
iii.      Explanation
1.        Foundation must be laid that demonstrates that the witness was in a position to know the things about which she will testify.
2.       Expert witness need not have firsthand knowledge of the subject of his expert opinion
II.                    Relevance
a.        Relevance Generally
i.      Definition
1.        Evidence is relevant in either a civil or criminal case if it has any tendency to establish a proposition or fact that is material to the lawsuit
ii.      Rules
1.        Rule 401: Test for Relevant Evidence
a.        Evidence is relevant if:
i.      (a) it has any tendency to make a fact more or less probable than it would be without the evidence; and
ii.      (b) the fact is of consequence in determining the action
2.       Rule 402: General Admissibility of Relevant Evidence
a.        Relevant evidence is admissible unless any of the following provides otherwise:
i.      The US Constitution
ii.      A federal statute
iii.      These rules
iv.      Other rules prescribed by the SCOTUS
iii.      Explanation
1.        Relevance = materiality + more
2.       Relevance refers to the logical relationship between the proposed evidence and a fact to be established
3.        Direct evidence is included within relevant evidence
a.        Evidence that, if believed, establishes or resolves a matter in issue in a lawsuit
4.       Circumstantial evidence is included within relevant evidence
a.        Evidence that serves as a basis from which the fact finder may make a reasonable inference about the matter in issue