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Temple University School of Law
Ouziel, Lauren M.

Prof. Ouziel
Fall 2014

I.  Introduction: “Evidence & Advocacy”
·         Evidence: Body of rules, procedures and principles which form the basis of all that a trial lawyer does
o    Judges have an inordinate amount of discretion as to whether or not to admit evidence
§  Lawyers need to spin the facts to make the rules their friends
o    FRE – Governs federal proceedings, but each state has its own rules of evidence – most of them based on the FRE

II. Competency, 1st Hand Knowledge, Lay Opinions and Judicial Notice
·         FRE 601. General Rule of Competence
o    Every person is competent to be a witness except as provided in the rules (unless there is a problem with one of the COMP criteria)
§  Strong presumption of competency, no affirmative duty on proponent to prove it
·         Competency Criteria:
o    Communication – Can the witness communicate understandably?
o    Oath – Does the witness understand the obligation to tell the truth? (FRE 603)
o    Memory – Does the witness remember time past, particularly the events that happened during the same time frame as the offense?
§  Even if the witness doesn’t remember, the prosecutor can argue – This is a traumatic event, something that the child would remember, unlike other small details in her life – matter of weight, not admissibility.
o    Perception – Is this something the witness has 1st hand knowledge of?
·         Competency Objection – Judge conducts a 104(a) hearing
·         2 Statutory Exclusions:
o    Dead Man’s Act – If a witness was involved in a legal matter with someone who is now dead, their testimony is inadmissible in litigation involving the person’s estate if they have an interest in the outcome – Not all states*
§  Since the other party isn’t around to rebut, the chances are that you are going to lie.
o    Spousal Immunity – In criminal cases, a spouse is incompetent to testify against his/her spouse unless the testifying spouse agrees to give it up

·         FRE 602. Lack of Personal Knowledge.
o    A witness may not testify unless evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter
§  Evidence to prove personal knowledge may, but need not, consist of the witness’ own testimony.
§  This rule is subject to the provisions of 703, relating to opinion testimony by expert witnesses

·         FRE 603. Oath or Affirmation
o    Every witness must promise to testify truthfully by oath or affirmation.

·         FRE 605. Competency of Judge as Witness
o    The judge presiding at the trial may not testify in that trial as a witness.

·         FRE 606. Competency of Juror as Witness:
o    During the trial a member of the jury may not testify as a witness.
o    Upon any inquiry into validity of verdict or indictment, a juror may NOT testify as to any matter or statement occurring during the course of the jury’s deliberations or to the effect of anything upon that or any other juror’s mind or emotions as influencing the juror to assent or dissent from the verdict or indictment or concerning the juror’s mental process in connection therewith.
o    But a juror MAY testify about:
§  Whether extraneous prejudicial information was improperly brought to the jury’s attention or
§  Whether any outside influence was improperly brought to bear upon any juror or
§  Whether there was a mistake in entering the verdict onto the verdict form.
o    A juror’s affidavit or evidence of any statement by the juror may not be received on a matter about which the juror would be precluded from testifying.
§  Note: This bars inquiry into whether jurors compromised, considered evidence or misunderstood instructions
§  Juror testifies to extraneous information/outside influence, judge weighs nature of any effect on deliberations

·         FRE 701. Opinion Testimony By Lay Witnesses.
o    Lay persons are permitted to testify as to opinions or inferences that are:
§  Rationally based on the witness’s 1st hand knowledge
§  Helpful to a clear understanding of the witness’ testimony or the determination of a fact in issue AND
§  NOT based on scientific, technical or other specialized knowledge
o    Note: Lay witnesses can testify as to body language (e.g. looked nervous, scared), state of mind, facial expression, sobriety, competence, handwriting collective facts & parental ability but NOT what someone else feels, thinks or intends

·         FRE 201. Judicial Notice
o    This rule governs only judicial notice of adjudicative facts – facts that are in issue in the case
o    A judicially noticed fact must be one not subject to reasonable dispute in that it is either:
§  Generally known (and uncontested) in the jurisdiction OR
§  Comes from a source whose accuracy cannot reasonably be questioned (e.g. Almanac, Encyclopedia, maybe not Map Quest)
o    Court may take judicial notice on its own initiative.
o    Court shall take judicial notice if requested by a party and supplied with the necessary information.
o    Court can take judicial notice at anytime – should be used when it is most persuasive
o    Jury Instructions:
§  In a criminal case, judge will instruct the jury that they MAY consider it as true
§  In a civil case, judge will instruct the jury that they MUST consider it as true

III. General Relevance
·         FRE 401. Relevant Evidence
o    Evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more or less probable than it would be without the evidence.
§  Court does not weigh credibility or believability but may consider persuasiveness
§  Look at the elements of the c/a to determine whether something is relevant

·         FRE 402. Relevant Evidence Generally Admissible; Irrelevant Evidence Inadmissible
o    Relevant evidence = admissible
§  EXCEPT as provided by the Constitution, by Act of Congress, by these rules, or by other rules prescribed by the Supreme Court pursuant to statutory authority
§  General background information about a witness is almost always relevant re: witness’ believability
o    Irrelevant evidence = inadmissible
§  Evidence that is not probative of the proposition to which it is directed, even if that proposition is material
o    Relevance objection: Basically means, it has no purpose
o    Responding to relevance objections: Explain the purpose for which the evidence is admissible in a way that advances your theory of the case.

·         FRE 403. Exclusion of Evidence on Grounds of Prejudice, Confusion or Waste of Time
o    Although relevant, evidence may be excluded if its probative value is SUBSTANTIALLY outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by consideration of undue delay, waste of time, or needless presentation of cumulative evidence.
o    Notes:
§  Usually there is a presumption of admissibility of logically relevant evidence or evidence with probative value
·         However, evidence is presumptively prejudicial when it is about the accused & Commonwealth must show that the probative value outweighs the prejudice
§  Unfair Prejudice = Deflect jury from actually deciding the case on its factual merits & lead or invite the jury to make its decision on unfair considerations which do not relate to the issues in the case
§  Redaction: When attorney asks that only the relevant evidence be admitted, and the rest is sterilized from unfairly prejudicing the jury
·         E.g. D charged w/ burglary – Evidence that D was selling drugs in the area is admissible to show presence.  D’s lawyer should ask that evidence can be shown he was in the area, but not what he was doing.
§  Old Ch

her someone is an expert, whether an utterance was excited, etc.) and authenticity of exhibits
o    Relevancy Conditioned on Fact (104(b)) – Hook Up Rule
§  Conditionally Relevant Evidence = If a party first has to prove that another fact exists before the offered evidence is relevant
§  Commentary:
·         Usually only applies to 404(b) & 901 (authentication) issues
·         Judge has discretion to admit conditionally relevant evidence subject to later proof of foundational facts
·         If proponent fails to introduce additional evidence, the opponent should move to strike the already admitted evidence – judge may give limiting instruction or declare a mistrial
o    Testimony by Accused (FRE 104(d)
§  The accused does not by testifying upon a preliminary matter, become subject to cross-examination as to other issues in the case.

IV. Procedures for Admitting and Excluding Evidence; Objections

·         FRE 103. Rulings on Evidence

o    103(a) Effect of Erroneous Ruling. [Full Disclosure Rule] §  Error may not be predicated upon a ruling which admits or excludes evidence unless a SUBSTANTIAL right of the party is affected (e.g. had an impact on the outcome of the case) AND
(1)     Objection. In case the ruling is one 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 –OR–
(2)     Offer of Proof. In case the ruling is one excluding evidence, the substance of the evidence was made known to the court by offer of proof or was apparent from the context within which questions were asked.
a.        Commentary: For a successful claim of evidentiary error there must be an erroneous ruling + a timely, specific & right objection or offer of proof

§  Objections (103(a)(1))
·         Purposes: To keep the evidence out AND preserve the issue for appeal
·         Timely, Specific & Right
o   Timely = Must be made as soon as the objectionable nature of the question/answer/exhibit becomes apparent
o   Specific = Must state the specific legal grounds for the objection
o   Right = Must state the right reason for the objection – why the evidence is irrelevant, immaterial or incompetent
·         Motion to Strike
o   Should accompany the objection
·         Don’t ever withdraw an objection unless you believe it was an error to have made it.

§  Common Objections:
·         Relevance
·         Competence (e.g. requiring a dr. to go beyond his expertise)
·         Leading
·         Speculative/speculation
·         Hearsay
·         Argumentative
·         Asked and answered
·         Assuming facts not in evidence – Make only when confident the witness can’t testify to the assumed facts.
·         Compound
·         Confusing and misleading
·         Harassing, embarrassing or personally attacking the witness
·         Non-responsive – Only the examiner may make this objection*
·         Vague
·         Improper lay opinion – Lay witnesses can’t testify to speed generically, only to speed in MPH