Evidence. Louis Natali. Fall 2017
Objections to the offering of Evidence:
Rule 103. Rulings on Evidence
103 → Opposing Party is Responsible for Making Objections
Response to an objection is the offer of proof, which may or may not be done in front of the jury
Under the federal rules—but not PA—Court may take sua sponte notice of plain error
-Objections to an exhibit that constitutes real evidence will normally be made at the time the exhibit is formally offered in evidence. (Timely, otherwise: waived)
-The codes and cases recommend that any object ion be accompanied by a reasonably specific statement of the ground(s) for it. (See, e.g., Fed.R.Evid . 103(a)(l)(B)).
-It is the objector's burden to secure an express ruling on his objection. This is essential to appellate review since a trial judge's silence is not considered equivalent to an overruling of the objection.
Rule 105. Limiting Evidence That Is Not Admissible Against Other Parties or for Other Purposes
If the court admits evidence that is admissible against a party or for a purpose — but not against another party or for another purpose — the court, on timely request, must restrict the evidence to its proper scope and instruct the jury accordingly.
Sometimes evidence is admissible only for a limited purpose. It may be admissible as to one party or for one purpose but not admissible as to another party or for some other purpose. Here counsel may wish to obtain an instruction that limits the evidence to its permissible scope. The Judge will tell the jury that they should use the evidence for one particular purpose and not for other purpose.
Original Document [R. 1000] Privilege/Prejudice [R. 403] All of this must be met before before we can use an exhibit in court.
Relevance [R. 401 et al.] Authenticity [R. 901, 902] Hearsay [Rules 801-807]
The trial judge will either require or at least permit participation by counsel in the preparation of the court's charge to the jury. A conference on the charge is usually conducted in the trial judge's chambers after the parties have rested their cases and before their closing arguments commence. At this conference the judge, after discussion with counsel, announces what instructions he or she will give to the jury. Given by the judges after the closing arguments. The Judge has a case of instructions from the counselors to give to the jury. Patter of instructions (the judges use this every conceivable course of action). The judge tells the jury the instructions to solve the case. Most judges follow the pattern instruction. IMP: the counselor gets to review them before the judge gives them to the Jury, and you can ask the Judge to give a particular instruction. YOU CAN OBJECT TO INSTRUCTIONS.
Objection to Instructions
Can object to instructions at any time before closing arguments are made (counsel must make them out of the jury 's hearing immediately after the trial judge has concluded the giving of the charge; otherwise, they are waived. Counsel's objections must be specific, thus affording the judge an opportunity to correct any errors that he can be convinced he made.)
Lawyers can’t tell jury what the law is, but they can say what the judge is going to instruct in closing.
Chain of Custody [partly authenticity] How exactly did the evidence get from the scene of the crime to the court room.
Confrontation Clause (next chapter)
Notes Being Used without Foundation
Witness cannot read from notes, because as an out of court statement they are hearsay
Example of Trial Objections:
Best evidence rule (objection-not the best evidence)
If a proponent seeks to have a witness describe the contents of a document without producing the original document, then the objection “not the Best evidence rule (objection-not the best evidence) If a proponent seeks to have a witness describe the contents of a document without producing the original document, then the objection “not the best evidence| applies.
Concealed during discovery
The trial judge has authority to exclude evidence that should have been revealed during discovery but that was not.
Confrontation Clause violation
If a statement made by a witness who does not appear in court is characterized as testimonial in nature, then a prosecutor ordinarily may not introduce evidence of it against an accused, unless the accused has had an adequate opportunity to be confronted with the witness who made the testimonial statement and the witness is unavailable to testify at trial.
Expert testimony objections
The following are examples of object ions that might be made to expert testimony, depending on the juris diction: Misleading hypothetical question, Opinion on ultimate issue, Opinion on law, No factual basis for opinion, Opinion rests on hearsay, Daubert not satisfied, Frye not satisfied, Opinion based on facts not in evidence, Expert not qualified, Witness not disclosed during discovery
Foundation lacking (“Objection-no foundation”)
The “no foundation” objection is merely a way of stating that the opposing attorney has failed to do something that must be done as a prerequisite for introducing the evidence. The objection could refer to failure to lay the foundation for a hearsay exception, failure to authenticate an exhibit, failure to show that the witness has personal knowledge, or a variety of other grounds. Unless the ground for the objection is apparent from the context or unless the objection is explained in greater detail, this language will not preserve the objection on appeal.
This objection asserts that the opponent is offering an out-of-court statement to prove the truth of what it asserts, and that no hearsay exception or exemption applies. Fed. R. Evid. 801-807.
Rape shield statute
This is the objection that evidence of a sexual assault complainant's sexual reputation or sexual history is inadmissible because of rape shield legislation such as Fed. R. Evid. 412.
Competence of Witnesses
Weight v. Admissibility
601 → Every person is competent to be a witness unless these rules provide otherwise.
But in a civil case, state law governs the witness’s competency regarding a claim or defense for which state law supplies the rule of decision.
These statutes operate on the premise that if two parties have dealings with each other and one then dies, it is unfair for the surviving party to testify against the estate of the other, whose lips have been sealed by death.
Jurisdictional Split (PA still follows it. CA does not).
Cannot testify to a transaction with a dead man, because the dead man’s mouth has been shut by death.
Under 601, this can sometimes apply federally, because state law can control in diversity.
PROBABLY NOT AN EXAM QUESTION
Hill v. Skinner Competen
he Sixth Amendment to the United States Constitution provides that “in all criminal prosecutions, the accused shall enjoy the right to be confronted with the witnesses against him.” Generally, the right is to have a face-to-face confrontation with witnesses who are offering testimonial evidence against the accused in the form of cross-examination during a trial.
RELIGIOUS BELIEF: courts and rule makers came to regard as improper the use of the witness' s beliefs on matters of religion. Fed. R. Evid. 610 (Evidence of a witness’s religious beliefs or opinions is not admissible to attack or support the witness’s credibility) provides that such beliefs may not be used for the purpose of showing either that the witness's credibility is impaired or that it is enhanced.
INFANCY AND MENTAL INCOMPETENCE: Child witnesses have long posed a difficult problem for the courts. There is no minimum age for a witness, but that children as well as adults must testify under oath. That is still basically the law, except that modern courts will not usually insist that a child take a formal oath. The approach reflected in Hill v. Skinner, presented above, still prevails: it is generally enough if the court can satisfy itself that the child has the testimonial capacities of perception, memory, and communication, and that she recognizes her obligation to tell the truth.
Adults are generally presumed to have the mental competence to be able to testify, but it remains open to the opponent to contend that the witness lacks the capacity to be an acceptable witness.
INTEREST: A witness's interest, or bias, remains as an important method of impeachment – indeed, sometimes it is constitutionally protected – but it will not keep a witness off the stand. On the criminal side, in common law the accused can to testify under oath.
INFAMY: the modern approach, is not to preclude a witness from testifying because she has acted badly in the past.
CONNECTION WITH THE TRIBUNAL: Rule 605. Judge The presiding judge may not testify as a witness at the trial. A party need not object to preserve the issue. Rule 606. Juror (a) At the Trial. A juror may not testify as a witness before the other jurors at the trial. If a juror is called to testify, the court must give a party an opportunity to object outside the jury’s presence. Rule 606(b) deals under which circumstances may a juror testify after the verdict as part of an inquiry into the validity of the verdict?
ATTORNEYS: This matter is addressed by the rules of professional responsibility (not by FRE), and the general rule is that she cannot. But there are qualifications and exceptions. Rule 3. 7 of the American Bar Association 's Model Rules of Professional Conduct provides:
Rule 3.7 Lawyer as Witness