Select Page

Temple University School of Law
Bocchino, Anthony J.

I.                   JUDICIAL NOTICE
a.       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 è judicially noticed facts DON’T require proof!
b.      FRE 201 – Judicial Notice of Adjudicative Facts
                                                              i.      (a) This rule governs only judicial notice of adjudicative facts
                                                            ii.      (b) A judicially noticed fact must be one not subject to reasonable dispute in that it is either (1) generally known within the territorial jurisdiction of the trial court or (2) capable or accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned
                                                          iii.      (c) A court may take judicial notice, whether requested or not.
                                                           iv.      (d) A court shall take judicial notice if requested by a party and supplied w/ the necessary information
                                                             v.      (e) A party is entitled upon timely request to an opportunity to be heard as to the propriety of taking judicial notice and the tenor of the matter noticed. In the absence of prior notification, the request may be made after judicial notice has been taken.
                                                           vi.      (f) Judicial notice may be taken at any stage of the proceeding.
                                                         vii.      (g) In a civil action, the court shall instruct the jury to accept as conclusive any fact judicially notice. In a criminal case, the court shall instruct the jury that it may, but is not required to, accept as conclusive any fact judicially noticed.
c.       FRE 201 applies only to adjudicative facts or FACTS THAT ARE IN ISSUE!
d.      Facts appropriate for judicial notice:
                                                              i.      Generally known in jurisdiction – like character of a neighborhood
                                                            ii.      Capable of ready and certain verification by reference to authoritative sources – proponent must provide court w/ authoritative source (geographical facts, historical facts, calendar facts, scientific facts)
1.      Where ct provided w/ authoritative sources which prove the fact, judicial notice on request is mandatory
e.       Binding on jury in civil cases, not so in criminal cases
f.       Under R104(a), judge gets to review whatever document you provide
II.                COMPETENCY TO TESTIFY – competency has to do w/ eligibility to testify è it DOESN’T have to do with the integrity / authenticity of evidence
a.       Whether or not the evidence is believable is PURELY a matter for the jury è weight, not admissibility!
                                                              i.      A person is competent to be a witness if she possesses the ability to:
1.      Perceive events about which she’ll testify
2.      Remember events
3.      Communicate understandably to trier of fact
4.      Appreciate obligation to tell truth
c.       Olhbaum’s Rule:
                                                              i.      C – communicate
                                                            ii.      O – oath to tell the truth (FRE 603 – “administered in a form calculated to awaken the witness’s conscience and impress the witnesses mind with the duty to do so”)
                                                          iii.      M – memory
                                                          iv.      P – perception – first hand knowledge (R.602) – you want ppl to discuss only what they know, but we’re talking about first hand knowledge thru your senses, not what you’ve heard
d.      R. 601 – General Rule of Competency (presumption of competency!)
                                                              i.      Every person is competent to be a witness except as otherwise provided in these rules. However, in civil actions and proceedings, with respect to an element of a claim or defense as to which state law supplies the rule of decision, the competency of a witness shall be determined in accordance w/ the state law.
e.       R. 602 – Lack of Personal Knowledge – witness may only testify to a matter which s/he has perceived thru one of the senses!
                                                              i.      A witness may not testify to a matter 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 witnesses own testimony. This is subject to R.703 (opinion testimony by expert witnesses).
1.      Note that an expert witness need not have firsthand knowledge of the subject of his expert opinion (703)
f.       Commentary – competent is the term applied to a person who has the abilities to serve as a witness in a trial or hearing, and it embodies 4 qualities (perception, recollection, communication, and appreciation for oath)
g.       Opponent can move at any time before the person is sworn in as a witness to challenge competence on voir dire
h.      Issue of competency usually raised wrt child witnesses or witnesses who have some physical or mental deficiency
                                                              i.      0-6 used to be per se incompetent, 6-14 you had a shot, above 14 you’re cool, but now these rules are just illustrative
1.      6-14 is normally presumed to be competent, so the burden is on the opponent
2.      Taint – if the child’s testimony or the child’s statements to therapists, detectives, social workers, etc. are the product of coercive or unfairly suggestive questioning techniques that may have tainted the questioning so much that a judge can find that any reasonable jury would only be able to speculate about the child’s testimony è The judge is in her right to say that she can’t allow the testimony can’t go on è normally, the judge resolves this in favor of the commonwealth
3.      In PA, taint is a matter of competency / eligibility, not weight
                                                            ii.      On objection or the judge’s motion, voir dire hearing to inquire into the competency of a witness
                                                          iii.      Judge’s determination re: competency will only be overturned for an abuse of discretion
                                                          iv.      Judges and jurors are per se incompetent to testify in cases in which they are serving (FRE605 and FRE 606, respectively)
                                                            v.      Generally, we don’t challenge competency è things like drugs, booze, whatever is a matter of weight / credibility, NOT admissibility
j.        Under R601 and 602, witnesses have to testify in the language of perception è Article 6 represents witnesses and credibility, anything that deals with how a witness is challenged – all article 6
                                                              i.      Per R.701, lay opinions, laypersons must speak in the language of perception (602), but its hard not to express opinion, so R701 says that a lay person can testify as to opinion as long as its related to perception
1.      Based upon perception
2.      Helpful to Jury’s grasp
3.      Classic examples: Physical characteristics, body language, State of mind, facial expressions, Sobriety (you need first hand knowledge, and a reservoir of knowledge on subject), Handwriting (R.901(b)(2)), Light, sound, speed, Collective facts (they appeared to be in love, it smelled like garlic, etc., one case in PA – the dude couldn’t have avoided the accident), Parenting ability
                                                            ii.      Amendment to R701 (amended a few years ago) è 701(c) – if the lay opinion is going to be predicated upon expertise, then we will not allow it be done by a lay person
III.             RELEVANCE = PROBATIVE WORTH è whether evidence has any tendency to establish a proposition or fact that is material to the lawsuit
a.      R. 401 – Definition of “Relevant Evidence”
                                                              i.      “Relevant evidence” means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be w/o the evidence
1.      Relevance ≠ Materiality
a.       Materiality is the relationship between the proposition on which the evidence is offered and the issues in the case
b.      Relevance includes both the test of materiality and something else è the tendency of the evidence to establish a material proposition
2.      R. 401 demonstrates the basic philosophy of the federal rules in favor of admitting evidence and allowing the fact-finder to determine its weight
                                                            ii.      Objection to the relevance of proposed evidence – normally raised by pretrial motion in limine
b.      R. 402 – Relevant Evidence Generally Admissible; Irrelevant Evidence Inadmissible
                                                              i.      All relevant evidence is admissible, except as otherwise provided by the Constitution of the U.S., by Act of Congress, by these rules, or by other rules prescribed by the USSC pursuant to statutory authority. Evidence which is not relevant is not admissible.
c.       Often the terms relevance and materiality are used interchangeably, but they are different
                                                              i.      Materiality is a more precise word, and its within the meaning of relevance
                                                            ii.      Materiality is the relationship between the proposition on which the evidence is offered and the issues in the case è if the evidence is offered to prove a proposition that’s not a matter in issue, the evidence is immaterial
1.      When a party attempts to address evidence to a proposition that’s not w/in the range of issues defined w/in the lawsuit, immateriality would be an appropriate objection
                                                          iii.      Relevancy is both a test of materiality and something more … it’s the tendency of the evidence to establish a material proposition
1.      Evidence of proposition that isn’t provable – immaterial and irrelevant
2.      Evidence that isn’t probative of proposition, even if proposition is material, is irrelevant
1.      Direct and circumstantial evidence can be relevant
2.      Objection to relevance of proposed evidence should normally be raised by a pretrial motion in limine
d.      R. 403 – Exclusion of Relevant Evidence on Grounds of Prejudice, Confusion, or Waste of Time – tho evidence is logically relevant under 401, it must be balanced against considerations contained in 403 to see if its admissible
                                                              i.      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 considerations of undue delay, waste of time or needless presentation of cumulative evidence
1.      Balancing tests of Rules 401 and 403 tilts heavily in favor of the admissibility of logically relevant evidence or evidence with probative value as the prejudice must substantially outweigh the probative value to require exclusion
2.      Considerations – unfair prejudice, confusion of the issues for the jury, misleading of the jury, unnecessary delay, wasting of time, pointless presentation of repetitive / cumulative evidence.
a.       Of these considerations, unfair prejudice is most problematic è evidence which will deflect the jury from actually deciding the case on its factual merits and lead or invite the jury to make its decision based on unfair considerations that don’t relate to the issues of the case.
b.      By unfair prejudice, the rules refer to evidence which will deflect the jury from actually deciding the case on its factual merits and lead or invite the jury to make its decision based on unfair considerations which do not relate to the issues in the case
                                                                                                                                      i.      Appropriate to all offers of evidence except those under:
1.      R412(c)(3) è WHAT IS THIS??? Pg. 49
2.      R609(a)(1), (b), (c)
e.       CONDITIONAL ADMISSIBILITY (PG20)– the relevance of a particular offer of evidence may be conditioned upon proof of other facts è so the court can conditionally admit the proffered evidence subject to an offer of proof that the additional facts will be offered
                                                              i.      R.104 – Preliminary Questions
1.      (b) Relevancy Conditioned on fact. When the relevancy of evidence depends upon the fulfillment of a condition of fact, the court shall admit it upon, or subject to, the introduction of evidence sufficient to support a finding of the fulfillment of the condition.

                             iv.      This objection is sometimes “quarreling” or “badgering” the witness è but quarrels w/ witnesses aren’t technically argumentative
                                                            v.      Objection points out to jury that responses called for are really the summaries / inferences of counsel, not the witness
                                                           vi.      No federal rule that specifically covers forms of questions – but the court has discretion to sustain the objection per R.611(a)
e.       Asked and Answered – a question may be objected to as asked and answered when it calls for the repetition of testimony from a witness who has previously given the same testimony in response to a question asked by examining counsel
                                                              i.      This can be objected to on the basis of R.611(a) (control by court) OR R.403, since a question that’s been asked and answered calls for cumulative evidence!
                                                            ii.      The objection won’t lie when, on cross, counsel asks for testimony earlier elicited during direct!
                                                          iii.      But it is appropriate when, on redirect, a question is asked that was already asked / answered on direct
                                                           iv.      Most judges will sustain only if testimony sought is overly repetitive è and there’s greater latitude on cross!
                                                            v.      Not a proper objection when it’s made to a question calling for info from one witness that’s already been given by another witness è for this, you’d object as cumulative, but the response would be CORROBORATIVE!
                                                           vi.      Asked and answered objection is one of the most practical – judges like it and jurors get offended when stuff is repeated!
f.       Assuming Facts Not In Evidence – question is objectionable if it assumes in the asking facts that haven’t already been proved – these are a type of leading question.
                                                              i.      Since a question that assumes a fact not in evidence is a type of leading question, the court can sustain the objection pursuant to R.611(c)
1.      Rule 61l – Mode and Order of Interrogation and Presentation
a.       (c) Leading Questions. Leading questions should not be used on the direct examination of a witness except as may be necessary to develop the witnesses testimony. Ordinarily leading questions should be permitted on cross examination. When a party calls a hostile witness, an adverse party, or a witness identified with an adverse party, interrogation may be by leading questions.
2.      The judge also has discretion to sustain the objection to question per R.611(a) – Control by Court.
3.      Further, if the assumed fact isn’t w/in the firsthand knowledge of the witness, the court can sustain the objection pursuant to R.602.
a.       R.602. Lack of Personal Knowledge. A witness may not testify to a matter unless the evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter …
                                                            ii.      This objection should only be made when objecting counsel is confident that the witness can’t testify to the assumed fact. If the witness can testify to the assumed fact and questioning counsel knows how to ask the question, objecting counsel will look like an overly technical ass.
                                                          iii.      Typically used in response to questions on direct, it’s available to cross-examination questions – but on cross, a question that assumes a fact not in evidence will often misquote the witness and be argumentative
1.      On cross, this objection alerts the witness to the inappropriate tactics of the opposing counsel, so witness will be on guard!
                                                          iv.      Objection that question assumes a fact not in evidence – you want the jury to hear all of the predicate information….
g.       Compound Questions (PG12) – a question that asks for two or more items of information at the same time, so that its impossible to understand the meaning of the answer to the question, is a compound question.
                                                              i.      No federal rule that specifically covers forms of questions, but the court has discretion under R.611(a) (Control of Court)
                                                            ii.      Problem with compound questions is that they tend to confuse the jury about the testimony of the witness – if a witness answers “yes” to a question about two items of information, it’s impossible to know whether the witness is affirming the first question, the second question, or both è obvious potential for confusion.
                                                          iii.      Since they’re confusing, the maker of the objection may well make the questioning counsel a better advocate!
                                                          iv.      Really just another form of ambiguity è you want to be sure to ask one question at a time
h.      Leading Questions (PG13) – leading question is one that suggests the desired answer to the witness so that it puts the desired answer in the witnesses mouth, or is unclear as to whether the witness or lawyer is testifying. Generally forbidden on direct, permitted on cross.