1. Admission and Exclusion
a. Checklist for Objections:
1. Original Documents Rule
b. Rule 104(a) – Questions of Admissibility Generally
1. Preliminary questions concerning the qualification of a person to be a witness, the existence of a privilege, or the admissibility of evidence shall be determined by the court.
1. The trial judge, not the jury, decides whether evidence is admissible.
c. Limited Admissibility
1. Sometimes an item of evidence is relevant to one issue in a case but has no relationship at all to another issue.
2. Sometimes an item of evidence is relevant to one issue in a case and is a type of evidence forbidden to be considered with respect to another issue.
1. E.g., evidence of an alleged tortfeasor’s subsequent remedial measures are inadmissible to prove negligence. Such measures could relate however to the issues of ownership or control of the site where the injury occurred.
3. Judges will give a limiting instruction.
4. Limiting instruction tells jurors to consider the information only with respect to the topic for which it is legitimately admitted.
5. For every possible objection to admission, the judge rules.
d. Rule 104(b) – Relevancy conditioned on fact
1. 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.
1. This is the one type of objection to admissibility that the jury decides itself.
2. If the party seeking to introduce an item of evidence agrees that it is not relevant by itself but states that it will be relevant when some other fact is established that provides a context for it, the situation is defined as “relevancy conditioned on fact.” In this situation, the evidence is required to be admitted and the jury will hear it.
3. If the proponent then fails to produce information about the supporting context that is required to make the challenged evidence relevant, the jury can be depended on to notice that the challenged evidence has no relevancy to the case and will disregard it.
4. E.g., in a murder trial, the prosecution seeks to show that D owned a red hat. If an eyewitness saw the murderer run from the scene wearing the red hat, information about D’s hat would be significant circumstantial evidence, but the relevance of the hat ownership is only apparent if there is testimony from the eyewitness.
1. Judges will admit this sort of evidence if its proponent has already produced the other material that shows its relevance to the trial or if the proponent promises to produce the contextual information later, i.e. “connect it up.”
2. The jury must decide whether the underlying context has been proven adequately to support consideration of the conditionally relevant information.
3. If the prosecutor fails to introduce eyewitness testimony that the murderer wore a red hat, the judge could instruct the jury to ignore whatever it had heard about D’s possession of the hat.
5. The quantum of proof necessary to fulfill the conditional admissibility requirement is sufficient evidence that a jury could find, by a preponderance of the evidence, that the conditional facts exist.
2. Rule 201 – Judicial Notice of Adjudicative Facts
a. Scope of Rule
1. This rule governs only judicial notice of adjudicative facts
1. “Adjudicative facts” are facts that are specific to a particular litigation, such as whether a certain street is in a business or residential district, as opposed to “legislative facts,” which refers to more general facts about society and human nature that are not available for judicial notice, e.g., separate but equal facilities create a badge of inferiority.
b. Kinds of facts
1. 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 of accurate and ready determination by resort to resources whose accuracy cannot reasonably be questioned
1. Time of sunset on a particular day, found in an almanac
2. Location of a well-known building in a city
c. When discretionary
1. A court may take judicial notice, whether requested or not
d. When mandatory
1. A court shall take judicial notice if requested by a party and supplied with the necessary information.
e. Opportunity to be heard
1. 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
1. A party seeking to have a court judicially notice a fact is entitled to present arguments in favor of judicial notice, and the opponent may counter those arguments.
2. If a court announces it is taking judicial notice of a fact and there has been no argument in advance about it, an opposed party is entitled to present arguments to show that the fact is not appropriate for judicial notice.
f. Time of taking notice
1. Judicial notice may be taken at any stage of the proceedings
g. Instructing jury
1. In a civil action or proceeding, the court shall instruct the jury to accept as conclusive any fact judicially noticed. 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.
1. The special provision for criminal cases reflects the constitutional right to a jury trial and a belief that requiring the jury to accept as true a fact that the judge had accepted as true would be an unconstitutional invasion of that right.
3. Rule 611 – Mode and Order of Interrogation and Presentation
a. The trial judge controls the mode and order of presentation of each party’s case
1. (a) Control by court. The court shall exercise reasonable control over the mode and order of interrogating witnesses and presenting evidence so as to
1. May the interrogation and presentation effective for the ascertainment of the truth,
2. Avoid needless consumption of time, and
3. Protect witnesses from harassment and undue embarrassment.
4. Preserving Error
a. Rule 103 – Rulings on Evidence
1. 103(a)(1) – Contemporaneous Objection Rule
1. To preserve an evidentiary issue for appeal, a party must object to the court’s ruling
2. The objection must be made before the witness gives an answer
3. When an objection is made to the witnesses’ answer, the party must file a motion to strike the witnesses’ testimony
4. Objections must be specific and must state the grounds for objection
2. 103(a)(2) – Offer of Proof
1. Statement on the record of what the witness would have said and why it would be admissible
2. Intended to assist trial courts in making evidentiary rulings, since it guarantees that the trial court will have a clear idea of the offered evidence.
3. An offer of proof can be made in any of three ways, all outside the hearing of the jury:
1. Counsel may ask the witness to state what his testimony would have been
2. Counsel may state what the witness’ testimony would have been
3. Counsel may submit a prepared, written statement of the excluded testimony.
4. In addition, the offer of proof should contain a statement by counsel as to the admissible purpose for which the evidence is offered.
5. The offer of proof must be made at the time of the sustaining of an objection or it will be waived.
b. Rule 106 – Remainder of Related Writings or Recorded Statements
1. When a writing or recorded statement or part thereof is introduced by a party, an adverse party may require the introduction at the time of any other part or any other writing or recorded statement which ought in fairness to be considered contemporaneously with it.
1. Essentially a rule of fairness by providing that the jury be given all of the evidence in a writing or recording about a particular topic that ought in fairness be considered contemporaneously to fully understand the subject as covered by the writing.
2. Completing evidence is admissible for the same purpose as the evidence it completes.
3. Rule applies to other writings or recordings that provide the same complete context in which the proffered writing or recording should be considered by the jury.
4. Judge has discretion to require the remainder of the writing or recording to be admitted at the time of the proffer that it completes, or can allow the adverse party to admit the remainder of the writing or recording during the next opportunity to inquire of the witness through whom the writing or recording is admitted.
5. Forms of Questions
a. Ambiguous Questions
1. A question susceptible to at least two interpretations, or so vague or unintelligible as to make it likely to confuse the jury or witness
2. Court may sustain the objection pursuant to Rule 611(a)
b. Argumentative questions
1. A question that is asked not for the purpose of obtaining info
witness the refreshing document and ask him to read it to himself
4. Ask the witness if he has read it
5. Ask the witness if his memory is now refreshed with respect to the forgotten fact.
6. Take the refreshing exhibit away from the witness
7. Repeat the question that drew the original failure of memory.
3. Any document or thing used to refresh recollection must be made available to the opponent for use in the opponent’s next examination of the witness.
1. Usually, opposing counsel is provided with a copy of anything marked as an exhibit before it is shown to the witness.
4. The proponent who uses the document to refresh may not offer the document into evidence unless it is otherwise admissible, but the opponent may offer the pertinent parts of the refreshing document in evidence as it impacts the testimony of the witness.
5. Even if a document used to refresh memory would be privileged or non-discoverable work product, it still must be produced.
1. Counsel should take care to avoid refreshing recollection either before or during trial with a document which contains damaging information that is not already in the possession of the opponent.
8. Competency of Witnesses
a. In order to testify, a witness must be competent.
b. Under Rule 601, all people are competent to testify, subject to a few exceptions.
1. Under Rule 605, the judge presiding at the trial may not testify in that trial as a witness.
1. Under Rule 606, a person may not serve as both a witness and a juror in a trial. Upon an inquiry into the validity of a verdict or indictment, a juror may not testify as to any matter or statement occurring during the course of the jury’s deliberations.
2. With regard to testimony about a jury’s conduct, the Rule attempts to limit the instances in which such testimony will be allowed.
1. No testimony may relate to “mental processes,” to protect the freedom of jurors to speak freely in their private deliberations.
2. Testimony is permitted about “extraneous” information or “outside influence” on the theory that the events that would be described in this type of testimony will be clear and easy to establish and will not require an inquiry into how a juror evaluated various arguments during deliberations.
3. If there is a mistake in a verdict form, the Rule allows testimony about that error.
e. Under Rules 401, 402, and 403, the judge can determine whether or not other witnesses will be permitted to testify.
f. In addition to competency, a person must satisfy an oath or affirmation requirement to be permitted to testify under Rule 603.
g. In order to be competent to testify, the witness must be able to recall and relate facts, and appreciate the nature or quality of the oath or affirmation.
1. The judge, in response to an offer of compelling proof that a prospective child witness is incompetent, may have a competency examination on the record focused on questioning the child to determine whether he or she can understand and answer simple questions.
2. A child’s age alone is not a compelling reason to have such a competency examination.
3. Under Rule 403, courts can exclude a child’s testimony if it seems that the probative value of the testimony will be very weak because of the child’s inability to tell truth from falsehood.
4. A judge might rule that a child does not have the ability to understand and give the required oath or affirmation related to truthtelling.
5. The judge might also rule that the child’s ability to recall events or distinguish between reality and fantasy is so slight that no reasonable juror could find that the child has personal knowledge of the topics of the testimony.