Evidence Outline

EVIDENCE COHN FALL 2014

I. EVIDENCE – OVERVIEW:

a. Federal Rules of Evidence:

i. Apply to all trials in federal courts whether civil or criminal, and whether to a judge or to a jury.

ii. Define how adversarial system functions:

1. Types of info trier of fact can consider

2. Forms to communicate info to trier

3. What judge, advocates, trier can do with info

a. Judge’s Role: determine whether the evidence is admissible.

i. Offer of Proof:

1. Court (judge) hears proposed witness testify out of presence of jury to determine whether to allow jury to hear testimony.

b. Jury’s Role: determine what weight the evidence should be given.

i. Decide credibility of witnesses

b. Admissibility v. Weight:

i. Codified judicial power

ii. To achieve broader admissibility

1. What evidence is admissible

iii. To achieve more flexible approach

iv. To achieve consistency

c. FRE 403: Gives judge power to exclude evidence that’s prejudicial, misleading, undue delay, confusion of issues, or waste of time.

1. Balancing à probative value v. prejudice

d. Trial:

i. Motions in limine

ii. Jury selection – voir dire

iii. Opening statement

iv. Presentation of proof – direct, cross, redirect, re-cross

v. Trial motions

vi. Closing argument

vii. Jury instructions

viii. Deliberations

ix. Verdict

x. Judgment and post-trial motions

xi. Appeal

e. Evidence:

i. Any matter, verbal or physical, that can be used to support the existence of a factual proposition

ii. Direct evidence – directly proves disputed fact without inference or presumption

1. Example: W says, “I saw D strangle V.” (direct evidence on whether D strangled V)

iii. Circumstantial evidence – doesn’t directly prove disputed fact but gives rise to reasonable inference as to existence or nonexistence of fact.

1. Example: W says, “I saw D running from the place where V’s body was found, and I found a stocking in D’s pocket.” (This is only circumstantial evidence of whether D strangled V.

2. The probative value of direct evidence is not necessarily higher than circumstantial evidence, but it will sometime be more readily admitted by the judge.

iv. Making record for appeal:

1. Trial counsel responsibility to make adequate record of all objections to opponent’s evidence

2. Object (on all possible grounds) or waived

3. Make sure judge rules on objection

4. Put everything on the record

5. May result in:

a. Reversal on Appeal

b. Need BOTH error and prejudice

v. Stipulation:

1. Agreement between parties relieving them of proving fact

2. Make sure stipulation is in record

vi. Types of Evidence:

1. Oral or testimonial – direct and cross of witnesses, deposition testimony, transcript of prior testimony (preliminary hearing or prior trial)

a. Direct Examination:

i. Case-in-chief

ii. No leading questions on direct

iii. Except:

1. As necessary to develop witness’s testimony

a. preliminary matters for transition

b. undisputed matters used as connective

c. witnesses of limited understanding

d. to refresh witness’s recollection

e. hypothetical questions posed to expert

2. when party calls hostile witness, adverse party, adverse witness

b. Cross-Examination:

i. Leading permissible/advisable

ii. Cross limited to scope of direct exam – except impeachment

c. Objections:

i. Need both:

1. Objection – state ground(s); AND

2. Motion to strike

ii. Will be either:

1. Sustained à Excluded

2. Overruled à Admitted

iii. Can have a:

1. Speaking objection; OR

2. Continuing objection

iv. Common Objections:

1. Compound question

2. Leading question

3. Assumes facts not in evidence

4. Calls for conclusion

5. Misleading

6. Argumentative

7. Calls for narrative answer

8. Cumulative

9. Harassing the witness

10. Asked and answered

11. Irrelevant

12. Misstates the testimony

13. Nonresponsive answer

14. Calls for speculation

2. Tangible exhibits – sponsoring witness identifies or authenticates

a. Can be document, weapon, contraband, clothing

b. Usually offer during direct, redirect – need foundation

c. 2 types:

i. Real evidence

1. Actual weapon, injury, stolen rings

ii. Demonstrative evidence

1. Example to demonstrate, illustrate, explain

a. Selected (handwriting, print, voice exemplars)

b. Prepared or reproduced (chart, map, diagram)

d. FRE 106: When all or part of writing or recorded statement is introduced by party, the opponent may require introduction – at that time – of any other part of statement, or any other writing or recorded statement, which ought in fairness be considered at same time.

II. RELEVANCE:

a. Two Fundamental Rules of Evidence:

i. All relevant evidence is admissible FRE 402 (except per statue – FRE)

ii. Evidence that’s NOT relevant is NOT admissible

b. Definition: Tendency to prove proposition properly provable in case

c. Whenever a witness takes the stand, that witness’ credibility is always relevant.

d. Can be excluded as irrelevant if:

i. NOT probative of proposition at which directed; OR

ii. That proposition NOT properly provable

e. Ask:

i. What is evidence being use