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Administrative Law
UMKC School of Law
Eckhardt, William G.




Three Words to Remember: Relevance, Reliability, and Social Policy. –Eckhardt.

Why Have Rules of Evidence?

Mistrust of juries – Ex: Hearsay doctrine because we don’t trust a jury to properly evaluate statements made outside of court.

Serve substantive policies relating to the matter being litigated – Ex: Allocation of burdens.

Serve extrinsic policies; policies unrelated to the matter in litigation (affect behavior or quality of life outside the courtroom) – Ex: Attorney Client Privileges.

Ensure accurate fact-finding

Control the scope and duration of trials.

Sources of Evidence Law:

Common Law

Wigmore Code of Evidence (1909)

Morgan Model Code of Evidence (1942) (too radical)

Uniform Rules of Evidence

–1953 National Conference of Commissioners on Uniform State Laws

–1974 adopted rules largely tracking the Federal Rules

Evidence Codes

e.g. California Evidence Code (1965)

Federal Rules of Evidence (1975)

–Advisory Committee to Supreme Court to Congress

–Voted on by Congress—deleted the privilege section leaving that area to common law development.

Four Basic Procedural Issues

Should the jury observe the proceedings? (issue if you say something in front of jury then get mistrial)

What party bears the burden of proof?

What standard of proof applies?

Do the Rules apply on these preliminary questions? 104(a)

Witness qualification – no

Existence of privilege – yes

Admissibility of evidence – no

What Happens at Trial

1. Jury Selection

· Voir Dire – A preliminary examination of a prospective juror by a judge or lawyer to decide whether the prospect is qualified and suitable to serve on a jury.

Peremptory Challenges – Entitles a party to exclude a potential juror for any reason at all (subject to Batson).

2. Opening Statement

First opportunity to tell the jury “the story.”

Usually, the party with the burden of persuasion speaks first.

Not an argument but a summation of the facts the party will later prove.

Counsel often repeats: “the evidence will show.”

3. Presentation of Proof

The order of proof goes this way:

(1) π (or prosecutor) presents his case-in-chief, then rests;

(2) Δ presents his case-in-chief, then rests;

(3) π (or prosecutor) presents his case-in-rebuttal;

(4) Δ presents his case-in-rebuttal (sometimes called his “case-in-rejoinder”)

(5) Each side presents further cases-in-rebuttal (sometimes called “cases-in-rejoinder”)

The order of examination:

(1) Direct examination by the calling party;

(2) Cross-examination by the adverse party

(3) Redirect examination by the calling party

(4) Re-cross by the adverse party

(5) Further redirect and re-cross as may be necessary

4. Trial Motions

Can make motion for judgment. The court then has the opportunity to take the case from the jury and assess the sufficiency of the proof under a reasonable person standard.

Credibility issues are resolved in favor of the opposing party.

5. Closing Arguments

Judge and lawyers have last say; lawyer argues

The party bearing the burden of persuasion has the right to make two closing arguments, one before and one after his adversary.

6. Instructions

Instructs the jury on the law.

Each party drafts instructions and submit their requests to the court.

Judge often instructs on evidentiary matters.

Curative Instruction – A judge’s instruction that is intended to correct an erroneous instruction. Ex: tell jury to exclude from their consideration testimony it heard during trial.

Limiting Instruction – Advise the jury to consider certain proof only on one point and not others.

7. Deliberations

Jury selects leader and deliberates the verdict.

Secrecy is intentional:

Encourage jurors to share their views with one another

Insulate verdicts, both from public scrutiny and from judicial review.

8. The Verdict

General Verdict

In civil, the jury just states the winner and the amount of recovery if π wins.

In criminal, the jury states guilty or not guilty.


Jury answers questions on particular issues

9. Judgement and Post-Trial Motions

Last opportunity for the parties at the trial level to obtain the result they have sought.

Time for appeal begins to run.

10. Appellate Review

Have to await final judgment to appeal

Making the Record

Official Record:

The pleadings

Filed documents (Ex: motions, discovery requests)

The record of the proceedings (word-for-word transcript)

The exhibits

Docket entries (table of contents of the proceedings; docket entry starts some

rect. This type of question is shifting the focus of the issue presented on direct. Policy: Party presenting case-in-chief is entitled to do it in their own order without the other side presenting part of their case.

§611(a): Control by court – Judge has discretion over the mode and order of interrogating witnesses and presentation of evidence. The judge decides whether a question is the “subject matter of direct”.

§ 403 also talks about the discretion of the judge.

Cross examination seeks to set limits or bring out inconsistencies in the direct examination.

Leading questions are generally allowed on cross examination and the substance that is conveyed to the jury emerges more from questions than answers. §611(c): Leading questions.

§403 Exclusion of Relevant Evidence on Grounds of Prejudice, Confusion, or Waste of Time.

Probative value is substantially outweighed by the danger:

of unfair prejudice

of confusion of the issues

of misleading the jury

Or by consideration of

undue delay

waste of time

needless presentation of cumulative evidence.

Probative: Tending to prove or disprove.

Rule: Courts can exclude relevant evidence if its probative value is substantially outweighed by the danger of unfair prejudice.–§403.

§103 Rulings on Evidence

Examine various parts

“A substantial right of the party”

Objection – Objections must be timely and specific. No objection, then waiver of appeal.

Offer of Proof – A presentation to the court of the nature and purpose of an item of evidence that has been objected to or that the court has ruled inadmissible. Without offer of proof, may waive appeal. Can do this outside the hearing of the jury.

§104(a): Questions of Admissibility Generally

Qualification of a person to be a witness

Existence of a privilege

Admissibility of evidence

Not bound by the rules of evidence except for privileges.