Evidence Outline Eckhardt Spring 2011
Three Words to Remember: Relevance, Reliability, and Social Policy. –Eckhardt.
Why Have Rules of Evidence?
Mistrust of juries –
Guide visceral reactions
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, who goes first, presumptions, etc.
Serve extrinsic policies; policies unrelated to the matter in litigation (affect behavior or quality of life outside the courtroom) – Ex: 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
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)
MO has no Evidence Code
Federal Rules of Evidence
–Advisory Committee to Supreme Court to Congress
–Voted on by Congress—deleted the privilege section leaving that area to common law development.
Getting Evidence In
Foundation
Offer
Types of Evidence
Testimonial
Real Evidence: Tangible things involved in the events in litigation
Demonstrative Evidence
Diagrams
Photographs
Maps
Writings
Keeping Evidence Out
Four Basic Procedural Issues
Should the jury observe the proceedings?
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
Screening Procedures
Qualifications of witnesses
Personal knowledge
Ability to convey knowledge
Objection of record
Judge Mistake
Is it technically objectable?
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.
Interrogatories–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 SOLs)
What not to do:
Echoing (repeating the witness’ answers)
Overlapping (talking at the same time)
Numbers, names, and big words (several interpretations and spellings – make sure court reporter gets the right one).
Exhibits (refer to them in a unambiguous way)
Nonverbal communication and gestures (should get them on the record)
How Evidence is Admitted or Excluded
Getting Evidence In
1. Foundation
2. Offer
Types of Evidence:
Testimonial Proof– Probably the worst kind
Real Evidence – Tangible things involved in the events in litigation.
Demonstrative Evidence – Makes graphic the point to be proven: Diagrams, Photographs, Maps, Models
Writings
Keeping Evidence Out
Objection or Motion to Strike
allows offering party to cure problem
rephrasing
laying a further foundation
ask question of another witness
timely
include grounds: irrelevant, immaterial, prejudicial, FRE 403
Waiver:
If you do not object, there is waiver. When claiming an error the first thing the judge will do is see if you objected.
Error Plus Prejudice = Reversal
Error
There is no common terminology for error.
Reversible errors are obvious and they are golden.
Harmless error is what most error is and this does not affect the outcome.
Constitutional error requires action whether objected to or not.
Plain error is a mistake that is so obvious the trial judge should have done something.
§103(a) – Error warrants no relief unless a “substantial right of the party is affected.”
§611(b): Scope of Cross-Examination. (Problem 1A, p26)
“Cross-examination should be limited to the subject matter of the direct examination and matters affecting the credibility of the witness. The court may, in the exercise of discretion, permit inquiry into additional matters as if on direct examination.”
Two Prongs to 611(b):
(1) Does the cross deal with scope [of direct]?
(2) Does the cross deal with credibility?
Rule: The scope of direct does not apply to matters of credibility.
Three parts of “subject matter of direct examination” –Eckhardt
points raised
transaction described
issue affected
Problem 1A…“Objection, improper and beyond the scope of direct, your honor”
The party objecting will say the scope is small. The party wanting the evidence will make the scope larger.
Ex: On direct the point raised is “The Buick ran the red light.”
On cross, “witness was turned around at the time of the accident.” This has nothing to do with the color of the light but can argue that it’s within the same transaction. May even go to credibility: couldn’t have seen the light if he was turned around.
Asking if the driver was drinking would probably not be allowed because it would be beyond the scope of direct. This type of q
s for a decision of the court, it is legislative and §201 does not apply.
Muller v. Oregon —Supreme Court was determining whether an Oregon statute limiting the number of hours women can work in laundries and factories to a maximum of ten hours a day was constitutional. It found that it was. In doing so, it considered the Brandeis brief noting a variety of sources which say long hours of work is dangerous for women.
· When the constitutionality of a statute depends on the truth of debatable fact, the court may take judicial notice of all matters of general knowledge.
· Materials in the brief are classic examples of legislative facts.
· In a Constitutional attack on a statute, the legislative reasoning is important on the issue of reasonableness (whether the statute is reasonable).
Houser v. State — (WA) Challenging constitutionality of legislation that established minimum age of 21 for consumption of alcoholic beverages, appellant argues that court should not have taken judicial notice of State’s studies.
· “The restrictive rules governing judicial notice are not applicable to factual findings that simply supply premises in the process of legal reasoning. In interpreting and developing the constitution and laws, courts cannot operate in a vacuum.”
· Rule: Courts using facts to make law determinations are not bound by §201.
U.S. v. Gould — The trial judge took notice that cocaine hydrochloride was a derivative of coca leaves, hence a Schedule II controlled substance, and instructed the jury to so find. On appeal, the Δ argued that this binding instruction violated §210(g), but the 8th Circuit found no error; holding that the fact noticed was legislative rather than adjudicative and that §201 did not apply.
(b) Kinds of Facts
Rule: A judicially noticed fact must be one not subject to reasonable dispute.
There are two types of adjudicative facts subject to judicial notice:
Matters of Common Knowledge In The Community
Generally known…everybody knows.
Need not be universal knowledge as long as the average person in the community would know a fact.
Matters of Verifiable Certainty
Can be verified by easy reference to unimpeachable sources.
Capable of accurate and ready determination.
Ex: date of Thanksgiving, if school is in session on Thanksgiving, the time the sun set, historical or geographical references,
(c) When Discretionary
Rule: A court may take judicial notice, whether requested or not.
(d) When Mandatory
Rule: A court must take judicial notice if
(1) requested by a party
–AND–
(2) supplied with the necessary information.
Although some states require it, FRE does not require notice of before judicial notice is taken.
(e) Opportunity to be Heard
Rule: Upon timely request, parties are to be given an opportunity to be heard as to the “propriety” of taking notice and the “tenor” of the notice taken. (note: §104, rules of evidence do not apply to such hearings)
Parties are entitled to an opportunity to be heard.
In the absence of notice, the request may be made after judicial notice has been taken.
