Overview of Evidence (Ch. 1)
Rules to tab from this section
FRE 611(b)—Scope on cross examination
FRE 403—Exclusion of relevant evidence on grounds of prejudice, confusion, or waste of time
FRE 103—Rulings on evidence
FRE 104—Preliminary questions
Three questions to ask
Is it relevant?
Logically & Legally
Is it reliable?
Relates primarily to the hearsay rules
Does it breach some sort of social policy?
Often refers to privileges
Four basic procedural issues
Should the jury observe the proceedings?
What party bears the burden of proof?
Who stands up?
Who starts?
How much evidence do they have to produce?
What standard of proof applies?
Do the Rules apply on these preliminary questions (see FRE 104(a))?
Judge determines (and is NOT BOUND by the FRE EXCEPT w/ respect to privilege)
Is the person qualified to be a witness?
Does a privilege exist?
Is the evidence admissible?
Steps of a trial (overview)
Jury selection-voir dire
Opening statement
Presentation of proof
Trial motions
Closing argument
Instructions to the jury
Deliberations
The verdict
Judgment & Post-Trial Motions
Appellate Review
Error + prejudice = reversal
Prejudice = substantive rights
Types of Error
Reversible: Usually gets you a new trial
Harmless: There was an error, however, it didn’t affect the outcome
Plain: Mistake that is so outrageous that trial judge on his own should have done something about it, even though the appellant failed to timely preserve his objection
Constitutional: Same as plain error above except has Const’l implications
How evidence is Admitted or Excluded
Getting Evidence In: Foundation and offer
Types of Evidence
Testimonial proof
On direct examination–generally non-leading questions—611(c)
With each witness, the atty must do three things:
Bring out background info (name, address, etc)
Lay the foundation
Demonstrative evidence
Illustrates the point to be proven (i.e. diagrams, pictures, maps, models, etc).
Writings
Keeping evidence out
Objection
Allows the offering party to cure a problem
By rephrasing the question
Laying more foundation
Or keep that question for another witness
Must be timely and state the legal grounds
Motion in Limine
Get a ruling in advance of trial as to the admissibility of a certain piece of evidence
Offer of proof
If a piece of evidence you are trying to get in is excluded, you have to make OOP to preserve it on appeal. That is, you have to tell the trial court exactly what you would prove if the evidence was permitted.
