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Evidence
University of Alabama School of Law
Pardo, Michael S.

Evidence
Pardo
Spring 2012
 
1.       Rule 403
2.       Foundations (602, 901-902, 104(b))
3.       Best Evidence (1001-1008)
4.       Hearsay (801-807)
5.       Confrontation Clause
6.       Character (404-406)
7.       Policy Rules (407-411)
8.       Lay Opinion (701)
9.       Impeachment (608, 609, 613)
 
 
 
Problem with evidence itself
 
Problem with theory of relevance
Rule 403
Character
Foundation
Policy Rules
Best Evidence
 
Hearsay
 
Confrontation Clause
 
 
 
THE PROCESS OF TRIALS: HOW TRIALS ARE STUCTURED
 
Trial Objection Cheat Sheet
 
Questions to the Form of the Questions
Argumentative
Question contends that the witness must agree with a disputable inferences, is framed as if it were closing argument to the jury, or seeks to pick a fight with the witness or embarrass the witness
Asked and Answered
Question has previously been asked of the same witness by the same examiner. Does not apply to question asked by opposing counsel. Judge will sustain if too cumulative, lengthy, or out of control.
Assumes facts not in evidence
Question is phrased so that to answer it, the witness would have to adopt, by implication, an asserted fact that is in dispute but that has not been proved.
Calls for narrative
Question asks the witness to describe events very broadly or generally. Danger is that the question will permit witness to ramble and possibly interject inadmissible evidence.
Compound
Question asks the witness to testify about more than one separate fact.
Leading
Question suggests the desired answer to the witness; improper during direct examination of friendly or neutral witnesses, but okay on cross examination or direct examination of an hostile witness.
Misstates the Evidence; Mischaracterizes the testimony
Premise of the question distorts the evidence that has been presented, or misquotes the witness’ testimony.
Unintelligible; vague; ambiguous; confusing
Question is not sufficiently clear to be answere. Unintelligible – garbled. Vague – not sufficiently specific. Ambiguous – susceptible of two or more interpretations
 
 
Objections to Admissibility of the Answer or Proffered Exhibit
Hearsay
Answer to question would call for (or evidentiary item contains) a statement other than one made by the witness while testifying at trial, offered to prove the truth of the matter asserted.
Irrelevant
Answer has no probative value relating to any fact of consequence in the case
Lack of Foundation
Insufficient factual basis has been established to show that the witness has requisite knowledge (personal sensory perception or experience, expert opinion, lay opinion, knowledge of character) to give admissible testimony; or to show that exhibit is what its proponent claims
Lack of Authenticity
Insufficient factual basis to show that exhibit is what its proponent claims
Calls for Speculation; Speculative
Answer to question calls for the witness to speculate or guess about matters beyond witness’s factual knowledge; this is a form of foundation objection
Calls for Opinion/Conclusion
Answer would violate the rule limiting nonexpert opinion to those opinions and inferences that are based on the witness’ perception of an event and are helpful to the jury in understanding the facts
Inadmissible Character Evidence
Violates FRE 404
More Prejudicial/Misleading than probative; Rule 403
Probative value substantially outweighed by one or more of the Rule 403 Dangers
Cumulative
Answer would repeat earlier testimony. Not technically improper but discretion to sustain under Rule 403. Often stated as asked and answered
Nonresponsive
Witness has given an evasive answer that does not fairly meet the substance of the question
Beyond the Scope of the Question
Answer has exceeded the scope of the question (i.e. witness has volunteered information that was not asked for); a basis for a motion to strike
Beyond the Scope of Direct/Cross/Redirect Examination
Question seeks testimony that is not responsive to immediately preceding examination. Testimony is supposed to respond to matters raised in the immediately preceding examination (i.e. cross responds to direct, redirect responds to cross, recross responds to redirect)
Not The Best Evidence
Answer would violate the best evidence rule, which requires use of original writing, recording, or photography to prove its contents.
 
 
COMMON TRIAL OBJECTIONS
 
 
A.            VOIR DIRE
 
1.       Attempting to commit jurors to a specific verdict
2.       Asking about votes in prior cases
3.       Unnecessary probing in juror’s background
4.       Questions not going to ascertaining juror qualifications
 
B.            OPENING STATEMENT
 
1.       Arguing the law
2.       Discussing inadmissible facts
3.       Misstatements of the law
4.       Expressing personal belief on the merits
 
C.            WITNESS QUALIFICATIONS
 
1.       Competency to Testify (prior to swearing in witness)
2.       Privilege
3.       Non-qualified expert
 
D.            OBJECTIONS DURING DIRECT EXAMINATION
 
1.       Leading
2.       Not relevant
3.       Hearsay
4.       Calls for Speculation
5.       Calls for a narrative answer
6.       Asked and answered
7.       Cumulative
8.       Prejudicial effect outweighs probative value
9.       Assumes facts not in evidence
10.    Lack of personal knowledge (no foundation)
11.    Misstatement of the record (misquoting the witness)
12.    No proper foundation (specify missing elements)
 
E.            OBJECTIONS DURING CROSS-EXAMINATION
 
1.       Beyond the scope of direct
2.       Hearsay
3.       Asked and answered
4.       Assumes facts not in evidence
5.       Compound question
6.       Misstatement of the record (misquoting the witness)
7.       Argumentative
8.       Improper impeachment
9.       No good faith basis for the question
 
 
F.            DOCUMENTS
 
1.       Identification
2.       Authentication
3.       Relevancy
4.       Best Evidence
5.       Hearsay
6.       Privilege
 
G.            CLOSING ARGUMENT
 
1.       Improper argument – facts not in evidence
2.       Improper argument – Misstatement of the facts
3.       Improper argument – Misstatement of the law
4.       Stating personal belief in the merits of the case
5.       Asking jurors to place themselves in the party’s position
6.       Deals with improper subject matter – settlement discussions, insurance, right to remain silent, etc.
7.       Unduly prejudicial/inflammatory
 
H.            JURY INSTRUCTIONS
 
1.       Misstating the facts of the case
2.       Misstatement of the law
3.       Unduly placing weight on certain legal issues or evidence
4.       Failing to give instructions consistent with theory of the case
5.       Failing to give requested instructions
6.       Confusing/ambiguous
 
 
 
 
THE ADVERSARY SYSTEM
 
The rules structuring litigation are derived from the adversary system. The adversarial process is derived from a conception that the appropriate role of government in the resolution of disputes is to provide a fair and disinterred forum fro the impartial resolution of disputes. The parties are responsible for investigating the case, preparing the case for trial, and in large measure controlling the presentation of evidence at trial. The basic theory is that adversarial investigation and presentation of evidence is more likely to yield a verdict consistent with the truth than is a process more dominated by a tribunal.
 
THE ROLES OF THE TRIAL PARTICIPANTS
 
The jury uses its sense to perceive information in the courtroom and its reasoning capacity to evaluate and make inferences about that information in order to reach a conclusion about which version of disputed events is the truth.
 
The advocates provide information to the jury though the use of witnesses, documents, and other exhibits.
 
The judge controls the trial process by setting limits, primarily pursuant to FRE, on the advocates’ proof in the interests of rationality of results, fairness between the parties, social and moral values, and efficiency.
A judge may also question witnesses whether called by the court or not.
 
**Note on Bench T

inarily, the court should allow leading questions:
                (1) on cross-examination; and
                (2) when a party calls a hostile witness, an adverse party, or a witness identified with an adverse party.
 
 
Interpretation and Illustration of FRE 611(a) and (b)
 
FRE 611(a): Breadth of the Courts Power
FRE 661(a) recognizes in broad terms the sweeping authority of the judge to control the examination of witnesses during the trial.
 
Direct Examination
FRE 611(b) states that direct examination should set a limit on the scope of cross-examination and in 611(c) provides that, with limited exceptions, leading questions should not be used on direct examination.
 
FRE 611(b): The Scope of Cross Examination
FRE 611(b) adopts a flexible approach (at court’s discretion) to the common law rule that limits the scope of cross-examination to the subject matter of direct examination and matters affecting the witness’s credibility.
It is always permissible to ask questions that may impeach the credibility of the witness even though there may have been no reference to these matters on direct examination.
 
Redirect and Recross Examination
The scope of redirect is limited to matter that were raised in cross-examination.
 
Elaboration of 611(a) and (b) and the Examination of Witnesses
Direct Examination
On direct examination, the goal is to let the witness provide pieces of narrative in his or her own words, which build an overall story to the jury. Questions should be open-ended.
 
Cross Examination
FRE 611(b) embodies the restrictive rule of cross examination, which allows the parties to control the development of their cases. FRE 611(b) permits questions outside the restrictive scope at the judge’s discretion.
 
Strategy and goals of Cross Examination
1.       Take advantage of the subtle opportunity to argue your case
2.       Fill in gaps in your evidence or obtain favorable admissions
3.       Control damage by minimizing the effect of adverse testimony [witness’ testimony = consistent with your theory of case or discredit witness]  
Cross-Examination Technique
The lawyer wants to provide most of the information the jury hears, while attempting to limit what the witness actually says by asking leading question.
 
Ask precise narrow questions that don’t call for explanation, keeping open ended questions to a minimum
 
Direct Examination of Adverse and Hostile Witnesses
611© sets forth two circumstances in which a direct examination may be conducted in the manner of a cross examination, using leading questions and following the strategy of cross examination – the direct examination of an adverse and hostile witness
 
Adverse witness – an adverse party or a witness identified with an adverse party (agents/employees, people through legal or other ties are strongly identified with adverse party)
 
Hostile Witness – one who is presumed friendly or neutral but during questioning demonstrates an attitude sufficiently hostile to the questioner to raise an inference of opposition to the examiner’s client or identification with an adverse party.
The examining attorney then asks the court to declare the witness hostile. If the court does so, the examiner may proceed with leading questions and use other cross examination techniques.
 
Under FRE 607 – The party calling an adverse or hostile witness may also impeach that witness – attack the witness’ credibility