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

 
Pardo Evidence Outline Spring 14
EXAMINATION OF WITNESSES
 
FRE 611. Mode and Order of Examining Witnesses and Presenting Evidence.
(a)    Control by the court; purposes.  The court should exercise reasonable control over the mode and order of examining witnesses and presenting evidence so as to:
(1)   make those procedures effective for determining the truth;
(2)   avoid wasting time; and
(3)   protect witnesses from harassment or undue embarrassment.
(b)   Scope of cross-examination.  Cross-examination should not go beyond the subject matter of the direct examination and matters affecting the witness’s credibility.
The court may allow inquiry into additional matters as if on direct examination.
(c)    Leading questions.  Leading questions should not be used on direct examination except as necessary to develop the witness’s testimony.
Ordinarily, 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.
 
What you need to know:
·         rule gives trial judge a lot of discretion to control what happens in process
·         cross-examination should be limited to questions asked in direct examination
·         leading question: “class starts at 10:45, isn’t that correct?” (has yes or no answer; implies answer)
 
OBJECTIONS
 
FRE 103. Rulings on Evidence.
(a)    Preserving a claim of error.  A party may claim error in a ruling to admit or exclude evidence only if the error affects a substantial right of the party and:
(1)   if the ruling admits evidence, a party, on the record:
(A)   timely objects or moves to strike; and
(B)   states the specific ground, unless it was apparent from the context; or
(2)   if the ruling excludes evidence, a party informs the court of its substance by an offer of proof, unless the substance was apparent from the context.
(b)   Not needing to renew an objection or offer of proof.  Once the court rules definitively on the record—either before or at trial—a party need not renew an objection or offer of proof to preserve a claim of error for appeal.
(c)    Court’s statement about the ruling; directing an offer of proof.  The court may make any statement about the character form of the evidence, the objection made, and the ruling.
The court may direct that an offer of proof be made in question-and-answer form.
(d)   Preventing the jury from hearing inadmissible evidence.  To the extent practicable, the court must conduct a jury trial so that inadmissible evidence is not suggested to the jury by any means.
(e)    Taking notice of plain error.  A court may take notice of a plain error affecting a substantial right, even if the claim of error was not properly preserved.
 
What you need to know:
·         motion in limine: written pretrial motion setting out evidence and why it should be admitted or excluded
·         before trial, each side already has a pretty good idea about the other side’s possible evidence
·         burden on attorneys to object to admission of evidence (objection cheat sheet pp. 118-119)
·         required for appeals on evidence:
o   objection
o   make record (must be known why objection made)
o   “abuse of discretion” to admit/exclude evidence
o   “substantial right” not “harmless” (substantial effect on outcome)
·         appellate review of evidentiary decisions extremely deferential to trial court
 
RELEVANCE
 
FRE 401. Test for Relevant Evidence.
Evidence is relevant if:
(a)    it has any tendency to make a fact more or less probable than it would be without the evidence; and
(b)   the fact is of consequence in determining the action.
 
FRE 402. General Admissibility of Relevant Evidence.
Relevant evidence is admissible unless any of the following provides otherwise:
·         the United States Constitution;
·         a federal statute;
·         these rules; or
·         other rules prescribed by the Supreme Court.
Irrelevant evidence is not admissible.
 
What you need to know:
·         relevance has two variables: “fact of consequence” and “any tendency…more or less probable”
·         if evidence is relevant, it should be admitted unless there is some other rule that excludes it
·         relevant evidence will enhance argument, while irrelevant evidence will have no rational bearing on outcome
·         relevance is a commonsense notion (connects evidence to fact of consequence)
o   courts may say evidence is irrelevant because judge knows connection party is relying on is false or connection too speculative
·         “of consequence” = material
o   matters in legal resolution of case
o   substantive law (elements) tells what facts are of consequence
·         evidence can sometimes be relevant to more than one fact of consequence
o   relevant for different reasons (up to parties to make arguments)
o   witness credibility always fact of consequence
·         “any tendency”: any rational effect at all makes evidence relevant (low threshold)
o   could reasonable juror conclude that evidence makes fact of consequence more or less likely? (rational jury test)
o   logical connection between evidence and fact of consequence
§  often based on commonsense generalizations (people in this situation tend to act this way, so defendant probably acted this way)
o   probabilistic relationship
§  how likely is fact of consequence without evidence?
§  is story more or less believable?
·         to be relevant, evidence does not have to prove fact of consequence
 
PROBATIVE VALUE
 
FRE 403. Excluding Relevant Evidence for Prejudice, Confusion, Waste of Time, and Other Reasons.
The court may exclude relevant evidence if its probative value is substantially outweighed by a danger of one or more of the following:
·         unfair prejudice,
·         confusing the issues,
·         misleading the jury,
·         undue delay,
·         wasting time, or
·         needlessly presenting cumulative evidence.
 
FRE 105. Limiting Instructions
Telling the jury something about the evidence may “cure” the potential problem.
 
What you need to know:
·         balancing test: probative value < 403 danger o   probative value must be “substantially outweighed” to be excluded o   how likely is danger to occur, and if it does occur, how significant will it be? ·         probative value: strength of evidence in proving/disproving fact of consequence o   evidence with high probative value almost never excluded, regardless of dangers ·         unfair prejudice: emotional response (good/bad feelings) based on reasons other than rational force of evidence ·         confusing the issues: jury focuses on issues or facts that may not be relevant for deciding central issue ·         misleading the jury: jury draws wrong/unreasonable inferences from evidence ·         undue delay: economic rationale; use too many judicial resources ·         judge can use limiting instructions to cure potential danger and admit evidence   FOUNDATIONS   WITNESSES   FRE 601. Competency to Testify in General. Every person is competent to be a witness unless these rules provide otherwise. But in a civil case, state law governs the witness’s competency regarding a claim or defense for which state law supplies the rule of decision.   FRE 602. Need for Personal Knowledge. A witness may testify to a matter only if evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter. Evidence to prove personal knowledge may consist of the witness’s own testimony. This rule does not apply to a witness’s expert testimony under Rule 703.   What you need to know: ·         foundation for witness testimony is personal knowledge ·         general competency standard very low (lower than standard

f any foreign official whose certificate of genuineness relates to the signature or attestation or is in a chain of certificates of genuineness relating to the signature or attestation.
The certification may be made by a secretary of a United States embassy or legation; by a consul general, vice consul, or consular agent of the United States; or by a diplomatic or consular official of the foreign country assigned or accredited to the United States.
If all parties have been given a reasonable opportunity to investigate the document’s authenticity and accuracy, the court may, for good cause, either:
(A)   order that it be treated as presumptively authentic without final certification; or
(B)   allow it to be evidenced by an attested summary or without final certification.
(4)   Certified copies of public records.  A copy of an official record—or a copy of a document that was recorded or filed in a public office as authorized by law—if the copy is certified as correct by:
(A)   the custodian or another person authorized to make the certification; or
(B)   a certificate that complies with Rule 902(1), (2) or (3), a federal statute, or a rule prescribed by the Supreme Court.
(5)   Official publications.  A book, pamphlet, or other publication purporting to be issued by a public authority.
(6)   Newspapers and periodicals.  Printed material purporting to be a newspaper or periodical.
(7)   Trade inscriptions and the like.  An inscription, sign, tag, or label purporting to have been affixed in the course of business and indicating origin, ownership, and control.
(8)   Acknowledged documents.  A document accompanied by a certificate of acknowledgement that is lawfully executed by a notary public or another officer who is authorized to take acknowledgements.
(9)   Commercial paper and related documents.  Commercial paper, a signature on it, and related documents, to the extent allowed by general commercial law.
(10)  Presumptions under a federal statute.  A signature, document, or anything else that a federal statute declares to be presumptively or prima facie genuine or authentic.
(11)  Certified domestic records of a regularly conducted activity.  The original or a copy of a domestic record that meets the requirements of Rule 803(6)(A)-(C), as shown by a certification of the custodian or another qualified person that complies with a federal statute or a rule prescribed by the Supreme Court.  Before the trial or hearing, the proponent must give an adverse party reasonable written notice of the intent to offer the record—and must make the record and certification available for inspection—so that the party has a fair opportunity to challenge them.
(12)  Certified foreign records of a regularly conducted activity.  In a civil case, the original or a copy of a foreign record that meets the requirements of Rule 902(11), modified as follows: the certification, rather than complying with a federal statute or Supreme Court rule, must be signed in a manner that, if falsely made, would subject the maker to a criminal penalty in the country where the certification is signed.  The proponent must also meet the notice requirements of Rule 902(11).