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University of Alabama School of Law
Pardo, Michael S.

Spring 2014
Underlying Stuff
1)      Rule 102 – Purpose
a)      Fairness; to eliminate unjustifiable expense and delay, to promote the development of evidence law
b)      To ascertain the truth and secure a just determination
Examination of Witnesses
1)      Rule 611 – Mode and Order of Examining Witnesses and Presenting Evidence
a)      Process in Examining Witnesses:
i)        Party that calls the witness conducts a direct examination:
(1)   Goal: to provide piece of narrative that builds an overall “story” to the jury
(2)   Questions should be open-ended, cannot ask leading questions
(a)    TC has virtually unreviewable discretion, and if opposing counsel doesn’t object, the court is unlikely to stop line of questioning
(b)   Leading v. Non-leading Questions:
(i)     The “test” may come down to a matter of degree – how suggestive is the question? (just because “yes” or “no” doesn’t make it a leading question)
(ii)   Non-leading: who, what, where, when, why, etc. (“what time does class start?”)
(iii) Leading: implies the answer, calls for a yes or no answer in order to concede the basic facts are true or false (“class starts at 9:45, right?”)
1.      Typically when questioner suggests a fact to a witness who seems to have overlooked it
2.      Suggests the answer the questioner wants the witness to give
(3)   When a party calls a hostile witness, an adverse party or a witness identified with an adverse party, asking leading questions on direct is permissible
(a)    “adverse witness” – includes the adverse party, his agents, employees, and people who, through legal or other ties, are strongly identified with the adverse party (no limitation on scope)
(b)   “hostile witness” – one who is presumed friendly or neutral when called to the stand, but who, during questioning, demonstrates an attitude su
(c)    fficiently hostile to the questioner to raise an inference of opposition to the examiner’s client or identification with the adverse party, the party can then ask the court to designate the witness as “hostile” (no limitation on scope)
ii)      The other party then conducts cross-examination
(1)   Can ask leading questions, within the scope allowed under 611(b)
(2)   Trying to poke holes in the story, so in order to get witness to admit to certain facts, the opposing lawyer is allowed to ask more specific questions
(3)   Limited in scope to:
(a)    What that witness testified about on direct examination (subject matter)
(b)   Questions about credibility regardless of whether it was the subject matter of the direct examination (same applies to rehabilitation of a witness on redirect)
iii)    The first party can then redirect
(1)   Scope limited to matters raised in cross-examination
(2)   The same is true for re-cross examinations
2)      Rule 601 – Competency of Witnesses
a)      Presumption of competency, anybody can be a witness (can they understand oath, what is going on, and communicate to jury?)
3)      Rule 603 – Oath/Affirmation
a)      Oath or affirmation (non-religious oath) requirement for witnesses
4)      Rule 605 – the “duh” rule
a)      Judge can’t be witness
5)      Rule 606 – “duh” rule
a)      Jurors can’t be witnesses, can’t testify on anything going on in jury deliberations (what they thought, why they decided) to challenge verdict/appeal
b)      Jurors are insulated from review
c)      This rule, however, does not apply to outside influences (attempted bribery of jurors, etc.)
d)     Exception: If juror makes a mistake in entering the verdict (but misunderstanding the instructions is not included in this and is not valid grounds)
6)      Rule 610 – Religious grounds
a)      Religious belief is not a valid ground to attack witness credibility
7)      Rule 103 – Objections
a)      When and how objection is made is very important, with the burden always on the attorneys
b)      Purpose:
i)        Increases chances of winning by excluding harmful evidence from consideration
ii)      If overruled, objection preserves your argument for exclusion for appeal (make sure record reflects would the excluded evidence would be/show)
c)      Types:
i)        Form: (see p. 118)
(1)   More to do with trial practice (unimportant for this class), mainly stating specific grounds (leading, argumentative, etc.)
ii)      To Admissibility: (see p. 119)
(1)   Intended to exclude inadmissible evidence (even if the form of the question is fine) because of issues of relevance or lack of foundation
(2)   No magic words, just getting the point across
(3)   Judge is only allowed to rule on objections made for the reasons given
(a)    Abuse of discretion standard; and
(b)   “Harmless” standard (even if the court got it clearly wrong, have to show that it effected a substantial right and that it affected the outcome in some way
d)     Rule 103(e) – Plain Error
i)        If there was some error that was obvious and terrible, even if no objection raised below, the appellate court can overrule it
e)      Sometimes the judge will conduct some rulings without the court reporter present, in which case it is counsel’s duty to summarize what occurred when the court reporter is back on duty in order to make/preserve the record
1)      Rule 402 – Irrelevant Evidence
a)      Irrelevant evidence is not admissible
b)      Relevant evidence is admissible unless the following provide otherwise: US Constitution, Federal Statute, the FRE Rules, or other rules prescribed by the Supreme Court
2)      Rule 401 – The Test for Relevant Evidence (Objections: Evidence is Irrelevant)
a)      “Fact of Consequence”
i)        Essential element of what you have to prove, or deals with the credibility of the witness
ii)      What makes something a fact of consequence?
(1)   Substantive law – elements of the claim or defense
(2)   The credibility of witnesses is always a fact of consequence
(a)    Lowers or enhances the credibility of their testimony
iii)    Ask: What fact of consequence is this evidence being offered to prove or disprove?
(1)   State of mind, conduct, causation, injury, to impeach testimony, etc.?
iv)    Evidence may be re

familial, and it is unlikely they would include him in the process (∆ is giving alternative theory of how plants got onto the land, evidence shows a pattern of how it could have happened without his involvement)
c)      Prosecution claimed that there is no evidence that a particular DTO was involved (court rejects, any of them being involved would support ∆’s theory) and that even if DTO was involved the ∆ could have conspired with them (court rejects, the jury could find this but the ∆ is arguing that his guilt is less likely with DTO involvement than without it because without such involvement jury would naturally assume that someone owning the land was at least partially responsible)
d)     Also illustrates the idea that the proof process at trial is comparative, comparing alternative possibilities of what happened and whether evidence challenges or supports the alternatives being put to the jury
1)      Rule 403 – Excluding Relevant Evidence for Prejudice, etc. (Objection: 403 Dangers)
a)      Gives the judge discretion to exclude otherwise relevant evidence while also giving him  a framework
b)      Abuse of discretion standard on appeal
c)      This motion can be made before trial takes place, as well (motion in limine)
d)     3 aspects of the rule: Probative Value, Dangers, and “Substantially Outweighs”
e)      Probative Value:
i)        How good/strong the evidence is
ii)      General terms (can’t be quantified) of high, weak, moderate, low, etc.
iii)    Judge does not take the credibility of the witness into account in this assessment
(1)   “if the jury believed this witness was credible, how probative is this?”
iv)    Involves the strength of the underlying inference (strength of the inferences that connect the evidentiary fact to the fact of consequence and then to an essential element) and the certainty of the starting point (how certain is the witness about their testimony?)
v)      Also involves considering the party’s need for the evidence
(1)   Is there availability of other means of proof?
(2)   Are there alternative means to prove a fact of consequence
(3)   The centrality of the point to be proved and the degree to which it is disputed by the opponent can increase a party’s need for the evidence
f)       Dangers:
i)        Judge must assess how likely it is that one of these problems will arise and how they will have an effect on jury decision making (will it detract from a rational assessment of the evidence?)