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University of Alabama School of Law
Pardo, Michael S.

Evidence Pardo Spring 2018

Chapter 2- The Process of Proof: How Trials are Structured (Pg 79-90)

A theme running through the trial process is the insulation of the jury from much of what happens during trial.
Today juries only decide factual issues.
The policy implication of most evidence rules are based on someone’s answer to the question: what is the effect on the accurate resolution of disputes of allowing a jury to consider this type of information.

The Adversary System

Adverse parties each present self-serving versions of the truth to a disinterested fact finder.
This system is derived from the idea that the government’s role in the resolution of disputes is to provide a fair forum for the impartial resolution of disputes.
The individual parties are responsible for investigating and prosecuting the case.
In Europe the “inquisitorial” system is much more hands on.

The Roles of the Trial Participants

Witnesses: people with knowledge of out of court events who are called on to reveal that knowledge in court
Jury: uses it senses to perceive information I the court and its reasoning to evaluate and make inferences about that information in order to reach a conclusion about which version of disputed events is closer to the truth

The jury should use their own general knowledge, but not do their own investigation of the case.

Advocates: provide info to the jury through the use of witness, documents, and other exhibits. Each side presents their version of events.
Judge: controls the trial process by setting limits, primarily pursuant to the rules of evidence, on the advocates’ proof in the interest of rationality of results, fairness between the parties, social and moral values, and efficiency.

The judge may also call witnesses and question them.

Bench trials: trials without a judge instead of a jury. The rules of evidence typically apply in bench trials but may be more relaxed. The theory is that a judge, due to experience and professional training can disregard inadmissible evidence more easily than a jury.


Pretrial motions: trials usually begin with “motions in limine” (at the threshold), ie motions about anticipated evidentiary problems.
Jury Selection:

The number of jurors differs depending on the court and case type.
The primary means of selecting a jury is by questioning the jury “venire” (the jury pool) in order to uncover grounds for dismissing them. The questioning process is called “vior deer”.
Each side has a limited number of “peremptory challenges” where they can dismiss any juror for any reason except race or sex.
The parties’ opposing self-interest in the selection hopefully cancel each other out.

Preliminary Instructions: may be nothing more than admonitions not to talk about the case.
Opening Statements:

An opening statement is neither evidence nor argument, but a compact narrative of what the lawyer in good faith believes the evidence will show.
Argument is not allowed, but controversial factual claims are a grey area.
Many jurors decide the case right then.

Presentation of Evidence and the Burden of Production

The order of the Parties’ Presentation of cases

After opening statements, the plaintiff/prosecution presents its case-in-chief; primarily through witnesses.
After the defense presents, P can present a rebuttal case which only addresses points raised by the defense.
A defense may then (rarely) give a sur-rebuttal case.

The Burden of Production

Means producing enough evidence so that a “reasonable” fact finder can make a finding for either party.
In civil cases D’s have the burden on their affirmative defenses. However in criminal cases the prosecution has the burden to negate defenses.
A failure to meet your burden on each element can result in a JML; ie whether there is evidence sufficient for a reasonable jury to find for the P.

Post-Evidence Matters

After the close of evidence, a party may move for a directed verdict on the grounds that no reasonable jury could find for the other party.
Prosecutors can not move for a directed verdict.
Jury instructions are then agreed upon.

Closing Arguments

Both arguments and discussion of law and facts are all allowed. But only admitted evidence may be discussed.
Lawyer should trace the chain of inferences and use the language of the jury instruction.

Jury Instructions and the Burden of Persuasion

Most judges simply read the jury instruction verbatim (super boring and hard to follow and remember)

Jury Deliberations and Verdict

Jurors are allowed to have all the evidence in the room and can ask for read-backs of testimony.
Unanimity is not always required.
Some trials are bi-furcated to address damages after the initial jury verdict

Post Trial Motions

Two types: JNOV and new trial.
JNOV argues that the winner has failed to meet its burden of production, a new trial argues that the non moving party failed to meet its burden of persuasion.

Class Discussion

What is evidence law?

Evidence plus common sense reasoning and assumptions
Making inferences from data
Evidence law is about the facts. Other classes assume the facts and talk about the legal ramifications.
Facts are foundational b/c all legal rights depend on solid facts.
Evidence law primarily governs what facts are admissible in trial
Two alternatives when talking about disputes

Leave it to the parties to present whatever facts they want
Let the fact finders decide what is important for them
US law rejects both of these.

This court is not about

Not a trial practice course

What is evidence?

Words or stuff
Generally, evidence is information to help make legal inferences
How do we know which facts matter?

Relevance to the elements of the claim

Class 2: Witness Examination; Objections (39-77, 90-3, 100, 118)


Most evidence in most trials takes the form of testimony; and is therefore the most crucial form of evidence.
The rules also require testimony about documentary or tangible evidence to establish admissibility and explain its significance.
Rules for presenting testimony are not set out in the rules, but arise from an unwritten tradition of trial practice.
FRE 611 takes for granted this tradition and only specifies a few limitations and grading the trial judge broad discretion over “the mode and order” of examining witnesses.


611(a): Breadth of the Court’s Power

Broad terms of the weeping authority of the judge to control the examination of witnesses during the trial.
Spelling out detailed rules to govern the mode and order would be neither desirable nor feasible.

Direct Examination

The questioning of witnesses you call in your case-in-chief
Trials are won and lost on the their case-in-chief, thus direct examination is the most straightforward and effective way to prove your case.
Each party must plan to meet its burden of production with evidence developed through direct examination.

611(b): The Scope of Cross-Examination

An effective way to test the witness’s credibility and show that there may be another side to the story.
Two general areas of inquiry are permissible:

Matters covered in direct examination.
Questions that may impeach credibility.

Redirect and Recross-examination

The direct examiner may conduct a redirect examination when cross-examination has been completed.
The scope of redirect is limited to matters that were raised in cross-examination; thus the direct examiner is usually not permitted to prove an essential element of the case that was overlooked.
Each such successive examination is smaller in scope since it is limited to responding to the immediately preceding redirect.
Too much seesawing can irritate the judge and jury.

FRE 611. Mode and Order of Examining Witnesses and Presenting evidence

611(a). Control by the Court; Purposes

The judge controls the order and style of testimony

611(b). Scope of Cross-Examination

Cross may only cover topics covered in direct examination, and credibility, unless judge says so.


The substantive rules of evidence revolve around two features of the trial: objections, and making a record that preserves evidentiary issues for appellate review.

Evidentiary rulings admitting evidence over objection will virtually never be the basis of appellate reversal without a clear objection in the trial record.

n Reasonable Generalizations

The necessary generalization cannot be known to the judge to be false, and it cannot be pure speculation (eg stereotypes, biases, prejudices)

The policy of FRE 401 favors admissibility

The minimal test of relevancy serves of the of most important goals of the FRE: to promote rational decision making thought the jury’s access to relevant evidence.

Direct versus circumstantial evidence

Direct – established an EE without any additional intervening inferences.

Circumstantial – EFs that require intervening inferences to establish an EE. There may be numerous other explanations for the EF; the inference establishing an EE does not necessarily follow.
What distinguishes circumstantial from direct evidence is the length of the inferential claim.
Neither one necessarily have greater probative power.

Background info

Reasonable background info about the witness is always admissible b/c it allows the jury to make better informed judgments about the credibility of a witness

Advisory Committee note to FRE 410 explicitly approves of the admission of contextual evidence despite its lack of immediate consequence to the case.

Relevancy is not sufficiency

“a brick is not a wall.”

The question of admissibility under FRE 401 is separate from the question whether an item of evidence is sufficient proof of an EE to justify sending a case to the jury.


FRE 402 requires that evidence must be relevant to be admitted at trial, and that all relevant evidence is admissible unless otherwise provided.
FRE 401 requires that to be relevant, and evidentiary fact must connect by a process of inferential reasoning to a “fact of consequence” in the case. The EE of the substantive law that governs the case determine what counts as FOCs.
FRE 401 requires that to be relevant, an EF must make a FOC “more or less probable”. The judge decides this issue under the “any tendency” standard by examining the necessary inferences and the reasonableness of the generalizations underlying them (ie their veracity, and level of speculation)

Class Notes:

Evidentiary standard of review for trial evidence:

If you want to challenge a judgment based on evidence you have to show 4 things:

Must have made an objection
offer reasons for the objection.
That there was an abuse of discretion (outside of reasonable)
Ruling had some effect (ie not harmless)


Primary FRE rules are 401 and 402
Fundamental assumption: Irrelevant evidence will detract from the goal of accurate judgments, and relevant evidence advances the goal.
All of evidence law boiled down:

Irrelevant evidence should be excluded
Any relevant evidence should be included, unless another rule says to exclude it.

What makes evidence relevant?

The elements of the crime tell us what facts matter.
Inferences the jury makes about the facts based on general/common sense

Lawyers need to articulate what these common sense assumptions matter

Two criteria for Relevance

Fact of consequence
Fact makes fact of consequence more or less probable

Fact of consequence

A fact that the law cares about. Relates to an element of the offense. So you need to know the law.
Any tendency to make the essential elements more likely .
One fact/piece of evidence can be relevant in many ways, ie related to more than one fact of consequence