EVIDENCE
SMALKIN
SUMMER 2012
I. WHY DO WE HAVE RULES OF EVIDENCE?
A. Goals of Evidence
1. to ensure uniformity/consistency in proceedings
2. to eliminate prejudice
3. to ascertain the truth
4. to admit relevant evidence
5. to keep out irrelevant evidence
B. FRE 403; Md. Rule 5-403
1. Even though evidence is relevant, it may be excluded if its probative
value is SUBSTANTIALLY outweighed by the danger of:
a. unfair prejudice
b. confusion of the issues
c. misleading the jury
d. undue delay or waste of time
e. needless presentation of cumulative evidence
C. Order of Proof
1. In a criminal case, the state goes first in giving opening statement,
presenting evidence, making closing argument.
2. In a civil trial, the plaintiff will almost always go first.
3. Generally in a civil case it is:
a. Plaintiff’s case in chief
b. Defendant’s case in defense to Plaintiff’s claim and case in
chief on counterclaim
c. Plaintiff’s case in rebuttal to Defendant’s Defense and case in
defense to counterclaim
d. Defendant’s case in rebuttal
D. Order of Trial
1. Pretrial Motions (motions to suppress, motions in limine, motions for
protective orders, motions for summary judgment, etc)
2. Calling of the case (in criminal cases, explanation of charges,
election/waiver of jury trial, plea)
3. Possibly more pretrial motions
4. Voir Dire of prospective jurors (in Federal and Maryland courts this is
generally done by the judge)
5. Impaneling of jury
6. Opening statements (does NOT include legal argument or arguing
inferences – just an overview of the evidence you intend to bring)
a. Plaintiff or prosecutor goes first
b. Then defense counsel (but may choose to reserve opening until
beginning of case in defense)
7. Plaintiff’s/prosecution’s case in chief – EVIDENCE!!
a. NOW evidence is introduced; judge will rule on objections
b. If judge overrules, evidence is admitted; if judge sustains,
evidence is excluded
c. Examination of each witness:
1. Direct examination by counsel calling the witness (ie the
proponent of the evidence)
2. Cross-examination by opposing counsel
3. Redirect exam by proponent but IT MUST BE
LIMITED TO THE SCOPE OF MATTERS
COVERED ON CROSS!!
4. Recross, LIMITED TO SCOPE OF REDIRECT
8. Defendant’s motion for judgment (civil) or motion for acquittal
(criminal)
9. Defendant’s case in defense – EVIDENCE!!
10. P and D move for judgment (civil) or D moves for acquittal (criminal)
11. Plaintiff’s/prosecutors case in rebuttal –EVIDENCE!!
12. Defendant’s case in rejoinder – EVIDENCE!!
13. Plaintiff’s surrebuttal –EVIDENCE!!
14. Defendant’s surrejoinder, etc
15. Jury instructions in Md. court; in Fed. these are given after closing
arguments
16. Closing arguments (sum up evidence)
a. Plaintiff/prosecutor
b. Defense
c. Plaintiff/prosecutor rebuttal (restricted to scope of defense’s
closing)
17. Jury deliberations, verdict, jury poll, motion for JNOV, motion for
new trial, judgment, sentencing, notice of appeal
E. Scope of Examination of Witnesses
1. The scope of redirect examination is LIMITED TO the scope of cross;
ONLY the topics that were addressed on cross may be inquired into on
redirect.
2. Re-cross is limited to the scope of redirect, etc.
F. FRE 611 (b); Md. Rule 611 (b)
1. The “Limited Scope” Rule – In both Md. and Fed., cross examination
should by limited to the subject matter of the direct examination and
matters affecting the credibility of the witness. Similarly, redirect is
restricted to the scope of cross, and recross is limited to the scope of
redirect.
2. The cross-examination of a witness may NOT exceed two areas:
a. substantive evidence (to prove what happened in the case at
hand) pertaining ONLY to topics about which the direct
examiner elicited testimony from THIS witness; and
b. impeachment of that witness in an effort to detract from the
credibility the jury may accord to the witness’s substantive
testimony
3. Any other testimony on cross-exam is beyond the scope of cross.
4. Remember that the court has discretion to permit counsel to exceed
the scope of direct. If the court precludes counsel from making a
particular inquiry, counsel’s recourse is to call that witness as his
own later in the case (ie. when he has the opportunity to examine
the witness on direct)
5. IN MD, if a criminal accused testifies only to a “preliminary matter,”
such as that she did not consent to a search, the prosecution may
ONLY cross-examine as to that preliminary matter testimony on direct
or to matters relevant to her credibility. An accused who testifies to
a non-preliminary matter ie. a confession may be cross-examined
on any matter relevant to any issue in the action. This means that a
criminal defendant who testifies to non-preliminary matters is not
restricted to the scope of d
H. Not a Question – Counsel can’t simply make statements of its own; its not
evidence
I. Objections at Deposition; Cure by Rephrasing – at depo, objections to the form
of the question must be made then or are waived and cannot be made later at
trial. But, counsel can cure by rephrasing the question at deposition. (HS and
relevance objections are NOT waived if not made at depo)
J. Motion to Strike on Ground that Answer was Nonresponsive – only the
counsel who asked the question may move to strike the witness’s answer on
this ground.
III. PRESERVING THE RECORD FOR APPEAL
A. Litigants must be sure to take all required steps in order to preserve for appeal
erroneous rulings by the trial judge regarding the admission or exclusion of
evidence. In order to obtain a reversal on appeal, because of an evidentiary
error committed by the trial judge, three conditions must be met:
a. The trial judge committed error
b. counsel preserved the error by objecting
c. the error was so substantial as to be reversible rather than harmless
B. The general rule is that an appellate court will not ordinarily decide any
question which does not appear by the record to have been tried and decided
by the lower court. The only exception is the “plain error” rule. If the error
was so outrageous that even though trial counsel didn’t object, the trial judge
should have objected sua sponte.
C. Trial Counsel Must Preserve the Record for Appeal
1. In order for an appellate court to review an alleged error in the trial
court’s admission or exclusion of evidence, trial counsel must have
taken the steps necessary to preserve the issue on the record.
2. If the error claimed by counsel is erroneous EXCLUSION of
evidence, the proponent must:
a. Make an offer of proof in order to make the appellate court
aware of the substance of the proffered evidence. An offer of
proof is not required where the substance of the evidence is
apparent from the context in which questions were asked – this
is shaky ground.
