Gilman, Fall 2012 Evidence Outline
Process of Proof
Evidence is defined as testimony, writings, material objects or other things presented to the senses that are offered to prove the existence or nonexistence of a fact
Rules of evidence dictate what is presented to the fact finder
Comes from two sources: witnesses, real evidence (writings, other tangible items)
Witness= natural person who testifies in court
Facts can sometimes be proven without resort to evidence: assume facts that are well known & indisputable (judicial notice), assume existence of one fact based on different fact or set of facts (presumptions)
Preponderance of the Evidence standard:
More likely than not, probability of 51% or more
Quantity doesn’t matter, just how persuasive
Clear and Convincing Evidence standard:
Intermediate standard, requires more than preponderance of the evidence but less than beyond a reasonable doubt
Used when the stakes are greater than the typical civil case
Beyond a Reasonable Doubt standard:
Most demanding standard, used almost exclusively in criminal cases
FRE 103: Objections, Offers of Proof, Error, Out of Court Admissibility Hearings
Objections and motions to strike are used to contest the admissibility of evidence, while offers of proof are used to contest the exclusion of evidence
Grounds for Appellate Review
Litigant’s responsibility to object, preserve record
Shield the jury from lawyers’ debate with judge about evidentiary issues, make sure jury remains untainted about evidence that could be excluded
Narrow appellate review, win/lose at trial, will only reverse if substantial rights of parties were affected (judges make lots of mistakes, but most of the time it doesn’t matter, reversals are unusual)
Objections:
If judge agrees with objection, they sustain it…objector is happy, person putting on evidence (proponent) is sad
Disagrees, they overrule it…objector is sad, proponent is happy
Objection or motion to strike must be made to preserve a challenge to the admissibility of evidence on appeal
Must be timely (more or less immediately) and must specify grounds, indicate which portion of the evidence is objectionable
Offers of Proof:
When evidence has been excluded, counsel must make an offer of proof so appellate court can decide if it was improperly excluded
Counsel must state theory of admissibility
Should be made out of jury’s ear shot
Judge can decide when an offer of proof can me made but may not prevent a party from making one
Failure to object or make offer of proof, waive ability to appeal
Making the record: counsel’s responsibility to ensure that all objections and offers of proof are recorded
MD: no requirement to state ground for objection
Did it affect substantial right: did error affect outcome of the case?
Three Categories of Error
1) Harmless error: error raised in trial court that does not affect substantial right
2) Reversible (prejudicial): raised in trial court and affect substantial rights
3) Plain error: error not raised below but affects substantial rights
Plain Error Rule:
Appellate court may consider an evidentiary error despite a party’s failure to make an objection, motion to strike, or offer of proof at trial
Safeguards right to a fair trial, some errors are too significant to tolerate
Appellate review: Questions concerning the interpretation of an evidence rule rather than its application (abuse of discretion) in a particular case are review de novo
FRE 601: Witness Competency
All witnesses are competent unless rules provide otherwise
Early common law disqualified witnesses with mental defects, substances abuse problems, felons, people who didn’t follow certain religious beliefs, children
Competent does not mean credible, can attack on old grounds
FRE 603: Oath or Affirmation Requirement
Requires witness to swear or affirm to the truthfulness of their testimony prior to testifying
Oath= God
Affirmation= no God
Only needs to stimulate truthfulness
FRE 605: Judge’s Competency as a Witness
Presiding judge can’t testify as a witness at the trial, party doesn’t need to object to preserve issue
Only incompetent witness for case that they are presiding, not in other cases
Likely to be seen as TOO credible, great authority, likely to have more influence that it should, fear of attorney reputation cross-examining judge, important testimony to give means not impartial
Should only arise in exceptional circumstances, almost always excluded themselves if they know they could be a witness in a case
Once disqualified, can be a witness if different judge presiding
FRE 606: Juror’s Competency as Witness
Juror can’t testify as a witness in trial they are servi
sion, just need to have had an opportunity of personal observation, affect weight not admissibility of testimony (
Witness typically supplies proof of firsthand knowledge, can but doesn’t have to be witness’ own testimony but can also be inferred from the testimony
Trial judge doesn’t decide whether or not witness has personal knowledge by preponderance of the evidence (usual standard), but only whether sufficient evidence to support a finding of firsthand knowledge has been introduced (prima facie standard)
If sufficient evidence has been adduced, witness may testify and jury decides whether witness has firsthand knowledge
Can overlap with hearsay rule: witness has no personal knowledge if repeating out of court statement by a declarant
Form of testimony determines type of objection:
If witness indicates that the basis of the testimony is declarant’s statement, hearsay objection
If it appears that the witness was not even present during the event, lack of personal knowledge objection
But witness can have personal knowledge of an admissible hearsay statement being made
FRE 901: Authenticating or Identifying Evidence
“Laying the foundation” for admissibility
Offering party has burden of proving that an item of evidence is genuine, that it is what the proponent says it is
901(b) examples of traditional methods, different methods (or a combination of methods) can be used:
Witness with knowledge (application of firsthand knowledge rule)
Nonexpert opinion on handwriting (must be sufficiently familiar with the handwriting, but can’t be for purposes of litigation)
Comparison by trier of expert
Distinctive characteristics
Public records and reports (must be retrieved from the correct place of custody
Ancient documents (appearance is not suspicious, found in place natural for this document, and 20 years or older)
Process or system
Statute or rule methods