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Evidence
University of Baltimore School of Law
McLain, Lynn

EVIDENCE FINAL OUTLINE

MCLAIN

SPRING 2012

Class 1 – Purposes of rules of evidence; overview of trial; scope of cross; roles of judge, jury, and counsel – Ch 1 – FRE 101, 1101, 102, 104, 106, 611(a), 611(b), 614

Rule 101 – Rules apply to proceedings in courts of US, Bankruptcy, & magistrate judges

Rule 1101 – Applicability of Rules – Rule of Privilege – privilege apply to all actions, cases, proceedings.

– Rules inapplicable to the following

· Preliminary questions of fact – when issue is to be determined by court under Rule 104

· Grand jury

· Misc Proceedings – extradition, sentencing, probation, warrants, bail.

Rule 102 – Purpose and Construction

1. Fairness

2. Truth

3. Eliminate unjustifiable expense and delay

4. Growth of law – just determination

Rule 104 – Preliminary Questions

a. Questions off Admissibility Generally – Judge shall determine the following:

i. Qualification of person to be witness

ii. Existence of privilege (i.e. spousal immunity)

iii. Admissibility of Evidence (confession)

Rule 104(a) – Court is NOT BOUND by rules of evidence except those with respect to privilege.

b. Relevance Conditioned on Fact – when relevance of evidence depends upon fulfillment of condition of fact the court shall admit it upon the introduction of evidence sufficient to support a finding by the trier of fact that the condition has been fulfilled.

i. Court must admit evidence if a reasonable jury could find preliminary fact true

Rule 611 – Order of Examination of Witnesses

1. Direct examination – NO LEADING QUESTIONS

a. Limited circumstances for leading questions

a.i. Judges discretion – allows to develop witness testimony

a.ii. Hostile witness

a.iii. Adverse party

a.iv. Witness indentified with an adverse party

2. Cross examination – LIMITED TO SCOPE OF DIRECT

Rule 106 – Related Writings or Recorded Statements – exception to the rule that you must wait your turn to before admitting evidence. ONLY writings and recordings – allows party to introduce other part in order to have it make sense.

Rule 614 – Calling and Interrogation of Witness by the Court

a. The court may call witnesses on its own initiative or at the request of a party, all parties entitled to cross exam if called by court

b. Court may interrogate any witness

c. Objections to witnesses may be made at the time or next opportunity jury not present.

OBJECTIONS TO FORMS OF QUESTIONS

1) Narrative Questions – asks witness to tell story and gives answer in narrative form

2) Asked and Answered – same counsel, same question, same witness

3) Leading Questions – question suggests to the witness the answer the counsel desires, tells witness how to answer.

4) Assuming Fact not in Evidence –questions that assume the truth of an underlying fact not yet proven in evidence

5) Compound Question – questions that result in ambiguous answers, question provides alternative choices of answers

6) Harassing or Badgering Witness – usually can also object on asked and answered grounds

7) Argumentative Question.

8) Not a Question – using witness to make own statement

9) Objections at Deposition; Cure by Rephrasing – objections to form of question must be made at the time of deposition or they are waived.

10) Motion to Strike on Found that Answer was not Responsive – ONLY the counsel that asked the question may move to strike the answer

PRESERVATION OF THE RECORD FOR APPEAL

Prerequisites for reversible error:

1) Trial Judge Committed Error

2) Counsel Preserved the Error (unless plain error – RARE)

3) Error is not Harmless – must be substantial

a. Rule 103(a) – exclusion of evidence effects a substantial right of the party

Rule 103 – Rulings on evidence

A. Effect of Erroneous ruling

a. Objections

a.i. Timeliness of Objection or Motion

a.i.1. Pretrial motions – optional except criminal defense counsel

a.i.2. Trial – must be stated in SPECIFIC TERMS if specific ground not apparent from context

a.i.2.a. FED – No general objections

a.i.2.b. MD – Does not require specific grounds for objection unless requested by court

Rule 105 – Limited Admissibility

– Evidence may be admitted for a limited purpose and the Court must instruct the jury as such.

HEARSAY

Class 3 – Relevancy Ch 2/3 – FRE 401-403; 104(a)-(b); 602; 701; 704(a)

Rule 401 – Evidence is relevant if:

a. Makes any fact more or less probable than it would without the evidence AND

b. The fact is of consequence in determining the action.

– Two parts: relevance and materiality

– Relevance – relationship between evidence offered and fact sought to be established

– Materiality – relationship between fact sought to be established and the issues in the case

Rule 402 – Relevant evidence is admissible unless any of the following provides otherwise:

– Constitution

– Federal Statute

– These rules

– Other rules prescribed by the SC

Rule 403 – Evidence may be excluded when its value is substantially outweighed by the risk of:

1. Unfair Prejudice

2. Confusing the issues

3. Undue Consumption of time

Rule 104(a) – Court must decide any preliminary question about whether a witness is qualified, a privilege exists, or evidence is admissible. In so deciding, the court is not bound by evidence rules, except those on privilege.

Rule 104(b) – When the relevance of evidence depends on whether a fact exists, proof must be introduced sufficient to support a finding that the fact does exist. The court may admit the proposed evidence on the condition that the proof be introduced later.

Rule 602 – Witness must have first-hand knowledge – can be established by witnesses own testimony

Rule 701 – Non-expert witness’s opinion is limited to:

a) Rationally based on witness perception

b) Helpful to clearly understanding the witness’s testimony or to determining a fact in issue and

c) Not based on specific, technical, or other specialized knowledge

– In evaluating whether a law opinion is admissible ask:

1) Is the witness in a better position than th

was hot

3) Statements Offered as Circumstantial Evidence of the Declarant’s Consciousness, Ability to Talk, Ability to Speak a Particular Language

a. Witness trapped in car makes statement – offered only to prove that the witness was conscious at the time

4) Statements Offered as Circumstantial Evidence of Declarant’s State of Mind, Belief, Intent, Sanity or Insanity

a. “B is mean” offered to show that declarant’s motive or intent

Class 9 – Confrontation Clause – Ch 10 – Crawford, Davis, Giles, Bryant

Sixth Amendment – only in criminal cases and only with regard to evidence offered against an accused (offered by the prosecution).

3 Categories of Circumstances Where Hearsay Offered by the Prosecution:

1) When the out of court declarant also testifies at trial: NO CONFRONTATION CLAUSE PROBLEM

a. D may cross examine declarant, no confrontation clause problem

b. Witness may testify to their prior statements

c. Witness may testify to others statements if the other witness will testify

2) When the Accused as Forfeited His Confrontation Right – NO CC PROBLEM (rare)

a. D found to have engaged in wrongdoing that results in forfeiture of his confrontation right

b. Ex: Absenting himself from trial, disrupting trial, engage in threats, murder or other means to make the declarant unavailable

3) When the Defendant has not forfeited his right but the declarant does not testify at trial (Testimonial/Non-testimonial distinction)

a. TESTIMONIAL STATEMENTS – Where the declarant “reasonably expects” the statement to be used in prosecution – They are excluded UNLESS:

a.i. Declarant testifies at trial OR

a.ii. Defendant had an opportunity to cross-examine declarant regarding the statement at an earlier time.

b. NON-TESTIMONIAL STATEMENTS – Not reasonable foreseeable to declarant that statement would be used at trial – not subject to confrontation clause

b.i. Definitely testimonial:

b.i.1. Ex parte testimony at preliminary hearing

b.i.2. Prior testimony from Grand Jury hearing

b.i.3. Testimony from Prior Trial

b.i.4. Statements Made during Police Interrogations

b.ii. Definitely NOT testimonial

b.ii.1. Business records

b.ii.2. Statements in furtherance of a conspiracy

b.ii.3. Off-hand remarks

b.ii.4. Casual remarks to acquaintances

b.iii. May or may not be testimonial:

b.iii.1. Dying declarations

b.iii.2. 911 Calls

b.iii.3. Crime Victim statements to physician relating to medical treatment (likely would be testimonial)