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University of Baltimore School of Law
McClain, Lynn

Evidence Outline

Argumentative “Do you find it strange the defendant nears a striking resemblance to the shooter?”
Asked and Answered “Did you see the shooter—–no——are you sure?”
Assumes Facts Not in Evidence “In which did the shooter hold the gun?” (1st ? 1st witness)
Calls for a Narration “Tell me what you know about this case?”
Calls for Speculation “How angry was the shooter?”
Compound Questions “When you saw the shooter, what did he look like?”
Harassing the Witness “Why didn’t you see the shooter? Answer me, are you blind?”
Hearsay “What did she say to you?”
Irrelevant “What did you eat for lunch today?”
Leading (ok on cross) “Isn’t it true that you saw the shooter?”
Beyond the Scope of Direct “Asks a question that exceeds direct exam”
Move to strike based on lack of 1st Hand Knowledge
Entering into province of the jury “Police officer testifies that A is guilty”
Witness is not an Expert “He has traveling 55 MPH” (and is not an expert)
Subsequent Remedial measures are Irrelevant and Inadmissible offers evidence of patching hole in lot, after fall and tort
Hearsay reply à Prior sworn inconsistent statement of the declarant
Hearsay reply à Admission by Party Opponent by his Own statement
Spousal Privilege / Conf. Commo.
Exclusionary Rule – Subsequent remedial measures, Compromise, Payment Medical Expenses, Inad. Pleas, Liability Ins.
Witness is Unqualified
Evidence needs Authentication
Best Evidence Rule
Improper Character Evidence — Propensity Rule
Witness is Incompetent to Testify
Request Judicial Notice

1. Basics
a. Ps case in chief, Ds case in defense (if any), Ps case in Rebuttal (if any)
b. Examination à direct, cross, re-direct, re-cross
c. Order – jury instructions à MD—before closing argument, FED — after closing argument
d. MD – counsel may interview jurors after trial is over, if they are willing
e. Exceeds the scope of direct
1. In all jurisdictions, scope of redirect is limited to the scope of cross
2. Can Cross examine in only 2 areas
1. Substantative evidence (prove what happened in the case at hand) pertaining only to topics about which the direct examiner elicited testimony from the witness
2. Impeachment of the Witness
3. Court has discretion to allow counsel to exceed the scope of direct
4. If not, counsel’s recourse is to call the witness as his own later in the case
5. If judge sustains an opponent’s objection that question exceeds scope of direct, ask for permission to examine “as if on direct”
6. Wide open jurisdictions – allow party to question about anything of relevance
f. Criminal accused testifies only to a “preliminary matter” outside the hearing of the jury, such as no consent to search
1. (a) Questions of Admissibility Generally. Preliminary questions concerning the qualification of a person to be a witness, the existence of a privilege, or the admissibility of evidence shall be determined by the court, subject to the provisions of section (b). In making its determination, the court may, in the interest of justice, decline to require strict application of the rules of evidence, except those relating to privilege and competency of witnesses.
2. (b) Relevance Conditioned on Fact. When the relevance of evidence depends upon the fulfillment of a condition of fact, the court shall admit it upon, or subject to, the introduction of evidence sufficient to support a finding by the trier of fact that the condition has been fulfilled.
3. (c) Hearing of Jury. Hearings on preliminary matters shall be conducted out of the hearing of the jury when required by rule or the interests of justice.
4. (d) Testimony by Accused. The accused does not, by testifying upon a preliminary matter of admissibility, become subject to cross-examination as to other issues in the case.
5. (e) Weight and Credibility. This rule does not limit the right of a party to introduce before the trier of fact evidence relevant to weight or credibility.
1. When part or all of a writing or recorded statement is introduced by a party, an adverse party may require the introduction at that time of any other part or any other writing or recorded statement which ought in fairness to be considered contemporaneously with it.
i. Rule 611-614Judge can also question witnesses to clarify matters –if aimed at clarifying evidence or helps manage trial

2. Complete Trial
3. Relevance
a. Relevant evidence à evidence having any tendency to make the existence of any fact pertaining to the action, more probable or less probable
b. Most basic rule is that evidence is relevant as to
1. Substantative evidence, relevant as to an issue on the case
2. Impeachment or rehabilitation evidence, relevant to credibility of witness
c. Rule 401, modern relevancy rule embraces 2 relation ships:
1. Common law relevance à relationship between evidence offered and fact sought to be established
1. relevance = evidence + fact
2. Common law materiality à relationship between fact sought to be established and issue in the case
1. materiality = fact + issue
d. brick is not a wall – must build brick by brick
e. distinguish between
1. admissibility of evidence
2. sufficiency of evidence
f. direct evidence and circumstantial evidence
1. direct à I saw A kill B
2. circumstantial à I saw A come out of Bs office w/ bloody wife, and inside office I found B dead
g. judge determines preliminary facts have been proved by preponderance of the evidence – then goes to jury
h. 104 à Preliminary Questions + Conditional Relevancy (104)a or (104)b
i. Is the proffered evidence relevant, regardless whether the preliminary fact is true? If so, the preliminary fact falls under Rule 104(a), if not Rule 104(b) applies.
j. If a preliminary fact must be true in order for the proffered evidence to be relevant, 104(b) applies. The trial judge then must admit the evidence, even if the judge does not believe the evidence offered to prove the preliminary fact, but that evidence is sufficient to support a reasonable jury’s finding that the preliminary fact is true.
k. Judge must admit the conditionally relevant evidence and leave to

of the jury”

q. Collective Facts Doctrine :
1. Case law has approved opinion testimony to certain opinions that could theoretically be broken down to underlying facts:
1. such as person was drunk, sober, angry, calm, or in pain
2. More useful in painting a picture
r. Speed – Under MD case law, lay witness may testify to whether a vehicle was moving “fast” or “slow”
1. But to testify as to miles per hour, the witness must first be qualified as an “expert”
s. Opinions on Ultimate Facts No Longer Automatically Excluded –Rule 704
1. Fact that an opinion is an ultimate issue in the case no longer automatically precludes it
2. Does the opinion meet the test of Rule 701 and is it helpful to the trier of fact, if so, it is admissible

4. Objections to Forms of Questions
a. Narrative Question Rule 611(a)
b. Allowing narrative questions is usually trial court discretion
c. If you object and are overruled for narrative question – maybe ask the court to instruct the witness to testify only to his personal knowledge and not to what the witness learned from others
d. Asked and answered — Rule 611 –– can’t ask the same question again
e. Leading — Rule 611 (c) –– one that suggests to the witness the answer that counsel desires
1. 611(c) — Leading questions. Leading questions should not be used on the direct examination of a witness except as may be necessary to develop the witness’ testimony. Ordinarily leading questions should be permitted on cross-examination. When a party calls a hostile witness, an adverse party, or a witness identified with an adverse party, interrogation may be by leading questions.

2. Court has wide discretion to permit leading questions on direct
3. Leading ordinarily permitted on cross examination

4. Leading on direct usually permitted in following 6 situations:

1. refresh witness’ memory
2. bring the witness to the appropriate subject matter
3. background information regarding the witness
4. preliminary matters such as laying the foundation for particular evidence
5. other matters not really in dispute
6. as necessary, when the witness is very young, or inarticulate for some other reason

f. Assuming a Fact Not In Evidence – rule 611(a) – “When did you stop beating your wife”
1. Questions that assume the truth of an underlying fact not yet proved or admitted to by the witness’s testimony are a subcategory of leading questions that are objectionable, because they are likely to result in mis-leading answer