Evidence Outline

EVIDENCE

BROWN

SPRING 2012

A. The Anglo-American Trial

Basic Rules of trial practice (who asks question when, etc) generally matters of custom rather than law

trial judges conduct trials they way they see fit

Basic Overview of the Stages of a Trial:

1. Pre-trial motions: In limine (“at the threshold”)

Before trial begins, judge hears motions for how it will proceedà generally to rule certain evidence admissible or inadmissible

Judge can defer making a decision (b/c wants to see how the rest of the evidence unfolds)

2. Jury Selection/ Voir Dire (“to speak the truth”)- 12 jurors chosen

Question potential jurors and can use peremptory challenges

3. (Trial Begins) Opening Statements

P tells jury what he expects the evidence will show and then D’s turn

Not evidenceà rather a roadmap of the evidence

Needs to be descriptive not argumentative

4. Case in Chief

P goes first

Call witnesses to the stand, questioning them under oath, often offer physical evidenceà direct examination

Then lawyer of other side has a chance to cross-examine

Scope limited to credibility of witness and to any matter raised on direct examination

Then attorney who asked witness to stand originally has chance to redirect-examination

Also limited to scope of cross-examination

followed by re-cross-examination

Introduce Physical evidenceà 2 steps

1. Marked for Identification

ex: “P’s Exhibit 3”

before item shown to a witness (before or during trial)

does not entitle the parties to show the exhibit to the jury

2. Introducing the Exhibit (asking the judge to admit it into evidence)

need to lay the foundation first

After P rests case-in-chief, D may move to dismiss for insufficient evidence

Only granted if judge can conclude no rational jury could find that it satisfies the applicable standard of prof

Criminal: beyond a reasonable doubt

Civil: preponderance of the evidence or clear and convincing

If Denied, D presents his case-in-chief

5. Rebuttal and Surrebuttal Cases

after D concludes his case-in-chief, P allowed to present more evidence- must respond to evidence presented in D’s case (and vice versa)

trial judges sometimes waive this requirement though

6. Closing Arguments

not restricted to factual statements but are restricted to claims based on the evidence that has been introduced

B. The Role of the Trial Judge

Judge has extensive authority and discretionà very central role

Although attorneys have a wide latitude to craft their cases, trial judge can impose constraints

Great deference to trial court’s determination of admissibility of evidence

1. The Trial Judge’s Authority

FRE 104: PRELIMINARY QUESTIONS

(a) In General. The 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.

Admissibility of evidence usually depends on the existence of a conditionà Judge makes that determination

Court’s role in the law of evidence is to determine the admissibility of a particular item of evidence

Like the gatekeeper of what reaches the trier of fact

Court will say “ok I feel there is an exception to the hearsay rule or this is not hearsay, and will admit this into evidence”

Admitting into evidence does not mean it’s the final say

Rather, it just means it can be considered for the final say

a judge will make a preliminary consideration that there is enough evidence to at least go in front of the jury

“A reasonable jury could conclude…”

Judge is taking a preliminary fact that is necessary for the jury to consider and making a preliminary determination that a reasonable jury can determine

Whether the jury determines or not is up to them

2. The Trial Judge’s Discretion

FRE 103: RULING ON EVIDENCE

(a) Preserving a Claim of Error. A party may claim error in a ruling to admit or exclude evidence only if the error affects a substantial right of the party and:

(1) if the ruling admits evidence, a party, on the record:

(A) timely objects or moves to strike; and

(B) states the specific ground, unless it was apparent from the context; or

(2) if the ruling excludes evidence, a party informs the court of its substance by an offer of proof, unless the substance was apparent from the context.

Reversible or prejudicial errors are those which affect substantial rights of the parties à courts need to disregard errors that do not affect substantial rights

the chances of reversal on the ground of evidentiary error are slim

US v Walton- 2000; 7th Cir- only reverse for errors that affect substantial rights

Held: Review a trial judge’s determination of the admissibility of evidence under an abuse of discretion standard

Judge in best situation to determine the admissibility of evidence b/c his familiarity w/ the case, his firsthand exposure to the witnesses and evidence, and his knowledge of the context of the evidence

Bandera v City of Quincy- 2003; 1st Cir (Civil)- reversal can only be made if objected properly at trial; only exception if “plain error”

P sued D (the city, her employer) for sexual harassment

D objected to testimony of a co-worker (C)

1. C’s own experiences being sexually harassedà proper objection (relevance and prejudice grounds) but allowed in

relevant to show liability of the supervisory officers and city for pattern of knowing toleration of harassment by personnel

2. C’s opinion on P’s allegationsà objected but did not explain objection based on testimony being improper opinion testimony (not an expert, no first-hand knowledge of what happened or psychological impact on P); allowed in

irrelevant and inappropriateà might have reversed even if the evidence may be harmless but don’t need to determine this b/c didn’t properly object anyways

D’s attorney needed to explain how this objection was different than the first objection

Held: An objection is not preserved if the ground is not obvious, and not statedà objections must be contemporaneous and specif