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University of California, Hastings School of Law
Park, Roger C.

Evidence, Roger Park, Fall 2010

I. Making the Record

I. The Record
The record comes in 3 parts:
1. Litigation paperwork
2. Verbatim transcript hearings, confs, trial test
3. Tangible exhibits that the parties offered into evidence

Record is made by a court reporter
– FRCP 80(c)
– Trial judge has no authority to order the court reporter to disregard his sworn obligation to make a complete transcript
– Encourages lawyers to be concise and thorough in their examinations and restrain from the impetuous
Court reporter problems:
o Echoing (wasteful and distracting)
o Overlapping (more than one person talking)
o Numbers (clarity)
o Proper names (clarity)
o Exhibits (referencing properly)
o Indications and gestures
o Off the record (clarity)
o Sidebar conferences (clarity)
o Abstruse terminology (patents cases)
o Reading testimony into the record (slowly)
Other requirements for creating the record:
– requiring audible responses from witnesses
– statements for the record
– stipulations (when opposing counsel affirmatively accepts as accurate a statement for the record)
o Evidentiary stipulations: acts to admit or concede specified facts, relieving a party of the burden of making full-scale proof
o Important problems with simple, single subject stipulations:
§ Remembering to state the stipulation
§ Making certain that the court reporter is recording it
§ Making certain that the terms of the stipulation are clear and unambiguous and
§ Getting on the record opposing counsel’s unqualified acquiescence in the stipulation
II. Offering Evidence
· Direct examination of witnesses
o Leading questions
§ Rule 611 (c) leading questions should not be used on direct exam of a witness except as may be necessary to develop the witness’ testimony
§ When they are permitted:
· On prelim matters that do not go to the heart of the case, permitted to provide a transition from one subject to another
· w/respect to undisputed matters where the question is used as a connective
· an adverse or hostile witness
· when a witness gives ‘surprise’ answers
· may be allowed with a witness of limited understanding, like a child
· to a witness whose recollection has been exhausted but who apparently possesses additional information of a relevant sort
· hypothetical questions to expert witnesses
o Compound or otherwise confusing questions
o Questions assuming unproved facts
· Expert witnesses can state an opinion or conclusion if 4 conditions are met:
o 1) the validity of the opinion or conclusion depends on special knowledge, experience, skill or training not ordinarily found in lay jurors
o 2) the witness must be qualified as an expert in the pertinent field
o 3) she must possess a reasonable degree of certainty (probability) about her opinion or conclusion; and
o 4) in common law JX expert witness must first describe the data on which his or her conclusion is based
· Three approaches for estb bases for opinion:
o Express an opinion on facts personally observed, also can take into acct facts communicated by another expert
o Expert present in courtroom can base her opinion on evidence if it is not in conflict
o The expert can base an opinion on a hypo question embracing evidence of record
· Qualifying and Expert Witness
· Hypothetical Questions to Experts
· Hypothetical Questions under FRE
· Laying the foundation for admission of Evidence
· Using an Interpreter
§ Cross Examination of Witnesses
· Relevance
· Whether ranging too far beyond the contours of opposing counsel’s direct examination of the witness
· Leading questions allowed
· But not loaded questions, compound or otherwise confusing questions
§ Tangible Evidence
· Two Types:
o Real evidence
§ 1) marking for identification
§ 2) laying the necessary foundation
§ 3) offering the exhibit into evidence
§ 4) securing an express ruling on the record
§ 5) precautionary measure (scratch out for the record)
§ 6) showing or reading the exhibit to the jury
o Demonstrative evidence: material used for explanatory or illustrative purposes only “not the real thing” /Two types:
§ “selected” demonstrative evidence (handwriting exemplars)
§ “prepared or reproduced” demo evidence (model or diagram)
o conditions shown must not be significantly different from those that existed at the time of the events in question
o must be testimony that a particular demo exhibit is a “true and fair representation” of what it purports to show
o Writings
o Authentication
o 1) by notice or request to admit genuineness as under Rule 36 FRCP
o 2) by direct evidence that proves the handwriting in question
o 3) by proving the handwriting circumstantially which can be accomplished:
§ by the identifying testimony of someone who is familiar w/the handwriting of the person in question
§ by the testimony of a handwriting expert who compares the questioned handwriting with one or more genuine specimens; or
§ by letting the jurors themselves compare the questioned handwriting with genuine specimens
§ by reliance on common law, statutory or rule provisions that render some writings self-authenticating or that set up presumptions of authenticity
o Judicial Notice
· A form of evidence, sub for more elaborate proof of facts that are
o 1) subject to common knowledge among reasonably informed persons in the JX or
o 2) capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be disputed

III. Objections to Evidence
· Party Responsibility for Making Objections
· Reasons for forgoing available objections
o No need or wish to complain about every innocuous leading question put by opposing counsel esp in preliminary matters (expedites the examination process)
o Let questionable objection go by the board bc he does not want to run the risk he will only underscore hurtful testimony
o Don’t want to give impression of excessive obtrusion or distrustful
o Evidence in some favors her clients cause
o Can open the door for more important evidence that the silent lawyer hopes to offer later
· Objections made for effect
· Time for objecting to testimony: Waiver
o Objection must be made as soon as the basis for it becomes apparent
· Objecting to exhibits
o Pre-trial exhibits in complex cases
· Specificity of Objections
o Recommend that any objection be accompanied by an reasonably specific statement of the grounds for it
· Necessity for Repeating Objections
· Necessity for Obtaining a Ruling
· Exceptions
IV. Offer of Proof
· Offer of evidence as distinguished from offer of proof
· Offer of proof made during examination of a witness
o Offer of proof has two legitimate purposes:
§ 1) if properly made, it will permit the trial court to make a fully informed and hopefully correct ruling on the objection
§ 2) if the ruling is adverse to the introducing party and arguably erroneous, an adequate offer of proof is ordinarily essential to preserve the point for post-trial review
o Rule 103
o Three basic ways of making an offer of proof during the course of a witness’ oral exa

ngthy freestyle answer)
· Nonresponsive answer
· Notes being made without foundation (unless foundation is laid for past recollection recorded or for some other hearsay exception, a witness may not read notes while on the stand)
· Offer in compromise (an offer to settle a case, or the settlement itself, is inadmissible to show liability or lack of liability)
· Opinion rule violated (witness being asked for an opinion that is unhelpful or is unqualified to give) FRE 701
· Personal knowledge, lack of FRE 602, 703 (602- a witness may not testify to a matter unless evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter, must perceive the matters described with his senses saw, heard, felt tasted or smelled the matter described)(703 – except when a witness is an expert)
· Prejudicial – FRE 403 the trial judge has the discretion to exclude evidence upon making a finding that its probative value is “substantially outweighed” byt eh danger of unfair prejudice
· Pretrial conference order, issue eliminated by
· Privilege (testimony inadmissible bc of an evidentiary privilege, such as attorney-client, marital, doctor-patient, privilege should be named in making the objection)
· Rape shield statute FRE 412 (evidence of a sexual assault victim’s sexual reputation or history is inadmissible bc of rape shield law)
· Re-direct examination beyond the scope of cross FRE 611(c)
· Remedial measures evidence inadmissible FRE 407 (inadmissible under the rule forbidding use of evidence of subsequent remedial measures to show fault or defect.
· Repetitious question
· Rule 403 (prejudice, waste of time or confusion)
· Settlement evidence inadmissible (See offer in compromise)
· Specific Acts not admissible to show character (objection based on rules that require character to be shown by reputation or opinion testimony rather than by specific acts) FRE 405(a), 608(b)
· Speculative (another way of saying a) expressing an opinion b) lack of personal knowledge)
· Vague FRE 611 (a) (vagueness creates confusion or invites a narrative answer)
· Variance between pleading and proof (evidence being offered on an issue that is not raised by the pleadings

II. Relevance and Its Counterweights

Relevance to What?

i. Relevancy is not an inherent characteristic of any item of evidence but exists as a relation between an item of evidence and a proposition sought to be proved – any evid making any fact or more or less probable (CA limits to disputed facts)
ii. Irrelevant for two distinct reasons:
1) Bc its not probative of the proposition at which it is directed
2) Bc that proposition is not provable in the case

Relevance and Inference

i. Morgan, Problems w/Evidence