Evidence Outline

Evidence Outline
 
I.       Introduction:
A.     Evidence is any matter, verbal or physical (testimony or exhibits), used to support the existence of a factual proposition
B.     3 Main Purposes of Evidence:
i.        governs what information may be considered by the fact-finders
a.)    except if judge must make determination, not bound by FREvid.
ii.      regulates the way in which that information may be communicated
iii.    sets forth the respective roles of the judge and jury
C.     We have an adversarial system of justice
i.        party presentation of evidence for their side
ii.      many other countries have “inquisitorial” systems
a.)    judge examines evidence and determines facts
D.    Trial Record:
i.        2 Purposes:
a.)    evidence on the record is the only information that trier of fact can consider in reaching a decision
b.)    when there is an appeal, the only matter that can be appealed is what is on the trial record→ must work with what is on the trial record
ii.      Trial Record Make-up:
a.)    evidence
b.)    objections
c.)    instructions to the jury
d.)    testimony
e.)    the pleadings and filing in the case
f.)      motions
g.)    anything said and admitted or excluded at trial
h.)    etc.
E.     History of Evidence:
i.        arose in England as common law rules
ii.      1940’s efforts began to codify rules ≠ successful
a.)    Model Code of Evidence
b.)    Uniform Rules of Evidence
iii.    1970’s Supreme Court created advisory committee on evidence
a.)    created Fed Rules of Evidence and advisory committee notes
b.)    Congress approved and made statute in 1975 (only Federal Cts)
i.)      advisory committee notes are not statutory
iv.     Most states have created (copied) their own states rules of evidence
v.       Rules of evidence don’t, by and large, apply to administrative proceedings
F.     Voire Dire:
a.)    a hearing to determine the admissibility of evidence
b.)    also refers to term used in jury selection
G.    Stages of a Trial:
i.        Jury Selection
ii.      Opening Statements
a.)    the party with the burden of proof goes first
b.)    defendant may (if he so chooses) give an opening
iii.    ╥’s case-in-chief, direct case, substantive case
a.)    case-in-chief = all evidence, exhibits, witnesses
b.)    At the end of the case-in-chief, ╥ rests.
iv.     Δ’s case-in-chief
v.       ╥ may rebut the Δ’s case-in-chief
vi.     Δ may rebut ╥’s rebuttal (called “surrebuttal case”)
H.    Exhibits:
i.        Two Types:
a.)    Real Exhibits
i.)      tangible exhibits (bloody knife)
b.)    Demonstrative Exhibits
i.)      non-tangible exhibits (diagram to illustrate scene of crime, etc.)
a.      used to illustrate testimony, etc.
I.        Jury Instructions:
i.        generally given to jury after closing arguments
ii.      Two Types of Jury Instructions:
a.)    substantive law
i.)      learn the elements of crimes, torts, contracts, etc….judge tells jury the elements and jury must find them satisfied or not
b.)    guidance to jury:
i.)      3 Types:
a.      cautionary instruction
i.        advises the jury that certain evidence should be weighed with care b/c of risk it may be untrustworthy
a.      ex. accomplice testimony
b.      limiting instruction: §105
i.        restricts the use of evidence to certain purposes
ii.      when evidence is admissible to one party or for one purpose but not admissible as to another party or for another purpose, the court, UPON REQUEST, shall restrict the evidence to its proper scope and instruct the jury accordingly.
c.       peremptory instruction:
i.        tells the jury that if certain evidence is believed, then certain facts must be taken as established
II.    Making the Record:
A.     Rule 103: Rulings on Evidence
i.        Effect on Erroneous rulings
a.)    appeal concerning evidentiary rulings can only occur if:
i.)      a substantial right of the party is affected, and
ii.)    there must be a harmful result
ii.      Objection
a.)    must make timely objection (before witness answers)
b.)    must state grounds for objection
i.)      general objection is when you don’t do this and violates rule 103 unless grounds for objection is APPARENT.
c.)    motion to strike for prejudicial comments
i.)      can make motion to strike at any time, even next day
iii.    Offer of Proof
a.)    excluded evidence may
i.)      be presented to judge as a description of the substance of the testimony for the record
ii.)    could put witness under oath and have her testify outside of the hearing for the record for appeal
iv.     Hearing of the jury:
a.)    at some point, at the judges discretion, the evidence will be placed on record
v.       Plan error:
a.)    appellate court may sua sponte address plain (obvious) errors affecting substantial rights of the party even if not otherwise addressed.
B.     Laying the Foundation:
i.        all evidence must be introduced by establishing a foundation for proof
ii.      foundation is establishing the reliability, knowledge, application, etc. of testimony or evidence
a.)    lay foundation for who your expert is
b.)    lay foundation as to whether or not witness has first hand knowledge
c.)    lay foundation as to hearsay
d.)    lay foundation as to pictures
i.)      is this a fair and accurate depiction of ….
e.)    etc.
iii.    foundation is laid by asking questions that setup the introduction of evidence
III.Motions in Limine:
A.     pretrial motion for the exclusion of evidence
B.     a request for a ruling from the judge
C.     advantageous to know if certain evidence will come it so you can call witnesses, plan opening, etc., accordingly→ could shape the e