Evidence Outline

Evidence Outline

Stark

Fall 2013

I. Three values of evidence rules

a. Truth or accurate decision making

b. Fairness

i. Give parties a sense of justice and due process

c. Reasonable efficiency

i. Avoid unnecessary delay

II. Structure of a Trial

a. Order of proceedings

i. Aspects of a trial not involving the presentation of evidence:

1. Jury selection (voir dire)

a. Purposes

i. Determine whether prospective juror meets the statutory requirements for jury service

ii. Determine whether juror is impartial

iii. Allow attorney information for peremptory challenge

1. Peremptory challenge – the right of a party to excuse a prospective juror for any reason, or for no reason at all

b. Federal court conducts this examination; state courts, attorneys ask jurors questions directly

2. Opening statement

3. Closing argument

4. Jury instruction

ii. Plaintiff’s case in chief

1. Plaintiff in civil case/prosecutor in criminal (both have burden of production)

2. Introduce evidence of facts sufficient to establish each controverted element of the claim asserted or offense charged

a. Produce successively all the witnesses upon whom it will rely to establish these facts, together with any documentary, real, experimental and demonstrative evidence for this purpose

b. Evidence will be authenticated by the witnesses

c. Evidence will be offered following authentication

d. Direct examination of witnesses

iii. Defense cross examines plaintiff’s witnesses

iv. Possible redirect or recross examination by plaintiff

v. Defendant’s denials and affirmative defenses

1. D presents witnesses and offers into evidence documents and other tangible evidence in support of his case, including items authenticated during cross-examination of plaintiff’s witnesses

2. D produces evidence in opposition to the plaintiff/prosecution’s case in chief

a. Civil D introduces evidence of an affirmative defense

3. Each witnesses testimony is subject to cross examination, redirect, etc.

vi. Plaintiff’s rebuttal and defendant’s surrebuttal

1. P may only present witnesses (testimony) directed to refuting the defendant’s evidence

2. Scope of rebuttal: refutation, involving evidence which denies, explains, qualifies, disproves, repels, or otherwise sheds light on evidence offered by the defense, including evidence to rehabilitate the credibility of witnesses.

3. May present new witnesses to answer D’s witnesses first raised or recall witnesses who have testified on the case in chief

vii. Defendant’s counterclaim, if necessary

viii. Closing arguments

ix. Jury instructions

b. Types of evidence:

i. Testimony of a competent witness based on personal knowledge

ii. Documentary evidence

iii. Real evidence

1. Object which had a direct or indirect part in the incident

2. Exhibition of injured body parts

iv. Demonstrative evidence

1. Objects which have no probative value but serves as a visual aid to the jury in comprehending the verbal testimony of a witness or other evidence

a. I.e. model, map, chart, demonstration

v. Direct Evidence = if accepted as true, establishes the point

vi. Circumstantial evidence – facts which, if proved, may provide a basis for an inference that other facts are true

III. Procedure for admitting and excluding evidence

a. Motions in limine (motions at the threshold)

i. Pre trial motions used to prevent evidence from coming in AND/OR to get an early decision from the judge about evidence that is admissible or not admissible

ii. Helps the attorney know how to prepare his case

iii. Limitations

1. Many trial objections are not amenable to limine

b. Offer of proof

i. Give the court the context to understand the evidence that was excluded in order to make a determination of whether it was admissible or not

1. To preserve the point for appellate review later

IV. Objections

a. Evidence objections must be stated precisely and distinctly, not generally, and must be made timely

i. If not, the objection is foreclosed

b. Assumes facts not in evidence

i. A question that ask about something and there’s a built-in assumption or predicate that suggests an issue

ii. Example: How long did you have the car before you begin having problems?

c. Leading questions are okay when it is a background question/preliminary matter.

i. Leading questions are not okay otherwise.

1. Why: because of the alliance between lawyer and witness, the witness is prone to suggestion from the lawyer

d. Narrative

i. “Tell the jury everything that happened from the time you bought the car until now.”

ii. Policy: We don’t allow this because the witness will go on to irrelevancies, and, don’t want to allow the opposing counsel time to object before the narrative comes out

e. Nonresponsive to the question

i. Giving more answer than required

ii. Object