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University of Dayton School of Law
Hagel, Thomas




Types of Evidence:

o Real evidence: the real thing, a hard object (gun)

o Demonstrative evidence: graphically demonstrates the real thing (model, photo)

o Documentary evidence: paper

o Testimonial evidence: oral evidence (witnesses)


A. GENERAL NATURE OF EVIDENCE: proponent of an item of evidence must lay a foundation before offering it into evidence

1. FRE 104(a): Preliminary Questions (1st Q you always ask- relevance)

o Preliminary questions (the qualifications of a witness, existence of a privilege, permissibility of evidence) determined by court subject to limitations in 104(b)

o the judge, not jury, decides preliminary questions of fact that determine admissibility

2. Request by Opponent to Take a Witness on Voir Dire (FRE 104)

o (def. 1) prelim exam of prospective jurors to determine qualifications and suitability

o (def. 2) prelim exam of a witness to demonstrate a lack of qualifications or foundation for profered testimony

o used where you did not know about witness, unable to do a motion in limine

o only to goes to competence, not bias

o often used for rebuttal witnesses (rebuttal witnesses do not have to be on the witness list)

3. FRE 104(b):

o gives to the jury issues that go only to the relevancy, as opposed to the competency, of evidence. The judge exercises only the usual judicial control over jury fact issues. The judge permits the issue to proceed to the jury only if there is “evidence sufficient to support a finding of” the fact.

4. Advisory note on FRE 104(b): there is no issue of cond relevance for e.g. where in a murder trial there is evidence ∆ bought a gun, the same type of gun used in the murder, the day before the alleged crime.

5. “Connecting Up” Under 104(b): Traditional practice where evidence is subject to exclusion on an objection that its relevancy has not been shown or that it lacks adequate foundation, the judge shall admit the evidence conditionally upon counsel’s promise to “connect it up” later.

6. FRE 104(c): Hearing of Jury

o Hearings on admissibility of confession shall in all cases be done outside of hearing of the jury

o Hearings on other prelim matters shall be so conducted when the interests of justice require, or when an accused is a witness and so requests


1. FRE 103(a) § 1: Motion to Strike

o If ruling admits evidence a timely objection or a motion to strike appears of record

o It states specific ground for objection (if not apparent)

o Important bc you (1) want to keep the record clean for appeal, (2) do not want to open the door to other questions

o If something gets in that is too inflammatory you can move for a new trial

a. When to Make a Motion to Strike

§ The question is proper but the witnesses answer is improper

§ Witnesses response is so quick that opposition does not have chance to object

§ After witness testifies it becomes clear the answer is improper (e.g. witness admits he was testifying from hearsay rather than own observations)

b. Elements of a Motion to Strike

§ Opponent addresses judge

§ Opponent indicates making motion to strike

§ Opponent specifies what he is moving to strike

§ Opponent specifies the legal ground for the motion

§ If judge grants motion, opponent requests a curative instruction

2. FRE 103(a) § 2: Offer of Proof

o If ruling excludes evidence, the substance of the evidence was made known to the court by offer or was apparent from the context within the questions were asked

a. Elements of Offer of Proof

§ proponent asks for permission to approach the bench or for an out of court hearing

§ proponent states he or she intends to make an offer of proof

§ proponent states what the witness would have testified to if the judge had permitted the proponent to pursue the line of questioning

§ proponent states purpose wanted to admit testimony/ testimonies logical relevance

§ proponent explains why the evidence is permissible

3. FRE 103(c): Motion In Limine

o In jury cases, proceedings should be conducted, to the extent practicable, to prevent inadmissible evidence from being heard by the jury

o In Limine (def.): on or at the threshold; at the very beginning; any motion used before or during trial by which exclusion of anticipated prejudicial evidence is sought.

a. Elements of a Motion In Limine:

§ opponent states intent to move in limine to exclude evidence

§ opponent has reason to believe proponent possess evidence and will offer it at trial

§ opponent briefly states ground on which evidence is inadmissible (done with same specificity objection would be made at trial)

§ opponent explains why an ordinary trial objection would be inadequate

§ opponent presents legal arg in favor of motion


A. COMPETENCY: In order for someone to testify they have to meet the requirements of competency

Note: credibility is the witness’ believability (determined by jury); competence is a question of law (determined by a judge)

1. FRE 601: General Rule of Competency

o every person is competent to be a witness except as specified in these rules

o in civil actions if State law supplies the rule, competency is determined in accordance with State law


a. Oath-Sincerity: witness must take oath/make affirmation to tell the truth

b. Personal Knowledge

c. Present Recollection

d. Communication

2. FRE 603: Oath

o before testifying, every witness shall be required to declare they will testify truthfully

o can be done by oath or affirmation administered in a form calculated to awaken the witness’ conscience

o someone can not be prosecuted for perjury unless they take the oath

3. FRE 602: Competency- Personal Knowledge of Witness

o a witness may not testify unless evidence is produced to support finding that the witness has personal knowledge of the matter

o personal knowledge may consist of witnesses own testimony

o Personal Knowledge: knowledge based on first hand experience; sight, sound, touch, smell, taste

o E.g. Witness overheard person say, “Jane Doe shot John Doe.” At trial, the witness is prepared to testify Jane shot John. Proper objection: lack of personal knowledge, hearsay objection appropriate if witness said “Fred said Jane shot John”

o Foundation: (must lay foundation to show witness has personal knowledge) to do this must show (1) witness was in physical position to perceive event (2) witness actually perceived event

o Present Recollection: have to testify from memory, if allowed to testify from record re: the matter there would be no way to cross

Hill v. Skinner: Witness competency is based on ability to perceive the events at issue, to recall the events, to communicate the events perceived, and especially in the case of a child witness to understand the difference between telling a lie and telling the truth. Small children should be taken into chambers to determine competency before allowed to testify, discretion lies with the trial judge

o Remember: competency to stand trial is diff than competency to testify, much lower standard needed in order to be able to testify; having limited perception is not the same as not having personal knowledge, person can have limited perception and still testify, will go to jury for them to weigh


§ State Ex. Rel. Collins v. Superior Court: While not allowed to testify to hypnotically induced recall, a witness is competent to testify to facts recalled prior to hypnosis. Criteria for use of testimony obtained through hypnosis: (1) experience, (2) recorded session, (3) impartiality, (4) pre-hypnosis documentation, (5) doctor and patient only, (6) reliability of the evidence

§ Rock v. Arkansas: a state evidentiary rule prohibiting the admission of hypnotically refreshed testimony is violative of a ∆’s right to testify at ∆’s own trial

4. FRE 606(b): Competency of a Juror as a Witness

o a juror may not testify as to any matter or statement occurring during the course of jury deliberations or mental processes used to arrive at decision

o a juror may testify on the question whether extraneous prejudicial information was improperly brought to bear upon any juror


1. FRE 611(a): court exercises reasonable control over mode and order of interrogating witnesses and presenting evidence so as to:

(a) make interrogation & presentation effective for ascertainment of truth

(b) avoid needless consumption of time

(c) protect witnesses from harassment/undue embarrassment

2. FRE 611(c): Leading questions (def. Q that suggests an answer) should not be used on direct examination of witness except as necessary to develop witnesses’ testimony. (e.g. may be permitted on cross-exam or with a hostile witness)

3. Ten Exceptions to No Leading Questions:

a. Preliminary matters- Not part of testimony, just placing witness at scene

b. Matters not in controversy- like day event occurred

c. Matters that are inconsequential, not material

d. Going from one topic to the next- must lead the witness

e. When the witness misbehaves, is bad mannered, or boorish

f. Reluctant- getting testimony out is like pulling teeth

g. Hostile Witness- witness has predisposition against one side

h. Adversary himself- call ∆ yourself

i. Limited capacity to speak- the witness is still competent, e.g. child

j. For the purpose of refreshing recollection- not the testimony

4. Elements of an Objection:

a. Address judge

b. Indicate you are raising an objection

c. Specify what you are objecting to

d. Grounds for the objection

5. Common Objections to the “Form” of a Question:

a. Narrative: question too broad and general; testimony will be less rapid, distinct, or effective than is reasonably possible and tend to include irrelevant and other inadmissible responses, e.g. “recount all of the conversations you had with the ∆”

b. Argumentative: question not asked for purpose of eliciting new information, but for rhetorical or argumentative effect, e.g. “how do you reconcile these two statements?”

c. Assumes Facts Not in Evidence: question contains an assumption of a fact that is not supported by any evidence in the record, e.g. “when did you stop beating your wife?”

d. Compound: question embodies at least two separate aspects that make the answer unclear or ambiguous, e.g. “did you determine the point of impact from conversations with witnesses, or from physical marks, such as debris in the road?”

e. Speculation: question asks witness to speculate, e.g.. “∆ did not his ∏ as hard a as he could, did he?”

f. Ambiguous or Unintelligible: meaning of words used in question are unclear, e.g. “In arranging the line up you tried to pick men who weighed the same and who did not weigh the same, who looked alike and who did not look alike?”

g. Asked and Answered: question previously answered which results in unconstructive, repetition, and cumulative evidence, allowed more on cross than on direct

h. Misstates Evidence: question contains preface that misstates evidence, “after you heard gun shot and saw the victim fall, did you call for help?”

i. Oppressive and Harassing: question or conduct will cause witness undue embarrassment or emotional stress

6. FRE 611(b): Cross examination

o Cross should be limited to subject matter of direct exam and matters affecting the credibility of the witness

o The court may permit inquiry into additional matters as if on direct

o Counsel on Cross:

a. attempt to elicit disputed facts from the witness favorable to his case

b. have the witness repeat facts (testified to on direct) that are favorable to the cross-examiner

c. have the witness testify to non-disputed facts essential to presentation of his theory of the case

d. establish that the witness’ testimony is not harmful to the advocate’s case on critical points under dispute

e. attempt to have the witness qualify, modify, or otherwise shed light upon their testimony with respect to unfavorable versions of disputed facts given on direct examination

f. ask questions o


false pretense

Note: the court tends to define crimes of honesty narrowly

FRE 609(b): Evidence of conviction not admissible if more than TEN YEARS has elapsed since the date of conviction or the date of release from confinement imposed for that conviction, whichever is the later date, unless the court determines, the interest of justice, … that the probative value outweighs the prejudicial effect.

However, evidence of a conviction under this rule is inadmissible unless the proponent gives to the adverse party sufficient advance written notice in order to provide the adverse party with a fair opportunity to contest the use of such evidence.

(this rule is in effect for dishonesty too, so you do not do a balancing test unless the conviction is over 10 years old)

Note: if you have ∆, you get their rap sheet and file a motion in limine asking their priors not come in, if it has been more than 10 years then it is assumed it has been to long and the burden shifts to the prosecution, certain crimes, like child molestation will always come in

Evidence of Conviction will not be admissible if:

(1)The conviction has been the subject of a pardon, annulment, certificate of rehabilitation, or other equivalent procedure based on a finding of the rehabilitation of the person convicted, and that person has not been convicted of a subsequent crime which was punishable by death or imprisonment in excess of one year, or

(2)Conviction has been the subject of a pardon, annulment, or other equivalent procedure based on a finding of innocence.

5 Factor Test to Determine if a Prior Should Come inà

1. impeachment value of prior crime

2. point in time of the conviction/subsequent history

3. similarity btw past crime and crime charged (if too similar do not let in)

4. importance of ∆’s testimony (if testimony very important to the case, they may not let in priors bc they want the ∆ to testify)

5. centrality of the credibility issue: say it is a rape, there were only 2 people there, if this is the case, the ∆’s honesty is a very central issue

5. Prior Statements to Impeach or Rehabilitate: Prior inconsistent statement

FRE 613(a): Use of a prior statement to impeach

In examining a witness concerning a prior statement made by the witness, whether written or not, the statement need not be shown nor its contents disclosed to the witness at that time, but on request the same shall be shown or disclosed to opposing counsel.

You have to bring them to the time and location, but you do not actually have to show them the document

Any witness can be impeached with any statement, written or oral, sworn or unsworn

You use the prior inconsistent statement to impeach them, to call them a liar. This statement does not become evidence bc it was not made under oath.

FRE 613(b): extrinsic evidence of a prior inconsistent statement by a witness

Extrinsic evidence of a prior inconsistent statement by a witness is not admissible unless the witness is afforded an opportunity to explain or deny the same and the opposite party is afforded an opportunity to interrogate the witness thereon, or the interests of justice otherwise require.

6. Bias: the relationship between a party and a witness, which might lead the witness to slant, unconsciously or otherwise, his or her testimony, in favor or against a party.

Note: you can have a bias for or against something, you can use extrinsic evidence to show bribery and bias

United States v. Abel- A witness’s bias may be shown by extrinsic evidence, including membership in an organization the tenants of which include perjury to protect the other members, if it makes a fact to which the witness has testified more or less probable.

Impeachment of Collateral Matters: If the impeaching evidence is not directly relevant to the issues, it can not be used to impeach

Is this a collateral matterà Ask, could fact have been introduced for any purpose other than to impeach?

If you see extrinsic evidence coming in to impeach, you need to ask:

(1) Is this a collateral matter?

(2) If it is a central issue, then do 403 balancing test.

Rehabilitation: If someone has been impeached they can be rehabilitated by the person who put them on the stand but they have to be rehabilitated in the same manner in which they were impeached (e.g. if impeached with bias they need to be rehabilitated with bias. If impeached with a prior inconsistent statement, you normally can not bring a recent consistent statement)

When can you rehabilitate?

1. Offered opinion or reputation testimony of the witness’s bad character for truthfulness FRE 608(a)

2. Elicited on cross–examination evidence of specific acts of the witness that are probative of untruthful character FRE 608 (b)

3. Offered evidence of past conviction of the witness under FRE 609