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Evidence
University of Dayton School of Law
Hagel, Thomas

Evidence
 
Exam is 70% multiple choice – there could be more than one correct answer in a question, so look at every statement by itself, wrong answers are deducted from the correct answers, no explanations allowed. Rest is essay with fact pattern. Looking for knowledge of subject matter (what’s covered in class), how to apply rules to the facts. Assume that the question is referring to FRE, unless it says otherwise (LA, common law). Practice tips will not be emphasis of exam, such as preparing for trial, but other practice tips like examining witness may be covered. Look at old exams.
 
I. Intro
– 3 Types of Evidence (basis upon which the jury draws conclusions on facts; direct and circumstantial evidence):
            1.) Testimony = want somebody who knows.
            2.) Exhibits = have to be authentic.
a.) Real Exhibits = physical items from the case that support what the witnesses say.
b.) Demonstrative Exhibits = exhibits that help jury understand a point, but are not from the case (map, chart).
            3.) Judicial Notice = when the judge instructs the jury as to something that nobody could dispute (TLS is in NOLA).
– Not used much, judges are reluctant to do it.
– Parts of the Trial (3 parts in bold are the only parts containing evidence):
            1.) Jury Selection = voir dire; ask questions to find biases, keep biases in your favor, get red of others (begin advocacy).
2.) Opening Statements = tell jury in objective, straightforward manner what’s going to be proven, without arguments.
– Advocate by emphasizing strong points, eliminate rhetoric that openly argues, but retain emotion.
                        – Jurors may have their mind made up, or at least lean towards one side, after opening statement.
                        – Effective opening statements have 4 parts:
                                    a.) Intro around central message/theme, but avoid literary themes, cliché’s, etc. (“this is a case that…”).
                                    b.) Word picture/story – tell jury what happened (“the facts will show…”).
                                    c.) References to key evidence (“Wendy will testify that…”).
                                    d.) Conclusion (“Land stabbed Sorbo” NOT “you will infer that Land stabbed Sorbo”).
            3.) P’s/Prosecution Case = P’s direct examination (could be witness from other side), then cross from other side.
            4.) D’s Case = D’s direct examination (could be witness from other side), then cross from other side.
            5.) P’s Rebuttal = limited to situations where P addresses anything new raised during D’s case.
            6.) Closing Arguments = argue by reviewing evidentiary basis of why you should win, and alert jury to instructions.
– Most jurors have already decided victor at this point.
                        – Effective closing arguments have 4 parts:
                                    a.) Intro around central message (“we said that we were going to show…”).
                                    b.) Word picture/same story (“the facts have shown…”).
                                    c.) Argument (link the evidence to the facts to support your case and destroy opposition’s case).
                                    d.) Conclusion (“Land stabbed Sorbo” NOT “you will infer that Land stabbed Sorbo”).
            7.) Jury Instructions = judge tells jury what the law is, what the burdens are, what the jury can/can’t consider.
            8.) Verdict = reached after jury deliberation.
– Preparation is Key to Successful Trial (applies to writing briefs and oral preparations; confront the issue, case, problem): 
            – Central Message (theme) = central reasons you should win the case, not an allegorical theme nor a song. 
            – Outline – way to sum up central message and put down on paper all the factual/legal points that support/oppose your
 case, then, organize it into points that work together surrounding a central point (order of questions, witnesses,
 presentations of points is crucial in a trial); compose the outlines in the following order:
                        a.) Subject-Matter Outline – points to prove and how to prove them with which witnesses/exhibits (pgs. 14-16).
                        b.) Trial Outline – plan for presenting evidence with the order of witnesses (usually call your own witnesses
      who have the most points first), points to prove, and exhibits (pgs. 18-19).
                        c.) Trial Notebook – ringed binder with the trial outline in front, then tabs for the witnesses (pg. 11).
            – Word Picture/Story = fill in reasonable inferences that can be drawn from evidence, allows jury/judge to imagine it.
            – Visual Aids = makes it stick because the spoken word is in one hear and out the other (elusive spoken word).
            – Repetition = makes it stick due to elusive spoken word, don’t be redundant, find structural ways to renew strong points. 
– General Lawyer Rules:
            – In opening statements, lawyers can’t argue, but they can tell jury any reasonable inferences from facts, and can
 construct powerful arguments with structure.
            – No inf

witness, as to any matter to
                               which she testifies (FRE 602):
                                    – Evidence may or may not include his own testimony, but often a fact witness’s testimony is
 admitted on implied foundation, without a formal effort to establish personal knowledge.
                                    – Sufficient evidence supporting standard:
– Evidence admitted if a reasonable person could conclude that witness has personal
 knowledge – VERY LENIENT.
                                    – When a witness attests to personal knowledge, there must be a basis for that personal
   knowledge, not just an assertion.
                                    – Witnesses can’t testify as to the law.
2.) Identification or authenticity of evidence IS REQUIRED (FRE 901):
                                    – Sufficient evidence supporting a finding that the matter in question is what its proponent claims,
 is a VERY LENIENT standard meaning “if a reasonable person could conclude that the matter
 in question is what the proponent claims (FRE 901a).
– Evidence may be testimony of witness with knowledge regarding subject, or many other methods    
                                      (FRE 901b), or self authentication permitted for certain public documents, newspapers, and
 many others (FRE 902).
                                    – Identification must be specific enough to establish its relevance.
                                    – The testimony of a subscribing witness is not necessary to authenticate a writing unless specifically
 required by law (FRE 903).
                        3.) Specialized knowledge for specialized opinion testimony (FRE 702): 
                                    – Where scientific, technical, or specialized knowledge will assist trier, a witness qualified as an expert
 by knowledge, skill, training, or education, may testify thereto in form of opinion or otherwise if:
a.)    The testimony is based on sufficient facts or data.
The testimony is product of reliable principles and methods.