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Evidence
University of Dayton School of Law
Hagel, Thomas

    I.              Characteristics of the Adversary System. 
        A.        The Roles of the Judge and Jury. 
There are three categories of Rules of evidence. Some are rules of absolute prohibition – some things are absolutely prohibited. There are also rules of limitation which say that evidence can be let in, but it’s use can be very limited. A third category are rules of procedure. Admissibility of particular evidence is often determined not just by specific requirements of a rule, but it’ll be determined by when it is introduced in the flow of a trial.
                     1.      United States v. Beaty (3d Cir. 1983) (Judicial Participation – Judge is overzealous in questioning witnesses in hashish smuggling trial). 
The trial judge may manage the trial and his actions create reversible error only where he has manifested to the jury a prejudice to one side. 
For the purpose of eliciting the germane facts, a judge may on his own initiative and within his sound discretion interrogate witnesses. (Rule 614(b))
“The judge’s participation must never reach the point where ‘it appears clear to the jury that the court believes the accused is guilty.’”
The manner in which a judge in trial by jury may interrogate witnesses, and the proper extent of interrogation are not susceptible of formulation in a rule; each case must be viewed in its own setting, and the pattern of due process is picked out of the facts and circumstances of each case.
A judge’s conduct in a trial must not be so prejudicial as to deprive a defendant of a fair, as opposed to a perfect, trial.
Misconduct by defense counsel may properly be taken into account in determining whether a defendant was prejudiced by a judge’s response.
A judge’s questions to a witness are proper “unless they conveyed to the jury the judge’s belief on the proper outcome of the trial.”
“‘A trial judge’s isolated questioning to clarify ambiguities is one thing; however, a trial judge cannot assume the mantle of an advocate and take over the cross-examination for the government to merely emphasize the government’s proof or question the credibility of the defendant and his witnesses.’”
We have long held that a judge must be extremely careful, especially when dealing with a key witness, to “minimize its own questioning … to the end that any such judicial departure from the normal course of trial be merely helpful in clarifying the testimony rather than prejudicial in tending to impose upon the jury what the judge seems to think about the evidence.”
Statements by a judge instructing jurors that, “I am not a partisan either way. I have no view. And you are to treat any questions put by me as though they had been put by anybody else,” “may offset [only] brief or minor departures from strict judicial impartiality.” “Where a court has expressed its opinion on a pivotal issue in the case, and has expressed that opinion in a strong, unequivocal and one-sided fashion, abstract instructions regarding the jury’s role as fact finder are not a sufficient remedy.”
U.S. v. Beaty. Judges are allowed to question witnesses, but there are limits to that. Judges can’t appear to prefer one side over another, but it goes beyond that. Jurors are accustomed to see attorneys asking questions and that they are advocates for their clients. Judges are supposed to be impartial though, and they have great power, which can be abused. Juries don’t trust lawyers, but they DO trust judges, so if they get a sense about what a judge may believe, then they can be strongly swayed by that. By even one question, a judge can sway a case.
The classic rule on limitation of judges is that they can’t do anything that appears to favor one side or the other, and second, you can’t function as an advocate in fact – you can’t do it in appearance or in fact. Third, you can ask for questions clarifying facts. What does that mean though – it’s pretty broad. He’s a big believer in doing that as a judge. Judges have to stop themselves from developing a case though. That’s a fine line.
If a judge was making his prejudices known through non-verbal body language you’d have to object and make that body language a part of the record. You’d have to “object on the record.” You would call for a bench conference – outside the hearing of the jury. You’d ask to approach the bench, then making sure it’s on the record, you’d state what you observed on the record, and maybe even make a motion for a mistrial, so that’d be on the record. You’d also ask the judge to refrain from doing that behavior. If you lose the case then, at least you have something on the record to argue on appeal.
                                 a.         Notes and Questions 1 – Judicial Questioning. Federal Rule 614(b) specifically approves interrogation of witnesses by the court. It does not, however, authorize questioning that demonstrates the court’s partiality in the matter. Judges may not ask questions that signal their belief or disbelief of witnesses. While permitting counsel to delay objection to the court’s questioning until a time when the jury is not present, Rule 614(c) does not eliminate the requirement that an objection be made. 
See ABA Civil Trial Practice Standard 10(a) & (c) (1998): “Generally, the court should not question a witness about subject matter not raised by any party with that witness, unless the court has provided the parties an opportunity, outside the hearing of the jury, to explain the omission. If the court believes that questioning on the subject is necessary, the court should afford the parties an opportunity to develop the subject on further examination prior to questioning the witness itself. *** Except in unusual circumstances, the court should not seek to impeach or to rehabilitate a witness, nor seek to emphasize or de-emphasize the importance of any witness or testimony. 
                                 b.         2 – Reversals rare. It is the extraordinary case where judicial action, even if apparently slanted strongly in favor of one party, produces a reversal. While the same standard – whether the trial is unfair – is generally applied in both criminal and civil contexts reversals are even rarer in civil cases. 
                                  c.         3 – View from above. In ruling on the claim of improper judicial intervention, the appellate court’s characterization of the purpose and effect of the judge’s questioning is far from objectively certain. 
                                 d.         5 – Bench trials. The absence of a jury would seem to eliminate, or at least reduce, the harm caused by undue participation by the judge. (On what theory might undue participation by the judge call for reversal? See State v. Lawrence, 123 N.E.2d 271 (Ohio 1954). 
                                 e.         6 – Jury questioning. The Federal Rules neither explicitly authorize nor disallow the practice of juror questions. Rule 611(a) provides the only guidance by way of the statement that the court is to “exercise reasonable control over the mode and order of interrogating witnesses.” 
States v. Feinberg, 89 F.3d 333 (7th Cir. 1996) said, “Although questioning by jurors is “deeply entrenched” in American jurisprudence, Bush, 47 F.3d at 515, concern over the practice is warranted. Witness questioning by jurors is fraught with risks. If permitted to go too far, examination by jurors may convert the jurors to advocates, compromising their neutrality. Id. Jurors also may begin premature deliberation. Id. Further, the practice “will often impale attorneys on the horns of a dilemma.” Id. Attorneys are faced with objecting to questions proffered by the arbiters that the attorneys are attempting to influence. The risk that an objection will alienate a jury is rather obvious. In cases such as this one, where jurors are permitted to blurt out their questions, the district court almost invites a mistrial. The district court leaves open the possibility that a juror will ask an impermissibly prejudicial question to which the witness responds before the judge is able to intervene. In the event of such a mishap, the entire trial may be rendered nothing more than a lesson in futility.”
For Questions by Jurors, United States v. Bush, 47 F.3d 511 (2d Cir. 1995) said, “1)jurors should be instructed to submit their questions in writing to the judge; (2) outside the presence of the jury, the judge should review the questions with counsel, who may then object; and (3) the judge itself should ask theapproved questions of the witnesses.” Questions by Jurors = Submitted in Writing, JudgeReviews with Counsel, JudgeAsks SW JRC JA
                                  f.          7 – Court witnesses. Rule 614(a) authorizes the trial judge to call witnesses. However, as with questioning witnesses, there are somelimits, albeit largely indefinable. In the extraordinary case when a judge crosses the boundary between the appropriate, though limited, role as a searcher for the truth and becomes a partisan, aiding one side by calling witnesses, such conduct becomes improper. Rule 706 also permits the trial court to appoint an expert witness, who the judge can then call as a witness under Rule 614(a). 
Rule 104. Preliminary Questions.             
(a) Questions of admissibility generally. Preliminary questions concerning the qualification of a person to be a witness, the existence of a privilege, or the admissibility of evidence shall be determined by the court, subject to the provisions of subdivision (b). In making its determination it is not bound by the rules of evidence except those with respect to privileges.
(b) Relevancy conditioned on fact. When the relevancy of evidence depends upon the fulfillment of a condition of fact, the court shall admit it upon, or subject to, the introduction of evidence sufficient to support a finding of the fulfillment of the condition.
(c) Hearing of jury. Hearings on the admissibility of confessions shall in all cases be conducted out of the hearing of the jury. Hearings on other preliminary matters shall be so conducted when the interests of justice require, or when an accused is a witness and so requests.
(d) Testimony by accused. The accused does not, by testifying upon a preliminary matter, become subject to cross-examination as to other issues in the case.
(e) Weight and credibility. This rule does not limit the right of a party to introduce before the jury evidence relevant to weight or credibility.
Rule 104. Whether to admit or exclude evidence is left to the judge’s discretion. If the standard of review of an issue is abuse of discretion, that’s a very hard standard to meet. Abuse of discretion is where the conduct is not only erroneous, but unconscionable. A lot of jurisdictions use that language. There also has to be a causal connection to the outcome of the trial. This gives a judge lots of power. 104(a) goes to the qualification of a person to be a witness, the existence of a privilege, or the admissibility of evidence. That is all determined by the court. The judge will demand personal knowledge from a witness before the judge will allow that witness to testify, either as an expert or as a lay witness.
104(b) is about relevancy conditioned on fact. Whether something’s admissible often depends on when it’s brought before the court. There will be times when you might have to call a witness out of order of the required set up foundation due to circumstances out of your control. You can tie up loose ends later when foundation is missing. So, an objection of lack of foundation, can be overcome by tying it up later. The come back to that is to ask when the tying evidence will be introduced and by whom. That should be answered by the attorney who’s attempting to introduce. So, get the specifics of when the foundation will be laid on the record. It’s so important to have this specifically on the record because if the foundation isn’t tied up later, then you can go back and request that the evidence be thrown out. You’d ask for the testimony to be stricken and that the jury should be instructed to disregard that evidence. The only way that can be done is if you lock in the attorney on when the foundation will be tied up.
Rule 104 – Preliminary Questions – is one that we’ll be constantly referring to. It gives the trial court an incredible amount of discretion over what evidence gets into a trial. Admission of evidence is a preliminary question. Relevancy of condition on fact –that’s taking evidence out of order or setting out the requisite foundation for evidence – that goes to 104(b). 104(c)&(d) only goes to criminal cases because “confessions” and “accused” only applies to criminal cases. They’re really talking about hearings on a motion to suppress evidence.
104(d) – Testimony by Accused – “The accused does not, by testifying upon a preliminary matter, become subject to cross-examination as to other issues in the case.” This allows a defendant to testify in, usually, pretrial hearings, about certain facts. The defendant can come forward and testify to a limited issue, and the prosecution can cross on that issue, but not on other additional facts related to the case. That way a defendant isn’t penalized in exercising his constitutional rights. That’s the primary use of 104(d), but there’s also another use not in the books that can be helpful. If you were accused of a serious crime, 99% of us would immediately deny it and go into detail about why it’s untrue. That’s a natural response to an accusation of which you’re innocent. If you’re accused, and you stay silent, most people would guess that you’re probably guilty, seeing how a denial is such a natural reaction. So, in civil and criminal cases, based on jury behavior, jurors expect someone accused of doing something wrong to get up and deny it publicly – they want to hear from the accused. Too often, even though they’re instructed to ignore it, they look for this and it affects their decisions. So, you always want your defendant client to testify if you can do it safely. The Federal Rules of Evidence follow the American Rule of cross which means that the subject matter that’s allowed to be considered on cross is limited to the subject matter of direct examination. So, you can use this rule without harming your case. You get your defendant client up there and ask a bunch of harmless questions – name, age, job, family, children, church, etc. – lay out the clients positive history as “foundational questions” – you humanize and personalize the client to the jury. Once you exhaust those questions, you stop questioning and sit down. The cross examination is then limited to the subject matter of direct examination. The prosecutor is then stifled about what they can ask.
104(e) Weight and Credibility. “This rule does not limit the right of a party to introduce before the jury evidence relevant to weight or credibility.” This means that one may always question about credibility despite the American rule’s restriction that cross can only deal with subject matter dealt with on direct examination. E.g.: You can impeach someone based on a prior conviction, assuming that evidence is there and allowed in, on this credibility topic.
Scope and purpose of Rule 104. The admissibility of evidence often turns upon an issue of fact. Rule 104 sets forth the respective roles of the judge and the jury in deciding preliminary questions and also addresses some procedural matters concerning the disposition of preliminary questions. 
Questions of admissibility generally. Rule 104(a) embodies the orthodox common-law doctrine that the judge, not the jury, decides preliminary questions of fact that determine the admissibility of evidence under the rules of evidence. Rule 104(a) does not confer any additional discretion to the trial court to exclude evidence that is established to be admissible. Where a piece of evidence rests upon a proper foundation, Rule 104(a) does not permit a trial judge to usurp the jury’s function and exclude the evidence base

n refers simply to a stage in the interrogation of a witness. The trial court may place reasonable limitations on a party’s cross-examination.
Cross-examination – Scope. Rule 611(b) provides that cross-examination “should be” limited to subjects raised on direct examination and credibility issues. Courts generally allow the cross examiner wide latitude interpreting the subject matter of direct examination to include all inferences and implications arising from the direct testimony. The rule explicitly authorizes courts to permit cross-examination on matters beyond the scope of direct examination with the questioning proceeding “as if on direct examination.” 
Redirect and recross-examination. Rule 611 makes no mention of redirect and recross examination. Therefore, much is left to the discretion of the trial court pursuant to its power to control the order and mode of interrogating witnesses and presenting evidence. Although the traditional rule of thumb is that redirect examination should be limited to the subject matter brought out during cross examination, courts may allow new matters to be raised on redirect. If new subject matter is developed on redirect examination, recross-examination must be permitted. 
Objections as to form—Specific objections. The following are commonly-lodged objections:
      • Ambiguous, confusing, unintelligible. The question may be interpreted in different ways, or is so vague or unclear that it is likely to confuse either the jury or the witness.
      • Argumentative. Counsel may not, in the guise of asking a question, make a jury argument or attempt to summarize, draw inferences from, or comment on the evidence. In addition, questions that ask a witness to testify as to his own credibility are improper.
      • Asked and answered. Counsel has already posed, and the witness has already answered, the particular question.
      • Assuming facts not in evidence.
      • Compound. The witness is asked to respond to two or more questions posed jointly.
      • Harassing, embarrassing the witness. Rule 611(a) directs the court to “protect witnesses from harassment or undue embarrassment.”
      • Lack of foundation. This is typically a shorthand way of protesting that the requisites of some other rule of evidence have not been met.
      • Misstating testimony, misleading. A question that misstates the witness’s or another witness’s testimony is misleading and improper.
      • Narrative. Although the narrative form is not per se objectionable, it is well within the court s discretion to require counsel to employ more pointed questions When a narrative question is likely to provoke a response containing hearsay or other inadmissible evidence, the court ought to exercise its discretion and require more specific questions.
      • Nonresponsive. This objection goes to the form of the answer. Many courts allow only questioning counsel to object and move to strike the answer on this ground. Opposing counsel may object only if the answer is objectionable on some other grounds.
      • Repetitious. Unduly repetitious questions are not likely to elicit additional evidence of probative value and tend to waste time.
      • Speculation, conjecture. This objection goes to the substance of the anticipated response. Questions inviting the witness to speculate or guess as to what occurred or caused an event may either run afoul of the personal knowledge requirement (Rules 602 and 701) or constitute an impermissible attempt to elicit an opinion lie beyond the scope of the witness’s expertise (Rule 702).
Summary charts and testimony. Appellate courts have recognized the trial court’s authority to permit the use of summary charts and testimony under certain circumstances. Courts must distinguish between two basic types of summary charts: (1) charts that summarize data contained in other writings that are not themselves offered in evidence (Rule 1006 summary charts); and (2) charts that summarize testimony and other evidence already offered at trial (pedagogical summary charts). The admissibility of the first type of summary chart hinges on compliance with the Best Evidence Rule.  The underlying data must itself be admissible and voluminous and must have been made available to opposing parties for examination or copying. The admissibility of pedagogical summary charts is more complicated. In determining whether pedagogical summary charts should be used, trial courts should consider the length of the trial, the complexity of the case, and the number of exhibits and witnesses in determining whether such testimony would be helpful to the jury.
Questioning by jurors. Courts of appeals have unanimously concluded that a court may allow jurors to ask questions of the witnesses in some circumstances. But the courts have also expressed concern over the risks associated with this practice. While acknowledging that this is a matter that falls within the sound discretion of the trial court, some courts have urged that it be used sparingly.
Rule 614. Calling and Interrogation of Witnesses by Court
(a) Calling by court. The court may, on its own motion or at the suggestion of a party, call witnesses, and all parties are entitled to cross-examine witnesses thus called.
(b) Interrogation by court. The court may interrogate witnesses, whether called by itself or by a party.
(c) Objections. Objections to the calling of witnesses by the court or to interrogation by it may be made at the time or at the next available opportunity when the jury is not present.
Scope and purpose of Rule 614. Rule 614 codifies what has traditionally been thought to be the judge’s inherent power to call and interrogate witnesses. 
Calling witnesses. Rule 614(a) permits the court to call witnesses sua sponte or at the request of a party. One reason a party might make such a request is to avoid having the jury associate it with a witness whom the party expects to have an aura of untrustworthiness. All parties are entitled to cross-examine witnesses called by the court. The decision to call or not call a witness rests firmly in the court’s discretion.
Interrogating witnesses. The trial judge may interrogate any witness. Most often judicial questioning is aimed at clarifying a witness’s testimony.  The judge, however, may also seek to elicit facts in an effort to ascertain the truth. The judge must maintain the appearance of i