Capowski_Evidence_Fall_2013
Evidence Law
· Rules
· Cases that interpret them
· Custom & practices in which trial lawyers operate
Course Overview
Relevancy
Authentication
Best Evidence Rule
Hearsay
Character Evidence
Privileges
Why Laws of Evidence?
· 1. Mistrust of juries, unsure if they can do a good job evaluating evidence (Single overriding reason for evidence law)
· 2. To serve substantive policies relating to the matter in suit (ex: rules that set & allocate burdens of proof & burdens of persuasion – prove case by “preponderance” or “clear & convincing” evidence)
· 3. Further substantive policies UNRELATED to the matter in the suit
o Generally seek to affect behavior or quality of life outside the courtroom & privileges (AKA extrinsic rules – extrinsic to the fact finding process) social implications
§ Spousal privileges – marital confidences and the use of one spouse as a witness against the other
§ Attorney/Client privileges
· 4. To ensure accurate factfinding (most important reason for evidence law) – rules that bring forth truth
· 5. To control the scope & duration of trials (efficiency)
o Rule 403 – the court can exclude relevant evidence if it is unfair prejudice, confuses the issues, misleads the jury, undue delay, wasting time
Making the Record
· Two audiences in a trial
o Live – the judge and jury who see the things going on in the trial
o Remote – the appellate tribunal which does not see the live performance but must use the cold written record
· The Court Reporter is responsible for preparing the record of trial
· The record is comprised of 5 types of material:
o The Pleadings
§ Civil actions
ú Complaint & Answer
ú Third Party Claims
ú Counterclaims/Cross-complaints
ú Cross-Claims
ú Answers to Cross-Claims
§ Criminal actions
ú Indictment/Complaint
ú Plea of the accused
o Filed Documents – record of all papers filed with the court
§ Motions & briefs
§ Documents seeking discovery
§ Jury instructions
§ Court orders
o The Record of Proceedings – verbatim memorial of what transpires as the action is tried. Captures whatever is said by parties, witnesses, important things said in private conferences
o The Exhibits
o Docket Entries
Types of Evidence
· Testimonial – given by witnesses on the stand
o Direct Examination
§ Prohibited from asking leading questions (Rule 611) – leading questions are those that try to get a certain answer
o Cross Examination
§ Encouraged to ask leading questions
· Documentary
· Demonstrative – created during the trial
· Real – tangible
Structure of Witness Testimony
· Ask basic questions about the person
· Who is this person, why are they here testifying & what they are going to say
· You want the judge & jury focused on the witness, so stand at the end of the jury box so witness will have to project their answers
· On cross examination, focus is on lawyer, witness is along for the ride
Pitfalls of Witness Questioning
· Echoing – repeating the witnesses answer
o Be careful about the responses you are eliciting (wife abused by husband)
· Be careful about referring to items that are exhibits, things that are refreshing the witness’s memory, introducing things to evidence
· Pantomime – pointing to something (like an injured shoulder) – lawyer must make reference for the record that the witness was pointing to his shoulder
· Don’t use big, confusing words or jargon/legal writing
Problem 1-A (pg 25)
· 2 cars collide
· AB and CD were in first car, EF was in 2nd car
· CD is on the witness stand and states that the Buick (EF) ran the red light
· On cross, first question is whether AB & CD are seeing each other socially. Objection, scope
o Cross examination should not go beyond the subject matter of the direct examination EXCEPT FOR challenges to credibility – we will allow the answer
· Scope of examination definition = plastic, amorphis term that be described in a variety of ways. As an attorney, you want the judge to use the scope that’s best for you & your client – the reason for scope is you want the party to be able to present their case & not be interrupted
o Point raised – the color of the light (narrowly)
o Transaction or occurrence – accident (most broadly)
o Issue – broadly in terms of negligence, or EF’s
– The court must decide any preliminary question about whether a witness is qualified, a privilege exists, or evidence is admissible. In so deciding, the court is not bound by evidence rules, except those on privilege. Deals with the court’s role – when the court decides on the admissibility of evidence
· 104(b) – When the relevance of evidence depends on whether a fact exists, proof must be introduced sufficient to support a finding that the fact does exist. The court may admit the proposed evidence on the condition that the proof be introduced later. This describes the jury’s role whether to consider the evidence or not
· Example – both sides have evidence – jury will determine credibility of witnesses and evidence whether the “scissors” (gun, knife, etc.) were the ones actually used
· Admission of the gun is conditioned on a fact, jury makes the factual finding “this is the gun”
Appeals
· A substantial right must be affected by an error for that error to be a basis of a reversal
o Need a standard for deciding what is or has been a substantial right of a party. How to measure:
§ Civil case = preponderance of the evidence (small standard)
§ Criminal case = beyond a reasonable doubt (strong standard)
§ Probably affected standard applied to whether the evidence affected a substantial right
ú Exception to whether the party had a substantial right affected
· Prosecution: must show beyond a reasonable doubt, error did not effect, error was harmless
o Different types of errors that could occur
§ Reversible (good for those trying to get the appeal)
§ Harmless (good for the person who doesn’t want the appeal – would first say there was no error before making this argument
§ Plain – courts don’t like to rule there was error in this circumstance
§ Constitutional
