Class: Evidence
Professor: Karen Steinhauser
Date: Summer Semester 2014
School: University of Denver Sturm College of Law
Book: Evidence Law & Practice by Friedland, Bergman and Taslitz (5th Ed)
1. Introduction to Evidence
Lawsuits and Rules of Evidence
· Lawsuits:
o Serve as nonviolent method of dispute resolution
o Offers accepted method of fact finding
· FRE:
o Help trial proceed in a uniform/predictable manner
o Apply in federal cases – both civil and criminal lawsuits – some rules will apply to one or the other
o Primarily governs trial, but touches some pre and post trial manners
o There are different types/purposes for FRE:
§ Traffic – control the flow of trial
§ Accuracy (reliability, fairness) – we want the truth
§ Policy – something outside the trial is so important we put special rules on evidence pertaining
o Codified evidentiary rules (FRE) still rely on earlier common law systems in certain instances (Ex: privileges)
o Went in to effect July 1, 1975
· When analyzing evidence:
o ID Purpose for offering evidence
o Lay foundation
o Structure of trial & where we are at, whether you can introduce evidence may depend on the point in the trial in which you are at
· Keeping out evidence:
o Object during the trial
§ Sustained – the person making the objection wins
§ Overruled – its fine that you object counselor, but we are going to allow the evidence in anyway
· Questions of evidence that occur before the trial starts (motions in limity)
o Prejudicial – Thing you do not want the jury to even think about. We can not get the idea back out of the jury’s mind once it is put there
o Strategy – what you spend your time on. You need to know whether the court will allow evidence to be brought in because it will affect settlements, pleas, etc.
· Types of cases
o Jury trial – Jury selection – you will make choices on your jurors based on what evidence will be presented at trial
§ Rem juries you can kick people off (except sex/race)
§ Some evidence gets presented to juries – may be statement of the case, may be some facts, etc. (this evidence can not be used later in trial)
o Court trials (bench)
§ Judges use jury instructions to decide even though there is no jury
§ Judge analyzes the law and is the finder of the fact
· Both types have
o Opening statements
§ What the case is about
§ No, this is not evidence “This is a case of self-defense”
· In the trial, if self-defense is brought up, it opens doors for other side
· NOT used, no door opened
o Direct examination – BOP, prima fascia case
§ Testimony proves burden of proof and creates prima facia case
o Other side (defense) has opportunity to cross-examine
o Redirect (can ask questions about things brought up in cross-examination)
§ Now that door is opened in cross, they can bring out in redirect
§ Then re-cross , etc.
o Case in Chief (prosecutor, overarching name for above)
§ After prosecutor puts on CIC, the court does a “rest”
o Defense puts on case.
§ Calls witnesses, does direct examination
§ Cross
§ Re-cross, etc.
o Rebuttal witnesses , plaintiff wants to address something
o Law is read aka jury instructions
o Attorneys give closing arguments (not evidence)
The Different Meanings of Evidence
· Types of evidence:
o Proof
§ Used to meet legal requirements (aka elements) of a claim, cause of action or defense
§ Trials are typically won on this, not the rumors or outside “evidence”
o Governing Rules
§ FRE, state codifications or common law
§ Contain evidentiary elements that are prerequisites to admissibility of evidence at trial
o In evidence/things
§ Jurors can take with them back to jury room and considered during deliberation
§ Does not include demonstrative evidence used to make a point (ex: during testimony of a witness) during trial
Categories of Evidence
· Categories of Evidence:
o Real – physical, tangible evidence, the thing itself
o Representative – representative of another thing (charts)
o Testimonial – viva voce – by voice, must know purpose of this evidene because foundation must be built to introduce it
Direct or Circumstantial Evidence
· Direct – proves a fact without requiring deductions. Example: Eye witness testimony that something happened
· Circumstantial – requires inference, facts from which we can infer other facts Ex: fingerprints, DNA
2. The Roles of Judges, Juries & Attorneys at Trial
· Judge
o Bench trial: Fact finder and distributor of law
o Jury trial: Law only
o Determines admissibility of some evidence
o Controls how jury selection works
o Make a record when talking about (in)admissibility of evidence so that if it is needed later in an appeal it has been transcribed
o Decide whether foundation has been met for evidence being introduced
o Competency/credibility of the witnesses
o To lay a foundation you may have to use things like hearsay, they can admit otherwise inadmissible evidence
o If someone offers something in to evidence that is contingent on another fact being relevant
§ There must be a witness or something to connect the piece to the case
§ Court can conditionally admit evidence as long as relevance exists
· Jury
o Finders of fact
o Weigh evidence and credibility of witnesses
o Deliberate together
o Can ask questions of witnesses & take notes (in CO)
§ Not uniform across states
§ Purpose is to engage jurors and keep them interested
§ Fear: might open the door to inadmissible evidence
§ After direct exam cross, judge turns to jurors and asks them to write down questions they have (judge & attorneys both get to look at the questions before they are asked)
§ # of inadmissible questions is low. Most of the time the questions they were asking were admissible and great questions
o Determines death penalty
· Attorney
o Creating a record for a potential appeal RULE 103
§ Object timely and if you miss it you ask for it to be stricken from the record
· If you do not, you lose your ability to object on that basis. Once you’ve made the objection you do not have to keep renewing it
§ If a judge overrules your objection you say “your honor may I make an offer of proof” (may I approach the bench if judge does not want jury to hear the issue with regard to that evidence and why it should be excluded under the rule of evidence. It maybe also be the attorney that wants to respond. They can give reason as to why the evidence should be admissible.
o Offer of proofs are made when issues are critical to a substantial right, it is attorney’s job to be sure the record is made
o To be a zealous representative of your client and weigh that with acting ethically and with integrity
· Appellate court
o You can appeal evidentiary rulings when a substantial right is affected
o When there is a substantial right (NOT leading, beyond scope, etc.)
o Is evidence being left out or included that affect the outcome of the case
§ Ex of substantial right/outcome of a case: unfair prejudice, character evidence, hearsay issues
o When there is abuse of discretion – judges go beyond the scope of
show same character trait in defendant
§ ( c) In homicide case, prosecution can show evidence of peacefulness to rebut evidence showing victim was first aggressor
o (3) Exceptions for a witness – credibility can be attacked/supported in rules 607-609
· It matters who is bringing up the evidence? Aka opening the door
· Is it being offered in the correct form? Most of the time has to be offered with regard to opinion or reputation. Rare to bring in specific acts.
· What is the foundation that needs to be laid for this type of evidence to come in in this particular form?
Limiting Character Evidence in the Courtroom
· We try to limit exposure of character evidence to that which is truly probative and useful to the jury
· Juries tend to use character evidence and give it high weight, but character is only an average behavior and does not indicate how the person acted on a particular occasion. Jurors sometimes think the person “deserves punishment,” and forget that people change over time.
· Purposes for character evidence
o Propensity uses: to show that because someone acted a certain way in the past it is likely they acted that way in the case at hand. Not permitted except for the excpetions.
o Non-propensity uses: any other reason s
· If character evidence is admissible, it can be brought in three different ways:
o Opinion or reputation – reputation is what the community thinks of someone. Opinion evidence is one’s personal opinion on someone. Generally, if a party introduces character evidence for act propensity reasons, these two are the only options.
o The court allows specific instances of conduct in only a few situations:
§ Non-propensity use – Intent, Motive, Opportunity, Plan, Preparation, Identity, Knowledge, lack of accident, absence of mistake (I MOPP IK +2). This relates to how the party thought about a situation, not necessarily what they would do or how they would act
§ When character matters in and of itself – it is an element of the crime. For example, if sentencing is higher when the person is a habitual offender evidence of past acts/crimes could be brought in.
· Recap:
o 404(a) generally bars act propensity evidence. Does not prohibit non-propensity uses, such as direct use of character evidence when character is an essential element of a crime, charge, or defense. 404(a) also does not bar use for IMOPPIDK+2.
o Per rule 405, reputation, opinion and specific instances of conduct are all appropriate forms to show element of a claim, charge or defense. Only reputation and opinion can be used to show act propensity where admitted.
o Even where limited to opinion or reputation on direct, a witness may be impeached on cross-examination by questions about specific acts. If the witness denies specific acts relating to the material covered on direct. Extrinsic evidence is not admissible. This is a way of testing the witness’ knowledge and judgment of another’s character, not the witness themselves (as governed by 600 Rules)
