Evidence Outline

Evidence – Robert Hardaway

Table of Contents

Evidence – in the courtroom and outside of the courtroom
● Irving Younger – highly recommended lecture tapes
 i.e. The 10 amendments of cross examination
 Colorado courtroom evidence manual
● Neta evidence questions?

Evidence- any matter offered in court to prove or disprove a fact or occurrence, or to aid in understanding (demonstrative evidence).
Why?

1. Opinion- the rules of evidence are too restrictive, based on the theory that the jury “cannot handle the truth”

Rationale behind the rules- judge will act as a screening device

1. Not about finding the truth – More of an instrument of public policy
2. i.e. Privileges actually protect AGAINST finding the truth (spouse, doctor, etc.)
3. Due process clause- accommodate constitution before finding the truth.
4. Fairness- i.e. Old rule of evidence, person should be judged on evidence relating to specific charge, not prejudicial evidence of previous actions (jury would have trouble not considering previous convictions etc.) if defendant does not testify.
1. Recent years- changes w/ rules relating to child abuse cases.
5. Efficiency- prosaic, time based rationale.

Types of evidence-The law of evidence governs the use of testimony (e.g., oral or written statements, such as an affidavit) and exhibits (e.g., physical objects) or other documentary material which is admissible (i.e., allowed to be considered by the trier of fact, such as jury) in a judicial or administrative proceeding (e.g., a court of law).

1. Testimonial evidence – viva voci “living voice” (probably the least reliable)
1. demanded by jurors, but circumstantial evidence can be more reliable.
2. Half the rules of evidence exist to test viva voci evidence.
2. Documentary evidence- holds a lot of weight with most jurors
3. Real Evidence- tangible evidence, a weapon, a body, etc.
1. Chain of custody much less preferable than fingerprints/video etc.
1. chain of custody only as strong as its weakest link.
4. Scientific Evidence- what is scientific and what is not?
1. Ex.: Blood tests, fingerprints, ballistics, DNA.
2. Expert witnesses very important
3. Federal rules of evidence have changed dramatically from the common law
4. much simpler to get scientific evidence in.
5. Demonstrative evidence (not classic evidence)- made up post-hoc, used to illustrate a point.
1. Main objection- misleading
1. i.e. the demonstration is different that the facts of the case.
2. With videos still very important.

Rules of evidence-

Very short at least, but memorization is required
Colorado rules of evidence
not in chronological order
First 5 rules-

ARTICLE I – GENERAL PROVISIONS
● Rule 101. Scope
 These rules govern proceedings in all courts in the State of Colorado, to the extent and with the exceptions stated in Rule 1101.
 Colorado rules for CO, federal rules for federal
● Rule 102. Purpose and Construction (fairness)
 These rules shall be construed to secure fairness in administration, elimination of unjustifiable expense and delay, and promotion of growth and development of the law of evidence to the end that the truth may be ascertained and proceedings justly determined.
● Rule 103. Rulings on Evidence
 harmless error rule
■ simply due to a mistake does not mean case should not be upheld on appeal, only if error is harmful (showing of prejudice), if error did not affect outcome, error can be ignored.
 (a) Effect of erroneous ruling. Error may not be predicated upon a ruling which admits or excludes evidence unless a substantial right of the party is affected, and
■ (1) Objection. (Objection must be specific) In case the ruling is one admitting evidence, a timely objection or motion to strike appears of record, stating the specific ground of objection, if the specific ground was not apparent from the context; or
■ (2) Offer of proof. () In case the ruling is one excluding evidence, the substance of the evidence was made known to the court by offer or was apparent from the context within which questions were asked.
 Once the court makes a definitive ruling on the record admitting or excluding evidence, either at or before trial, a party need not renew an objection or offer of proof to preserve a claim of error for appeal.
 (b) Record of offer and ruling. The court may add any other or further statement which shows the character of evidence, the form in which it was offered, the objection made, and the ruling thereon. It may direct the making of an offer in question and answer form.
 (c) Hearing of jury. (determining when jury should be excluded/included to avoid presenting suggesting inadmissible evidence) In jury cases, proceedings shall be conducted, to the extent practicable, so as to prevent inadmissible evidence from being suggested to the jury by any means, such as making statements or offers of proof or asking questions in the hearing of the jury.
■ How to give ammo to appellate lawyer
 (d) Plain error. (If a lawyer does not make a timely and specific, deemed to have waived the objection) Nothing in this rule precludes taking notice of plain errors affecting substantial rights although they were not brought to the attention of the court.
■ Nothing in this rule shall preclude a judge from precluding/admitting evidence or taking notice of plain error affecting substantial rights.
■ If your waiver is not truly gross, you won’t be able to appeal on those grounds, but if incredibly incompetent, judge can block terrible evidence, but NEVER count on this!
● Rule 104. Preliminary Questions
 (a) Questions of admissibility generally. (Requires laying foundation for the introduction of the evidence) 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 subdivisions (b). In making its determination it is not bound by the rules of evidence except those with respect to privileges.(*This prevents the chicken and egg problem, allows judge to hear a statement in order to determine whether it is admissibl