Evidence Outline

 
PROFESSOR MALAVET
UNIVERSITY OF FLORIDA
EVIDENCE – Evidence Under the Rules (7th Edition)
SPRING 2014
 
 
 I.                 Rule 611. Mode and Order of Examining Witnesses and Presenting Evidence
 A.   (a) Control by the Court; Purposes.  The court should exercise reasonable control over the mode and order of examining witnesses and presenting evidence so as to:
                                                 i.      (1) make those procedures effective for determining the truth;
 a)    form of testimony
                                              ii.      (2) avoid wasting time; and
                                             iii.      (3) protect witnesses from harassment or undue embarrassment.
 a)    Does not foreclose efforts to discredit the witness
 B.   (b) Scope of Cross-Examination.  Cross-examination should not go beyond the subject matter of the [1] direct examination and matters [2] affecting the witness’s credibility.  The court may allow inquiry into additional matters as if on direct examination.
                                                 i.      Most courts take a broad (transactional approach) to scope of direct
                                               ii.      If question says court allows anyway despite being beyond scope of direct then relying on 611(b) [2nd sentence]  C.    (c) Leading Questions.  Leading questions should not be used on direct examination except as necessary to develop the witness’s testimony.  Ordinarily, the court should allow leading questions:
                                                 i.      (1) on cross-examination; and
                                               ii.      (2) when a party call [a] a hostile witness, [b] an adverse party, or [c] a witness identified with an adverse party.
                                             iii.      Can lead on direct when:
 a)    Necessary to develop testimony
·         very young, timid, frightened
 b)    When the witness is uncooperative
·         Hostile and adverse
 c)    When the rule is more trouble than its worth
·         Uncontested matters
·         Expert witnesses
·         Preliminary matters (who you are, where you live)
 d)    When memory seems exhausted
·         refresh recollection
                                                                                                                           ·      most often written statement affidavit or deposition (cross ref. Rule 612-expressly recognizes this technique)
 
 II.              Rule 104. Preliminary Questions
 A.   (a) In General.  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. (simple relevance)
                                                 i.      Judge makes entire finding
                                               ii.      Always use this unless instructed otherwise
                                             iii.      Bourjaily: preponderance of the evidence standard
 a)    Expressly rejected std. of proof of beyond a reasonable doubt
                                             iv.      Judge decides whether prior charges were false
 
 B.   (b) Relevance That Depends on a Fact.  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. (conditional relevance)
 
 
                                                 i.      Huddleston Standard
 a)    Court does not determine if the act happened but to decide if the events occurred as the prosecutor said they did
·         Judge decides technical legality of the process of admissibility
·         Standard: judge first makes threshold decision (scintilla of evidence) whether evidence is probative of material issue other than character
                                                                                                                           ·      Similar to summary judgment-if reasonable minds could differ
                                                                                                                           ·      If can’t differ than judge excludes
 b)    then jury makes determination if specific instances occurred
·         Is there enough evidence that a reasonable jury could conclude that the act occurred and that D was the actor
·         Standard: a preponderance of the evidence
                                               ii.      Prior acts raises this question under 104(b)
 C.   Must bring in the totality of the circumstances (all the facts) and bootstrapping argument at preliminary stage
                                                 i.      Bootstrapping: where a statement provides its own and sometimes only foundation for admissibility
 D.  Coincidence Problem
                                                 i.      The fact that the judge, who does not disclose his findings to the jury, and the jury may find opposite results based on the facts
 
 III.           Rule 103. Rulings on Evidence
 A.   (a) Preserving a Claim of Error.  A party may claim error in a ruling to admit or exclude evidence only if the error affects a substantial right of the party and:
                                                 i.      (1) if the ruling admits evidence, a party, on the record:
 a)    (A) timely objects or moves to strike; and
·         earliest reasonable opportunity
 b)    (B) states the specific ground, unless it was apparent from the context; or
·         a general objection will not preserve issue for review
                                              ii.      (2) if the ruling excludes evidence, a party informs the court of its substance by an offer of proof, unless the substance was apparent from the context.
 B.   (b) Not Needing to Renew an Objection or Offer of Proof.  Once the court rules definitively on the record — either before or at trial — a party need not renew an objection or offer of proof to preserve a claim of error for appeal.
                                                 i.      Modern authority:
 a)    an objection by one co-party preserves the other’s right to appeal.
 C.   (c) Court’s Statement About the Ruling; Directing an Offer of Proof.  The court may make any statement about the character or form of the evidence, the objection made, and the ruling.  The court may direct that an offer of proof be made in question-and-answer form.
 D.  (d) Preventing the Jury from Hearing Inadmissible Evidence.  To the extent practicable, the court must conduct a jury trial so that inadmissible evidence is not suggested to the jury by any means.
 E.   (e) Taking Notice of Plain Error.  A court may take notice of a plain error affecting a substantial right, even if the claim of error was not properly preserved.
                                                 i.      If arguing plain error then MUST be in 103(e) b/c failed to object at trial
                                              ii.      Had you timely objected would be under 103(a)
 F.    Kinds of error
                                                 i.      Reversible
 a)    Probably did affect judgment
 b)    Preserved claim of error
 c)    Can be avoided by giving limiting instruction
                                               ii.      Harmless
 a)    Probably did not affect judgment
                                             iii.      Plain
 a)    Warrants relief
 b)    Even if failed to preserve claim of error
 c)    Must be