Evidence – Reid
Spring 2014
TYPES OF EVIDENCE
1. Oral Testimony
· Witnesses speaking from the witness stand under oath [3 types]
a) Fact Witnesses
o People who perceived facts related to the lawsuit and testify about those facts
o Includes parties & victims
o Need first-hand knowledge
b) Expert Witnesses
o People who use specialized knowledge to interpret evidence or explain it to the jury
o Do not need first-hand knowledge
c) Character Witnesses
o People who offer information about the good or bad character of a party or witness
o Do not need first-hand knowledge of the overall controversy
2. Real Evidence
· Any physical evidence that a party claims played a direct role in the controversy
o i.e. murder weapon, bloody shirt, etc.
· Must be authenticated
3. Documents
· Any type of writing or recording of information
· Most are a subcategory of real evidence (receipts, envelopes, bills, etc.)
· Must be authenticated
4. Demonstrative Evidence
· Parties create demonstrative evidence to illustrate concepts or facts to the jury (diagram, photo)
· Did not play a role in the disputed events
· Judges carefully monitor for abuse
5. Stipulations
· Evidence which is agreed upon by both parties
6. Judicial Notice
· A judge may take judicial notice of a fact which is “generally known” or “accurately and readily determined”
PHOTOGRAPHERS AND VIDEOS
· Either Real Evidence or Demonstrative Evidence
o Judges are more cautious in allowing DE over RE
EVIDENCE IN ACTION
· U.S. v. Myers
o The US charged officer Myers with using unreasonable force to subdue an arrestee
§ Oral Testimony (eyewitness) – Officer James
§ Oral Testimony (eyewitness) – Officer Fleming
§ Real Evidence – stun gun
§ Demonstrative Evidence – stun gun
§ Oral Testimony (fact witness) – Chief Everett
§ Documentary Evidence – written department regulations
§ Oral Testimony (fact / expert) – Lieutenant Welch
§ Oral Testimony (fact / expert) – Officer Baker
§ Oral Testimony (victim) – Yanez
DIRECT EVIDENCE
· Infer a fact directly from a piece of evidence (no chain of inferences needed
· Evidence à Fact
CIRCUMSTANTIAL EVIDENCE
o Any evidence that requires the jury to make an inference connecting the evidence with a disputed fact
o Evidence à Chain of Inferences à Fact
o No legal distinction between direct and circumstantial evidence
o All evidence requires fact finders to make inferences
o Consider the type and number of inferences need to link the evidence to a disputed fact
Federal Rules of Evidence (FRE): ARTICLE I: GENERAL PROVISIONS
· A set of restrictions that federal courts place on attorneys who wish to submit evidence to the trier of fact.
· 4 questions: Why, Who, Where, When
1. WHY do courts impose rules?
a. Prevents prolonged litigation, misleading juries, compromise important social policies
b. Excluded evidence
i. To protect the jury from misleading information (Not so in a bench trial)
ii. To eliminate unnecessary delay and promote efficiency (for cumulative or repetitive evidence)
iii. To protect a social interest. Two types:
1. Related to the trial
2. Unrelated to the trial (i.e. special relationships)
iv. To ensure evidence is sufficiently reliable (Ex: Hearsay, expert testimony)
2. WHO wrote the FRE?
a. Notes written by the Advisory Committee
b. Committee Reports and other legislative history from Congress
3. WHERE does the FRE apply?
a. Rule 101 (Scope of FRE) – These rules apply to proceedings in United States courts. (federal courts)
b. Rule 1101(a) (Applicability of FRE) – These rules apply to proceedings in:
i. US district courts
1. US bankruptcy and magistrate judges
2. US courts of appeals
3. US courts of federal claims
4. District courts of Guam, Virgin Islands, and Northern Mariana Islands
c. State courts that have adopted the FREs
d. NOT for the Supreme Court
e. Congress has included the Tax Court
4. WHEN does the FRE apply?
a. Rule 1101(b) (Applicability of FRE) – the FRE applies to all types of cases in said courts
i. Civil cases – including bankruptcy, admiralty and maritime cases
ii. Criminal cases and proceedings
iii. Contempt proceedings when they resemble a trial
b. The FRE only applies during trial
c. Privilege rules: Trump everything
i. Apply in court, in Congress, etc.
ii. Grand jury proceedings (None of the other rules apply)
d. Rule 1101(d) (Applicability of FRE) – These rules, except on privilege, do not apply to the following:
i. The court’s determination, under Rule 104(a), on a preliminary question of fact governing admissibility
ii. Grand-jury proceedings (Only the privilege rules apply)
iii. Miscellaneous proceedings, such as
1. Extradition or rendition
2. Issuing an arrest warrant, criminal summons, or search warrant
3. Preliminary examination in criminal case
4. Sentencing proceedings
5. Granting or revoking probation or supervised release
6. Considering whether to release on bail or otherwise
e. Rule 1101(c) (Applicability of FRE) – the rules on privilege apply to all stages of a case or proceeding.
Trial Structure [emphasis on areas using evidence]
1. Pretrial Motions
· Motion in limine – Filed in order to be able to exclude or include a particular piece of evidence
o Lawyers put on notice that on pain of contempt, they’re not supposed to ask questions leading to it
o Advantages
§ Early knowledge will help prepare a strategy
§ Attorneys may present lengthy and sophisticated arguments
§ If evidence objected to at trial, ideas are put into the jurors heads
· Motion to suppress – claims the opponents evidence was illegally obtained
o Suppress a statement, piece of evidence, illegal identification
· Summary judgment
2. Jury Selection – “Voir Dire”
· Ask jurors questions, and they are obligated to tell the truth
· Also applies with respect to the competency of a witness
o Child, incompetent adult, or where one side thinks an expert doesn’t actually have the expertise to testify
3. Opening Statements
· Tells a compelling story and reflects the evidence that will unfold during trial
· May use demonstrative evidence
· Evidence helps to define the story
4. Plaintiff’s/Prosecutor’s Case-in-Chief
· π/P presents all evidence to prove element of all the allegations against ∆
5. Defendant’s Case-in-Chief or Case-in-Defense
· ∆ presents evidence intended to prove his case, and/or disprove one of the π’s elements.
6. Cases-in-Rebuttal
· π and ∆ rebuts evidence introduced by their opponents
· This may include new witnesses or evidence which attacks issues by the opponents
· May include further rebuttal and rejoinder
7. Closing Statements
· May include demonstrative evidence
8. Instructing the Jury
· Judge instructs the jury on how to handle the evidence
9. Deliberation
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.
(c) Conducting a Hearing So That the Jury Cannot Hear It. The court must conduct any hearing on a preliminary question so that the jury cannot hear it if:
(1) The hearing involves the admissibility of a confession;
(2) A defendant in a criminal case is a witness and so requests; or
(3) Justice so requires
(d) Cross-Examining a Defendant in a Criminal Case. By testifying on a preliminary question, a defendant in a criminal case does not become subject to cross-examination on other issues in the case.
(e) Evidence Relevant to Weight and Credibility. This rule does not limit a party’s right to introduce before the jury evidence that is relevant to the weight or credibility of other evidence.
Three (3) points to note
1. The default rule states that the judge decides preliminary questions related to admissibility, both
issues of law and matters of fact
2. The Rules of Evidence does not apply to preliminary determination
3. The only exception is that the rules of privilege DO apply to preliminary questions [confidentiality]
Two (2) points of confusion
1. The relevance issue lurks more than just 401 and 402
2. “proof must be introduce sufficient to support a finding” means the prima facie standard
The judge should let the jury decide the factual issue if enough evidence exists that a rational jury could resolve the factual dispute either way.
Issue of fairness to avoid any prejudice
In the Courtroom
1. Rule 104(b): Relevance that depends on a fact
Process:
o The judge will determine if a reasonable jury could find that issues occurred,
If evidence meets that threshold, then
o The jury will determine both (1) the existence and (2) probative value of the alleged assaults
a. Personal knowledge under Rule 602
Personal knowledge may be disputed
b. Evidence of other acts under Rule 404(b)
Issues of motive, opportunity, etc. may be disputed
c. Factual determination under Rule 412
Evidence of specific circumstances may be disputed
d. Other sexual assaults by defendant under Rules 413 – 415
Consent may be disputed
2. Rule 104(a): Questions of admissibility unrelated to relevance
a. Timing of remedial measures under Rule 407
Timing may not affect relevance, therefore the judge decides
b. Whether repeated conduct is propensity or habit under Rule 406
Admissibility depends on a policy line drawn between habit and propensity
c. Other 104(a) determinations
Rule 408 – the existence of a dispute or compromise negotiation
Rule 409 – existence of an offer to pay medical expenses
Rule 410 – whether plea discussion had occurred
Rule 608 or 405 – whether there was a good faith belief
