Fall 2014
Evidence
COhen
Five reasons for evidence law
Mistrust of juries (FRE 403)
Single overriding reason for the law of evidence. Hearsay doctrine exists largely because we don’t think lay jury can adequately evaluate statements made outside of its presence. Character evidence rules rest on the view that juries put too much weight on it (might use it for punitive purposes)
Substantive policies re: matter in suit (FRE 302)
E.g. rules that set & allocate burdens of persuasion. Such rules affect outcome (acquittal/exoneration from liability)
Extrinsic substantive policies (FRE 501)
E.g. privileges (marital privacy is protected; spouses should not be pitted against each other)
Accuracy in fact-finding (FRE 611)
Arguably most important. E.g. authorization of documents, Best Evidence doctrine.
Efficiency and reasonableness (FRE 102)
Pragmatic — trials must run their course in a reasonable time period.
Why FRE instead of common law? Accessibility. The rules are brief, not overly technical, and don’t have a lot of cross-referencing. Important because FRE are used in criminal AND civil cases (except in diversity cases in which some state rules of evidence apply – e.g. 301, 501, 601)
Opponents to codification: restricts development of rules through common law
WHAT HAPPENS AT TRIAL
Jury Selection
Jurors are assembled on the first day of trial and are summoned to the jury box. Next the ct and counsel try to find out whether any members of the panel should not serve in ‘Voir Dire.’ If a juror is related to a party or is prejudiced on an issue or against some party, he should be excluded ‘for cause.’ Each party can challenge any number of people for cause, and the judge must determine the challenge and exclude the person if cause is found. Also, each party has a fixed number of ‘peremptory’ challenges, which entitles him to exclude potential jurors for any reason at all, without stating the reason. In federal ct and some state cts, voir dire is conducted by the judge and counsel submits questions. In some states, the lawyers conduct voir dire.
Opening Statement Usually, the party bearing the burden of persuasion (∏ in civil, Prosecutor in criminal) has the right to make first opening statement (if ct permits an opponent may delay opening statement until after the other party has presented her case and rested). The opening statement is not an ‘argument’ instead, sums up the facts each party hopes to establish and explain background facts about the parties.
v Irrelevant but humanizing info is likely to come out (P works as a …)
Presentation of Proof Usually party with burden of persuasion goes first, followed by opponent with additional turns if needed. After both present their case in chief, the opening party has a chance to present his case in rebuttal, and then opponent has similar opportunity.
Order of proof (narrows w/rebuttals)
v P presents case-in-chief, rests (must state entire case except what he may need to rebut)
v D presents case-in-chief, rests
v P presents case-in-rebuttal
v D presents case-in-rebuttal (or case-in-rejoinder)
v Each side presents case-in rebuttal (case-in-rejoinder)
Order of examination (witnesses called during case-in-chief)
v Direct examination by calling party
v Cross examination by adverse party
v Redirect by calling
v Re-cross by adverse
v Further redirect/re-cross as needed
Types of evidence (presented during case-in-chief)
v Demonstrative evidence (tangible things, e.g. defective items, medical records, models, photos)
o Real or original evidence: objects involved in events in litigation
o Documentary evidence: writings
Trial Motions If a party is confident that a reasonable person could only find in his favor, he may make a motion for judgment (only ∆ can make this motion in criminal cases). Rarely granted. Very unlikely in jury cases even if judge sides w/movant because a jury verdict is less likely to be overturned later. Judge can grant a similar motion if jury goes the other way. Most common
Closing Argument party with the burden of persuasion goes first and has the option of making 2 arguments, one before and after his opponent
Instructions Instructions explain substantive principles and allocate and define the burdens and proof on the issues. Parties draft instructions and submit their requests to the ct, giving copies to adverse party.
v “Curative Instructions” given to jury for purpose of saving the verdict and judgment from reversal on inevitable errors as trial progresses. B/c curative instructions can hurt, emphasizing the point the jury will be told to forget, the threatened party can choose to include them or not.
v “Limiting Instructions” advise jury to consider certain proof only on one point and not others, or against one party and not others. Instructions on the effect of “presumptions” and certain formal inferences.
Deliberations Jurors deliberate behind closed doors. Why? So jurors can feel free to speak and share ideas; insulate verdicts from public scrutiny and judicial review; protect the sanctity of “the jury.” May seek clarifications of testimony or instructions. Judges encourage disagreeing juries to consider the other side (i.e. against mistrial). Criminal lawyers dislike this when considered alongside the BARD standard.
The Verdict Usually jury gives “general verdict” winner in civil cases and guilty/not guilty in criminal trials
Judgment and Post-Trial Motions Entry of judgment starts time for appeal. Losing party in civil case moves for judgment as a matter of law (formerly called JNOV), requesting new trial in alternative, in criminal cases, defense moves for acquittal. Motions to correct clerical errors, permission to interview jurors, reopen on account of “newly discovered evidence.” Starts the clock running.
Appellate Review After a final judgment is entered (except for interlocutory appeal) a party may get appellate review if it has “preserved” its claim of error promptly and properly at trial and the reviewing ct concludes that the trial ct erred and that the error was “reversible,” affecting substantial rights of the appellant, and not “harmless.”
MAKING THE RECORD
What is the Record and How is it Made? A permanent written form of the words spoken at trial – for the “remote” (appellate) audience. The record is not assembled until or unless a party seeks review. The “official record” consists of: 1) The Pleading 2) Filed Documents 3) The Record of Proceedings 4) The Exhibits 5) Docket Entries
Beware the Pitfalls—What Not to Do Common Mistakes: 1) Echoing 2) Overlapping 3) Mistakes or Ambiguity with Numbers Names and Big Words 4) Exhibits (failing to reference the assigned exhibit number) 5) Pantomime, nonverbal cue, gesture, internal reference 6) Going “off the record” 7) The sidebar conference
Taking Care—What to D
to speak with care
Demeanor can show confidence (or lack thereof)
Candor
AKA risk of distortion. Can be conscious or unconscious. Maybe bystander felt sympathetic toward someone.
Courtroom setting might encourage truthfulness.
Where do hearsay risks attach?
If a person misperceives, misremembers, miscommunicates, or lies, you can get to that on the cross-examination. So, the risks attach at cross. Risk is NOT that witness in court is lying. Any witness can lie, but they can be cross-examined about it.
Cain v. George
US v. Check
US v. Singer
Parents’ wrongful death action for CO death of their son. Alleged that the gas heater in the motel room was defective because it had been improperly installed, was improperly vented, and had never been inspected or cleaned since the time of installation.
Issue
Was evidence that many guests stayed in the room without complaining inadmissible hearsay? (I.e. is staying without complaining an assertion that the room was ok?)
Holding
No. Its value came in its showing the knowledge of the motel owners, it was not dependent upon the veracity or competency of the prior guests. Affirmed.
Prosecution attempted to avoid hearsay rules by having their available witness record his half of a phone convo. Court reversed a lower court decision allowing such inadmissible hearsay.
Problems
1) Missing witness is not cross-examinable
2) Your own prior statements are also hearsay if used to prove the truth.
Thus, hearsay is hearsay even if it comes in indirectly.
Letter to ∆ at a particular address is admissible because it was NOT used to assert that the D actually lived there, but because the sender believed that the defendant lived there. From there, we can infer ∆’s residence.
Mailing is important because it is action. Actions are not assertions, but acts.
Often courts believe that “assertion” means only simple declarative statements, not questions or commands.
Most courts that consider lying have said it is not hearsay. Not offered to prove the truth of anything asserted, but to show that statements were false.
Note: Evidence of non-complaint, sometimes called negative hearsay, is usually admitted.
Policy: Hearsay doctrine would be useless if gov’t could circumvent it like this.
Remember: Actions are NOT hearsay, even if in word form (e.g. eviction notice; lying to police – is like fleeing)
Animal hearsay (e.g. canine tracking) is usually admissible, but not always.
Machine hearsay is also usually admissible (e.g. time on clock), but may be hearsay (e.g. reading an e-mail)
