Evidence
Reid
Spring 2016
Exam Tip: Read the Comments section following each FRE; some of his exam questions come straight from the comments.
We are allowed to use our FRE on the exam; you can even write your outline in it, but you cannot add any extra pages.
Chapter 1:
Why evidence? We want it to be fair. [1 and 4 are the most important for this course]
Mistrust of Juries; most important reason [we do not believe that they can objectively judge the situation at hand.] FRE 403
Substantive policies related to the case [burdens of proof and persuasion] FRE 302
Substantive policies not related to the case; Extrinsic substantive policies: seek to affect behavior or quality of life outside the courtroom. FRE 501
Accuracy in fact-finding [overlaps with #1; another way of saying that we fear they will fail to perform accurate factfinding.] FRE 611
Efficiency and Reasonableness; control length and scope of trials. FRE 102
Based on a Cost-Benefit analysis [it is not worth spending a lot of money to receive a specific result] We are interested in the truth, but not if it is expensive.
Stages of a Civil Case:
Prior to Filing:
Controversy/Reasonable Investigation
After Filing:
Intervention Motion
Answer to the counterclaim
Amended complaint
Answer to amendment complaint
Discovery [discovery plan and scheduling order]
Final pre-trial order
Motion for recusal
Second amended answer
Mistrial motions
Stages of a Criminal Case:
Occurrence of the alleged crime/reporting of the alleged crime
Presentment/Conditions of Release
Indictment or information
Preliminary hearing
Preliminary Process: Pre-trial motions and discovery
Post-Trial Motions/New Trial
Collateral Attacks on judgment
What happens at trial?
Jury Selection:
Who are out juries? [we find them from DMV & Voter’s Registrations]
Our peers; people over the age of 18
Cannot be felonies
Must be able to read and write English
Objective; we don’t want jurors to know the parties, attorneys, etc. They cannot have pre-judged the facts of the case.
They cannot discuss the case with the other jurors, their families, friends, etc.
They cannot ‘google’; no seeking or accepting information on the case outside the courtroom.
Voir Dire:
In the Federal system, you fill out a questionnaire before you even get to the courthouse.
Everyone is put in a room; jury pool
Jurors answers questions under oath.
We want honest answers; lying to the judge is a crime.
Common questions:
Is there a conflict of interest?
Do you know the Plaintiff? Defendant? Lawyers? Judge?
In some systems, the lawyers tell the judge what to ask. In these situations, the Judge has the responsibility to guide the selection of the jury.
Challenge for Cause:
Answers you give provide the reason to exclude you for cause.
Preemptory Challenges:
Any excuse will do; you cannot however, discriminate on race, gender, etc. [Boston v. Kentucky]
Opening Statement:
Psychological testing you are giving the jury your point of view of the case. If you fail to prove everything that you promise, it may be held against you by the jury. Don’t promise to over-deliver.
Presentation of Proof: build your case, and tear down your opponents.
Case in Chief:
Calls every witness, “direct examination”
Live Witness Testimony:
Will be subject to direct and cross-examination
Types of Witnesses:
Fact Witnesses; saw the occurrences
Opinion Witnesses
Expert Witnesses
Introduces tangible evidence:
Types of Evidence:
“Real” or “original” evidence; objects usually involved in the events in litigation.
“Demonstrative” evidence; created for illustrative purposes
“Documentary” evidence; they are so common that special rules apply.
“Rests” and yields the stage to his adversary.
Case in Rebuttal:
The process may go on until each side is satisfied, or the judge decides that proof and counterproof have become repetitive.
When cross-examination is finished, the calling party may engage in “redirect examination” and then the adversary may again cross-examine. [‘re-cross examination’]
Trial Motions:
Directed verdict; if the other party has failed to prove the elements of their case.
Typically denied; however takes judicial notice.
The judge assumes that the jury will believe witnesses for the party opposing the motion, which means that the Judge does not determine creditability issues.
Closing Arguments: [personal to each attorney]
Not evidence; you offer your way of interpreting the evidence to the jury. You are entitled to argue the evidence within the light most favorable to your client, within reason.
The party with the burden of persuasion opens first, closes first and last.
Jury Instructions [Admonitions = Warnings]
Any party who doesn’t like a proposed instruction must object before the instruction is given.
Judge can also give instruction on evidentiary matters.
“Curative Instructions”: Purposes is to save the verdict and judgment from later reversal on account of inevitable errors as to the trial progresses. These can be counterproductive; emphasizing a point that you are asking the jury to forget.
“Limiting Instructions”: Advise the jury to consider certain proof only on one point and not others or against one party and not others. The jury who might be hurt by the evidence in question ordinarily decides in the first instance whether he wants an instruction at all.
Convey to the jury the effect of “presumptions” and certain formal inferences.
Other instructions tell the jury that it must decide certain points before it may consider certain evidence.
Jury Deliberations [in many countries with jury systems, the judge and the jury must work together to decide the case; in Japan the acquiescence of one of the judges is needed in order for a decision to be made.]
What if there is a disagreement? The judge tells the jury to try again, reminding them of the time, money, etc. spent on this trial. Tells them to “reconsider” their position.
[Jurors cannot testify about what went on inside the jury room after the judgment has been entered/ the verdict has been read.]
However, if the say ‘let’s flip a coin,’ prior to the verdict being read, and the bailiff hears them, the verdict would not be accepted.
we are getting at the witness’ knowledge of pertinent facts.
Forms of questioning:
Non-leading questions; Rule 611(c) Questioning should not unnecessarily push the witness toward a particular response.
Leading questions [Example: Isn’t it true that you did…]
Sometimes it’s a matter of phrasing, sometimes it’s an inflection, facial expression, voice dynamics, or gestures.
It may also be used when a party calls [A] a hostile witness, [B] an adverse party (indicated in the complaint), or [C] a witness identified with an adverse party. [Rule???]
Allowed on cross examination; the basic tool of cross examination is the leading question.
Why are leading questions bad?
They may invoke in the witness a “false memory.”
They may induce the witness to lessen efforts to relate what he actually remembers, and to acquiesce to the suggested version.
They may distract the witness from important details by directing his attention only to selected aspects of the story.
“the most powerful weapon in the arsenal of trial.”
To bring out or limit inconsistencies in the direct examination.
Leading the witness on cross is acceptable; they seem beneficial on cross because…
They may invoke the conscience of the witness and awakens his memory sufficiently to dislodge him from his previous version of events in favor of what he himself considers a more complete or accurate version.
Expose limits or inaccuracies in his memory.
Focus his attention on important details.
Scope of Direct Rule: [most States adhere to this rule; but a substantial minority [17 states] do not]
Cross examination is limited to matters explored on direct; each party is responsible for making his own case, and each should have latitude in arranging his own presentation.
[1] it is hard to administer; [2] Impediment to the truth; impedes the truth-finding mission by keeping the adverse party from pursuing matters relevant to the case, but not raised during direct by the calling party.
[1] the order of proof; enables the parties to control the order in which they present their evidence; [2] Accused witnesses; it is settled that when an accused testifies, he cannot raise the 5th Amendment as a shield against reasonable cross-examination. [3] Voucher Principles; avoid “vouching” for a witness who would become “his” witness rather than the calling party.
You may follow up in your questioning to “clarify.”
FRE 607; any party may impeach, including the party that called the witness. There is a particular definitive reason to doubt the witness.
