EVIDENCE LAW AND THE SYSTEM
I. Preliminary Matters
Stages of a Trial:
1. Jury Selection: We ask the jury their age, profession, address, etc. You are looking for relationships with parties or witnesses and viewpoints of jury members.
2. Opening Statement: the lawyer’s version of what will happen during the trial.
3. Presentation of Proof: evidence that is admitted at trial which determines how the case should be decided.
4. Trial Motions:
· Motion in Limine: motions desired to introduce evidence or to keep it out before it is admitted.
5. Closing Arguments
6. Instructions: Explain to the jury what they should be ruling on.
7. Deliberations
8. The Verdict
9. Judgment and Post-Trial Motions
10. Appellate Review: one of the primary reasons for reversal is a evidentiary mistake.
The Mechanics of Trial:
Evidence is presented at trial in parts, and in the following general order, subject to change under certain rules, such as FRE 106 and FRE 611(b).
1. Plaintiff (or Prosecutor) presents his case-in-chief, then rests;
2. Defendant presents his case-in-chief, then rests;
3. Plaintiff (or Prosecutor) presents his case-in-rebuttal;
4. Defendant presents his case-in-rebuttal (sometimes called “case-in-rejoinder”)
5. Each side presents further cases-in-rebuttal (sometimes called “case-in-rejoinder”)
Order of Examination:
1. Direct Examination by the calling party;
2. Cross Examination by the adverse party;
3. Redirect Examination by the calling party;
4. Re-cross by the adverse party;
5. Further redirect and re-cross may be necessary
The record consists of:
· The Pleadings
· Filed Documents
· Record of Proceedings
· Exhibits: anything tangible other than an eye witness testifying
· Docket Entries: court has an index to the file that tell you the kind of document and when it was done.
Types of Evidence:
· Testimonial: testimony of the witness
· Real Evidence: tangible things directly involved in the transaction or events in litigation. (ex: the weapon used in the homicide)
· Demonstrative Evidence: tangible proof that in some what makes graphic the point to be proved. (ex: diagrams, photographs, etc.)
· Writings: (ex: laboratory reports and medical records)
II. Scope of Direct/Cross-Examination
FRE 611(b)—Scope of cross-examination.
Cross-examination should be limited to the subject matter of the direct examination and matters affecting the credibility of the witness. The court may, in the exercise of discretion, permit inquiry into additional matters as if on direct examination.
· Subject Matter of Direct: determines the subject matter of the cross. Courts can interpret the subject matter of direct in 3 ways—Judge may take any of the following views of whether to admit the testimony:
(1) Narrow interpretation: confines the cross-examiner to points raised on direct;
(2) Broader interpretation: lets the cross-examiner ask about the “transaction described” on direct; and
(3) Even broader interpretation: lets the cross-examiner ask about any “issue affected” by the direct. (i.e.: any issues that are raised on the direct can be asked on cross.)
· Matters Affecting the Credibility of the witness: goes to a witnesses’ motivation to lie. Credibility includes anything that is properly challenged through impeachment, which means that it includes both intentional (the witness lied) and involuntary (the witness was mistaken) lack of accuracy. It is important to note Rule 611(b) only allows you to question the witness regarding matters that affect the credibility of that witness who is then testifying, not someone else.
· Permitting Inquiry into Additional Matters: Even if a court finds matters to be “beyond the scope of direct,” the court can choose to allow the testimony of these matters (allowing all the information from each witness to be admitted all at once.) The cross-examining party can in essence change “hats” to become the “direct examining” party (asking questions beyond the scope) sooner rather than later. In a simple case, this prevents having to excuse and recall the same witnesses over and over.
**The answer to the question controls the subject matter of the direct. If the question asks one thing, what was said determines the scope.**
Problem 1-A: “How did it Happen: the Scope of direct/cross-examination”
At an intersection, 2 cars collide—a yellow Fiat driven by Abby (Carl was the passenger), and a blue Buick driven by Eric. Abby sues Eric for personal injuries and property damage. During her case-in-chief, Abby calls Carl who testifies on direct that the “Buick ran the red light.” On cross-examination, Eric’s counsel asks Carl (1) if Carl and Abby are seeing each other; (2) whether Abby was looking out of the back window of the car at the time of the accident; and (3) whether Abby had drank 3 glasses of wine just before the accident). To each question Abby’s attorney objects that the statements are beyond the scope of direct.
Answer:
Preliminary Questions to Answer under FRE 611: (figuring out the relative position of the testimony)
Who is presenting the evidence? Plaintiff’s witness
What part of the trial are we in? Cross examination in Plaintiff’s case-in-chief.
Whose witness is it? Plaintiff’s
What kind of witness is it? Fact Witness
What are they presenting?
Question 1: This goes directly to the credibility of the witness (how truthful are they? Should we believe what is being said?) A social relationship might incline Carl to help Abby.
Question 2: This will depend on how we interpret the scope of direct. The point raised on direct was the color of the light (i.e.: that the color was red and the D ran it)
(1) Narrow interpretation: the cross would be beyond the scope
(2) Broader interpretation: this would include anything that was going on at the intersection, in which case the question is proper.
(3) Even broader interpretation: question is proper.
Question 3:
The fact that Abby was drinking wine is not in the subject matter of the direct. The direct is focused on Eric’s actions, not Abby’s. Because we are looking solely at the conduct of Eric, Abby’s conduct is beyond the scope. If the subject matter of the direct was “causation of the crash” But, this testimony would be the subject matter of direct.
FRE 611(c) Leading questions
Leading questions should not be used on the direct examination of a witness except as may be necessary to develop the witness’ testimony. Ordinarily leading questions should be permitted on cross-examination. When a party calls a hostile witness, an adverse party, or a witness identified with an adverse party, interrogation may be by leading questions.
III. Making the Record & Admitting Evidence
FRE 103—Rulings on Evidence
(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. – 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 the 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.
· An objection must be made in order to exclude evidence. An objection is also required to appeal the admission of evidence. The objection must be timely and should include a statement of the underlying reason (grounds for the objection).
o The general objection: if overruled, a general objection does not preserve for review whatever point the objector had in mind.
o Motion in Limine: a ruling in advance used (1) when a party anticipates that particular evidence will be offered to which he will object or (2) when a party anticipates that an item of proof that he plans to offer will meet objection from the adverse party.
· An offer of proof is required to appeal the exclusion of evidence. A lawyer faced with a ruling excluding evidence must make a formal offer of proof, if he wants to preserve the point for later appellate review, which means demonstrating to the trial court exactly what he is prepared to introduce if permitted (i.e.: an attorney offers to the court what they were going to show and why they were going to show it, to preserve it for appeal).
· No need to renew an objection: ex: If you have multiple P’s and one P objects, the other P’s don’t also need to object to preserve the objection for appeal as it applies to them. Requiring each party to reiterate objections adequately made by similarly-situated parties would clutter and burden the proceedings.
Kinds of Error:
1. Reversible Error: the kind of mistake which probably did affect the judgment.
2. Harmless Error: the kind of mistake that probably did not affect the judgment.
3. Plain Error: the kind of error that warrants relief on appeal even though appellant did not take the right steps to preserve his rights. (i.e.: he did not object or make an offer of proof)
4. Constitutional Error: a mistake by the court in criminal cases in admitting evidence for the prosecution that should have been excluded under the Constitution.
Problem 1-B: He didn’t object!
Carl joins with Abby as the second Plaintiff in the suit against Eric. (See problem 1-A) The defense offers testimony by police officer Hill based on the measurements of skid marks at the scene, that Abby was traveling at 50 mph (where the posted speed limit was 35 mph)
· Pragmatic evidence has a stricter standard of admissibility than logical evidence. Evidence may be logically relevant but we may still keep it out because its probative value is substantially outweighed by auxiliary considerations:
· Fairness
· Danger of unfair prejudice
· Confusion of the issues in the minds of the jury
· Misleading the jury
· Considerations of undue delay
· Waste of time
· Needless presentation of cumulative evidence
· The trial judge can exclude even logically relevant evidence when its probative value is substantially outweighed for any of the above reasons.
· FRE 403 should be mentioned in every evidence question. Your answer should always read, this evidence is admissible “subject of course to the courts discretion to exclude it should the court decide that its probative value is substantially outweighed by (insert consideration here)
II. Who Decides Relevance?
FRE 104—Preliminary Questions
(a) Questions of admissibility generally.
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 subdivision (b). In making its determination it is not bound by the rules of evidence except those with respect to privileges.
(b) Relevancy conditioned on fact.
When the relevancy of evidence depends upon the fulfillment of a condition of fact, the court shall admit it upon, or subject to, the introduction of evidence sufficient to support a finding of the fulfillment of the condition.
(e) Weight and credibility.
This rule does not limit the right of a party to introduce before the jury evidence relevant to weight or credibility.
· Simple Relevance: The trial judge alone determines questions of “admissibility” under FRE 104(a)—i.e.: whether a particular point is “consequential” (material) within the meaning of FRE 401. Only a judge is qualified to decide this point because it turns on substantive and procedural rules. The judge also makes all findings of law before the matter is given to the jury and fact (if no reasonable person could conclude otherwise).
o The Judge decides whether something is relevant in the overwhelming majority of cases.
o The judge is simply required to find that a jury could find the evidence true/false.
· Conditional Relevance (104(b)): the jury asses (or weighs) the evidence at the end of the case determining its credibility. This includes deciding when relevance turns on the fulfillment of a condition of fact. That is the jury decides the weight of evidence, in which the relevance depends on the truth of other evidence (with the judge acting as a gatekeeper).
o A jury decides if a condition is satisfied when different answers are reasonable. (ex: if you find A you may proceed to find B).
o Keep in mind the judge will make sure he gives the jury careful instructions, using 104(b). (ex: if we are dealing with the occurrence of a prior act, or the occurrence of another conviction) (See FRE 404(b), 608, 609)
o Examples of conditional relevance: (p. 85)
· Questions of Authenticity (like connecting a gun found by a cop on the scene of the crime)
· Whether a witness has personal knowledge
· Credibility of Witness Statements
· Prior Bad Acts
***Note there is an overlap between the responsibilities of the judge and jury. Ex: Even though the judge may make a preliminary decision over FRE 104(a) that the expert is qualified as an expert, the jury also makes its decision under FRE 104(b) as to what weight to give to that witness’s testimony. (Commentators call this “conjunction.”)
The judge admits the evidence if it is material and relevant under FRE 104(a) However, he may decide there needs to be more facts to support the evidence (if the evidential hypothesis is too strained) and will admit the evidence only on condition that the other facts are also admitted to support the evidence under FRE 104(b).
Huddleston verses Booker(Notes on Page 87-90)
