Evidence Outline
University of Georgia
Prof. Cook Fall 2012
I. MAKING THE RECORD
a. Overview:
i. Record usually consists of:
1. Litigation Paperwork
2. Trial Transcript
3. Physical Exhibits
ii. 2 Broad Categories of Evidence:
1. Verbal Testimony
2. Physical Testimony
b. Objecting to Evidence(FRE 103) :
i. Timely objection to the introduction of evidence is important b/c:
1. Don’t want certain testimony to be heard and admitted
2. Appellate Purposes
a. If you fail to object you will be subjected to a higher standard of proof if you appeal about an issue that was not objected to at trial
ii. Why do we let come Objections go?
1. Don’t want to give jurors wrong idea—come off as bully
2. “Opens door” to other evidence opposing lawyer might want to offer
c. VERBAL TESTIMONY
i. Witness Competency(FRE 601)
1. Every person is competent to be a W except as otherwise provided in the rule
ii. Lack of Person Knowledge(FRE 602)
1. A witness may not testify to a matter unless evidence is introduced sufficient to support a finding that the W has personal knowledge of the matter
a. “Laying a Foundation” when needed—evidence introduced doesn’t have to be consistent w/ W’s testimony
iii. Leading Questions(FRE 611)
1. Questions that suggest what the answer is
2. NOT allowed on Direct:
a. Don’t want attny to testify—want witness to answer questions clearly to increase legitimacy
b. EXCEPTIONS—Leading allowed:
i. To establish preliminary facts
1. EX: Isn’t your name Moe
2. EX: Don’t you work as a Special FBI agent
ii. For facts not in dispute
iii. With an adverse or hostile witness
1. When W doesn’t share the same litigation interests as you
2. Must get Cts permission
iv. When a witness gives a surprise answer
v. May be allowed with witness of limited understanding(Child)
vi. Refresh W’s memory whose recollection has been exhausted
3. Allowed on Cross:
a. Because Attorney and Witness have different interests
b. Goals for Cross:
i. Diminish the credibility of the W sometimes
d. PHYSICAL EVIDENCE
i. Have to establish a certain threshold of certainty—not 100% certainty
ii. (1). Real Evidence:
1. Evidence that you actually admit into the record
a. Chain of Custody: Record of where evidence came from, where it has gone, and who had it in their control
i. Must establish for general piece of evidence
ii. NO need for unique piece
2. Usually sufficient to have a W testify to get physical evidence introduced—i.e. laying proper foundation questions
3. Once Ct receives it jury can consider it
iii. (2). Demonstrative Evidence:
1. Physical evidence that you show to jury but don’t admit into record
a. At the end of the day jury can only consider evidence in the record
2. MUST be verified:
a. 2 ways to verify
i. Get a stipulation from opposing counsel; OR
ii. W lays foundation on stand that evidence accurately reflects what attny says it is
II. RELEVANCE(FRE 401)
a. Is the Evidence Relevant?
i. Relevant evidence is any evidence that tends to prove or disprove a material fact
1. Liberal rule—more inclusive than exclusive
b. KEY INQUIRY: “Any Tendency”
i. Does the evidence have any tendency to prove or disprove a material fact
c. Two Aspects of Relevance:
i. Probative Relationship: Evidence must make the factual proposition more(or less) likely than it would be w/o the evidence
ii. Materiality: Evidence must be material
d. Knapp v. State
i. Facts: D charged w/ murder. Claims self-defense, said he had reason to fear V. d testifies that D was told that the V had killed an old man. Gov’t introduces evidence that the old man V supposedly killed actually died of drinking. D claims irrelevance.
ii. Holding: The info was relevant b/c it tended to disprove D’s self-defense claim.
e. Sherrod v. Berry
i. Facts: Cop killed kid who he thought was armed. Turned out kid was not. Cop testified that kid made a “quick move” into his jacket. Gov’t wants to introduce evidence that the kid was not armed. Ct doesn’t allow them to.
ii. Holding: Cant introduce evidence of any info beyond that which the cop had and reasonably believed at the time
1. Intro of kid not being armed doesn’t satisfy 401 test:
a. Kid having a weapon doesn’t go to prove that he made a quick movement—which is what cop testified to
2. Unfair Prejudice argument 403 test:
a. If allowed in would taint jury
iii. Cook: Believes that should have been allowed in—it sets bad policy b/c all cops would have to say is V made a “Quick Movement”
f. Ski Mask Hypo:
i. Teller told agent, “Bank robber came up to me, medium build, ski mask, and gloves, and tee shirt and blue jeans on.
ii. Calls up on case FBI agent to stand who says “did search of D's house and found some items that match the description”
1. Prosecutor wants to enter 5 pairs of blue jeans, socks and other items that matched the description given by teller–does it get in?
a. Yes they probably will get in, but if that is the only proof you have, you will not get too far
iii. KEYà”Any Tendency” to prove this guy is the bank robber, or not the bak robber, then its relevant
g. So it’s Relevant—Now what?
i. FRE 403 Prejudice Test
1. Relevant evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice
ii. KEYS:
1. Unfairly Prejudicial; and
a. Introducing prejudice is what prosecutors are supposed to do—must be unfairly prejudicial
2. Substantially Outweigh
a. Must be substantial for ct to kick out
iii. Old Chief v. United States
1. Facts: D charged w/ felony possession of firearm. Gov’t must prove (1). Felony and (2). Possession of firearm. D offers to stipulate Felony. Gov’t refuses. TC allows the Gov’t to read the prior judgment to the jury. Consequently this allows the jury to hear that the prior felony was for aggravated assault
2. Holding: This case screams prejudice—TC should have used the stipulation
3. NOTE: This case doesn’t mean that Pros has to accept stipulation every time
a. What makes not accepting prejudicial in this case is that the 2 priors are so similar—assault in both
b. EX: If prior felony was felony littering the prosecution doesn’t have to ac
at all and the jury won’t receive a single instruction
2. Legille v. Dan: P, a patent applicant, relied on the presumption that a properly mailed addressed and mailed letter would be received by the addressee. The D, the patent Office, relied on the conflicting presumption that the Office had regular practices to ensure receipt
a. Holding: No justification for preferring 1 over the other
b. Rule: When presumptions conflict they burst
iv. Criminal Cases:
1. Permissive Presumptions: Allows the judge to instruct the jury that they “may” infer the presumed fact if it finds the basic fact
2. Mandatory Presumptions: If the presumption is found to be mandatory, it will be subject to more stringent constitutional scrutiny
a. Shift of Persuasion Burden: When the presumption fact is a major element of a crime (thus shifting the PB) it will be held unconstitutional
i. It relieves the gov’t of its persuasion burden by allowing it to not have to prove every element
ii. Virginia v. Black: State law allowed jury to infer D’s “intent to intimidate” merely from a showing that D burned a flag—unconstitutional
v. Presumption v Inference:
1. Presumption: Jury SHALL find the fact UNLESS rebutted
2. Inference: Jury MAY find or infer the following
a. EX: The jury may infer from the D’s “fleeing” that he was conscious of his guilt
IV. HEARSAY
a. What is Hearsay(FRE 801(c)):
i. A statement or assertive conduct which was made or occurred out of court AND is offered in court to prove the truth of the matter asserted
1. It is ANY statement made out of court
a. Covers not only what the witness was told by the declarant outside of court, but also when declarant himself is testifying, it covers what he himself said outside of court
b. Process of Analysis:
i. It has to be RELEVANT:
1. We won’t even get to hearsay if it’s not relevant…it will be excluded as irrelevant
a. EX: X is charged w/ murdering his wife A. X says that his mental condition was impaired at the time. To rebut, gov’t puts B on the stand who says that A called him and said, “I know X is going to kill me.” Can gov’t get it in as non-hearsay?
i. NO—we don’t get to hearsay part b/c it doesn’t pass the relevant test. She is testifying to her mental state, X said his mental state was impaired. Nothing abt her mindset goes to rebut his mindset
ii. Is there an out of court STATEMENT?
1. What Qualifies as a Statement:
a. Oral Assertion
b. Written Assertion
c. Nonverbal Conduct intended as an assertion
2. KEY: Must be an assertion
a. Assertion: When we say/write/do something with the hope or expectation that it will be accepted as true
i. BOTTOM LINE: Must be said/written/done with the hope or expectation that it will be believed
b. Rule is really concerned w/the expression of a fact or opinion hoping that it will be accepted as true
