Evidence Outline
Prof. Steinbuch
University of Georgia
Fall, 2013
In evidence, you must ask yourself the rule first, IF you don’t like the rule, then you will have to make a constitutional challenge
History of Rules
Rules enabling act: Advisory committee recommend the rules to the court; if after 90 days congress doesn’t do anything that the rules become law. If congress does do something then they can change it; proposing to restyle the rules (claim that they will change the language but not change the intent)
Proposed & Rejected: Courts still look @ these rules and still use them
5 ways to impeach a witness
(1) Bias (Yates- the expert working on law & order, $)
(2) Prior inconsistent statement
(3) Contradiction
(4) Sensory perception/ capacity –
a. i.e. witness wasn’t wearing glasses/far away from the scene
b. ordr giving testimony about a surgery that they haven’t done in 16 years
c. something done drunk
(5) Character FOR credibility
a. 3 ways (discussed later)
NOTE: erie still applies to rules of evidence
Rules of evidence do not apply to (1) privileges (2) grand jury (3) sentencing (4) preliminary questions (Rule 104) i.e. qualification of a person to be a witness, the existence of a privilege, or the admissibility of evidence (sidebar doesn’t count)
à Rule 104(e) can always argue the credibility of the witness even if you lost of the preliminary question
à Rule 104(d) accused testimony in preliminary question does not subject him to cross-examination
Reasons for Evidence Laws
(1) Mistrust of juries
(2) To serve substantive policies related to the matter being litigated
(3) To further substantive policies unrelated to the matter being litigated (i.e. personal relationships, spousal privilege)
(4) Ensure accurate fact-finding
(5) Control scope and duration of trial
Types of Evidence
(1) General evidence: evidence you find
(2) Narrow evidence: evidence that is actually presented to jury
Trial
(1) Jury selection: after introduction of jury members, attorneys can raise challenges as many times, in addition to having 3 peremptory challenges for any cause
(2) Opening statement: A summation of the facts that will be presented, with some theme and direction
(3) Presentation of proof: Each party presents his “case-in-chief” to establish everything he must prove in order to win, reserving only what he may need to rebut whatever his opponent presents; calls witnesses, introduces tangible evidence
a. Plaintiff’s case in chief
b. Defense case
c. Rebuttal
d. Rebuttal
e. Etc. unitl judge says to stop (rebuttals must be tied to opponent’s case)
(4) Trial motions: motion for judgment may be motioned when the evidence is in or some time before. The judge considers whether the party opposing the motion presented evidence that no juror would believe
(5) Closing argument
a. Plaintiff first, D last b/c Plaintiff or prosecutor has the burden of proof
(6) Instructions: the judge instructs the jury on the law; the parties draft the instructions and submit their request to the court before the process of proof has been completed
a. Instructions may also occur to cure a defect such as a witness stating heresay
(7) Deliberations: Jury deliberates
(8) The Verdict
(9) Judgment & Post trial motions: @ entry of judgment, the time for appeal starts; losing party often files for a judgment as a matter of law and in the alternative a new trial.
(10) Appellate review: a party may obtain full appellate review only if it has preserved its claim of error by stating its position promptly and clearly at trial
The record
(1) Pleadings
(2) Filed documents: exhibits to briefs, documents seeking and providing discovery, jury instructions and court orders
(3) The record of proceedings: verbatim memorial of what transpires in court
(4) Exhibits: all physical exhibits offered in trial
(5) Docket entries: the courts own ledger of the proceedings
Trial Lawyer Mistakes
(1) Echoing: repeating what the witness says
(2) Overlapping: interrupting whoever is talking confuses the reporter
(3) Numbers, names and big words
(4) Exhibits: have to refer to exhibits in a way that a jury member will understand
(5) Gesturing/internal reference etc.
(6) Going off record
Getting Evidence admitted/excluded
à Testimonial Proof- Direct examination: direct examination must proceed by non leading questions (FRE 611(c)): leading questions may not be used on the direct examination of a witness except as may be necessary to develop the witness’ testimony, but allowed on cross examination generally.
o Rule 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 (impeachment)
o Testimonial Proof-cross examination: leading the witness is allowed; because it can invoke the conscience of the witness or expose limits or inaccuracies in his memory, focus his attention on important details
o Scope of direct rule: cross questioning is limited to matters explored on direct (allows lawyers to present their case in a coherent fashion)
à Real evidence: tangible things directly involved in the transactions or events in litigations
o Authentication: the trier of fact may not assume that the thing is what it seems to be, thus there is process to authenticate the item, either by stipulation or by testimony from a witness having first hand knowledge
à Demonstrative
e usual standard is to reverse a judgment only for error which “probably affected” the result
à Rule 103: Effect of erroneous ruling
à Error
o Reversible error: refers to a mistake that probably did affect the judgment, and the attorney raised an appropriate objection or made a formal offer of proof
o Harmless error: ruling did not affect judgment
o Plain error: warrants relief on appeal even though the appellant failed to take necessary steps to preserve the rights
o Constitutional error: in criminal cases, which usually means a mistake in admitting evidence for the prosecution that should have been excluded under the constitution
o Reversible errors turned into harmless errors
§ (1) Cumulative evidence doctrine: when a trial judge errs in admitting evidence but so much other evidence, which was proper, was admitted supporting the point so that the jury was not affected by the improper evidence
· The question to determine whether this doctrine is applicable is whether evidence erroneously admitted probably affected the outcome or whether evidence improperly excluded probably would have affected the outcome
o Yes ® corrective action necessary even if there is enough other evidence in the case to support the conclusion
§ (2) Curative Instruction: when a Judge commits an evidence error, he may be able to avoid reversal by means of an instruction to the jury
· limiting instruction: FRE Rule 105: when evidence which is admissible as to one party or for one purpose but not admissible as to another party or for another purpose is admitted, the court, upon request, shall restrict the evidence to its proper scope and instruct the jury accordingly
· Disregard: when judge instructs jury to disregard the evidence
· Excluding evidence: when a judge implies in his instructions that the issue has been or should be resolved in favor of the party who offered the evidence
§ (3) Overwhelming evidence doctrine: if a reviewing court concludes that the evidence properly admitted supports the judgment below overhwhelmingly, generally it affirms, even in the face of errors admitting or excluding evidence that might otherwise be considered serious (i.e. evidence sufficient to invite a directed verdict)
