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University of Georgia School of Law
Cook, Julian A.

Evidence Outline

Fall 2014

Professor Julian Cook


a. Making the Record; Trial Objections

i. Begins with the Federal Rules of Evidence, which some states have adopted, recently including Georgia

ii. Objections

1. Must be timely and specific

a. Make an objection to preserve one’s right to appeal an issue

b. However, failure to object does not bar one from raising, but results in the “Clear Error” standard

c. Remaking your objections prior to closing helps with a more favorable standard of review

2. Why does one object?

a. Prevent the jury from hearing whatever unfavorable testimony that is about to be said

b. Advocating for your client (have their best interest)

c. Opponent is not following the rules

3. Why should you object?

a. Effect on the jury (seems over aggressive)

b. Getting evidence admitted that is favorable to your case, even though objection is admissible

iii. Types of Evidence

1. Verbal/Oral Evidence

a. Testifying to facts that one saw or heard (one’s own recollection)

b. Opinions can be offered through expert testimony

i. One becomes an expert when they have knowledge that is beyond the common knowledge of the average person

ii. Experts do not mean someone who holds a higher degree or a prestigious profession

1. People who have just known something for a certain amount of years or has a great expertise in a field can offer an opinion

2. Physical/Tangible Evidence

a. Admitting the real (physical) evidence into the record

i. Ex. drugs, class ring, gun, etc.

b. Requirements of admitting real evidence

i. Authentication – making sure the evidence is what you say it is

1. Writings (letter, note, diary)

a. Ways to prove:

i. Person admits to the writing on the stand

ii. Obtain a witness that saw the individual compiling the writing

iii. Hand expert to make the writing to the person on the stands writing

iv. Familiarity with the defendant’s writing

ii. Must be brought through the chain of custody

1. Where an item, when found is placed in a bag, and initialed by the personnel who discovered it; ask that person to see if it is in the same form as when they found it

2. Only items that are familiar to everyone should be brought through the chain of custody

a. Ex. marijuana

c. Demonstrative Evidence – evidence shown to the jury but not admitted into evidence; something that serves as a visual aid to the judge/jury

i. Mostly used during opening and closing statements

ii. Always make sure you show the opposing party before introducing to make sure they agree with it

iv. Trial Practice

1. Leading Questions

a. Questions that suggest the answer

b. Rule 611(c) Leading Questions – should not be used on direct examination except as necessary to develop the witness’s testimony. Ordinarily, the court should allow leading questions:

i. On cross examination; and

ii. When a party calls a hostile witness, an adverse party, or a witness identifies with an adverse party

1. When you call a witness as your own, thinking they are going to be favorable to your client, however their story changes so you ask the court if you can lead them as if they were on cross

2. Do not allow it on direct because those who have the same litigative interest, is more inclined to go with the lead as opposed to answering the question truthfully

3. Preliminary facts are okay to direct leading questions to

4. Children: when a child tenses up and does not answer non leading questions, the court may allow the prosecution to ask the child leading questions on direct

2. Compound Questions

a. Asking two questions in one sentence

b. Not permitted at any time, neither on cross or direct

i. Ex. you went to the house and you shot him, didn’t you?

3. Cross Examination

a. Try to get the person to supplement or clarify answers to earlier questions

b. Attack the perception or the capacity of the witness (discredit them or things they say)

c. Contradict their testimony with other versions of events

d. Bring up prior criminal history, character, etc. (to a certain extent)

e. Show the witness has a certain bias/prejudice

i. Main point: all of cross examination serves to lower the credibility of the witness in the eyes of the trier of fact

4. Order of Proof

a. Used when a judge sustains an objection

b. Allows judge to hear/view testimony outside the jury’s sight or hearing

5. Post-Trial Measures

a. Jury Polling – where each juror states how they ruled individually

b. Appeal – argue that the trial court erroneously admitted certain evidence


a. FRE 401 Definition of “Relevant Evidence”

i. “Evidence is relevant if” it has any tendency to make a fact more or less probable than it would be without the evidence and the fact is of consequence in determining the action

b. FRE 402 Relevant Evidence Generally Admissible; Irrelevant Evidence Inadmissible

i. All relevant evidence is admissible, except as otherwise provided by Constitution, by Act of Congress, by these rules, or by other rules prescribed by the Supreme Court pursuant to statutory authority

ii. Evidence which is not relevant is not admissible

iii. Generally

1. The rule is construed very liberally

a. To be admissible, evidence must (1) go to a material fact and (2) simply increase or decrease the probability of it being true

2. **Do not confuse this with weight and admissibility**

a. Relevance means having ANY TENDENCY to be admitted

3. Key Approach:

a. Identify the Proposition or Material Fact you are trying to prove

b. Evaluate whether the evidence has “any tendency” to make p

ndants testifying that they saw defendant running out of the bank with money

3. Confusion of Issue – arises when evidence is presented that would confuse the jury as to what the issues are before that court

4. Misleading the Jury – evidence that would act to mislead the jury in a wrong direction

5. Undue Delay/Waste of Time – evidence of very little probative value and taking up lots of time

iii. Case Law

1. Old Chief v. United States – D is charged with possession of firearm with a prior felony conviction. D is fine with admitting evidence of his prior felony, but wants it admitted with introducing what the actual offense he was charged with

a. P wants to introduce the violent nature of the previous crime

b. Ds claim is that the probative value is substantially outweighed by the unfairly prejudicial effect

c. Rules:

i. Prior Convictions and 403

1. Evidence of a prior conviction is subject to 403 analysis for relative probative value v. prejudicial risk of misuse as propensity evidence

2. Evidence of the name or nature of the prior offense generally carries with it unfair prejudice to D

a. Where the prior offense was for a crime similar to the charges that are in front of the court now, the risk of unfair prejudice is especially obvious

d. Holding – inadmissible under Rule 403; state must accept D’s offer to stipulate prior

i. P in this instance can redact the information that makes it prejudicial to the defendant

2. Ballou v. Henri Studios – P runs over D’s employee. The evidence at issue is the blood test performed after accident showing that P was severely intoxicated. P objected and made an offer of proof that a nurse who treated him moments before the accident said that he did not seem drunk or did not smell like alcohol

a. Issue: whether the blood alcohol level test should have been admitted under Rule 403

b. Trial Court: prohibited the evidence of P’s intoxication based on unfair prejudice (lack of credibility)

c. Appeals Court: reversed and found the test admissible because it was relevant

i. Rule: 403

1. Does not exclude evidence based on credibility

2. First determine if the evidence is relevant and then do a 403 balancing analysis

ii. COOK: when you have competing evidence, credibility becomes a jury issue, not an issue of what is unduly prejudicial