Julian Cook-Evidence- Fall 2015
Basic Principles
A. Beginning questions: Why object to evidence?
Preserve it for later appeal based on how it was handled or whether admission was an error.
Most objections are non-constitutional objections.
-Evidence objections must be timely and specific.
FRE 103-Rulings on Evidence
Preserving a claim of error- a party may claim error in a ruling to admit or exclude evidence only if the error effects a substantial right of the party and if the ruling admits evidence a party on the record timely objects or moves to strike and states the specific ground unless it was apparent from the context or if the ruling excludes evidence, a party informs the court of its substance by an offer of proof, unless the substance was apparent from the context.
Taking notice of plain error-a court may take notice of a plain error affecting a substantial right, even if the claim of error was not properly preserved.
However, if you fail to object, you can still have an appeal available if it is a plain error.
-Ex. Judge fails to give jury instructions.
-Polling the jury: ask the jury if this is their true verdict.
B. Rule 611c1: no leading questions on direct examination except as necessary to develop the witnesses testimony
Why? The lawyer is giving testimony instead of the witness giving it.
FRE 611- Mode and order of examining witnesses and presenting evidence
Control by the court- the court should exercise reasonable control over the mode and order of examining witnesses and presenting evidence so as to make those procedures effective, avoid wasting time, and protect witnesses from harassment or undue embarrassment.
Scope of cross-examination- cross examination should not go beyond the subject matter of the direct examination and matters affecting the witness’s credibility. The court may allow inquiry into additional matters as if on direct examination.
Leading questions- 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 on cross examination and when a party calls a hostile witness, an adverse party, or a witness identified with an adverse party.
-Exceptions:
However, courts will allow leading questions in preliminary questioning so that the process goes much quicker, when facts not in dispute, witness gives surprise answer, refresh witness memory Also can lead with hostile or adverse party, child witness, or a witness or cross exam.
-Questions must be one at a time so as not to confused the jury, witness, and court reporter.
B. Types of Evidence
Tangible evidence: writing, murder weapon, drugs, etc.
Two types: demonstrative: not real evidence, not admissible or on the record.
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
B. MUST be verified:
2. 2 ways to verify
A. Get a stipulation from opposing counsel; OR
B. W lays foundation on stand that evidence accurately reflects what attorney says it is
Real: actual murder weapon, writings, direct evidence used to establish facts.
-Writings can be proven who it was written by in many ways to be admitted
-Witness, handwriting expert, admissal.
-Experts can testify to something they didn’t witness first hand.
Chain of custody is important for real evidence that consists of a non-unique item.
Why? How else to identify it if it is non-unique.
FRE 901-Authenticating or Identifying Evidence
In general- to satisfy the requirement of authenticating or identifying an item of evidence, the proponent must product evidence sufficient to support a finding that the item is what the proponent claims it is.
Examples: testimony of a witness with knowledge, non-expert opinion about handwriting, comparison by an expert witness or the trier of fact, distinctive characteristics and the like, opinion about a voice, evidence about a telephone conversation, evidence about public records, evidence about ancient documents or data compilation, evidence about a process or system.
FRE 902- Evidence that is self-authenticating
-Domestic public documents that are sealed and signed- a document that bears a seal purporting to be that of the US, any state district, etc of the US, and a signature purporting to be an execution or attestation.
-Domestic public documents that are not sealed but are signed and certified.
-Certified copies of public records
-Official publications
-newspapers and periodicals
Best Evidence Rule:
Need either an original or a duplicate
FRE 1002- Requirement of the original
-Need original writing, recording, or photograph to prove content unless other rule provides otherwise
FRE 1003- Admissibility
ation of a party to introduce evidence that persuades the factfinder, to a requisite degree of belief, that a particular proposition of fact is true (MORE LIKELY THAN NOT). Burden cannot shift in a criminal case and stays with the Govt. If burden is not met, directed verdict.
In a civil case: preponderance of the evidence
In a criminal case: beyond a reasonable doubt
3. Burden of production—> duty of producing evidence
If burden of production isnt met, case wont get to jury because the burden has not been met. This is a question of law.
-Must produce evidence that makes out a prima facie case by a preponderance of the evidence to get to the jury in a civil case.
Burden can be on the Defense to produce evidence to defenses raised.
In criminal cases, burden of production is often on the government but the burden of persuasion is ALWAYS on the government.
In civil case, plaintiff has burden of production as well as the burden of persuading the trier of fact that you have met all the elements needed to prove the case.
4. Presumptions involve a relationship between a proven or admitted fact or a group of facts.
Presumption of law or irrebuttable presumption.
FRE 302- Applying state law to presumptions in civil cases
In a civil case, state law governs the effect of a presumption regarding a claim or defense for which state law supplies the rule of decision.
Ex. If A is shown, B is presumed.
Court will not even hear evidence to show the non existence of B. Only A is needed to prove B.
The inference of one fact from another.
When a party produces evidence of a particular fact, then the jury can be instructed that it can presume something that else that follows therefrom
A. Irrebuttable: Exceedingly rare—if created the other party CANNOT rebut
B. Rebuttable: Most are this—if raised then the other party may rebut
A. NOTE: Presumptions only affect the Production Burden
