Evidence Outline

EVIDENCE: Fall 2014

Professor: John Barkai

OBJECTIONS & OFFERS OF PROOF: Rule 100 Series

Applicability Of Rules H/FRE Rule 1101

Applies To: Civil Actions, Criminal Proceedings (not petty offense-magistrate), Contempt Actions (Except Summary Type), Privileges at ALL Proceedings in ALL Cases

Does NOT Apply To: Grand Jury, Sentencing, Issuance of Warrants, Bail Hearings, Extradition Proceedings, Preliminary Questions of Fact under Rule 104, Conflicting Civil Rule (Rules 56(e) and 26(b)(1)).

HRE 1102: No similar FRE

FRE 103 Rulings on Evidence.

(a) Preserving a Claim of Error. A party may claim error in a ruling to admit or exclude evidence only if the error affects a substantial right of the party and

(1) if the ruling admits evidence, a party on the record:

(A) timely objects or moves to strike; and

(B) states the specific ground, unless it was apparent from the context; or

(2) 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.

(b) Not Needing to Renew an Objection or Offer of Proof. Once the court rules definitively on the record – either before or at trial – a party need not renew an objection or offer of proof to preserve a claim of error for appeal.

(c) Court’s Statement About the Ruling; Directing an Offer of Proof. The court may make any statement about the character or form of the evidence, the objection made, and the ruling. The court may direct that an offer of proof be made in question-and-answer form.

(d) Preventing the Jury from Hearing Inadmissible Evidence. To the extent practicable, the court must conduct a jury trial so that inadmissible evidence is not suggested to the jury by any means.

(e) 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.

HRE 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.

(c) Hearing of jury. In jury cases, proceedings shall be conducted, to the extent practicable, so as to prevent inadmissible evidence from being suggested to the jury by any means, such as making statements or offers of proof or asking questions in the hearing of the jury.

(d) Plain error. Nothing in this rule precludes taking notice of plain errors affecting substantial rights although they were not brought to the attention of the court.

FRE 105 Limiting Evidence That Is Not Admissible Against Other Parties or for Other Purposes. If the court admits evidence that is admissible against a party or for a purpose – but not against another party or for another purpose – the court, on timely request, must restrict the evidence to its proper scope and instruct the jury accordingly.

HRE 105 Limited Admissibility. 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.

Limited Admissibility Doctrine

Evidence admissible for one purpose but inadmissible for another purpose [e.g., to impeach but not for the truth], or

Evidence admissible against one party but not admissible against another [co-defendants]

Evidence is admissible for a “limited purpose” – it can’t be used on every issue in the case.

JUDICIAL NOTICE: Rule 200 Series

FRE 201 Judicial Notice of Adjudicative Facts.

(a) Scope. This rule governs judicial notice of an adjudicative fact only, not a legislative fact

(b) Kinds of facts that may be judicially noticed. The court may judicially notice a fact that is not subject to reasonable dispute because it:

(1) is generally known within the trial court’s territorial jurisdiction; or

(2) can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned.

(c) Taking notice. The court:

(1) may take judicial notice on its own; or

(2) must take judicial notice if a party requests it and the court is supplied with the necessary information.

(d) Timing. The court may take judicial notice at any stage of the proceeding.

(e) Opportunity to be heard. On timely request, a party is entitled to be heard on the propriety of taking judicial notice and the nature of the fact to be noticed. If the court takes judicial notice before notifying a party, the party, on request, is still entitled to be heard.

(f) Instructing the Jury. In a civil case, the court must instruct the jury to accept the noticed fact as conclusive. In a criminal case, the court must instruct the jury that it may or may not accept the noticed fact as conclusive.

HRE 201 Judicial Notice of Adjudicative Facts.

(a) Scope of rule. This rule governs only judicial notice of adjudicative facts.

(b) Kinds of facts. A judicially noticed fact must be one not subject to reasonable dispute in that it is either (1) generally known within the territorial jurisdiction of the trial court, or (2) capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned.

(c) When discretionary. A court may take judicial notice, whether requested or not.

(d) When mandatory. A court shall take judicial notice if requested by a party and supplied with the necessary information.

(e) Opportunity to be heard. A party is entitled upon timely request to an opportunity to be heard as to the propriety of taking judicial notice and the tenor of the matter noticed. In the absence of prior notification, the request may be made after judicial notice has been taken.

(f) Time of taking notice. Judicial notice may be taken at any stage of the proceeding.

(g) Instructing jury. In a civil proceeding, the court shall instruct the jury to accept as conclusive any fact judicially noticed. In a criminal case, the court shall instruct the jury that it may, but is not required to, accept as conclusive any fact judicially noticed.

Judges treat judicial notice in a very conservative manner; they don’t want to look stupid

Trial judges don’t take judicial notice of adjudicative facts very easily/often

Appellate judges often take judicial ntc of legislative facts that fills out the reasoning behind their opinions

FRE only adjudicative facts (legislative facts are the background stuff)

5 common issues of judicial notice

· Is it an appropriate subject for J/N

· Is it an inappropriate inference?

· Is it the judge’s personal knowledge? (it’s not supposed to be the judge’s personal knowledge)

· Can take J/N at any time (even appeal)

· Jury instruction

o Civil = “shall”

o Criminal = “may”

Hawaii jury instructions

· 3.05 Criminal: You may but are not required to accept, as conclusively proved, any fact or event which the court has judicially noticed

· 4.8 Civil: The Court may take judicial notice of certain facts. When the Court says that it takes judicial notice of some fact, the jury must accept that fact as conclusively proved.

HRE 202 Judicial Notice of Law.

(a) Scope of rule. This rule governs only judicial notice of law.

(b) Mandatory judicial notice of law. The court shall take judicial notice of (1) the common law, (2) the constitutions and statutes of the United States and of the United States and of every state, territory, and other jurisdiction of the United States, (3) all rules adopted by the U.S. Supreme Court or by the Hawaii Supreme Court, and (4) all duly enacted ordinances of cities or counties of this State.

(c) Optional judicial notice of law. Upon reasonable notice to adverse parties, a party may request that the court take, and the court may take, judicial notice of (1) all duly adopted federal and state rules of court, (2) all duly published regulations of federal and state agencies, (3) all duly enacted ordinances of municipalities or other governmental subdivisions of other states, (4) any matter of law which would fall within the scope of this subsection or subsection (b) of this rule but for the fact that it has been replaced, superseded, or otherwise rendered no longer in force, and (5) the laws of foreign countries, international law, and maritime law.

(d) Determination by court. All determinations of law made pursuant to this rule shall be made by the court and not by the jury, and the court may consider any relevant material or source, including testimony, whether or not submitted by a party or admissible under these rules.

BURDENS & PRESUMPTIONS: Rule 300 Series

2 Types of BURDENS:

1. Burden of PRODUCTION (“going forward,” “producing evidence”)

· If P has a burden to produce evidence and fails, then P will lose

· Burden of production can shift during trial

2. Burden of PERSUASION (FRE) or Burden of PROOF (HRE) (risk of non-persuasion)

· If P doesn’t produce enough evidence, then P will lose

· Burden of persuasion does not shift during trial

Standards

· Burden of Production

o Civil case

· Party bearing the burden must come forward with enough evidence so that a reasonable jury can conclude by a preponderance of the evidence that the fact exists

o Criminal Case

· Party bearing the burden must come forward with enough evidence that a reasonable jury could conclude beyond a reasonable doubt that the fact exists

· Burden of Persuasion (FRE) or Proof (HRE)

o Civil case

· Preponderance of the evidence (more probable than not)

o Criminal case

· Beyond a reasonable doubt

o Civil case with criminal relation

· Clear and convincing evidence (intermediary standard)

PRESUMPTIONS (basic fact established à presumed fact assumed)

· Created on the basis of (1) probability, (2) convenience, and (3) fairness & social policy

· Jury instruction about the presumed fact

2 presumption theories

1. Bursting Bubble (FRE 301, HRE 303)

· Presumptions are for procedural convenience and operate only in the absence of any evidence of the presumed fact.

· Presumptions shift the burden of production (if you don’t produce, you lose).

· Challenge to FRE 301 or HRE 303 à jury instruction on presumption NOT given

2. Continuing Effect (HRE 304)

· Presumptions should be given greater weight and are created for reasons of policy, not just procedural convenience.

· Presumptions shift both the burden of production and the burden of proof

· Challenge to HRE 304 à jury instruction on presumption IS given

· Gives little weight to 303 presumptions

BURDENS:

The burden of PRODUCTION: (initial burden)

Called the “burden of going forward” (e.g. ∏ has the obligation to go forward with evidence on causation in a personal injury case. If ∏ fails to produce any evidence on this fact, then ∏ will lose)

If you don’t produce evidence, everyone goes home!

Burden of Production as to an issue MAY shift during trial (e.g. ∏ may have the burden of showing ∆ had notice. If ∏ comes up with evidence that ∆ received notice, the burden shifts to ∆, who may then testify that he did not receive notice. The burdeent then shifts back to ∏)

The burden of PERSUASION: (ultimate burden)

Called the “Burden of Proof” (e.g. evidence to support a finding, preponderance ~ 50%+ [civil], clear and convincing ~ 70-80%, beyond a reasonable doubt [criminal]~80-90%)

If you don’t produce enough evidence, you lose!

Burden of Persuasion as to an issue does NOT shift the trial

Persuasion is about who will ultimately WIN at trial

On most issues in civil cases, burden of production and burden of persuasion are on the plaintiff. Deft generally will bear both burdens as to a defense.

Collection of issues that plaintiff bears the burden of production on is often called a prima facie case.

In criminal cases, the due process clause requires burden of production and persuasion be on the State as to an element of the charge. (An element of a crime is part of basic definition of the crime.)

The deft may be required to bear both burdens as to an affirmative defense. But State may not place a burden on Deft that is tantamount to an element.

Satisfying the Burden of Proof:

• In civil cases, on most issues, the party bearing the burden of production must adduce enough evidence such that a reasonable jury could conclude by a preponderance of the evidence that the fact exists.

• It is the judge who decides if the party bearing the burden of production has satisfied that burden.

• The plaintiff will have to satisfy that burden with a witness or real evidence to prove that issue.

The defense can satisfy its burden by cross-exam of a plaintiff’s witness.

Satisfying the Burden of Persuasion:

• On most civil issues, the burden of persuasion must be satisfied by a showing that the fact exists by a preponderance of the evidence (some issues are subject to clear and convincing standard).

• Most courts will refuse to find that the burden has been met by purely statistical evidence (60% of blue buses in town are owned by Deft)

• In criminal cases, prosecution’s burden is beyond a reasonable doubt as to elements of offense (as to other issues such as voluntariness of confession, preponderance is the standard)

PRESUMPTIONS:

PRESUMPTION = A presumption is a mechanism by which the law presumes certain facts to be true by proof of other facts. It is a procedural rule that requires that the PRESUMED FACT be assumed when the BASIC FACT is established. (i.e. If you prove the BASIC fact, you get the PRESUMED fact for free…2 for 1 deal)

Nobody likes presumptions (professors, lawyers, judges)!

“Presumption of innocence” = “Pre-evidentiary Assumption”, according to HRE 301 (doesn’t require any basic facts)

HRE have codified presumptions more than FRE

Main Q: Do you get a jury instruction? (you only get presumptions through jury ins