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Evidence
University of Illinois School of Law
Johnson, Eric A.

1) Questions
a) Is evidence relevant?
b) Is evidence excludable?
c) Is the evidence barred by the character rules?
2) Reasons for Rules of Evidence
a) Mistrust of juries
b) Substantive policies related to the matter being litigated (burdens of persuasions and presumptions)
c) Substantive policies unrelated to the litigation (rules that affect behavior outside courtrooms) à societal values and privileges
d) To ensure accurate fact-finding
e) To control the scope and duration of the trial
Introduction
1) Scope of FRE
a) RULE 101 – Scope of FRE – rules govern the proceedings in courts of the U.S.
b) RULE 1101 – Provides exceptions to this rule
i) (a) Courts — District courts [Guam, Virgin Islands, Northern Marina Islands], Courts of Appeals, Bankruptcy Courts.
ii) (b) Proceedings – civil actions [admiralty & maritime], criminal cases [except contempt proceedings in which the court may act summarily & proceedings under title 11] iii) (c) Privileges – this rule applies to all actions
iv) (d) Rules inapplicable – FRE does not apply to:
(1) Preliminary questions of fact. Preliminary to admissibility of evidence when determined by the court underFRE 104
(2) Grand jury proceedings – FRE do not apply (e.g. hearsay rule doesn’t apply)
(3) Miscellaneous proceeding – extraditions, preliminary examination of criminal cases,; sentencing, bond hearings; issuance of warrants [search or arrest]; bail proceedings.
(i) E.g. Arbitration – Rules of evidence are there because we mistrust juries, since there are no juries in arbitration we don’t need the evidence rules
2) Structure of Trial (in the following order)
a) Overall structure
i) Jury Selection
ii) Opening Statement
iii) Presentation of Proof
iv) Trial Motions
v) Closing Argument
vi) Instructions
vii) Deliberations
viii) Verdict
ix) Judgment and Post Trial Motions
x) Appellate Review
b) Order at Trial
i) Plaintiff’s case in chief
ii) Defendant’s case in chief
iii) Plaintiff’s Rebuttal
iv) Defendant’s Rejoinder
3) Purpose and Construction
a) FRE 102– rules should be construe to secure fairness, eliminate delay & expense and promote the ascertaining of truth.
4) Questioning of witness
a) RULE 611(a) – Control by the court
i) The court controls the questioning of witnesses and the method of presenting evidence for purposes of
(1) Ascertaining truth
(2) Avoiding waste of time
(3) Protecting witnesses [harassment & undue burden] b) RULE 611 (c) –leading questions
i) No leading questions on direct except as necessary to develop witness’ testimony
(1) Information about background and where he lives then this is okay to lead the witness
(2) Question that suggest the answer is a leading question
(a) Not obvious by the question itself
(b) As a general matter, we look at it as a question that suggests the answer
ii) Leading questions permitted on cross
iii) Leading questions permitted if party calls hostile witness, an adverse party or a witness identified with an adverse party
(1) If plaintiff calls someone from the defendant, then you can ask leading questions of the witness
(2) Witness identified with the adverse party
c) Structure of questioning (in this order)
i) Direct
(1) Must be non leading questions – Rule 611(c)
(2) Objective
(a) Bring out background information (might allow for leading questions in this)
(b) Lay the foundation – show witness has personal knowledge of situation
(c) Substantive Questions
ii) Cross
(1) Leading questions are permitted – 611(c)
(a) Invokes the conscience of the witness and awaken his memory sufficiently to dislodge him from his previous version of events in favor of what he himself considers a more complete or accurate version
(b) Expose limits or inaccuracies in his memory
(c) Focus his attention on important details
(2) RULE 611 (b) – Scope of Cross-Examination
(a) Subject matter of the direct examination (Scope-of-direct rule)
(i) Critique: Hard to administer and prevents relevant information
(ii) Benefits: Order of proof, Limits waive of 5th Amendment caused by accused testifying, and allows for prosecutor not to vouch for witness that becomes D’s though damaging testimony
(b) Matters affecting the credibility of the witness
(i) E.g. some type of bias towards the person calling the witness – wife of plaintiff in discrimination
(c) Judge’s discretion to permit questions on additional matters, as if on direct
(i) Judge might let something else in that are not in the first two categories
(ii) You can only use non-leading questions on these additional matters
iii) Redirect
iv) Re-cross
d) Types of Evidence
i) Real – tangible things directly involved in the transaction or events in litigation – weapons, wound, written terms of contract
(a) Introduction: lay the foundation (authentication)
ii) Demonstative – tangible proof that in some way makes graphic the point to be proved – created for illustrative purposes such as diagrams, photographs, maps, and models
(a) Introduction: by testimony
iii) Writings – provide a means to prove what someone has said about a matter in dispute – lab reports, medical records
(a) The best evidence doctrine: requires the production of writings
7) Appealing Evidentiary Error
a) Objections
i) Policy
(1) Provide parties a fair opportunity to make their case, but not an endless one
(2) Limits risk
(3) Helps the trial court – rules are not memorized by judges
(4) Helps the offering party cure o

er court
iii) Adversary system – burden is on the litigators to get it right
8) Judge’s Discretion
a) RULE 104 (a)
i) Subject to (b), the judge decides certain preliminary questions:
(1) Qualification of a person to be a witness (e.g. competency, expert)
(2) Existence of a privilege
(3) Admissibility of evidence
ii) The judge is not bound by FRE in deciding these preliminary questions except those with respect to privileges.
b) RULE 104 (b)
i) Judge decides by a preponderance of the evidence (more likely than not) whether a reasonable jury could find certain facts
ii) If judge decides a reasonable jury could find certain facts, the jury makes the determination whether these facts are more likely than not
iii) (b) If relevancy of evidence depends upon the fulfillment of a condition of fact, the court shall admit it upon the introduction of evidence sufficient to support a finding of the fulfillment of the condition

Judicial Notice
1) Options for Judicial notice
a) Judicial Notice – process by which a court determines certain matters w/o need of proof
b) Adjudicative facts are more specific than legislative facts [having to do w/ parties in the litigation rather than general facts about society or knowledge] i) Adjudicative facts—facts that bear on the resolution of a case
ii) Legislative facts –facts considered by the court in ruling on a question of law. May include legislative history or non-legal matter, whether scientific, sociological, or historical generalizations. àNo instruction given b/c beyond the province of the jury.
iii) Evaluative facts –matters of common knowledge that judges and jurors bring to their deliberations. Facts that may come from life experience, natural tendencies, and inclinations of human beings. E.g. meanings of words, idioms, and slang expressions (i.e., meaning of a nod). à Instruction of evaluative facts is sometimes give by telling the juror that he may consider their general knowledge.
c) RULE 201 – Adjudicative facts
i) Judicial notice –relieves the party from the burden of presenting proof on the issue.
(1) (a) Scope — rule governs only adjudicative facts