a. Burden of Proof
i. Plaintiff needs to prove case by preponderance of evidence; case in chief
A. Defense’s Case in Chief
B. Plaintiff’s Rebuttal
C. Defense’s Rejoinder
b. Reasons for Rules of Evidence
i. Mistrust of juries
ii. Substantive policies related to the matter being litigated
iii. Substantive policies unrelated to the litigation
iv. To ensure accurate fact finding
v. To control the scope and duration of the trial.
II. Direct and Cross Examinations
a. Rule 611(a): Court controls method of questioning witnesses as well as presenting evidence, so as to:
i. Ascertain the truth
ii. Avoid wasting time
iii. Protect witnesses
b. Direct Examinations
i. Rule 611: Leading questions should not be used on direct examinations
1) To develop witness’s testimony
2) Hostile Witnesses, Adverse Parties, or persons identified with Adverse Parties
i. Example: Plaintiff can ask Defendant leading questions on direct examination
ii. Example: Plaintiff can ask Defendant’s girl friend leading questions on direct examination
c. Cross Examinations
i. Rule 611: Leading questions can be used on cross-examinations
ii. Scope of Cross Examinations
1) Can ask subject matter of direct examination [611(b)] i. As long as it is ‘generally’ under the subject matter of the direct; doesn’t necessarily have to be very specific
ii. Example: asking someone on cross about other possible causes that may have contributed to greater accident
2) Can ask matters relating to the credibility of a witness.
3) Other, discretion of judge.
d. Problem 1E: Plaintiff calls a passenger to his car as witness. Defendant crosses the passenger.
i. Can ask if passenger sees the plaintiff socially, b/c goes to credibility
ii. Can ask if passenger saw plaintiff doing something distracting because this is “generally” about the cause of the accident and thus pertains to subject matter of direct.
iii. Argument may be made about scope but judge will probably allow it
e. Rule 104: Preliminary Questions of Witnesses
i. Certain preliminary Questions will be allowed, on Judge’s disretion so that just can Judge decide:
A. Qualification of person to be witness
B. Existence of a witness
C. Admissibility of Evidence
ii. Judge decides whether, by preponderance of evidence, jury could find certain facts
III. Appealing an Evidentiary Error
A. Generally, wait until final judgment before make appeal
A. Was there an evidentiary error?
B. Was the error objected to in a timely manner? (see 103 a(2) )
1) Parties need to object to preserve matter for appeal
2) Generally, object after question, before answer.
3) Give basis for objection
i. EXCEPTIONS FOR OBJECTING: Plain Error
C. Did the error affect a substantial right? (see 103 a(1) )
1) Probably affected outcome of case?
iii. Rule 103 a(1): The ruling admitting or excluding evidence must affect a substantial right of the party; in other words, it probably affected the outcome of the case
i. If regarding a rule ADMITTING evidence
1. a(2) A timely objection or motion to strike with specific ground for objection must be made, if not apparent from context.
ii. If regarding a rule EXCLUDING evidence
1. Party who wants evidence admitted can inform court of substance of evidence by giving an ‘offer of proof’, unless substance is already apparent from context.
If court makes a definitive ruling admitting or excluding evidence, a party need not renew objection or offer of proof. [103a] Trial courts have a lot of discr
dence that there was a stop sign, construction, after H saw G speeding.
3) Stories with Potential causes will be seen as relevant
i. Problem 2-B:
1. Arthur injured by concrete that falls from overpass. He sues Buildright construction company. A shows that B was working on overpass. B offers C’s testimony that four boys running from bridge during time concrete fell.
2. Consequential fact – boys caused the accident
3. Boys running away has tendency to make the fact the boys caused the accident more probable than without the evidence.
4. Other side of argument: Boys run for lots of reasons, especially if they are four blocks away.
5. But, b/c of timing judge would tend to find that it falls within definition.
4) Problem 2-D:
i. B falls at store and gets injured. B presents evidence that floor was over-waxed
ii. B calls store manager as witness – who testifies about his prior falls and others’ falls
iii. Prior falls relevant?
iv. Consequential fact: Women fell b/c floor is over-waxed
v. Evidence that store owner fell makes fact that women fell b/c of over-waxed floor than without the evidence.
B. RULE 403
1) Relevant evidence may be excluded if the probative value of the evidence is substantially outweighed
i. By the danger of
1. Unfair prejudice
2. Confusion of the issues or
3. Misleading the jury
– Probabilistic evidence-see below