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Evidence
University of Illinois School of Law
Pea, Janice Farrell

Introduction
I)       Generally
A)    MJ Article – Illustrates impeachment. Mother accused MJ of molesting her kid she was discredited by revealing a fraudulent welfare application that she had fired. CPA was an expert witness, required to show credentials before testimony was admitted & discuss the method that he used. Also illustrates that rehabilitation is possible – state could have rebutted the testimony with other character evidence.
B)    Terminology
i)        Witness – person who gives testimony in court.
ii)      Testimony – sworn oral report by witness of information relating to a legal dispute
iii)    Exhibit – physical object that is presented in evidence b/c it provides information relating to a legal dispute
iv)    Objection – motion made by a party asking the judge to exclude evidence
v)      Offer of Proof – information a party provides to the judge to show contents of evidence it has offered and to which an opposing party has made an objection. (if you have tried to admit evidence & objection has been sustained & it won’t come in, this is how you put on the record what you would have shown had the evidence been allowed.
vi)    Foundation – fact on which evidence must be presented before litigant is allowed to present evidence on some related matter
vii) Direct Examination – examination of a witness by a lawyer who calls her to the stand
viii)            Cross examination – examination of a witness by a lawyer for a party other than the one that called the witness
ix)    Leading question- suggests desired answer. Allowed on cross but not direct
x)      Impeachment – evidence that is used to show a witness, lied, made a mistake or testified incorrectly for some other reason
xi)    Rehabilitation – used to show a witness that has been impeached, did in fact testify accurately
xii) Personal knowledge – of a fact is knowledge based on a person’s own sensory perceptions, witness can only testify to matters within their personal knowledge
xiii)            Opinion – evidence of something the witness has not see or heard directly, but inferred from other information  
xiv)            Relevant – evidence which has a tendency to make some fact that matters in the case more or less likely. Relevance is a requirement for admissibility; irrelevant evidence is inadmissible.
xv) Unfair prejudice – the effect of evidence that confuses or misleads the trier of fact, or causes the trier of fact to decide the case on a legally improper basis
xvi)            Character evidence – evidence that is offered to prove a person is likely to have behaved in a certain way b/c she has personality to act that way. Generally inadmissible to prove how a person behaved out of court but some types can show impeachment
xvii)          Hearsay- evidence of a statement that was made at some earlier time, which is presented at trial to prove what the statement says is true
xviii)        Admission – any statement that was made by one party in the case and is then introduced in evidence by an opposing party. May be admitted even if it is hearsay and even if it was not based on personal knowledge or expresses an otherwise impermissible opinion.
xix)            Privileged information – information that a person or an organization has a right to withhold from judicial proceedings
xx) Expert witness – has special knowledge or training that may be useful to the trier of fact. Can testify to a much broader range of opinions than other witnesses, and frequently may base these opinions on hearsay or other inadmissible evidence
xxi)            Continuing objection- shorthand way of objecting to an entire line of questioning to get on the record
xxii)          Motion in limine – want the evidence kept out in advance, it’s a preemptive objection to try to have that evidence excluded
xxiii)        Admissibility
(a)    Admissible evidence is all evidence that can be heard by the relevant trier of fact
(b)   Admissibility Formula: (All Evidence)-(All Logically Irrelevant Evidence) –(Excluded Logically Relevant Evidence)=(All Admissible Evidence)
C)    Objections
i)        Objections to Content of Evidence – arguing that evidence is not admissible at all
ii)      Objections to Foundation of Evidence – argue that evidence is in admissible unless proponent can show something else first
iii)    Objections to Form of Questions – evidence may be admissible, but you asked the wrong sort of question (argumentative)
iv)    Objections to Timing & Sequence  – coming at the wrong time
D)    Preserving Errors for Review
i)        Evidence is presumed admissible – codified in FRE 402
ii)      The Parties Control the Case- parties are responsible for invoking rules of evidence 1) the are entitled to decide which objections to raise & when 2) judge needs to hear from the parties in order to know how to rule
iii)    Objections can be waived – if the party fails to object right away
(a)    Waiver/forfeiture also occurs if the objection is sustained but the objecting attn’y fails to make an offer of proof
(b)   Waiver v. forfeiture – some judges say waiver is intentional, while forfeiture is just oversight
iv)    Trial judge is Rarely Reversed
(a)    Rules of evidence do all their work at the trial court level
E)     Avoiding Waiver
i)        Objections to Admission of Evidence – purpose of timeliness requirement is to minimize harm – keep out inadmissible evidence in the first place or let the judge know about the harm
(a)    Unless judge allows continuing objection – must object every time witness is asked objectionable question or gives objectionable question or gives questionable answer
(b)   Have to make the correct objection
ii)      Escape Clauses
(a)    FRE 103(a)(1)- recognizes specific ground for an objection need not be stated if it is “apparent from the context”
(b)   FRE 103(a)(2) – if the substance of the evidence was apparent from the context w/in which questions were asked you don’t have to make any offer of proof at all
(c)    FRE 103(d) – plain error rule – an appellate court can decide to excuse non-compliance with these rules & to consider a claim that has been waived if it thinks an injustice has been done
F)     Harmless Error Rule
i)        Asks what effect the error had or reasonably may have had on the jury’s decision – usually this is an error that does not implicate the rights of the parties
ii)      FRE 103 – Error may not be predicated upon a finding which admits or excludes evidence unless a substantial right of the party is affected and
(a)    … a timely objection or motion to strike appears on the record, stating the specific ground of objection, if the specific ground was not apparent from the context; or
(b)   … the substance of the evidence was made known to the court by offer or was apparent from the context in which questions were asked
iii)    Illinois Supreme Court Rule 615(a)
(a)    Any error defect irregularity or variance which does not affect substantial rights shall be disregarded
(b)   To preserve an issue for appeal a D must object @ trial and must include the issue in a post trial motion
G)   Plain Error Rule
i)        FRE 103(d) – nothing in this rule precludes taking notice of plain errors affecting substantial rights although they were not brought to the attention of the court
ii)      Illinois Supreme Court Rule 615(a) – plain errors or defects affecting substantial rights may be notices although they were not brought to the attention of the trial court. Under this doctrine, forfeiture will be excused if the party can establish that”
(a)    The error is clear and obvious; and
(b)   Either
(1)   The evidence was closely balanced such that the error was prejudicial; or
(2)   The error was so serious that it affected the fairness of the defendant’s trial and challenged the integrity of t

ons for warrants
v)      Preliminary questions of fact
C)    Foundational Evidence – FRE 104(a) and 104(b)
i)        104(a) – Evidence required by a technical rule
(a)    E.g. – Competency of witness (FRE 602), decided by judge
(b)   E.g. – Hearsay Exceptions (e.g. – dying declaration, excited utterance), decided by a jury
ii)      104(b) – Conditional Relevance
(a)    Decided by jury
(b)   Subject to 104(a) ruling by judge under the “sufficiency of the evidence test”
(c)    Sometimes an item of evidence by itself  will have no relevance to any issue in a trial, but would be relevant if the trier of fact also had some other information
(1)   104(b): when the relevancy of evidence depends upon the fulfillment of a condition of fact, the court shall admit it, upon, or subject to, the introduction of evidence sufficient to support a finding of the fulfillment of the condition
(d)   The Process/ Analysis
(1)   Judges are supposed to admit evidence of this kind if its proponent has already produced the other material that shows its relevance to the trial or if the proponent promises to introduce contextual evidence later
(2)   Jury then decides whether the underlying context has been proven
(3)   If the judge finds that the proof is not sufficient, he can also instruct the jury to ignore the conditional evidence  
D)    Illustrations
i)        Problem II-4 Normand v. Sky Lift & Snow Bird Resort
(a)    Incorrect objection: irrelevant ,
(1)    if sustained by court
·         What would P, Normand have to do to preserve issue for appeal
·         Likely result on appeal
(2)   If overruled by trial court
·         Would D, Snow Bird have properly preserved issue for appeal by making the objection?
1.      they waived it by making the wrong objection – this is textbook hearsay evidence, but it is relevant
2.      plaintiff should have made an offer of proof as to what would have been testified to.
·         Likely result on appeal?
1.      it would have been affirmed on appeal if there was any reason to affirm
·         Why not let them bring the objection on appeal
1.      B/c the other party did not get a chance to argue their exception
(b)   Correct objection: hearsay
(1)   If Snow Bird had made the correct objection and the trial court had sustained it, how would the appellate court approach the issue on appeal by Normand?
·         The trial court would have sustained the objection & statement would not have been allowed in
·         Plaintiff must show an offer of proof to show why it would have been kept in, but even if she does so she will lose on appeal b/c this was properly excluded
(2)   If Snow Bird had made the correct objection and the trial court had overruled it, how would the appellate court approach the issue on appeal by Snow Bird?
ii)      II-7. Limited Admissibility.
(a)    What should you do to avoid testimony by P in a previous slip & fall case that will be damaging to you
(1)   Object; ask for cautionary instruction to limit the scope of what W can testify to; stipulate that your client did control sidewalk – this would make testimony irrelevant