I. TRADITIONAL CONCEPTS OF EVIDENCE
a. Before the creation of the Federal Rules of Evidence (FRE), admissibility of evidence focused broadly on three concepts:
i. The legal eligibility of something to be considered as evidence.
ii. Competence is a question of law to be decided by the judge.
iii. There are four “elements” that should be taken into consideration when determining the competence of evidence:
a. A witness must take an oath and understand its meaning in order to testify.
a. The witness must have in some way perceived the information that they are going to offer. (Seen, heard, smelled, tasted, etc. something).
a. The witness must be able to communicate to the court what they have perceived.
a. Must remember, have some recollection, etc. of what they perceived.
iv. Ex: Determining if a child understands that they must be truthful, is able to tell the court what happened, etc.
i. The logical connection between a fact and a premise.
ii. Can a logical inference be made from a fact tending to prove something?
i. Does the evidence have some sort of importance/impact on the case at hand?
e. Real Evidence
i. Real evidence refers to tangible objects, such as a gun, drugs, products, and blood.
f. Extrinsic Evidence
i. Extrinsic evidence is something other than statements by the witness being questioned.
g. Demonstrative Evidence
i. Demonstrative evidence is evidence that is not the actual thing, but represents the actual thing.
ii. Ex: Photographs, videotapes, diagrams, models, drawings, anatomical charts and models, maps, and computer graphics and animations.
iii. Demonstrative evidence must “fairly represent” the real thing; there is no requirement that it be to scale.
II. FEDERAL RULES OF EVIDENCE (FRE)
a. Bundle of rules controlling the admissibility of evidence allowing attorneys to anticipate scenarios that are likely to be an issue in presenting their theory of the case.
b. The FRE avoid a system that would allow free proof (letting any and all information be permitted in court without formal rules or restrictions).
c. The goal of the FRE is to allow for a presentation of the case that gets to trial truth (the real truth) of the matter using:
i. Live witnesses;
iii. Real evidence (bullets, guns, etc.);
iv. Demonstrative evidence
1. Evidence created for purposes of persuasion at trial; not “real evidence” actually related to the case.
d. Arguments should always be made using the language of the rule at issue.
e. Beckett’s Checklist Process for any Evidence Issue (ReCAP-BE-HEO)
v. Best Evidence Rule;
vi. Hearsay (and Exceptions);
vii. Opinions (lay and expert).
f. Avoiding Free Proof/Enforcing the FRE
i. If a question or evidence violates the FRE, the attorney generally must object and state the grounds for his exception.
ii. Objections are made to questions; motions to strike are made in response to answers.
g. If you make the wrong argument at trial (don’t make the correct objection) then you may lose your right to make that argument on appeal.
i. When making an objection/motion to strike, the attorney should make clear what the specific ground for the objection/motion to strike is to preserve issues for appeal.
h. In order to preserve an issue where the attorney believes the judge erred in admitting or denying the admittance of evidence, he can also make an offer of proof so that what the evidence would have been is on the record.
i. This can be done by summary or by question and answer.
1. Summary is simply the attorney summarizing what the evidence would have been; question and answer is actually asking the questions of the witness.
2. Generally, you would prefer to have a question and answer offer of proof over a summary.
i. Burdens of Proof
i. The burden of proof is generally on the party that is trying to change the status quo.
ii. For example, a partying trying to introduce evidence, tying to exclude evidence, etc. would have the burden of proof.
j. FRE 611. Mode and Order of Interrogation and Presentation(a) Control by court. The court shall exercise reasonable control over the mode and order of interrogating witnesses and presenting evidence so as to (1) make the interrogation and presentation effective for the ascertainment of the truth, (2) avoid needless consumption of time, and (3) protect witnesses from harassment or undue embarrassment.(b) Scope of cross-examina
he defendant is a witness and requests a hearing.
3. There is a strong preference that preliminary questions of evidence be determined out of the jury’s presence.
iv. FRE 104(d) Preliminary Testimony by the Accused
1. The accused does not, by testifying upon a preliminary matter, become subject to cross-examination as to other issues in the case.
v. FRE 104(e) Weight and Credibility of Evidence
1. Rule 104 does not limit the right of a party to introduce evidence before the jury relevant to the weight or credibility of evidence.
vi. This rule assumes that attorneys will raise evidentiary issues at the appropriate time, which should be as early in the proceedings as possible.
vii. Motions in limine can be used as a preliminary matter to keep something out of evidence or to get it into evidence.
viii. The 104 standard of proof for civil and criminal trials is the preponderance of the evidence.
d. FRE 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 if it 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.