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Evidence
University of Illinois School of Law
Thomas, Suja A.

Evidence Outline
Prof. Thomas, Fall 2009

I. Evidence Law and the System (Chap. 1)

A. Why Rules of Evidence?
1) Why Evidence Law at All?
i. Mistrust of juries – a lay jury cannot do a good job in evaluating statements made outside its presence, thus the hearsay doctrine
ii. To serve substantive policies relating to the matter being litigated
iii. To further substantive policies unrelated to the matter in litigation; i.e. privileges
iv. To ensure accurate fact-finding
v. To control the scope and duration of trials
2) Why Rules Rather than Common Law?
i. Ease of accessibility
· Rules apply across both criminal and civil cases, and generally apply whether federal or state law (diversity cases, where fed courts use state substantive law, they apply state evidence rule in some areas)
· Majority of states have adopted federal rules as state rules

Many states have adopted the Federal Rules of Evidence (FRE), but IL isn’t one of them!
IL uses a blend of statutory, common law, and judicial rules.
FRE doesn’t apply for grand juries or arbitration.
Even though many cases don’t go to trial, FRE are still important b/c the strength of the evidence will go towards the case.
For example, evidence is very important in summary judgment.

B. What Happens at Trial
i. Jury Selection
· Voir dire – where court and counsel try to find out whether any members of the panel should not serve in the case at hand
· Each side has unlimited dismissals based on “cause”
· “Peremptory” challenges (usually three) – no cause must be stated, dismissal is automatic
· In state court, lawyers usually conduct voir dire, but in federal court and some states, the judge conducts voir dire, with counsel submitting questions to the judge who has the discretion to ask them.
ii. Opening Statement
· Usually the party bearing the burden of persuasion makes the first opening statement (P in civil litigation and prosecutor in criminal cases)
· Sums up the facts that each party contends that her proof will establish
· “The evidence will show…”
iii. Presentation of Proof
· Initially, party with burden of proof must present the “case-in-chief”, followed by opposing counsel. Both have opportunity to present “case-in-rebuttal”
· Direct examination – witnesses upon which the case stands
· “real” or “original” evidence – objects that are the subject of litigation, i.e. faulty steering wheel
· “Documentary” evidence – writings
· Opposing counsel may cross-examine each witness the other side brings as part of their case-in-chief; then calling counsel may redirect examine the witness.
iv. Trial Motions
· Motion for judgment – only defense can in criminal case
o Judge will assume witnesses are believable, and therefore doesn’t decide credibility issues for the jury
o Judge may take “judicial notice” of known and universally accepted facts, i.e. it is hot in Phoenix in August)
· Can be very complex
v. Closing Argument
· Lawyers argue, then judge instructs. Reversed order in some jurisdictions
vi. Instructions
· Judge instructs jury on the law
vii. Deliberations
· Hidden
· Influential personalities and persuasive factors are thus hidden too
· Usually, jurors can go home at the end of each day, but high profile or controversial cases, the jury may be sequestered during trial and deliberations to insulate it from outside influence.
· If jury has a question, they pass note to bailiff, who reports it to the judge, where the jury is summoned into the courtroom and the judge/lawyers repeat instructions.
· If jury is stuck, judge will admonish it to think again before declaring mistrial.
viii. The Verdict
· Jury leader or the judge reads the verdict
· Sometimes criminal trials where the death penalty is possible, jury may retire a second time to decide punishment after first deciding guilt.
ix. Judgment and Post-Trial Motions
· Criminal – not-guilty, D is released immediately. Guilty – judgment is signed and entered after a sentencing hearing has been held and sentence has been pronounced.
· Entry of judgment start the time for appeal
· Prosecutors have no opportunity to appeal an acquittal
· Civil – Judgment as a matter of law (formerly, J.N.O.V.), usually 10 days after entry of judgment
x. Appellate Review
· When judgment has been entered, party may obtain review only if it has “preserved” its claim of error by stating its position promptly and clearly at trial.

C. Making the Record
1) What is the record and how is it made?
· Court reporter – DJ Nancy!!
· “Official Record”:
1. Pleadings
2. Filed documents
3. Record of proceedings
4. Exhibits
5. Docket Entries
2) Beware of Pitfalls – what not to do
· Echoing
· Overlapping
· Numbers, Names and Big Words – a thoughtful lawyer provides the court reporter a list of names in advance
· Exhibits —
· Pantomime, Nonverbal cue, gesture, internal references
· Going “off the record” – point is to avoid cluttering the transcript with bickering or long discussion that may end in agreement on a small point and a stipulation that can ultimately be briefly and simply stated. It is important to instruct the reporter when returning on the record.
· Sidebar conference
3) Taking care – what to do
· Make sure that important utterances are spoken clearly enough to be understood and put down by the reporter
· Make sure those utterances will be understood when in printed form

D. How Evidence is Admitted or Excluded

1) Getting evidence in: foundation and offer

RULE 611(a)- control by the court
o Court can exercise reasonable control over the mode and order of interrogating witnesses and presenting evidence to: 1) ascertain truth, 2) avoid waste of time, and 3) protecting witnesses.
§ I.e. if a party is asking a witness questions repeatedly, a court can move questioning along.

i. Testimonial proof – direct examination
· Bring out background info
· Laying the foundation – indicating witness has personal knowledge of the matter
· Substantive questions
· Leading – questioning should not unnecessarily push the witness toward a particular response —not too suggestive of the answers sought.
· Leading Questions: “Sometimes it is a matter of phrasing: even in cold print, a question that begins “Isn’t it a fact that” or “Did you not” suggests a response and is leading. So is one that is phrased in the alternative to highlight the desired answer in careful detail while diminishing the other choice in vagueness: “Did you understand that you were to meet him at your home at ten o’clock, or what?” But a question that frames the only likely alternatives in an evenhanded way is not leading: “Did you call him, or did he call you?” Sometimes phrasing tells little and context is more important. In a trial for batter where D claims he struck no blow, the defense might ask an eyewitness “Did you see the D beat the victim?” and it would hardly be considered leading, but the same question would be leading if put by the prosecutor. And sometimes inflection, facial expression, voice dynamics, or gestures tell the story. It is easy enough to imagine asking the question “Did he seem really angry to you?” in a leading manner that conveys clearly that either a yes or a no answer is the one sought, but also easy to imagine the same words spoke in a neutral and nonleading way.” CB p.19-20.

RULE 611(c) – leading questions
o No leading Qs on direct except as necessary to develop the witness’ testimony
o Leading question permitted on cr

uthentication’ are raised

E. Consequences of Evidential Error
Why error?
· Evidence rules can be slippery or complex
· Some evidence rules have vague standards
· Our adversarial system relates bad conduct back onto the bad lawyers.
1) Appraising Such Error on the Merits
· Distinguishing whether mistakes at the trial court matter or not take into consideration:
· Whether the evidence error affected what Rule 103 calls “a substantial right,” meaning essentially outcome
· The need for a standard to deal with uncertain situations b/c reviewing courts often cannot tell for sure that even the most egregious error actually affected the result.
· Standard = Reverse a judgment only for error which “probably affected” the result.

RULE 103 – rulings on evidence
o To appeal an evidentiary error, the ruling admitting or excluding evidence must affect a substantial right of the party
§ = “probably affected” the outcome of the case
o (a)(1) – objection – AND if regarding a ruling admitting evidence, a timely objection or motion to strike must be made with the specific ground for objection if not apparent from the context.
o (a)(2) – offer of proof – AND if regarding a ruling excluding evidence, the party who wants the evidence admitted informs the court of the substance of the evidence by an offer of proof unless the substances is apparent from the context.
§ Example in discrimination case – wanted two other black employees’ testimony. Motion in LImine was made prior to trial. Judge wanted offers of proof from each witness’s testimony; judge decided to allow in part and exclude in part the testimony.
§ Assuming it was error, assume there was a timely objection and that it affected the outcome of the case.
§ Thus, there would be an evidentiary issue.
o (b) A party need not review the object or offer of proof once the court has made a definitive ruling that admits or excludes evidence
§ Making sure the record is clear regarding the ruling that was made
o (c) –hearing of jury – judges try to prevent the juries from hearing things they shouldn’t
§ Judges are very vigilant about this rule – don’t want things in front of the jury if at all possible
o (d) – plain error – court can always take notice of plain errors
§ Very rare!

To successfully appeal an evidence issue, Appellant must show:
§ There was evidentiary error
§ The error was objected to/offer of proof made in a timely manner
§ The error affected a substantial right (probably affected the outcome of the case)

Kinds of Error
· Reversible – Probably did affect the judgment and was preserved at TC through objections or proof of offer
ü Reversible error slide – example: confession by criminal, admitted. Improperly. Thus it will probably affect outcome and if improperly admitted, it would be a reversible error.
§ Evidence is improperly admitted or excluded
§ Party properly objected or properly gave offer of proof
§ Admission or exclusion of evidence affected a substantial right of the party (probably affected outcome)