Evidence Anne Murray
Professor Prater Spring 2004
I. Mode and Order of Presentation of Evidence
a. Anatomy of a Trial
i. Preliminary Matters
ii. Voir Dire (jury selection)
iii. Plaintiff’s Opening Statement
iv. Defendant’s Opening Statement (Either now or wait until P puts on its case)
v. Plaintiff’s witness
1. Direct examination
2. Cross examination
3. Follow by re-direct
4. Re-cross . . .etc.
vi. Plaintiff rests its case
vii. Defendant’s motion for directed verdict
viii. Defendant’s witnesses
1. Direct/Cross etc.
ix. Defendant rests
x. Motions for directed verdict by Plaintiff and Defendant.
xi. Plaintiff’s rebuttal
xii. Defendant’s surrebuttal
xiii. Motions for directed verdict
xiv. Jury instructions by the judge as of the law
xv. Plaintiff’s closing arguments
xvi. Defendant’s closing arguments
xvii. Plaintiff’s final closing
b. Non-statutory Objections (Application of R 102 (purpose), 403 (scope), 611 (control of the court))
i. US v. Reaves (1) (Judge limits the length of a party’s tax evasion case using general language of R 403 and 611. Trial judge has broad discretion.)
ii. Common law objections using Rule 611 and 403 using judicial discretion:
1. Calls for a narrative response – “Tell us what happened”
2. Non-Responsive (Witness adds to the answer something not asked)
3. Assumes a fact not in evidence
4. Compound question
5. Ambiguous
6. Asked and Answered (Repetitious. Applies only to the same examiner asking the question.)
7. Cumulative (1. Too many witnesses or 2. Too many exhibits)
8. Misstatement of the evidence
9. Argumentative
10. Badgering the witness
c. Leading Questions. R 611(c). “A questions which asks the answer sought.”
i. Direct. Leading questions cannot be used on direct examination.
1. Exceptions:
a. Necessary to Develop a Witness’s Testimony
i. Preliminary matters
ii. Child witness
iii. Incompetent witness
iv. Refresh memory/forgetful witness
b. Hostile Witness
i. Must be demonstrated in the courtroom
c. Adverse Party (Named in the caption as the opponent party)
d. Associated with Adverse Party (someone related to the opponent party such as the president of a company, husband and wife.)
ii. Cross-Examination. Leading questions may be used on cross unless the witness is
1. A party
2. Friendly to the examiner.
a. US v. McKenna (14) (D cross-examines his CPA which is testifying against him. B/c the CPA was friendly, the use of leading questions was denied.)
d. Scope of Cross-Examination.
i. English Rule. There is no limit to scope of cross examination
ii. American Rule is limited to:
1. Subject matter on direct.
2. Credibility and Impeachment issues
3. Judge’s discretion to expedite the proceedings. (So the witness doesn’t have to be called back.)
II. Objections and Offers of Proof
a. Preserving an issue for appeal. To successfully allege an error on appeal,
i. A substantial right must be affected
1. Otherwise the app. court may disregard as harmless error.
ii. Objection or Motion to Strike.
1. If the error is in admitting evidence, the objection/motion must be:
a. Timely
i. Objection = immediately after the question is asked
ii. Motion to strike = before the next question is asked
b. Specific
iii. Offer of Proof
1. If the error is in precluding evidence, the attorney must make a timely and specific offer of proof in the following ways:
a. Proffer by the attorney (sidebar explaining what the evidence shows)
b. Written statement signed by the attorney
c. Written statement signed by the witness
d. Have the jury excused and the offer it on the record.
iv. Plain Error Doctrine
1. The appellate court can consider errors affecting the substantial rights of a party even though no objections were made. However, an appellant who argues for this is admitting malpractice.
III. Competency
a. Competency is the ability of a witness to testify.
i. Common Law
1. Incompetent meant inadmissible
2. Status prevented witnesses from testifying such as being a party to the action, a spouse of a party, child, mentally incompetent, convicts.
3. Foundational requirements (still valid today – below). The witness
ed.
c. Recall.
i. Memory Refreshed. After establishing the witness’ lack of memory, a party may use the following to refresh his memory:
1. Any writing (by the witness or another)
2. Anything (Duke of Earl)
ii. Memory Recorded. If a writing was made or adopted by the witness while the events were fresh in his mind, then the party can read it in front of the jury (even though it looks like hearsay) but it can’t be introduced as evidence.
1. Elements:
a. The witness once knew
b. The witness can’t remember now
c. A writing made or adopted (signed at the bottom) by the witness
d. While the events were fresh in his memory
e. Accurate when made
f. Read it to the jury
g. Other party may introduce the record into evidence
2. Know the difference b/w “I don’t remember” and “I don’t remember saying that” as in “I didn’t say that.”
iii. Hypnotically Refreshed Memory
1. Per se inadmissible Zayas
2. Criminal defendant can give hypnotically refreshed testimony so as not to be deprived of the constitutional right to testify. Rock v. Arkansas.
d. Communication
i. The witness must be able to communicate his testimony to the court.
ii. If not, an interpreter can be used. Requirements:
1. Oath (“I swear to tell the truth and interpret competently what I am told.”)
2. Qualified.
a. An expert which sufficient knowledge, skill, experience, training, education
b. Test: the court must be able to verify the accuracy of the testimony in the general world.
IV. Relevance
a. Common Law – needed to have both:
i. Relevance. One fact makes another fact more likely
ii. Materiality. It is important, of consequence, to the case.
b. Federal Rules
i. Rule 401. Definition of Relevant Evidence
1. Relevant evidence means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more or less probable than it would be without the evidence.
2. “Objection! Irrelevant!”
