Evidence
Dennis Prater (call Dennis)
Spring 2005
Class Notes January 24, 2005
Office 509. Questions by e mail only if short. 49249. Rolling boulder. Front to back. Back row penalty.2 cases and then pivot back. Problems at end of chapter we will do problems. Will read your parts, answer the questions. He will normally play the judge. Syllabus outside table room 203. Final is 3 hour exam. N notes, no book, no nothing. Evidence is 1/8 of the bar exam. 3 most important things: character evidence, hearsay and impeachment. DON”T MISS THESE DAYS!! 2, 2 hour review sessions at end of semester to cover these topics.
A Anatomy of a Trial
(1) preliminary matters: unresolved issues about admission of evidence
(2) Voir Dire (jury trial only)
(3) ∏s opening “the evidence will show”
(4) ∆s opening
(a) In a criminal case ∆ may reserve making opening statement to end of ∏s case. In civil cases ∆ makes opening statement right after ∏s.
(5)∏s witnesses
(6)Direct examination (∏s questioning of ∏s own witness)
(7) ∆ does cross examination (∆s examination of ∏s witness)
(8) ∏ may do re-direct examination
(9) ∆ may do re- cross examination
a. Stops when judge gets nauseous and he puts and end to it.
(10)∏ rests
a. Motions
1. Only person who can make motion at this point is ∆.
B ∆s witnesses
1. Direct
2. Cross
3. Re direct
4. Re cross
(10) ∆ rests
a. Motions
1. Directed verdict from both sides (mostly denied)
b. ∏ rebuttal witnesses
1. Dispute evidence put on by ∆. Limited to testifying about new matters raised by ∆.
c. ∆s surebuttal witnesses
1. Witnesses to dispute new matters raised by ∏ in ∏s rebuttal.
(11) Jury instructions
1. In fed court this is at tend of closing argument. In State court it’s done here.
b. ∏ closing
c. ∆ closing
d. ∏ rebuttal closing (since ∏ has burden of proof they get 2 closings)
B Discretionary Objection (no actual rule, just recognized by attys and judges)
(1) narrative: doesn’t give us the evidence we need to know how the witness perceived what occurred. We don’t know if they’re competent to testify, if they know it by hearsay
(2) non responsive: we want anawers directed to point. We don’t want witnesses going off on a tangent.
(3) assumes fact not in evidence: attorney is essentially testifying and he can’t testify.
(4) compound question: 2 or 3 questions in one. “Did you seem the ∆ the night of the murder and did he seem upset”. Objectionable cuz what if the answer is yes to half question and no to other half. Problem: not a good objection cuz it emphasizes the testimony that’s admissible anyway.
(5) ambiguous: : rule of law as to when question is ambiguous? When the judge has an understanding.
(6) asked and answered: question has already been answered.
(7) cumulative: 2 or 3 or more questions in one. EX: Are you a law professor and do you make a lot of money?…
(8) misstatement of evidence: after ∆ had a few drinks… (no evidence that he had any drinks)
(9) argumentative: “how can you say”: question is arguing with the witness.
(10) badgering the witness: by (1) very raised voice or (2) invading witness’ personal space, asking same question over and over…
C Leading Question
(1) Defined: suggests answer sought.
(2) On direct: leading question ordinarily impermissible.
(a) necessary to develop testimony of a witness
1. preliminary matter or uncontested matter ex: isn’t your name Dennis Prater?
2. child witness
3. incompetent witness (his Hecker rule)
4. forgetful witness
(b) hostile witness: matter of action. Must show demeanor in the courtroom. Status doesn’t matter. EX: just since questioning wife of ∆..
(c) Adverse party: may use leading questions if an adverse party is on the stand during your direct examination of the adverse party.
(d) person associated with an adverse party (intimately):
(3) On Cross: are permissible as a general rule, but if witness being examined is friendly to party doing the examination it is not an abuse of discretion for a judge to preclude leading questions.
(4) Examples:
(a) Isn’t it true the light was red?
(b) Was the light red? (many distsrict court judges will rule this a leading question even though it doesn’t suggest a yes or no answer. It does suggest enough that the e
that a sufficient offer of proof? No. Std is he had to tell some substance of the testimony. Just saying you’re going to tell your side of the testimony isn’t enough. Must be specific using one of the 4 methods. RULE: Must set forth sufficient info such that appellate court can determine whether excluded evicence was important.
III Competency
A Common Law
(1) status of an individual: (incompetent as party to action at common law) Theory: who si most likely to lie at trial? Person who’s interest is at stake. At old common law parties were incompetent to testify about their own case. Spouses couldn’t testify at early common law about their mates cases. Theory: they also have reason to lie. Prisoners were ineligible, were thought untrustworthy. Children were not allowed due to their status as being young. In some states after common law abandoned and we started codified rules of children’s ability to testify there were years or ages were given in terms of competency, sometimes under 7 couldn’t, 7-14 could…. Over 14 presumption that they could…..Also mentally ill persons couldn’t testify. Status alone as a general rule: no longer precludes someone from testifying.
(2) ability of a witness to testify: 4 requirements to be able to testify (still valid today)
a. must take an oath
b. perceive something (important in case), by smell taste, touch….
c. remember it
d. communicate it in the English language.
(3) evidence is inadmissible for some reason: imcometency meant inadmissible. Will we ever just rise up and say, your honor this evidence is incompetent? NO. It can’t be specific. Incompetency alone can’t ever be specific objection since there are lots of things we’re talking about. Status, perception
