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 objec
gest enough that the examiner’s trying to accomplish something with it.
(c) Was the light red, yellow or green: If the question gives you all of the available options it is not a leading question. EX: was the light switch off or on. Form isn’t all. The intonation of an attorneys voice may make a non leading question leading if it shows intent to suggest answer.
(d) What color was the light
(e) What happened
D Scope of Cross examination
(1) limited to the subject matter raised on direct: not specific testimony or exhibits, but rather issues raised on direct.
(2) Can cross examine a witness on his or her credibility: did they perceive something, see something, taste it touch it feel it, known to be a liar …
(3) judge has discretion to allow evidence beyond scope of direct. Usually use that when its just going to save time and be more convenient for the witness (
III Objections & Offers of Proof
A To raise an issue for appeal to the admission of evidence, must object
(1) timely (as a general rule that means if the question is objectionable, its after the question but before the answer is given.
a. What if the answer is objectionable? Must be done before answer. What if there was no opportunity to object? So long as you object as soon as possible you are alright. BUT,
