Evidence
Professor Melanie Wilson
Fall 2007
1101 – Applicability of Rules
Privileges applies at all stages of all actions, cases, and proceedings
NA to preliminary hearings
Applies to both criminal and civil trials, both bench and jury
102 – Purpose of Construction
Shall be construed to secure fairness, elimination of unjustifiable expense and delay, and promotion of growth and development of the law of evidence so that proceedings are justly determined.
101 – Scope
Applies to the proceedings of the US courts, and bankruptcy judges and US magistrate judges, w/ the exceptions stated in rule 1101
The Process of Proof; How trials are structured
Opening statement v. Closing
Closing different in that it allows argument and discussion of the law, while opening is primarily a narrative of facts.
Themes are probably a good idea
Rule 611. Mode and Order of Interrogation and Presentation
o a) The court controls the courtroom, ie. Presentation of evidence, avoid needless consumption of time, protect witnesses
o b) cross is limited to subject of direct and credibility of witness. Court may permit more inquiry
o c) leading questions; not on direct except to develop witness’ testimony; permitted on cross, hostile or adverse witnesses.
· Leading questions on direct only to develop testimony; when
§ Relate to preliminary or other undisputed matters
§ When a witness is unable to convey info meaningfully in response to non-leading questions; ie children, mental retardation, nervousness, etc
§ Hostile or adverse party, or witness identified w/ adverse party
· Ask to approach the bench and have the witness declared hostile
o Trial judge has wide discretion to
· Allow witnesses to testify out of turn
· Place reasonable time limits on a party’s presentation
· Whether to reopen testimony after close of evidence
· Admit or exclude evidence that the party should have admitted earlier or exclude cummulative evidence
Objections, Why?
Protect your client
Reserve for appeal
Signaling that there is something wrong w/ the question
Objecting too late or not with specificity might render the objection moot.
Types of objections – pg 115, 116
To the form of the Question
Argumentative
Asked and Answered
Assume facts not in evidence
Calls for narrative
Compound – more than 1 question/may have different answers
Leading
Misstates the evidences; mischaracterizes the testimony
Unintelligible; vague; ambiguous; confusing
To Inadmissibility of the Answer (or proffered exhibit)
Hearsay
Irrelevant
Lack of foundation
Lack of authenticity
Calls for speculation; speculative
Calls for opinion; calls for conclusion
Inadmissible character evidence
More prejudicial/misleading, than probative Rule 403
Cumulative
Non-responsive
Beyond the scope of the question
Beyond the scope of direct/cross/redirect/ etc. examination
Not the best evidence
Objections must be
Specific
timely
Rule 103. Rulings on Evidence
o a) error exists only when evidence admitted or excluded has an effect on a substantial right of the party (harmless error)
· Objection; must be timely and state the specific ground if not apparent
· Objection is necessary in order to preserve a claim of error for appeal
· Offer of Proof; when evidence is excluded, the substance is made known to the court in order to preserve for appeal. Court would probably have to take the jury out, so you can have testimony as to the evidence.
· Harmless error/Substantial right – would have affected the outcome of the trial.
§ Was it the only evidence on that issue
§ Did the judge give a curative instruction
§ Whether the aggrieved party was nonetheless able to present the substance of its claim
§ The extent of jury argument based on tainted evidence
§ Whether erroneously admitted evidence was merely cumulative
§ Whether other evidence was overwhelming
o d) plain error; affects substantial rights although not brought to the attention of the court; can still be basis of appeal – error that is clear and obvious, affects substantial rights, and seriously affect fairness, integrity or public rep of judicial proceedings if left uncorrected (miscarriage of justice)
o Should make sure that the court reporter gets it on record, specifically when at the bench.
o Standards of Appellate Review
· Most evidence questions are reviewed by an “abuse of discretion standard”; deference to the lower courts decisions. Doesn’t necessarily matter if the appellate court might have come out differently.
· The decision cannot just be wrong, but should be unreasonable.
· Harmless error – didn’t affect the outcome of the trial;
§ Courts have differing standards for determining whether the outcome was affected
· Highly probable; more probably than not was harmless; fair assurance; reasonably probable
Relevant Evidence 401
2 step process
Does it prove a fact of consequence to the case (materiality)
Does the evidence tend to prove/disprove that fact by making it more/less probable
Probability is determined from knowledge and experience
Unfair Prejudice – evidence triggers a response that has nothing to do w/ its logical connections to a fact of consequence.
If you object and you are not sure what to say, 403 is a good fallback in trials, plus it gives you more time to search for a more specific objection.
Probative value of
Negative effect of Rule
Whether trial court
Offered relevant
403 listed factor
May exclude evidence
evidence
High
High, Mid, or Low
No
Mid
High
No (perhaps yes)
Mid or low
No
Low
High
Yes
Mid
No (perhaps yes)
Low
No
o Old Chief; the legal status of someone may be relevant, but also more prejudicial than probative. Pg. 154; jury was likely to generalize his earlier bad act into bad character, prior conviction detail should be prohibited.
o If the Judge is concerned about 403 and being overturned on appeal, he could give a limiting instruction. See Hitt
o Surprise is not sufficient under 403
Limited Admissibility 105
Evidence admissible as to one party or for one purpose but not for another and is admitted, the court upon request shall restrict the evidence to its proper scope and instruct the jury accordingly.
As to 403 instruct the jury as to the proper use of the evidence, ie may only be considered for this purpose.
Limiting instructions will typically be used where the evidence is highly probative and is difficult to obtain from other sources and at the same time potentially highly prejudicial.
Hitt, court did not give limiting instructions on the fact that the guns did not belong to the D, and only one belonged to the D.
Old Chief, when a court considers whether to exclude on grounds of unfair prejudice, the availability of other means of proof may be an appropriate factor; the court limited evidence as to the status of the D
Standard for Review on Appeal
Abuse of Discretion – clear error of judgment in the conclusion reached by the court upon a weighing of the relevant factors or where it improperly applies the law or uses an eroneous legal standard;
If so, was it harmless error – fair assurance or if it is more probable than not
Great deference is given to the district courts for a variety of reasons, see pg 150.