Federal Rules of Evidence
Prof. Dennis Prater Spring 2003
Rm: 506
Phone: 864-9249
Anatomy of a Trial
a. Preliminary matter
i. Motions in lemony
1. motions to exclude certain types of evidence
b. Voir dire
i. Deals with the selection of a jury
c. P’s opening
i. Your honor the evidence will show….
d. D’s opening
i. In a criminal trail Reserve his or her opening statement and make it at the end of the P’s argument
ii. In a civil trial the D must make opening at the end of the P’s opening
e. P’s witnesses
i. Direct
ii. Cross
iii. Redirect
iv. Etc.
1. only ends when judge want it to
a. judicial in-discretion
f. P Rests
g. D’s motion for directed verdict
i. Legal bases = P has failed to establish a prima facia case
1. P has failed to put on any creditable evidence to the P’s claim
h. D’s witness
i. Same = rebuttal
i. D’s surrebuttal
i. To new issues raised by rebuttal witnesses
j. Motions
i. Both parties can now move for directed verdict
k. jury instructions
i. in states it’s before closing arguments
ii. in federal System it is after closing arguments
l. P’s closing
m. D’s closing
n. P’s rebuttal closing
United States v. Reaves
Issue: Can the court set time limits on civil and criminal trials?
RULE 403 aqnd 611 (a)
Rule 403 and 611 (a) court has broad discresion when witnesses are called and what evidence they present
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Recognizes the power and duty of the court to exclude cumulative evidence or evidence which consumes more time than its probative value justifies
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§
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Avoid needless consumption of timeMake the interrogation and presentation effective for the ascertainment of the truth
Commands the court to “exercise reasonable control over the mode and order of interrogating witnesses and presenting evidence so as to:
Rule 611 (a) Rule 403
Numbers 401 and 403 — Hillman
Procedural Objection
o. Calls for a narrative response
i. Example: Tell us what happened?
1. question is objectionable because you must ask questions to be more specific
2. calls for hearsay
3. allow witnesses to answer questions to answer without any prior knowledge
p. non-responsive
i. Example: Do you like this class?
1. The only answer that is needed is yes or no (p.7)
2. The answer should not give an explanation beyond yes or no
q. Assumes a fact not in evidence
i. It brings to the attention facts that are not in evidence
ii. Lawyers can’t give facts – witnesses must give facts
r. Compound Question
i. 2 part question
1. Do you know Prof. H and is he trustworthy?
2. This can be confusing and misleading
s. Ambiguous
i. Vague or uncompressible
ii. What did you or did you not see if not anything when the defendant entered the bar?
iii. Judge’s discression – does he understand the question?
t. Asked and Answered
i. Repeating the same information
ii. Not permissible for “jury to hear it one more time”
iii. Only applies to the same examiner asking the same question not a different examiner asking the same question.
u. Cumulative
i. Many witnesses testifying to the same thing
ii. Waste of time
iii. No new information
iv. More witnesses saying the same thing that is necessary to get those facts
v. Also deals with exhibits
1. example: 1250 pictures of an accident scene
v. Misstatement of evidence (p.8)
i. Sometimes same as assumes the fact not evidence
ii. Examiner twist facts or previous statements
w. Argumentative
i. Examiner arguing with the witness
ii. different that badgering
1. more in the tone than actions
x. Badgering
i. Yelling, rudeness etc.
ii. More in actions than tone
Leading Questions:
y. Defined:
i. A leading question is a question that when asked by examiner suggest the answer sought.
1. Examples:
a. Isn’t it true the light was red?
i. Leading – suggest the answer sought
1. Don’t lead with an Isn’t it?
2. Don’t end with didn’t you
b. Was the light red?
i. Not Leading – Narrative
1. completely the judges discression
c. Was the light red, green or yellow?
i. Not Leading –
1. If you suggest all of the possible answers it’s not leading.
2. Unless you use different inflection in your voice
d. What color was the light?
i. Not Leading Ever – directive type question
e. Tells us what happened?
z. Direct
i. Can’t use leading questions of Direct
1. ordinarily not permitted EXCEPT:
a. Necessary to develop testimony:
i. If issue is preliminary or uncontested matter
1. Isn’t your name John Smith?
ii. Child Witnesses
iii. Incompetent Witness
iv. If witness has loss of memory can’t remember previous question
b. Witness is hostile
i. Hostility requires a showing in the court room
ii. Hedging, Trickery and Deceit
iii. If is incorporative
iv. If he is declared hostile then judge can rule that you can use leading questions
c. Adverse party
i. People named in the lawsuit
d. Associated with adverse party
i. Example: President of a corporation in which is involved in a lawsuit
Straub v. Reading Co.
GENERAL RULE – Leading questions not permitted on Direct but are permitted on Cross.
Even though you can get away with leading question – still not good idea because that case can be appealed
ii. On Cross-Examination ordinarily permitted unless:
1. the witness is friendly to the cross-examiner
(p.14)
United States v. McKenna
Judge would not allow leading questions on cross of D’s witnesses because he was D’s witness. He was the accountant
Court Rules – Leading questions permitted unless the witness is friendly to the cross-examiner
Scope of Cross – X
aa. Subject matter of direct
i. Issues Raised
ii
uror but
2. May testify to impeach redirect on
a. outside influence
b. extraneous prejudicial information
3. But can not testify to:
a. mental impressions
Tanner v. United States
District Court concluded that juror testimony on intoxication was inadmissible under Federal Rule to impeach the jury’s verdict
Court says that if a juror is drunk or intoxicated that is not an “outside influence” about which jurors to impeach their verdict.
However (p.62) If that juror is substantial if not wholly conclusive evidence of incompetence. Then they would not be allowed to serve. “Conclusive Substantial Proof”
v. judges (p.65)
1. never allowed to testify as a witness at a trial that she is presiding over.
vi. Foundational competency (p.67)
a. oath
i. religious convictions
1. Ferguson v. Commissioner of Internal Revenue (p.67)
ii. Children
1. Capps v. Commonwealth (p.72)
iii. incompetents
b. perception
Capps v. Commonwealth
Minimum Standard to testify – it is the duty of the trial court to carefully examine the witness to ascertain whether she or he is sufficiently intelligent to observe, recollect and narrate the facts and has a moral sense of obligation to speak the truth.
11/28/03
Incompetent
United States v. Phibbs
Witness Own Testimony
United States v. Davis
Memory Recall
Extent of Personal Knowledge
Gladden v. State
Memory Refreshed (any statement or object)
Baker v. State
III RECALL –
Memory Refreshed – Recorded Recollection
United States v. Williams
(p.96) (p.90) (p.84) (p.78) (p.72)
(p.58) (p.51) – credibility of the witness (p.43)
Different in every jurisdiction
a. Harmless Error – If a party fails to object and it doesn’t effect the trial then it doesn’t matter
b. Plain Error – If you as an attorney didn’t object with timeliness and specifics the court can still look at it, but it must really effect the persons right to a fair trial.
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(p.38) Battery Case (p.35) – objection must be specific and timely
General rule – Timeliness
a. If objection is to be timely
i. It must be made after the question and before the answer
ii. If objection is to the answer it must be made before next question
General Rule – Specific
(p.17) (p.9) (p.1)
