EVIDENCE OUTLINE
38 T/F
20 multiple choice
4-5 short answer
18 fill in the blank transcript
3 essay questions
Mode and Order of Presentation of Evidence
Anatomy of Trial
Preliminary matters
-motions dealing with whether witnesses can be present
-Rule of invocation
Voir Dire
-selecting the jury
-interruptions by opposing parties during questioning
P’s opening statement; “The ev. will show…”
D’s opening statement
-some jurisdictions allow reservation by D
-in KS, all criminal cases allow reservation, judges discretion in civil cases
P’s Examination
-Direct
-Cross
-Redirect
P rests
Motions: motion for directed verdict, i.e. whether P has failed to make a prima facia case
D’s witnesses
D rests
Motions
Rebuttal Witnesses
Motions
Closing Arguments
-jury instruction after closing, but in KS instruction before close
-P closes first, then D, then P has rebuttal
Procedural Objections, pg. 7-8; based upon broad discretion of trial judge.
calls for a narrative response; “tell us your story”
non-responsive
Assumes facts not in evidence
compound interrogatory
ambiguous
asked and answered
Cumulative; two applications
multiple exhibits of the same item
call a host of witnesses to testify about the same thing
Misstatement of the evidence
example: “swaying and eyes were red” was the evidence. The question asked “when he was drunk”. That is not a question based upon evidence
Argumentative
example: “how in your right mind could you say that?”
Badgering the witness
example: with a raised voice “how could you!”
Leading Questions
Definition: as a matter of law a leading question is a question which suggests the answer to be sought
Examples
Isn’t it true the light was red….(leading)
Was the light red…(leading) though not directing answer it does suggest
Was the light red, green, or yellow….(not leading, unless emphasis is on the word “red”)
What color was the light…(not leading, optimal question)
What happened….(not leading, but calls for a narrative)
Test: if answer can be stated as yes or no, then this should flag possibility of leading question
Direct Examination
General rule: no leading questions on direct examination
Exceptions:
when necessary to develop testimony of witness
preliminary or uncontested matters
questioning incompetent or young witnesses
refresh memory of witness
Hostile witness; must demonstrate hostility in court room.
Adverse party: They will be people named in the complaint. If P sues Coke, and calls President for Direct examination, president is not adverse since not named in caption of lawsuit.
Witness identified with the adverse party: counsel would be allowed to ask president a leading question
Cross Examination
General rule: leading question permitted
Exception: if witness being crossed is friendly, then no leading questions allowed
Example: US v. McKenna
prosecution calls Bruno, D’s accountant, on direct. D cross-examines and asks leading questions and judge does not allow
Court held that since Bruno was D’s accountant, leading question were not allowed because witness friendly to D.
Scope of Cross Examination; objection based upon question outside scope of direct testimony
American Rule: cross-examination is limited to issues raised on witnesses direct testimony. If you want more out of the witness, you must call that witness on direct.
English Rule: if witness testifies about a material aspect of the case, they are free game and no limit to scope of cross-examination.
Federal Rule: basically adopts the American rule, limits cross to issues raised on direct, questions that go to impeaching the witness, and judicial discretion to allow broader inquiry are allowed beyond issues raised on direct.
Subject Matter of Direct; scope relates to issues, not the specific evidence admitted.
Objections and Offers of Proof; must state “objection” and give brief, specific legal objection
Objections: cannot successfully allege errors on appeal unless
If error is in admitting evidence
Elements
timely objection
specific objection
Timely objection (or motion to strike)
General Rule: objection must be made as soon as the question is stated and before the answer is given
Exception
there was not time between question and answer
inadmissibility was due to some feature of the answer, not the question.
Motion to strike: if problem was with answer not question, then motion to strike is the remedy. To be timely, must assert motion to strike after the answer is given and before the next question is asked
specific objection, unless clear from context
General Rule: objection to evidence must be specific, and no reversal can be had except upon ground specifically stated.
Example: “objection, incompetent , irrelevant, and incomplete” is not a specific objection
If error is in excluding evidence
offer of proof, unless clear from context, and
General Rule: error may not be based on a ruling excluding evidence unless “the substance of the evidence was made known to the court by offer of proof or was apparent from the context within which questions were asked.
Why? To prove to appellate court that a substantial right was effected.
How to make an offer of proof
attorney speaks to the record concerning the anticipated content of the excluded testimony
Introduce a statement, written by the attorney making the offer of proof that contains what the attorney believes the witness would have said had the witness been allowed to answer the question
Attorney provides a written statement, signed by the witness, that contains what the witness would have testified to had witness been allowed to answer the question.
Court can excuse the jury and allow the attorney to examine the witness in question and answer form
Substantial right must be affected: Even if trial court ruling is wrong, case will not be overturned unless a substantial right is effected. The exception is plain error.
Plain error: exception to rule on timely objection. Allows issue to be heard on appeal even if not preserved at lower court; very rare.
Competency; determined by judge
Categories at Common Law; not really influential today
Common law definition of competency meant that evidence was somehow inadmissible
Status of the person taking the stand; in old days parties to an action could not testify because it was assumed party was biased and may lie, therefore incompetent. Perjurors could never testify again. Spouses could not testify in matters concerning the other partner.
Foundational Requirements; relevant today
take an oath
must have perceived something relevant
must remember it
must be able to communicate it
Status
Common Law; discussed above. Many limitations on who could testify based upon status
Federal Rules
General rule on competency: everyone is competent as a general starting point; competency is distinct from credibility, and jury will determine credibility of testimony
jurors
General rule: jurors cannot testify at trial in which they are a juror (others observing questionable actions can testify)
to attack verdict
Juror can not testify about deliberations or mental processes, but
can testify about
prejudicial extraneous information; i.e. bailiff saying judge thought the plaintiff was full of it.
outside influences; would not include illness, drinking, etc. Does include bribes, outside news about the trial, or maybe if wholly conclusive evidence of incompetency is demonstrated.
Judges:
general rule: judges can not testify
No requirement to object to preserve for appeal
Dead Man’s Rule
Rule: No person shall be allowed to testify when the other party to the transaction is dead or when the opposite party to the action is the representative of a deceased person, when the facts to be proven transpired before the death of deceased
Statutes vary from state to state. Kansas and Federal courts do not have dead man’s statute
Foundation; oath, perception, recollection, communication
Oath
General Rule: Every witness shall be required to declare that the witness will testify truthfully, by oath or affirmation administered in a form calculated to awaken the witness’ conscience and impress the witness’ mind with the duty to do so
oath is swearing to God
affirmation
Form of oath not set: Ferguson v. Commisioner of Internal Revenue; no exact formula, so those who will not swear or affirm based upon religious beliefs can be given alternative statement that includes
Materiality: evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without evidence. That is issue is of importance to the case.
hypo: same except that child’s ED is not recoverable. Then the facts above are not material.
comparison of relevance vs. materiality: relevance is whether evidence solidifies an issue, where materiality is whether the issue is important.
Federal Rules of evidence on Relevance
relevance: combines common law relevance and materiality. Rule 401: 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 probable or less probable than it would be without the evidence.
effect: objection based upon “materiality” does not exist. Must state “Objection, irrelevant” Whether it is based on relevance or materiality
3 Elements/level of analysis (any tendancy, of consequence, not unduly prejudicial)
any tendency to prove fact
Douglass v. Eaton Corp
Sufficiency vs. Admissibility: evidence need not be sufficient for P to prevail, the relevant analysis is whether there is any tendancy to prove something of consequence. Focus is not on whether one piece of evidence proves P’s case
.: P fired for starting fight, P wants to introduce evidence demonstrating tendency to discriminate for similar firings; see pg. 135 for specific evidence. Court held that as long as it has any tendency to have probative value, it is admissible and relevant. Evidence need not in a vacuum prove P’s case, but combined they show tendency to prove fact.
fact is of consequence; issue in the case
US v. Hall
: Only evidence against D are three plea-bargain state witnesses. On cross-examination the D shows jury that deals with prosecution were made in exchange for testifying. P calls a DEA agent to testify about general practice, the purpose of testimony is to claim that it is uncommon for higher ups in the drug trade to have the drugs because the workers do all the handling. Court held that testimony is not of consequence in this particular case. DEA’s testimony in hypothetical situations does not relate to this case. But this is questionable because D’s defense is no physical corroborating evidence. But, it may not be admissible because it is unduly prejudicial.
not unduly prejudicial, Rule 403: Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of [undue prejudice] unfair prejudice, confusion of the issues, or misleading jury, or by considerations of undue delay…..
Hypo: armed robbery suspect arrested with gun similar to that used in robbery, but no evidence that it is the exact gun.
Is it relevant? Yes, under first two elements, but question must focus on unduly prejudicial. D would say prejudicial, while P would claim it is material and critical evidence. On 5-4 decision the court allowed admission of gun as evidence
Objection is not based upon “irrelevant”. Must say “Objection, irrelevant and/or unduly prejudicial”
Process of objection/response to objection based upon prejudicial evidence
offeror: high probative value, low prejudicial effect; in any event probative value is not substantially outweighed by prejudicial effect
opposer: low probative value, high prejudicial effect
