Evidence
Fall 2009
Prater
I. Chapter 1 — Mode and Order of Presentation of Evidence
A. Control By the Court
Federal Rules of Evidence 102, 403, 611.
a. Rule 102 = Purpose and Construction
b. Rule 403 = Exclusion of Relevant Evidence on Grounds of Prejudice, Confusion, or Waste of Time
c. Rule 611 = Mode and Order of Interrogation and Presentation
Judicial Authority – United States v. Reaves à although the Rules do not give the judge specific authority to limit the time for the presentation of the plaintiff’s case, the trial judge has enormously broad discretion concerning the format for admission of evidence and whether evidence will be admitted at all!
Objections made under Rules 611 and 403 / Judicial Discretion:
a. Calls for a narrative response – “tell us what happened”
b. Non-responsive – information given in a response that goes beyond the question
c. Assumes a fact in not in evidence – counsel makes a statement that hasn’t been established in the record
d. Compound – two or more questions at the same time
e. Ambiguous – unclear
f. Asked and answered – repetitious (only applies to the same examiner asking the same question; cross-examiner can ask a question already asked on direct)
g. Cumulative – refers to the number of exhibits or the number of witnesses used to prove a single point
h. Misstatement of the evidence – attorney misstates what a witness has already testified to
i. Argumentative – arguing with the witness
j. Badgering the witness – getting in the witness’ face; yelling at the witness; intimidating the witness
Leading QuestionsOn Direct = Generally not allowed, unless . . .
a. Necessary to develop testimony (4 exceptions)
i) Preliminary matters
ii) Incompetent witness
iii) Child witness
iv) Refresh memory
b. Hostile witness (must be demonstrated in court; cannot be established merely by status or relationship)
c. Adverse party (people listed in the caption of the lawsuit; mere association does not make a person an adverse party, but such persons may be “associated” with an adverse party; court’s discretion to allow leading questions).
d. Witness associated with adverse party (e.g. president of a corporation, family, etc.).
Leading Questions on Cross = Ordinarily allowed, with two exceptions within the judge’s discretion:
a. Party
b. Friendly to a party
Scope of Cross-Examination
a. English Rule – the witness takes the stand, and can be cross-examined on any issue relating to the case.
b. American Rule – witness can only be examined on cross about things brought up on direct.
c. Kansas & Federal Rule – cross limited to (1) subject matter brought up in direct (broader than the specific testimony elicited; includes all issues brought up on direct); (2) matters going to the witness’ credibility or the truth of the witness’ testimony; (3) but the judge has discretion to allow other questions on cross
i) usually simple questions allowed so that the witness does not have to be called again
ii) Summation: 3 available responses to an objection of “outside the scope of direct:” 1) within subject matter; 2) credibility; 3) judicial discretion
Subject Matter of Direct – includes the specific testimony and all issues implicated by this testimony; allows broad scope for cross-examination.
II. Chapter 2 – Objections and Offers of Proof
Preserving an Issue for Appeal – Cannot successfully allege error on appeal unless . . .
A substantial right is affected
If the error is in admitting evidence, the lawyer must
a. make a timely objection, or
b. make a motion to strike, AND
c. state the specific grounds for the objection or motion, unless they are apparent from the context
If the error is in excluding evidence, the lawyer must
a. make an offer of proof, and
b. state the specific grounds for making the offer, unless apparent from the context
Plain Error Doctrine – Plain errors or defects affecting substantial rights may be noticed although they were not brought to the attention of the court. (You did everything wrong, but the ruling by the trial judge was so wrong that your client should be granted relief- you are admitting to malpractice).
a. Judgments shall not be reversed for harmless errors (errors, defects, irregularities, or variances not affecting the substantial rights of the parties).
Timely Objection – General rule is that (when a question is improper) an objection should be made as soon as the question is asked and before an answer is given; but rule is loosely applied in cases where the attorney does not have time to make an objection.
Motion to Strike – When the witness gives an objectionable answer, the opposing attorney must make a motion to strike before the next question is asked in order to be timely; can also ask the judge to admonish the jury to disregard the answer.
Requirement of Specific Objection – Een v. Consolidated Freightways à Plaintiff objected on the grounds that the defendant’s witness’ testimony was (1) incompetent, irrelevant, and immaterial, (2) speculation, (3) invading the province of the jury, and (4) calling for a conclusion. The court said that a shotgun approach to making objections is not sufficient; counsel must state the specific reason for the objection, and that reason must be the correct objection.
Offer of Proof – If the judge is going to exclude evidence against you, you have to make an offer of proof in order to be able to appeal (so that the appellate court knows whether or not a substantial right has been affected). Procedural choices:
Attorney speaks to the rec
’s oath need only reflect that he or she will be subject to a perjury prosecution if he or she fails to tell the truth. (The court may come up with alternate language when the witness object to traditional oaths for religious reasons protected by the 1st Amendment).
a. Procedure – Ask the witness to (1) swear to tell the truth; if she refuses, as her to (2) affirm that she will tell the truth, and if she still refuses, ask her to (3) tell the truth under penalty of perjury.
b. Competency subject to objection – If an objection to the witness’ oath (or failure to make an oath) is not made at the time the oath is given (or withheld), the objection is waived and the witness has a license to lie – the other party will be unable to threaten the witness with a perjury charge on cross.
c. Children – At common law, children under a certain age were automatically deemed incompetent to testify. Although some states still have these laws (not KS), the Federal Rules do not give age categorizations for competence or presumed competence. The competency determination is minimal, and the trial court has discretion when deciding whether a child understands what it means to tell the truth, as well as his or her obligation to tell the truth. Once the court decides that a child is mentally capable of this understanding, credibility is for the jury.
d. Mental Incapacity – When a person has been held incompetent to stand trial, he or she is not necessarily incompetent to testify; a mentally ill witness will be competent to testify as long as he or she understands the duty to tell the truth.
Perception – To be competent to testify 2 requirements must be met: 1) the witness must have personally perceived the thing to which he or she will testify 2) through one of the 5 senses. The witness’s own testimony that he or she saw something may provide the basis for meeting the perception requirement. Only minimal ability to perceive is required, and it is sufficient if the proponent produces evidence sufficient to allow a reasonable person to conclude that the witness in fact perceived what he testified to. When there is contradictory testimony on the threshold question of competence, it goes to credibility, not competence!
Objection must be specific- you can’t just say “objection incompetent”, you have to say why.
