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Evidence
University of Kentucky School of Law
Lawson, Robert G.

EVIDENCE

Lawson Fall 2012

Making the Record; Trial Objections

· MAKING THE RECORD

o The record has 3 basic parts:

1.) the litigation’s paperwork

2.) the verbatim transcript of hearings, conferences and trial testimony and

3.) the tangible exhibits that the parties offered into evidence

o It is the LAWYER’S OBLIGATION to make the record in the case

o IMPORTANCEà The importance of the record all about preserving errors for appeal

§ Common Problem—If the lawyer goes on and off the record, he may lose an issue he wants to raise on appeal

o STIPULATIONSà Conceding facts to qualified witnesses; if you don’t get the stipulation in the record, it is worthless and you lose the benefit of it on appeal

FRE 103. Rulings on Evidence

FRE 105. Limited Admissibility

· OFFERING EVIDENCE

o HOWà You can only offer evidence by calling witnesses and asking them questions. This evidence will be in the form of oral testimony and tangible exhibits:

1.) Oral Testimony—usual method is direct examination and cross-examination of witnesses; also can be done through depositions or transcript of previously recorded testimony

2.) Tangible Exhibits—ordinarily presented through a “sponsoring” witness who can identify or authenticate the item and reveal its relevance to some material issue in the case

o DIRECT EXAMINATION

§ Types of Questions NOT PERMITTED:

1.) Leading Questions—a question that suggests is own answer

-General rule—no leading questions on direct; but can be used on cross

-Rule 611(c)—these questions should not be used on the direct examination of witnesses except as may be necessary to develop the witness’ testimony

-Flexible rule—Exceptions exist for preliminary questions (i.e. “Your name … isn’t it?”); forgotten memory, witnesses of limited understanding (child on the stand)

-Rationale—We don’t want information from the lawyer, we want it from the witness

-Discretion—Trial judge will have lots of discretion here; won’t win on appeal because these questions were used

2.) Compound and Otherwise Confusing Questions—avoid questions that will confuse or mislead the witness

3.) Questions Assuming Unproved Facts—the record cannot be made by questions that assume the existence of facts that have neither been proved nor conceded (ex. “when did you stop beating your wife?”)

-Misleading questions are strongly condemned

o EXPERT WITNESSES

§ Rule 702—Expert witnesses are allowed to testify as to OPINIONS; this is not allowed of lay witnesses, who can only testify to FACTS

§ Basic Requirement—They have to ASSIST the trier of fact

§ Experts are treated differently because they have more information than the jury has; they have SPECIALIZED KNOWLEDGE

§ Sources of information from these witnesses:

1.) Personal Knowledge—ex.) police officer who investigated the scene of the accident

2.) Provided in advance of trial by the party—ex.) physician who is an expert is given all medical records

3.) Hypotheticals—Rule 705; burden on the opposing party to bring out that the assumed facts used are not true (this means they have to have engaged in adequate pre-trial discovery)

-Under traditional law, if the expert did not know all of the underlying facts, you had to use hypothetical questions

-Rule 705 eliminates the requirement that the expert present his opinion in hypothetical form

-Discretion—Judge has discretion to say you have to use the traditional method

o ORDINARY WITNESSES—LAYING THE FOUNDATION

§ Basic Requirement—Witness must have PERSONAL KNOWLEDGE

ú Must speak from your own observations; but not your conclusions therefrom

ú Hearsay rules prohibit you from testifying as to what someone else said, notwithstanding a ton of exceptions

§ Rule 602—“A witness may not testify to a matter unless evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter. Evidence to prove personal knowledge may, but need not, consist of the witness’ own testimony.”

ú Judge makes this decision

§ Rule 602 Applications

ú OPINION

W: D walked to the edge and tossed her baby into the water

-This is the opinion of what happened and the witness cannot say this

W: D had a bundle in her arms, it was wrapped in a blanket, she tossed the bundle into the water

-This is what the witness actually saw so they must say this

ú HEARSAY

W: D drove his car through the red light on Short St.

-This is what is testified, but not actually what the witness knows; not allowed to do this

W: X told me “D drove his car through the red light on Short St.”

-This is what the witness actually knows

§ 2 examples of laying the foundation for evidence:

1.) Past Recollection Recorded—Rule 803; must lay the foundation to admit a writing that the witness made at the time of the accident (or close in time) before it can be admitted

2.) Business Record—Must show that the records were made by a person acting in the course of a business duty, made close in time to an event, etc.

o CROSS-EXAMINATION

§ Main Objectives: (1) Reflect on the CREDIBILITY of a witness, (2) CLARIFY and EXHAUST any info the witness has

§ Much more flexible than direct examination; fewer rules

§ Leading questions are allowed on cross-examination

ú Rationale—Because the witness is usually adverse or hostile to the opposing lawyer

ú Exceptions—Still cannot use leading questions if it is a friendly witness

o TANGIBLE EXHIBITS

§ 2 types of tangible evidence: (1) real evidence and (2) demonstrative evidence

§ REAL EVIDENCE

ú Ex.) Photograph of the scene

ú Real evidence is admitted as an exhibit; demonstrative evidence is not

ú STEPS to introduce an exhibit:

1.) Marking for purposes of identification only

2.) Laying the foundation

-You have to introduce enough evidence to support a finding that it is what you say it is

-“Identification” used for physical items

-“Authentication” used for written items

3.) Asking for admission/ marking as an exhibit

-Even if judge says no, you have gotten it into the record

-If admitted, you hand it to the court reporter and ask that it be marked as an exhibit

-Marked twice: once for identification, once as having been admitted

4.) Showing it to the jury

§ DEMONSTRATIVE EVIDENCE

ú Ex.) Drawing of a scene

ú NOT REALLY EVIDENCE; tangible material used for explanatory or illustrative purposes only

ú It will be in the record because you need it for appeal, but unlike real evidence, it will be not admitted in the case; not given to the jury

ú Documents (authentication of writings):

w A writing is not receivable in evidence until it has been authenticated; cannot introduce a writing based on the face of the writing

w To enter it, you have to enter enough information to support a finding that this is what it says it is (ex. someone that knows the signature, that saw him write it, that heard him say he wrote it)

w 3 big bodies of evidence law that you have to deal with concerning writings:

1.) Authentication

2.) Best Evidence Rule

3.) Hearsay Rules

· OBJECTIONS TO EVIDENCE

o BASIC RULE—Even if the information violates all rules of evidence, if it is not objected to, then it can be used as any other piece of writing (must object to at trial in order to appeal)

o RESPONSIBILITY—It is the obligation of the parties to object

o RATIONALE—To help the judge; we want the burden on the lawyers, not the judge

o FRE 103(a)(1):

§ Must make a TIMELY objectionà must be made as soon as the reason for the objection is KNOWN; this means you must object to the question when the question is objectionable; if it was an unexpected answer that is objectionable, you can object after the answer is given (ask for it to be stricken from the record)

§ Must state the SPECIFIC GROUND of the objection

o MOTION IN LIMINE—Parties may use a motion in limine, which is a ruling in advance of trial, to object to potential evidence/questioning, thus getting it already on the record

§ Importance because it encourages settlement of the case; involves issues that are often difficult to deal with at trial; and this is another way to preserve an objection for the record without having to present it at trial

o SPECIFICITY OF OBJECTIONS

§ 2 kinds of objections: (1) General objections, (2) Specific objections

§ Examples:

ú “Objection”= general

ú “Objection. Inadmissible”= general

ú “Objection. Incompetent”= general

ú “Objection. Irrelevant immaterial, incompetent”= general because it incorporates all evidence law

ú “Objection. Hearsay and irrelevant”= specific

§ STEPS: (1) You have to object, (2) you have to give a reason, (3) you have to be specific as to content (if partly admissible and partly not)

§ If a general objection is made, a judge can do no wrong and the opposing lawyer has nothing on appeal. Therefore, the lawyer MUST be specific and ask for the basis of the ruling

§ A bad objection is like none at all (i.e. if lawyer objects on the wrong ground but had a good objection , they still have nothing on appeal)

§ PART OF ANSWER OBJECTIONABLE—If only part of a witness’ answer is objectionable and the attorney objects to the whole answer and gets overruled, they have nothing on appeal. Attorney MUST separate the good from the bad.

§ REMEMBER—Trial judge can do no wrong in this situation; it is the attorney’s obligation to object!

· OFFER OF PROOF

o Offer of Evidence v. Offer of Proof

§ To offer evidence, you use a witness, etc. through the process described above

§ Offer of proof comes into play before or during an offer of evidence and whenever the evidence is excluded; this is where the attorney has to make the record and puts into the record the substance of the evidence

o HOW DO YOU DO IT?

§ (1) Questions/ Answers

ú Go off the record, go to chambers (away from jury) and question the witness

§ (2) Proffer of Proof

ú Go to the court reporter and say “if the witness had answered, they would have said …”)

ú KY Supreme Court didn’t accept this at first, but now they do (they wanted it from the witness, but that is not very efficient)

ú FRE 103(b)—The court may add any other or further statement which shows the character of the evidence, the form in which it was offered, the objection made, and the ruling thereon.

o TYPES OF ERRORS

§ (1) Harmless Error—errors that made no difference in the outcome of the case and DO NOT warrant a new trial; there will be lots of these errors

§ (2) Reversible Error—harmful error (affect a substantial right of a party) and properly preserved by objecting and offering proof (lawyer did what he was supposed to do to get it out or get it in); may warrant new trial

§ (3) Plain Error—harmful error but lawyer didn’t preserve it as they were supposed to do

ú This is a SAFETY VALVE—court will still consider plain errors because it is an obvious misruling that is DEVASTATING to the case

· PRELIMINARY QUESTIONS OF FACT

o Preliminary questions of fact occur when admissibility of evidence depends on some fact that has to be decided

o FRE 104(a)—JUDGES (and not juries) decide preliminary questions of fact (i.e. With dying declaration hearsay exception, judge gets to decide if statement was mad under consciousness of impending death)

§ RATIONALE—Policy decision; juries are not worried about evidence policy and fairness; won’t be able to separate policy from the fact, and will use it anyways

§ STANDARD—Preponder

t he had a prior felony which would meet the element of the federal crime he was charged with (possession of firearm after prior felony conviction).

§ Nature of the offense had LITTLE probative value (because of stipulation); but danger of prejudice is VERY HIGH

§ 2 ways to determine the probative value of evidence:

ú (1) Abstract Value—view each piece of evidence as an island (ex. probative—100 vs. prejudice—60)

ú (2) Discounted Value— consider it in relation to other evidence by taking into account evidentiary alternatives (ex. probative—0 because he was consenting to it vs. prejudice—60)

w You would discount prejudice in situations of limited admissibility

§ What you are actually weighing here is INCREMENTAL probative value

o Ballou v. Henri Studios (1981)—P’s husband is killed in a car wreck with D (employee). P filed motion in limine to prevent introduction of any evidence at trial that deceased was intoxicated at time of collision (specifically wanted to exclude results of blood alcohol test); SUSTAINED by trial judge because of undue prejudice

§ HOLDING—Court held that exclusion of test results here was an abuse of discretion (out of the ordinary)

ú Here, judge made a credibility judgment in deciding the nurse was more believable than the blood test. BUT, Rule 403 does not permit exclusion of evidence because the judge does not find it credible.

§ STANDARD for reversal—ABUSE OF DISCRETION

§ RATIONALE—Appellate judge knows it was a tough call and the trial judge makes these decisions all the time and is usually better at it. He also had a better look at all the evidence/ witnesses. This means lawyers have to fight their hardest battle at the trial level.

Competency of Witnesses

· RULE 601

o RULE 601—Every person is competent to be a witness except as otherwise provided in these rules; basically lets everyone testify unless challenged by the other party or attacked via cross-examination

§ Only 2 DISQUALIFICATIONS—(1) Cannot take the judge off the bench to give testimony; (2) Cannot take a juror out of the box to testify and then put him back in

§ KENTUCKY RULES:

ú KRE 601(a)—Every person is competent to be a witness except as provided in these rules or by statute

ú KRE 601(b)—(Minimal Qualifications) A person is disqualified to testify as a witness if the trial court determines that he:

w (1) Lacks the capacity to perceive accurately the matters about which he proposes to testify

w (2) Lacks the capacity to recollect facts

w (3) Lacks the capacity to express himself so as to be understood either directly or through an interpreter

w (4) Lacks the capacity to understand the obligation of a witness to tell the truth

ú If you are in federal court and it is diversity jurisdiction, there are some state evidence rules that are going to apply and this is one of them (in diversity jurisdiction in KY, use KRE 601). Can be thrown out based on Rule 403 (if prejudice substantially outweighs probative value)

o OLD RULES—there used to be lots of rules declaring a witness incompetent. Not almost all are gone, but a few still remain in state court. Suspect characteristics in these rules:

§ Religious beliefs—if you didn’t believe in God, you weren’t permitted to testify

ú Now: RULE 610—Evidence of beliefs or opinions of a witness on matters of religion is not admissible for the purpose of showing that by reason of their nature the witness’ credibility is impaired or enhanced

ú Cannot impeach a witness based on religious beliefs

§ Infamy—if you were convicted of a crime, you could not testify; changed to a credibility rule because prosecutor’s were losing out on evidence

ú Now: A few states still will not allow a person to testify if they have committed perjury

§ Interest—there was a prohibition against parties testifying in a case because they thought that if they have an interest in the case, they will lie; again, they were losing too much good evidence so got rid of rule

ú Now: Interest can still bear on credibility

ú Remnants of rule still exist in some jurisdictions: DEAD MAN’S STATUTES—An interested witness cannot testify to any act or omission to act, or any transaction with, a person who is dead or incompetent at the time of trial (living cannot speak because the dead cannot)à most of these statutes have killed

ú If a state has one, it is used in federal court in diversity

§ Mental capacity—A witness will ordinarily be presumed to have the mental capacity to testify; if challenged, it is determined by trial judge as a preliminary question of fact. 3 situations where this challenge may be made:

ú (1) Infancy

ú (2) Mental derangement

ú (3) Intoxication