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University of Kentucky School of Law
Fortune, William H.


Chapter One

I. Introduction to Evidence

A. The Trial Game
– This game is played by proxy – the main players have less at risk than those they represent
– You may have the best possible case, but you have to be able to introduce your evidence to win
1. The game is almost always won or lost on appeal rather than at trial – appellate judges are more concerned w/ justice
2. Rules may be fuzzy in court w/ a different judge

– Federal Rules of Evidence have been mostly adopted
– As a negotiator, you must realize that the strength of your case may depend on being able to introduce certain kinds of evidence

B. Basic Terminology
– Witness – person who gives testimony in court
– Testimony – is sworn oral report by a witness of information relating to a legal dispute
– Exhibit – is a physical object presented b/c it provides info. Relating to a legal dispute
– Objection – a motion by a pty asking the judge to exclude evidence offered by an opposing pty
– Offer of Proof – info. That a pty provides to the judge to show the contents of evidence
– Foundation – a fact on which evidence must be presented b/f a litigant is allowed to present evidence on some related matter
– Direct Examination
– Cross Examination
– Leading Question – suggests desired answer
– Impeachment – evidence to show that a witness has lied, made a mistake or is inaccurate
– Rehabilitation – evidence used to show that a witness who has been impeached did testify accurately and truthfully
– Personal knowledge of a fact is knowledge based on a person’s own sensory perceptions – In general, witnesses can only testify to matters w/in their personal knowledge
– Opinion – evidence of something the witness has not seen, heard or otherwise perceived directly, but rather has inferred from other information – opinion evidence by expert witnesses is generally admissible; other witnesses can only testify to a narrow range of opinions, based on their own sensory perceptions
– Relevant – evidence which has a tendency to make some fact that matters in the case more likely or less likely. Relevance is a requirement for admissibility; irrelevant evidence is inadmissible
– Unfair prejudice – the effect of evidence that confuses or misleads the trier of fact, or causes the trier of fact to decide the case on a legally improper basis, such as hatred toward a pty
– Character evid

d by official method for use in that ct.
– Transcripts are usually prepared for appeals
– Videos can be better b/c they record gestures

b. What Gets Transcribed
– Testimony – from the time a witness is sworn in, everything that is said during her examination will appear in the transcript
– Sometimes a judge will “strike” testimony from the record b/c it is inadmissible
– Objections, ruling and offers of proof – Must make timely objections on the record at trial
– Must secure a ruling on the record
– Sometimes the content of the excluded evidence is apparent from the context; otherwise the attorney who asked the question must put it on the record by making an “offer of proof”
– Even in the absence of an objection appellate cts may consider “plain errors affecting substantial rights”
– Jury selection, opening statements, closing argument, instructions, etc.
– Sidebar conferences and meetings in chambers – may be a need to put these on the record