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University of Kentucky School of Law
Lollar, Cortney E.

Evidence Lollar Spring 2017
Introduction and Trial Procedure
The Philosophy and History of American Evidence Law
Three essential functions that must be performed in order to resolve a dispute in a non-arbitrary manner:
Pleading function
Defining the issues between the parties
Discovery function
Gathering information on the issues
Evidentiary function
Deciding which information to consider in resolving the issues
US has the most complex evidentiary code and procedures in the world
The Adversary System
Two common judicial dispute resolution systems:
The parties are active in gathering evidence and presenting their dispute to a neutral, umpire-like judge
The judge plays a passive role – merely rules on discovery disputes between the parties
Fact gathering and criminal prosecutions are initiated and controlled by the judiciary
The parties are limited to making arguments about the facts so gathered and the law being implemented
Opinions about adversarial system
Allowing parties to presented their doctored version of the evidence puts the truth at too low of a priority
Gives arbitrator one job
Stops the problem of a judge from pre-judging the evidence because each advocate has the ability to offer up their explanation of the evidence
Arbitrator can come to the hearing “uncommitted”
The Use of Lay Jurors
Arises from the commitment to including the voice of the community in the process of legal decision making
Juries are used much more frequently in the US than anywhere else in the world
Effect on rules of evidence
Many of the rules that operate to exclude logically relevant evidence appear to reflect doubts about the jurors’ capabilities
There is debate over whether or not we should have different rules of evidence for bench and jury trials
Evidentiary Rules Based on External Social Policies
Exclusion of evidence
American legal system frequently excludes relevant reliable evidence on theory that exclusion serves a social policy separate from the truth-finding function of the trial
i.e. – privilege against self-incrimination and Fourth Amendment exclusionary rule
Also used for relationships like husband/wife and client/attorney
Other Reasons for Evidentiary Rules
Considerations of fairness
To victims, witnesses, or other participants
Minimizing expense and delay
The History of American Evidence Law
American law has common law origins, but now mostly rests on statutes
Laws of evidence have undergone a similar “statutization” process
Before Federal Rules
Earliest codification was in Field Code of Civil Procedure
Adopted by a few states by the end of the 1800s
Wigmore treatise (1904)
Professor synthesized all American case law on rules of evidence into a large treatise which was used extensively
The Federal Rules of Evidence
Historical background
In 1961, Chief Justice Warren, began the process of determining if a federal standard of rules for evidence would be possible
After several amendments and delays, the Rules were signed into law in 1975
Amendments to the Rules
SCOTUS has power to amend rules, but amendments must be approved by Congress
State Rules
Many states have adopted rules of evidence which mimic the language of the Federal Rules
Conceptual Framework
Two key analytical questions:
Is this individual item of evidence admissible?
Are all the party’s items of evidence sufficient to prove the fact in issue?
Admissibility is a threshold question
To qualify, item must clear several hurdles
Threshold Qualifications:
Competent witness
Though common law disqualified several types of people, nearly every person under the Rules is considered competent
Logical relevance
Testimony must have probative value in two senses:
Item must have some logical connection with the facts in dispute in the case
Proponent of the evidence must make a threshold showing that the evidence is what it is claimed to be
Unreliability/untestability of certain evidence
Most well-known is heresy rule, limiting witnesses from using statements made outside the courtroom
Extrinsic social policy
Evidence may be relevant and reliable, but the judge can still exclude it to further some social policy
i.e. – evidence that is derived from attorney-client privilege
Sufficiency question is asked after all the evidence has been presented
Judge decides if there is enough evidence for the case to go to a jury
Two types of sufficiency:
Decided by the judge who applies the initial burden of production, and if legally sufficient, case goes to jury
In deciding whether to return a verdict for the party, the jury evaluates the evidence
Evidence Types, Sources, and Substitutes
Types of Information to Which Evidentiary Rules Are Applied
Broad Definition
Evidence is information and the law of evidence concerns information that is used in the context of litigation
Types of evidence
Witness may give oral testimony about his own perceptions or opinions, on the basis of personal knowledge
Physical evidence
“Writings and material objects” and also includes things like a pistol, muffler, photograph, etc.
Also includes demonstrative evidence
Drawing or models attorneys can prepare for the purposes of trial
Sources of Evidence Law
Constitutional Considerations
US Constitution limits what is admissible in courts, especially in the criminal context
Most important is the Fourth Amendment right against unreasonable search and seizures
Exclusionary rule
Evidence that violates the Fourth, Fifth, or Sixth Amendment is generally required to be excluded
Court Rules
The Rules were ultimately e

al person
A party or a designated officer/employee of a party,
A person whose presence is essential to the presentation of a party’s claim/defense, or
A person statutorily authorized to be present
Direct, Cross, Redirect, and Recross Examinations
When an attorney wants to present a prospective witness’s testimony, the attorney calls that person as a witness
Attorneys representing the opposing parties largely control the questioning of the witnesses
Phases of Examination
Direct examination
The first examination of a witness upon a matter that is not within scope of a pervious examination
Examination of a witness by a party other than the DE upon a matter that is within scope of the DE of the witness
Redirect examination
Examination of a witness by the DE subsequent to the CE of the witness
Examination of a witness by CE subsequent to a RE of the witness
Questions by the Trial Judge
Judge doesn’t have to always have passive role, he can call witnesses on his own motion, and question witnesses called by the parties
However, in some extreme cases, the judge can cross the line in his questioning
Rule 614
Court may call a witness on its own or at a party’s request, each party is entitled to cross-examine the witness
Court may examine a witness regardless of who calls the witness
A party may object to the court’s calling or examining a witness either at that time or at the next opportunity when the jury is not present
Questions by the Jurors
Recent trend
There is a growing number of people in favor of permitting questions by jurors during the trial, provided the procedure is strictly regulated
Excusing the Witness
When questioning is completed, the witness is excused
Typically, this means permanently excused
Permanently excused vs. subject to recall
If a witness is permanently excused, an attorney seeking additional testimony must seek leave of the court
If a witness is subject to recall, attorney has the right to recall him and elicit additional testimony
The Scope of the Examination of a Witness
Direct Examination
Scope depends upon the segment of the case in which the direct examination occurs
i.e. – scope of the P’s case-in-chief is broader than the scope of the P’s rebuttal