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Evidence
University of Kentucky School of Law
Lollar, Cortney E.

 
Evidence Lollar Spring 2017
 
Making the Record; Trial Objections
MAKING THE RECORD
The record has 3 basic parts:
the litigation’s paperwork
the verbatim transcript of hearings, conferences and trial testimony and
the tangible exhibits that the parties offered into evidence
It is the LAWYER’S OBLIGATION to make the record in the case
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
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
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:
Oral Testimony—usual method is direct examination and cross-examination of witnesses; also can be done through depositions or transcript of previously recorded testimony
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
 
DIRECT EXAMINATION
Types of Questions NOT PERMITTED:
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—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
Compound and Otherwise Confusing Questions—avoid questions that will confuse or mislead the witness
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
 
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:
Personal Knowledge—ex.) police officer who investigated the scene of the accident
Provided in advance of trial by the party—ex.) physician who is an expert is given all medical records
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
 
ORDINARY WITNESSES—LAYING THE FOUNDATION
Basic Requirement—Witness must have PERSONAL KNOWLEDGE
Must speak from your own observations; but not your conclusions therefrom
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.”
Judge makes this decision
 
Rule 602 Applications
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
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:
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
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.
 
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
Rationale—Because the witness is usually adverse or hostile to the opposing lawyer
Exceptions—Still cannot use leading questions if it is a friendly witness
 
TANGIBLE EXHIBITS
2 types of tangible evidence: (1) real evidence and (2) demonstrative evidence
REAL EVIDENCE
Ex.) Photograph of the scene
Real evidence is admitted as an exhibit; demonstrative evidence is not
STEPS to introduce an exhibit:
Marking for purposes of identification only
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
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
Showing it to the jury
 
 
DEMONSTRATIVE EVIDENCE
Ex.) Drawing of a scene
NOT REALLY EVIDENCE; tangible material used for explanatory or illustrative purposes only
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
Documents (authentication of writings):
A writing is not receivable in evidence

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
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
Preliminary questions of fact occur when admissibility of evidence depends on some fact that has to be decided
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—Preponderance of the evidence (50.1%)
For rules of “competence”
FRE 104(b)—Relevance conditioned on fact
When the judge has the authority to make these decision, (a) is subject to (b)
When the relevancy of evidence depends upon fulfillment of a condition of fact, the court shall admit upon, or subject to, the introduction of evidence sufficient to support a finding of the condition
STANDARD—lower standard with conditional relevance; less than 50%, somewhere around 33%
Judge must decide whether a reasonably juror could come to that conclusion, not whether there is a preponderance of evidence supporting that conclusion
Ex.) Letter claimed to be written by D. D says he didn’t write is. Letter is only relevant evidence if D actually wrote it.
 
LIMITED ADMISSIBILITY
FRE 105—When evidence is admissible as to one party or for one purpose, but not for other persons or purposes
Rule is that the evidence comes in, however, the judge must instruct the jury that the evidence can only be used for certain purposes
This shows that the evidence law is general VERY INCLUSIVE and tilts towards letting evidence in
Ex.) Smith is prosecuted for murder. He testifies in his own defense. On cross, the state seeks to question him about a prior murder conviction that has nothing to do with the present case.
Conflicting rules because Rule 404(b) calls for exclusion of evidence (for proving D’s guilty) while Rule 609 calls for the admission of the evidence (to impeach D).
Should allow the evidence to come in but restrict its use
 
 
Relevance
TERMS & CONCEPTS
Ultimate Facts & Evidentiary Facts
Ultimate Fact—What has to be proven (D killed V or D did not kill V)
Evidentiary Fact—The evidence in the case; what you use to prove ultimate facts