Evidence Outline

 
Chapman
Evidence
Summer 2018
 
 
TEXTBOOK: Leonard, Gold and Williams, Evidence, A Structured Approach (4th Ed.).
 
Outline
Eight Major Topics:
Foundations: Personal Knowledge and Authenticity
Relevance
Hearsay
Hearsay Exceptions and Hearsay Exemptions
Return to relevance: Specific issues
Cross examination and impeachment
Opinion evidence
Privileges
 
0. Intro
Sources of Evidence Law
Rules of Evidence
Decisional Law
Constitutional Law
 
 
RULE 611. MODE AND ORDER OF EXAMINING WITNESSES AND PRESENTING EVIDENCE
(a) Control by the Court; Purposes.
The court should exercise reasonable control over the mode and order of examining witnesses and presenting evidence so as to:
(1)make those procedures effective for determining the truth;
(2)avoid wasting time; and
(3)protect witnesses from harassment or undue embarrassment.
(b) Scope of Cross-Examination.
Cross-examination should not go beyond the subject matter of the direct examination and matters affecting the witness’s credibility. The court may allow inquiry into additional matters as if on direct examination.
Note – Maine Rule 611 does not restrict scope of cross examination
(c) Leading Questions.
Leading questions should not be used on direct examination except as necessary to develop the witness’s testimony. Ordinarily, the court should allow leading questions:
(1)on cross-examination; and
(2)when a party calls a hostile witness, an adverse party, or a witness identified with an adverse party.
 
Direct and Cross Examinations
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
Note –
(a) – court should be in control
(b) – Cross-examination only about matters form direct & matters (court can allow more)
(c) – Leading questions
 Leading questions not allowed on direct
Leading questions are allowed on cross
What is a leading questions?
Leading:  it's in true you went to the store today
No leading:  what did you do today?
 
APPELLATE REVIEW OF EVIDENTIARY ISSUES
Fed. R. Evid. 103. Rulings on Evidence – ON THE EXAM
 
(a) Preserving a Claim of Error. A party may claim error in a ruling to admit or exclude evidence only if the error affects a substantial right of the party and:
(1) if the ruling admits evidence, a party, on the record:
(A) timely objects or moves to strike; and
(B) states the specific ground, unless it was apparent from the context; or
(2) if the ruling excludes evidence, a party informs the court of its substance by an offer of proof, unless the substance was apparent from the context.
 
(b) Not Needing to Renew an Objection or Offer of Proof. Once the court rules definitively on the record either before or at trial a party need not renew an objection or offer of proof to preserve a claim of error for appeal.
 
(c) Courts Statement about the Ruling; Directing an Offer of Proof. The court may make any statement about the character or form of the evidence, the objection made, and the ruling. The court may direct that an offer of proof be made in question-and-answer form.
 
(d) Preventing the Jury from Hearing Inadmissible Evidence. To the extent practicable, the court must conduct a jury trial so that inadmissible evidence is not suggested to the jury by any means.
 
(e) Taking Notice of Plain Error. A court may take notice of a plain error affecting a substantial right, even if the claim of error was not properly preserved.
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
Appeals –
The successful appeal of an alleged evidentiary error is a three-step process.
First, the party must preserve the issue for appeal.
This usually means obtaining a clear ruling from the trial court and making certain that the record is sufficiently complete to allow for effective review.
Second, the party must persuade the appellate court that the trial court committed an error in the admission or exclusion of evidence.
Third, the party also must convince the appellate court that the error affected a substantial right of that party.
Courts sometimes use different language to describe this third step, describing the error as prejudicial or not harmless.
SOR – Plan error
 
 
 
 
 
 
 
 
 
 
 
Foundations (Week One)
1. FOUNDATIONS –PERSONAL KNOWLEDGE & Authenticity
Personal Knowledge
 
Rule 602. Lack of Personal Knowledge
A witness may testify to a matter only if evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter. Evidence to prove personal knowledge may consist of the witness’s own testimony. This rule does not apply to a witness’s expert testimony under Rule 703
 
 
 
Note-
Rule 602 provides that a witness may testify to a fact only if she has personal knowledge of it.
Rule 602 only requires that there be evidence sufficient to support a finding of personal knowledge.
This is not a demanding standard.
A witness has personal knowledge as long as a reasonable juror could conclude that the witness perceived, comprehends, remembers, and can communicate the facts.
How to prove that a witness has personal knowledge:
show that the witness was at the scene of an event,
establish that the witness was in a position to observe, hear, or otherwise perceive the event with one or more of her senses, and
then ask the witness to testify as to what she perceived.
 
The Oath or Affirmation Requirement
 
Fed. R. Evid. 603. Oath or Affirmation to Testify Truthfully
Before testifying, a witness must give an oath or affirmation to testify truthfully. It must be in a form designed to impress that duty on the witnesss conscience
 
 
Authenticity
 
Fed. R. Evid. 901. Authenticating or Identifying Evidence
(a) In General. To satisfy the requirement of authenticating or identifying an item of evidence, the proponent must produce evidence sufficient to support a finding that the item is what the proponent claims it is.
 
(b) Examples. The following are examples only not a complete list of evidence that satisfies the requirement:
(1) Testimony of a Witness with Knowledge.
 Testimony that an item is what it is claimed to be.
(2) Nonexpert Opinion about Handwriting.
 A nonexperts opinion that handwriting is genuine, based on a familiarity with it that was not acquired for the current litigation.
(3) Comparison by an Expert Witness or the Trier of Fact.
 A comparison with an authenticated specimen by an expert witness or the trier of fact.
(4) Distinctive Characteristics and the Like.
 The appearance, contents, substance, internal patterns, or other distinctive characteristics of the item, taken together with all the circumstances.
(5) Opinion about a Voice.
 An opinion identifying a persons voice whether heard firsthand or through mechanical or electronic transmission or recording based on hearing the voice at any time under circumstances that connect it with the alleged speaker.
(6) Evidence about a Telephone Conversation.
 For a telephone conversation, evidence that a call was made to the number assigned at the time to:
(A) a particular person, if circumstances, including self-identification, show that the person answering was the one called; or
(B) a particular business, if the call was made to a business and the call related to business reasonably transacted over the telephone.
 
(7) Evidence about Public Records.
 Evidence that:
(A) a record is from the public office where items of this kind are kept; or
(B) a document was lawfully recorded or filed in a public office.
(8) Evidence about Ancient Documents or Data Compilations.
 For a document or data compilation, evidence that it:
(A) is in a condition that creates no suspicion about its authenticity;
(B) was in a place where, if authentic, it would likely be; and
(C) is at least 20 years old when offered.
(9) Evidence About a Process or System.