Evidence Outline

I. Revised Evidence Notes
II. Chapter 1, Evidence Law
A. Why Rules of Evidence
1. Why Evidence Law at All?
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Also, time is important because we can’t go to the limits of every question.
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You can argue that juries are more sophisticated than we give them credit for – usually they are very conscientious, and they are usually up to the task. Thus, evidence law is a more detailed set of rules than in other systems.
Most pressing consideration is protection of the jury so they can make an informed, unprejudiced decision. Time is a scarce commodity: judges don’t have time to think about complex rules, so rules need to be simple, fairly broad, and fairly rough.As trial attorneys, we need to be able to have the rules right at the forefront so we can think on our feet, make objections when necessary, etc.
2. Why Rules Rather than Common Law?
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This means that trial courts tend to be the final arbiter of evidence law, and there is tremendous variance.
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d. Uniformed Commissioners
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Some 41-42 states have adopted these federal rules, but NY, IL, and CA have not. In 1975 the rules became effective as approved by Congress – it was pretty close to the S.C.’s ideas, but significant changes in some areas. This came at the time of Watergate, people were paranoid, so Congress stepped in, held extensive hearings.
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i. i.e., Rule 102
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There are things not in the rules that everyone understands are allowed: invites courts to allow for the “growth and development” of the law of evidence.
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Several Types of Rules: Relevance of evidence, Reliability of evidence, Procedural rules, Rules dealing with roles of Judge and Jury, Policy Rules.Federal Rules are not complete.1973 – US Supreme Court – proposed rules (if Congress didn’t act, these would become law). : Next, trial judges, practicing lawyers, got together and codified them anew – but it was adopted in only a few places, and was not a big success.ALI couldn’t restate evidence law because it was such a mess, so they decided to write it using academics, appellate judges, and had a scholastic, detailed approach – the Model Code of Evidence that resulted was adopted nowhere. Evidence errors seldom rise to the level of reversible error.
Cases are unsatisfactory for evidence law.
B. What Happens at Trial?
1. Jury Selection
2. Opening Statement
3. Presentations of Proof
4. Trial Motions
5. Closing Argument
6. Instructions
7. Deliberations
8. The Verdict
9. Judgment and Post-Trial Motions
10. Appellate Review
C. Making the Record
1. What Is the Record and How Is It Made?
2. Beware the Pitfalls – What Not to Do
3. Taking Care – What to Do
D. How Evidence Is Admitted or Excluded
1. Getting Evidence in: Foundation and Offer
a. Testimonial Proof – Direct Examination
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Judge can examine the witness.Judge can appoint experts.Judge has control to limit leading questions without the opposing counsel objecting.Leading is possible, but it is less persuasive – so over-leading is bad trial practice – you should stay away as much as possible to be a good advocate.Leading questions are allowed more often for:Trial judge has almost unlimited discretion on allowing/prohibiting leading questions.The best test of a leading question is one that implies the answer you want from the witness. Questions that need a “yes” or “no” answer are generally leading questions.
b. Testimonial Proof – Cross Examination
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ii. Rule of Thumb:
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vi. Rule 611
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The judge’s decision whether or not a question is outside the scope of direct is virtually unreviewable.allows questions of credibility on cross. Usually, the cross-examiner can only ask questions limited to the subject matter of the direct examination testimony.On Cross-Examination controlling the witness is necessary – thus, leading questions are allowed, and are virtually required. Style of the cross-examiner has a lot to do with things: not much acting should go on. don’t ask a question on cross that you don’t know the answer to.
c. Real Evidence:
i. Problem of authentication
: must prove that it is what it is presented to be.
d. Demonstrative Evidence:
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Filmed or videotaped tests.Often, models of bone, skeleton for personal injury lawsuits are used. This is usually allowed if it is a fair, reasonable representation.
e. Writings
evidence law is a study in obstructionism. broad category used to demonstrate something – plat, map, diagram, photograph, model, etc. An object brought into the court that is itself an element of the lawsuit. Before you cross you need to know what you are trying to get out of the witness.
2. Keeping Evidence Out:
a. The Objection
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iii. General objections
iv. Specific Objections
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Object before the answer is given. Don’t object unless you think the answer to the adversary’s question will be harmful to you. To be reviewable, an objection must be timely and must be specific. : states the ground of objection. does not state the ground of objection. By and large, judges don’t care what proof you offer as long as it is not objected to.
b. The Motion in Limine:
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ii. Rule 103-2:
iii. Loose Case:
If a criminal D seeks a motion in Limine excluding a prior criminal conviction and so chooses not to take the stand, he would have to take the stand to object to the question. After motion in Limine, counsel does not need to raise an objection/offer of proof to preserve the ruling for appeal. Courts are reluctant to grant these because some things are admissible in context when they wouldn’t be just flat out.
c. Motion to Strike:
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Ordinarily a motion to strike is not very helpful.When you are the non-examining attorney, the only time you can move to strike is when the answer is blurted, or when the answer is unresponsive and otherwise inadmissible.
When you are examining, you are entitled to an answer to your question. Ask before trial for a ruling on evidence admissibility.When cross-examining, it is usually not a good idea to ask open-ended questions because the witness may take off and testify as to inadmissible evidence.
3. The Offer of Proof:
a. 103(a)(2):
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You must indicate to the court what the evidence would be if allowed.
b. Ethics of Advocacy
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In real life, this doesn’t’ happen because lawyers will be hurt in two ways: opposing lawyers will not cooperate, and judges will not cooperate with that attorney.
: on TV, lawyers ask patently inadmissible questions to get the idea/information out.
4. Judicial “Mini-Hearings”
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ii. i.e., Rule 1004:
copy allowed if original is not available. Is there an adequate excuse as to why it is unavailable? Judge decides. When these arise he uses the “preponderance of the evidence test.”
b. Conditional Relevance:
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ii. Hypo 1:
(see rule 104(b)): friend driving your car, you yell “brakes are bad.” If the relevance depends on the satisfaction of a condition of fact, then it is of conditional relevancy.
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There can be cases where the judges’ power to determine the preliminary facts has a strong impact on the trial.That may mean that he does not allow a key witness, destroying your case before a jury hears it – but that is the price we pay in our system.
So long as it is an admissibility question, the judge has discretion. The relevancy of the evidence depends on the fulfillment of a condition of fact.
Regarding some questions of evidence, the judge needs to make factual determinations (i.e., Rule 803(6)). Offer of Proof: Must be done out of the hearing of the jury – it may be done on the record, but it must be out of the hearing of the jury, or the jury will be excused and you have a “mini-hearing.”
E. Consequences of Evidential Error
1. Appraising Such Error on the Merits
2. Appellate Deference: The Discretion of the Trial Judge
3. Procedural Pitfalls and Adversarial Gambits
(Omit 1-B)
F. Obtaining Review of Evidence on Points
(Skim)
III. Chapter 2, Relevance
A. Logical Relevance
1. Relevance and Materiality
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b. Probandum
c. Relevance:
d. Rule 401:
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This is “mere relevance” – an incredibly low standard.
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Rules 401 and 403 were attempts to arrive at this.
f. Rule 403
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Needless presentation of cumulative evidence. Waste of time.Causing undue delay.Misleading the jury.Confusion of issues.If its probative value was outweighed by the danger of unfair prejudice.
g. Difference between relevancy and materiality
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Although we have gotten rid of the terms, there are two things we are trying to prove: The proponent gets to choose what the probandum is he is trying to prove, and the judge determines whether the evidence is irrelevant or not. Now we use the term “irrelevance” to attack things as being irrelevant or immaterial or both. Materi