Evidence – Professor Weems – Fall 2012
I. ORDER OF TRIAL
1. Voir Dire (jury selection)
2. Opening Statements
a. Not evidence – purpose is to give jury a purview of what the evidence will show.
3. “What says P?” (ready?) P responds he’s ready, then judge asks D.
4. “The Rule” is either invoked or not invoked.
a. Whether the parties will permit persons that will testify in the courtroom while others testify (rule of sequestration, rule 615).
5. P’s Case in Chief – P gives prima facie case (calling witnesses & admitting evidence).
a. Direct, tender-cross, redirect (only new stuff from cross), and re-cross.
b. Evidence is admitted as it comes up during testimony.
c. Witnesses must be competent and have personal knowledge of admissible facts.
d. Direct – P asks witnesses everything he wants to show (i.e., he can’t wait for re-direct to ask the “Million Dollar Question.”
e. Cross – examination by a lawyer who didn’t call witness.
f. Redirect – examination by lawyer who called witness (can only ask about things brought up during cross).
g. Recross – can occur if new evidence comes up (not very common).
h. After P rests, D moves for directed verdict (no evidence to support an essential element of P’s case).
6. D’s Case in Chief – same except D has direct and P moves for directed verdict.
7. P’s Rebuttal – only if new issues are brought up in D’s case in chief, P has opportunity to call witnesses in rebuttal.
a. Remember – P can’t wait to call a good witness that could’ve been called earlier.
A. “THE RULE” – RULE 615 – RULE OF SEQUESTRATION (exclusion of witnesses)
1. Rule 615 – if a party or the judge invokes, witnesses are excluded so they can’t hear other witnesses testify. It’s almost always invoked.
a. Purpose – witness may change/conform to other’s testimony.
a. A party who is a natural person can stay (P and D can stay).
b. A corporate party (or not a natural person party) can designate an officer/employee of a party as its representative to sit in for them.
c. A person whose presence is shown to be essential to the presentation of the party’s case (i.e., an expert who needs to be acquainted with the facts to give their opinion).
d. A person authorized by statute.
3. Options if the Rule is Violated
a. Prohibit Testimony – this is an extreme penalty and rarely used unless it was intentional. Should be allowed only if the judge determines the other side would be prejudiced.
b. Permit a Strong Cross – this is the normal remedy; the opposing party can get ugly w/ the witnesses and let the jury know the witness shouldn’t have been in the courtroom (ok to raise inference b/c jury will decide if witness is credible).
4. What Constitutes a Violation?
a. If an attorney tells future witnesses what other witnesses testified to.
b. If a witness is called at the end as part of a rebuttal from P and observed the entire trial, the court can allow the normal remedy, and it usually won’t amount to reversible error on appeal.
5. Douglas v. State
a. A sheriff sat through a trial and was later called as a rebuttal witness by P. P also told other future witnesses what previous witnesses testified to (you can only discuss w/ a witnesses what they know).
b. D claimed a violation of Rule 615 on appeal – court agreed P’s “prepping” the witnesses and the sheriff’s presence were violations.
c. Holding – harmless error b/c trials can’t be conducted perfectly (policy).
i. Judge instructed the jury about the violation and allowed a strong cross.
II. COMPETENCY (who can be called to testify as a witness?) (rules 601-606)
1. General Competency – generally competent unless they can’t give their name (majority or people are generally competent).
2. Special Competency – witnesses specially competent to testify on certain subjects, but not others (personal knowledge; experts).
3. Federal Rules of Competency
a. Rule 601 – General Rule of Competency
i. Generally everyone is presumed competent, except as otherwise provided by rules 602-606.
b. Rule 602 – Lack of Personal Knowledge
i. A witness must have personal knowledge of the matter to testify.
ii. Personal Knowledge – must be perceived with your senses.
iii. Evidence must be introduced to show the witness has PK.
c. Rule 603 – Oath or Affirmation
i. Every witness must swear/affirm to testify truthfully.
d. Rule 604 – Interpreters
i. A person is competent even if they don’t speak English; interpreters ok.
e. Rule 605 – Competency of a Presiding Judge as a Witness
i. A judge can’t testify in a case he’s presiding over. If a judge has PK of a matter in a case, he should recuse himself.
f. Rue 606 – Competency of Juror as a Witness
i. Juror can’t testify in a case where he’s a juror (impossible b/c voir dire).
ii. 806(b) Exception – after the trial and judgment, a juror can testify on a motion for new trial ONLY
1. If the juror is to testify about a bribe, threat, or other undue influence, OR
2. Extraneous prejudicial info brought to jury’s attention (going to see a wreck scene).
g. Note – in diversity jx cases, state competency law applies.
h. Note – FRE 602-606 are the same as in MRE, but 601 is different.
4. MS Rules of Competency
a. MS Rule 601 – General Rule of Competency
i. Every person is generally competent, except the following,
1. Spouse of a Party – when a spouse is a party, one spouse can’t be compelled to testify against the other w/o the consent of both.
2. Original Appraiser of FMV of land taken by eminent domain, in such FMV trial.
a. Spouses may call each other in all cases even if the other spouse doesn’t want to testify or consent.
b. Both spouses are competent to testify against each other in controversies b/t them.
c. In a criminal action for an act against a child, either spouse may be compelled to testify.
5. Children – not automatically competent, but usually b/c there’s a presumption of competence.
a. Judge examines in front of the jury the child’s capacity to
i. Perceive and remember events/facts.
“How long has road been open to public?” W never said road open.
b. Argumentative – instead of trying to admit new evidence, L challenges what W said earlier; usually on cross; “Do you really expect people to believe that?”
6. Judge May Examine Witnesses (Rule 614) – rare and judge must be careful not to give impression of partiality.
B. REFRESHING RECOLLECTION (rule 612)
1. Atty may refresh a witness’ memory to elicit testimony about a forgotten fact by
a. Asking leading questions.
b. Showing a witness docs while on the stand.
c. Allowing witnesses to bring docs to the stand.
2. Inadmissible writing used to refresh is ok (Livingston v. State), but it’s not shown to the jury and jury can’t be told what it says, only what W remembers, b/c it’s not in evidence (but may be introduced later).
3. Rule 612 – if something is used during testimony to refresh, other side has an absolute right to see it and introduce it into evidence; if something is used before testimony to refresh, judge has discretion to require its production, but other party doesn’t have an absolute right to see it.
4. If W uses a refresher on the stand, the other side has an absolute right to
a. See it, cross-examine on the basis of it, and have relevant portions introduced into evidence.
5. Records of Past Recollection
a. Hearsay Exception – Rule 803(5) – if a witness can’t remember, a party may put a document into evidence even if hearsay.
IV. INTRODUCING AND EXCLUDING EVIDENCE
1. An objection to the introduction of evidence is waived if not immediately made unless it’s for lack of personal knowledge (can bring up later by motion to strike).
2. 2 Types of Evidence
a. Testimonial – admitted through witness testimony.
b. Exhibitional – admitted through the following process.
3. 4 Step Process
a. Marked for Identification – requesting court to allow clerk to put an identifying mark on it; no grounds for objection; just puts it into the record.
b. Show it to Opposing Counsel – they have this right; for the record.
c. Lay the Foundation – show/hand the object to W and ask the necessary questions to lay the foundation for its admissibility.
i. Must show the object is relevant and authentic to lay the foundation.
1. Authentic – “fair and accurate representation of…”
2. Leading questions permitted when laying the foundation.
d. Offer it into Evidence – “We offer P-1 into evidence.”
i. May be objected to.
ii. If admitted, clerk gives it an evidentiary number and it’s “published to” the jury.