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University of Mississippi School of Law
Davis, Samuel M.

Evidence Outline
Davis Fall 2013
I.                   Introduction
A.     History of the Rules of Evidence
–          On Jan. 1, 1986,       the Federal Rules (called MS Rules of Evid).  Apply in ALL MS cts.
–          Last rule of MS Rules of Evidence says that any statute in conflict with a rule of evidence is repealed.
B.     Order of Trial
1.      Selection of Jury (Voir Dire)
2.      Opening Statements
a.       P gives opening statement, then D has opportunity to make one. This is not evidence.
b.      Purpose is to explain to the jury what your evidence is going to show.
3.      “What says the Plaintiff?”
4.      Rule 615- “Is the rule invoked?” –Sequestration of Witnesses
5.      Plaintiff Case-in-Chief
a.       P calls first witness. 
b.      Direct examination – examination done by party who called witnesses to the witness stand. 
c.       Cross-examination – D given opportunity to ask questions.
d.      Redirect- P is allowed to ask questions on “redirect” – must concern matter brought up on the CE by D.  (“Recross” after where D questions again, but doesn’t happen often)
e.        “The P rests.”
f.       Defense will motion for a directed verdict.
6.      Defendant’s case-in-chief 
a.       Same as P’s case-in-chief. D calls witness for DE. P CE. D asks questions on redirect, etc. until all D’s witnesses have been called. 
7.      P’s rebuttal 
a.       If there has been new matter presented in D’s case in chief, P may call witnesses in rebuttal; however, trial practice doesn’t permit P to call witness that he should/could have called during his case-in-chief. (Limited to responding to new matter)
b.      Sur-rebuttal is not commonly done.
8.      Ct’s Instructions to the Jury & Closing Arguments
a.       Jury must be unanimous in federal ct & state criminal cases.
II.                Rule 615: Sequestration of Witnesses (“Invoking the rule on witnesses”)
A.     “At the request of a party the ct shall order witnesses excluded so that they cannot hear the testimony of other witnesses, & it may make the order of its own motion…” (Treated as a matter of right)
—   Purpose: To prevent subsequent witness from deliberately tailoring his/her story to that of other witnesses even if it’s subconsciously. Prevents improper influence.
—   Means of discouraging & exposing falsification, inaccuracy, & collusion. 
—   Applies to rebuttal witnesses as well as witnesses called in the case-in-chief. Douglas v. State.
—   Violation to tell the witness what the other witnesses have testified to.
B.     3 Exceptions to the rule that allow witness to stay:
—   (1). Party who is a natural person (P or D)
—   (2). Representative of a corporation (officer/employee not natural person but designated as rep)
—   (3). Person whose presence shown by a party to be essential to the presentation of his case.
§  Experts: need to know the facts of the case in order to form opinion.
C.     Violation: (trial judge’s discretion)
–          1. Not permit the witness to testify at all. (considered extreme) 
§  Requires prejudice and connivance.
·         Simple damage not enough. Need to find that the witness changed his/her testimony by virtue of knowing what other witnesses’ testimony.
–          2. May allow opposing party to conduct a full-bore cross-examination (unrestricted, tough CE) 
–          3. Judge may give jury instruction that rule has been violated & since this witness knew the other witnesses’ testimony, jury may consider that in their consideration of the his/her credibility.
§  The normal remedy. Remember juries are the sole judges on the credibility of witnesses.
III.             Competency (Who does the law permit to testify?)
A.     Two Types of Competency
—   Competent means that the person must be one who can legally testify to a cause.
—   Two types of competency:
o   (1) General- not permitted to testify under any circumstances as to any facts
o   (2) Special- not allowed to testify as to only the matters to which they are not competent.
–        Ex. Nurse witness is not competent to testify about reading of a specialized x-ray.
B.     FRE & MRE Competency
·         Application
o   FRE 601 – 606a: Apply to criminal cases tried in fed cts and civil cases tried in fed cts except where state law furnishes the rule of decision, i.e. diversity.
o   MRE 601 – 606a:  Apply to all cases tried in MS cts and also to cases tried in Fed courts located in MS where the MS law furnishes the rule of decision, i.e. diversity cases.
·         Difference b/t FRE and MRE: Competency rules are the same except 601.
Federal 601
Mississippi 601
Every person is competent to testify except as otherwise provided in these rules:
– FRE 602: Lacks personal knowledge
– FRE 603: No oath or affirmation
– FRE 604: Interpreter who didn’t take oath
– FRE 605: Judge who is presiding over trial (obviously inconsistent w/role as impartial)
– FRE 606: Juror
-No Husband-Wife Incompetency but USSC held that in fed criminal case, criminal D’s spouse can refuse to testify.
In cases where one spouse is a party litigant, the other spouse shall not be competent as a witness w/o the consent of BOTH spouses. Three exceptions:
601(a)(1):  When H/W called by spouse
601(a)(1):  In controversies b/t spouses
601(a)(2):  For criminal acts w/ regard to children for contributing to the neglect or delinquency of a child, or desertion or nonsupport of children under the age of 16 years, or abandonment of children.
602-606 are the same as the FRE
·         Rule 602:  Requirement of Personal Knowledge
o   Witnesses MUST have personal knowledge of matter testifying about/ “perceive w/senses”
o   BOP:  Party offering the testimony
o   Note: Failure to object= waiver à Exception:  If witness didn’t have personal knowledge, an objection may be made later than usual, & testimony will be stricken if witness is found
§  For a lay witness:  “Your honor, this witness is incompetent to testify.”
§  For an expert witness: atty may object if the matter is beyond the witness’s expertise.
·         Note: One testifying to his inference or opinion in matters requiring special knowledge or skill must qualify as an expert in the field.
·         No rule automatically excluding: (1) insane or (2) children
o   Test: Whether the witness has enough intelligence to make it worthwhile to hear him at all and whether he recognizes a duty to tell the truth.
o   Children: Judge conducts “voir dire” on the child to determine child’s capacity to perceive, record, recollect, and narrate to probably add valuable knowledge of the facts to the record (requisite testimonial qualities: duty to tell the truth).  Moore v. State.
§  18 U.S.C. § 3509 gives procedure for determining child competency (elaborate)
·         Lawyers trying case:  While no rule violation, may violate ethical rules. Ivy v. State.
·         Dead Man Statute:  CL rule which precluded a surviving litigant to testify about communications or transactions with a deceased person unless there is a waiver.  Repealed in MS in 1986.    
·         No religion requirement for competency.     
C.     Minimal ability to observe, recollect, and recount + Understanding of duty to tell the truth:
—   To qualify a person as a witness, the witness’s proponent need only introduce evidence sufficient to support a permissive inference of personal knowledge.
o   Witness had capacity to, and
o   Actually did observe, receive, record, and
o   Can now recollect and narrate impressions obtained through any of his sense, and
o   The witness must declare by oath or affirmation that he will testify truthfully.
—   Issue: Whether a reasonable juror must believe that the person’s power of perception, recollection, or narration are so deficient that it is not worth the time listening to his testimony.
—   Trend: In favor of permitting jury to hear witness’ testimony & evaluate witness’ credibility.
IV.              Direct Examination
A.     Rule 611: Mode & Order of Interrogation and Presentation
—   Court’s Control: 611(a): The court shall exercise reasonable control over the mode and order of interrogating witnesses and presenting evidence so as to:
o   (1) Make the interrogation & presentation effective for the ascertainment of the truth
o   (2) To avoid needless consumption of time, and
o   (3) Protect witnesses from harassment or undue embarrassment.
—   Scope: 611(b): CE shall NOT be limited to the subject matter of the DE & matters affecting credibility of the witness.
—   Forms of Questions:
o   Narrative: tell story; more natural & can be more effective unless gets into mundane details
o   Specific: question by question
–        Leading Questions: Phrased in such a way that any reasonable person could infer what answer is desired by the atty asking the question. (“Isn’t it true that…?”) Rule 611(c) applies.
§  Best Rule to prevent: Use Where, When, What, Why, How questions.
§  Permitted on cross-examination.
§  Should not be used on direct examination EXCEPT:
–        1. On preliminary, undisputed matters
–        2. Necessary for development of testimony (Some simply don’t communicate well & not able to convey the info they possess like children; necessity is the justification)
–        3. To refresh recollection
–        4. When a party calls a hostile witness, an adverse party, or a witness identified w/an adverse party
§  Reason for “no leading questions on DE” rule:
–        Presumed relationship b/t lawyer & his witness is friendly. If atty allowed to use LQ on direct, danger his witness will give the answer the lawyer desires or suggests.
–        On CE, presumed

·         Ex. Motion in limine made concerning admissibility of letter. It was relevant to prove notice, but not in fact danger, so motion should have been denied. Whittley v. City of Meridian.
·         103(a)(2): “Once the ct makes a definitive ruling on the record admitting evidence, either at or before trial, a party need not renew an objection to preserve a claim of error for appeal.”
·         When a trial judge makes a ruling on admissibility of evidence, then that ruling becomes the law of the case. McGee v. State. This is why after motion in limine decided, no need to object to matter judge already ruled on when case moves to trial.
—   Rule 103(d): Plain Error Rule: If an act by a trial ct is so egregiously wrong, an appellate ct may cure the error even w/o an objection at the time of error. (not used often; error must create a risk of a miscarriage of substantive justice)
·         Denotes a harmful error that is sufficiently serious to justify considering it on appeal despite the opponent’s failure to observe the usual procedure for saving error for review.
—   Rule 103(a)(2) Continuing Objections: Trial judge has discretion to allow continuing objections to evidence of the same or similar nature. Allows for judicial efficiency & prevents an atty from looking hostile.
·         If first objection overruled, objector can assume that judge will continue to make the same ruling on similar testimony and need not repeat the objection.
Depositions: Only objections as to form during deposition
—   Deposition is an interrogation by a person called the deponent by a party to a lawsuit (sometimes for discovery and sometimes for preservation of evidence at trial)
—   Only objections which must be raised during the deposition are objections as to form; all other objections are automatically preserved.
—   Person who wants to take deposition takes steps to give notice to deponent & other party if they want to be present at deposition (usually they will) (four people:  deponent, party wanting deposition, adverse party, stenographer/notary public who is authorized to administer oaths & record deposition).  Exhibits can be attached to deposition.  Adverse party gets a chance to ask questions after other.
—   Ordinarily, at trial, statements from deposition are hearsay b/c meets definition of hearsay (out of ct statement offered to prove the truth of what it asserts).  So, in order to come in, depositions have to meet exception to hearsay – main exception is that witness is unable to testify for good reason
—   At trial, to have deposition testimony “admitted” into evid, you must put someone on the stand, read the deposition questions to them, & have them read the answers back to you verbatim in front of jury.
D.     Rule 105: “Limited Admissibility”:
—   When evidence is admissible for one purpose but inadmissible as to another, the ct shall restrict the evidence to its proper scope and instruct the jury accordingly.
—   It is not uncommon for evidence to be relevant to two issues but admissible as to only one of those issues (& inadmissible as to the other).
·         Ex. Out-of-ct statement may be inadmissible under hearsay, but admissible to show notice; letter in Whitley
—   In most cases, ct will admit evidence and give jury a “limiting instruction” which instructs jury that statement may be considered only as to a specific issue and not as evidence supporting another issue.
—   However, sometimes probative evidence is slight compared to prejudicial harm, judge may exclude it.
E.     Rule 104: Preliminary Questions: There are two kinds of questions of fact:
—   104(a): Questions of Admissibility Generally
·         The court will determine the admissibility of evidence. Ex. If admissibility is dependent upon the determination of fact, the judge will determine if that fact exists.
·         Jury decides how much weight to give evidence.