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University of Mississippi School of Law
Weems, Robert A.

Evidence—Professor Weems
Fall 2010
Evidence is concerned with what happens at trial/ in the courtroom.
History of the Rules of Evidence
A committee drafted the Federal Rules of Evidence; Congress adopted the rules. The Federal Rules apply in ALL federal courts.
The USSC has always taken the position that Congress has a role to play in determining the rules of evidence. In the federal system, Congress is acknowledged as having an important role in the enactment of evidence law. 
On January 1, 1986, the MS Supreme Court adopted the Federal Rules (called the MS Rules of Evidence). The MS Rules apply in ALL MS courts.
The MSSC has taken the position that they are the ONLY authority with the power to enact evidence rules.   All matters having to do with the operations and proceedings in courtrooms are in the purview of the MSSC. The MS Legislature CANNOT make Evidence Rules.
MS Rule 1103à Repealer–Repeals all legislative acts inconsistent with the MS Rules of Evidence
Order of Trial (Chapter 1 McCormick)
Voir Dire (Jury Selection)
Opening Statements
Opening statements are not evidence. They are to give the jury a purview of what the evidence is going to show. However, the rules do have an indirect bearing on opening statements because the sole purpose of opening statements is to show the jury what the evidence is going to show. Accordingly, you need to know what the evidence is going to show.
Give the Jury a preview of the evidence
You need to have the ability to back these statements up
 “What says the plaintiff?”
Are you ready?
Π responds that he is ready to begin the trial. The judge then asks the Δ the same question.
Rule 615–“Is the rule invoked?”–Sequestration of Witnesses
If a witness is going to testify, he or she cannot stay in the courtroom and listen to other people testify. 
Why? To keep witnesses from conforming their testimony to that of other witnesses.
Π’s Case-in-Chief; examination of witness by the lawyer who called the witness (Direct)
Direct, tender-cross, redirect (only new stuff from cross), re-cross
§ Who does the law permit to testify? Anyone who has personal knowledge of admissible facts and who is competent.
§ On direct, the Π must ask each witness everything he wants to get–i.e. he can’t wait for re-direct to ask the “Million Dollar Question.”
§ Cross examination is examination of lawyer who didn’t call witness
§ Redirect is by lawyer who called witness
§ Recross can occur if new evidence comes up, not very common
After Π rests, Δ moves for directed verdict (Π gave no proof as to essential element).
§ Directed Verdict: There is no evidence to support the essential part of a Plaintiff’s case
Δ’s Case-in-Chief
Same, except now the Δ has direct. After, Π may move for directed verdict.
Π’s Rebuttal
ONLY if new issues brought up in Δ’s case-in-chief.
Remember–The Π can’t wait to call a great witness that he could have called earlier.
In Federal and Criminal State cases all 12 jurors must agree.
In state civil cases only 9 of the 12 must agree.
COMPETENCY (Chapter 7 McCormick)
COMPETENCY: R 601-606 (P. 1-6) – Who Can Be Called to Testify as a Witness?
General: Is Wit competent to testify at all? Yes, unless they can’t even give their name.
Special: Is Wit competent to testify on certain subject (i.e.- have personal knowledge? Expert (sci./tech./spec.? A person is an expert in one field but not another, incompetent on the second subject.)
Federal Rules
Rule 601 General Rule of Competency
Generally, everyone is presumed competent, EXCEPT as otherwise provided by the rules.
When the federal court has diversity jurisdiction over a civil action (i.e. in a civil case where state law controls), the court is to apply state law to determine if the witness is competent.
·         In a civil case where state law controls, Fed Ct looks to state law regarding competency.
·         Therefore, Diversity Case, Judge looks to MRE 601-606 (602-606 are the same)
·         FRE don’t mention spouses: S Ct has said that the spouse of the defendant (criminal trial) may declare the spousal privilege (refuse to testify), but defendant can’t invoke it.
Rule 602 Lack of Personal Knowledge
A witness must have personal knowledge of the matter in order to testify.
Personal Knowledge = Must be perceived with your senses  
·         General Incompetency–The law will absolutely not permit this person to testify.
·         Specific Incompetency–This person may generally testify, but may not be permitted to testify about a particular subject.
Problem w/ Experts: A medical professional cannot testify as to the cause of a heart attack, but could testify as to medical treatment. This would be beyond one’s personal knowledge.
Rule 603 Oath or Affirmation
Every witness must swear/ affirm testimony or they are considered incompetent.
Rule 604 Interpreter
A person is not considered incompetent just because they do not speak English. It is okay to use an interpreter. The court will provide one.
Interpreter is considered an expert.
Rule 605 Competency of Presiding Judge as a Witness
A judge cannot testify in a case he is presiding over. I
·         Consequently, if a judge has personal knowledge of a matter in a case, he should recuse himself.
Rule 606 Competency of Juror as a Witness
A juror cannot testify in a case where he is a juror. Practically, it would never happen because of voir dire.
·          806(b) After the trial and after a judgment has been entered, a juror may testify on a motion for a new trial in ONLY two situations:
o   If the juror is to testify about a bribe, threat, or other undue influence, or
o   Extraneous prejudicial information brought to jury’s attention (i.e. going to see wreck scene).
State Rules
Rule 601 General Rule of Competency
Every person is generally competent to be a witness, except the following:
·         Husbands & Wives of Party
o   General Rule: When a spouse is a party to a lawsuit, one spouse cannot be compelled to testify against the other without the consent of both.
–          Original Appraiser of FMV of land taken by eminent domain, in such FMV trial
–    Spouses of parties. spouse may not testify w/out consent of both partners (not privilege)
o   3 Exceptions:
§ Spouses may call each other in all cases, even if the other spouse does not want to testify (i.e. a party may introduce spouse even if spouse doesn’t consent).
§ Both spouses are competent to testify against each other in controversies between them (i.e. divorce, etc.)
§ In any criminal action for an act against a child (i.e. neglect, desertion, abandonment), either spouse may be compelled to testify.
Rules 602, 603, 604, 605, and 606 are the SAME in MRE as in FRE!
The old CL stuff is no longer in effect!!
Being religious is no longer a requirement. You cannot ask about religious belief anymore.
Perjurers Incompetency Rule: Until 4 years ago, no one convicted of perjury was competent to testify. Now, you cannot use a perjury conviction to keep a person from testifying, but you can use it to damage their credibility with the jury.
Dead Man Statutes no longer apply b/c repealed by MRE 1103 (i.e. person establishing a claim against the estate of a dead person couldn’t testify).
Young children are not automatically competent.
Judge conducts a voir dire examination of young child to determine if child is competent to testify. The judge examines the child’s capacity to:
Perceive and remember events/ facts
Communicate effectively, understand, and answer questions intelligently
Understand the importance to tell the truth
There is a presumption that the child is competent to testify.
Lawyer Testifying in case: No Rule against it; therefore, allowed. May be ethical penalties. Lawyers? An attorney cannot ethically be an advocate & a witness at the same time. No evidence rules prevent attorneys from testifying, but they are constrained by state ethics rules.
·         Insane Persons: can testify (if lawyer is crazy enough to call them)
Rule 615 Exclusion of Witnesses (“the Rule”)
A witn

same as Adverse party. Example… An employer is sued but the employee is not being sued but is testifying.
3.    Foundations
Attorneys allowed to use leading questions to lay the foundation to get some kind of evidence in (magic words)
4.    Preliminary Matters
Facts not in controversy (name, address)
5.    Refreshment of witness’ recollection
Along with other methods, may use leading questions.
6.   Cross: Usually can ask leading Qs on cross. Presumed to have a bad relationship. You don’t have to worry about the Witness trying to help.
Re-direct: leading questions are no more appropriate than they were on direct.
The relationship between the two is still the same. When there is a presumed friendly relationship leading questions are NOT PERMITTED!
Argumentative, Misleading, and Indefinite Questions: May not ask questions in a way that assumes as true matters to which the witness has not testified, and which are disputed between the parties. 
Judge May Examine Witnesses: The judge may examine and call witnesses. However, the judge must be very careful not to let the jury think that he is favoring one side or the other. 
Rule 612 Refreshing Recollection
Attorney may attempt to refresh or revive a witness’ memory in order to elicit testimony about a forgotten fact & ascertain credible evidence. 
–          Ways to refresh recollection:
o   Leading questions
o   Show the witness a writing while on the stand
o   Allow witness to bring document or file to the stand for testimony
–          The writing does not have to be admissible to be used to refresh a witness’ recollection. 
o   Livingston v. State – photo of line up inadmissible, but still may be used to refresh witness’ recollection.(Anything can be used to refresh!)
–          If the witness says under oath they now recollect it is assumed to be true.
–          If a witness uses a writing, recording or object while testifying, the other party has an absolute right
o   to see it,
o   to cross-examine on the basis of it, &
o   to have relevant portions introduced into evidence. 
§ Don’t use something you don’t want the other side to see.
§ The court will excise inadmissible evidence. The party who does not want this evidence in has the duty to call the court’s attention to this. 
–          Juries may not know what the writing, recording or object says until it is admitted as evidence.
–          Pre-testimony refreshers: If a witness uses something to refresh their recollection prior to testifying, the trial judge has the discretion to require a party produce those writings – but the other party does not have a right to see it (also within the judge’s discretion).
Lambert v. State – Officer used file to refresh recollection prior to testifying. It was within the trial court’s discretion to determine if other side got to see report.
– judge can ask the witness if they have looked at any papers to refresh their memory. If they say yes they have to produce them. (New. Not well received) 
Records of Past Recollection
Hearsay Exception R.803 (5): If a witness cannot remember, a party may put a document into evidence even if hearsay. 
Requirement of first hand knowledge:
Witness must have personal knowledge of event that they are testifying to. Things that