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Evidence
University of Mississippi School of Law
Weems, Robert A.

Evidence, Spring 08, Weems
Used in conjunction with McCormick on Evidence
 
INTRODUCTION
·            History of Law of Evidence
o        Common law rules had no conformity
o        Supreme Court (US) decided need for conformity
§         Created Federal Rules (FRE)
§         Congress made slight changes (Art 5 and 6)
o        Mississippi Supreme Court created Mississippi Rules (MRE) in 1986
§         Created solely by SC of MS; never sent to MS Leg
§         MS SC felt that rules should be enacted by the judiciary
§         Comments to the rules are official, thus have as much force of law as the rules
WITNESSES-ARTICLE 6
·            Invoking ‘the Rule’
o        Rule 615: Rule of Sequestration
§         Purpose is to keep a witness who is to testify from hearing the testimony of other witnesses
·         Why? Fear of testimony copying/conformity.
§         Three exceptions
·         Party who is a natural person
·         Representation of a non-natural party
·         A person whose presence is shown by a party to be essential to presentation of his cause
o        Expert witness
§         What if there is a violation?
·         Court can deny the witness the ability to testify if court determines allowing the witness to testify will unfairly prejudice the opposing party
o        Rare
·         Usually the court will allow a ‘full boar’ cross examination by party opposite
·            Competency-the ability to testify
o        General Competency
§         Not permitted to testify under any circumstances as to any fact
o        Specific
§         Permitted to testify on certain subjects (refers to personal knowledge)
o        FRE 601-606a: apply to criminal cases tried in fed ct and to civil cases tried in fed ct except where state law furnishes the rule of decision (diversity jdn)
o        MRE 601-606a: apply to all cases tried in MS ct and to cases tried in fed ct located in MS where MS law furnishes the rule of decision
o        FRE and MRE only differ on R. 601
·            601: every person is competent to testify except as otherwise provided
o        603: oath or affirmation
o        605: presiding judge
o        606: juror
·            604: Interpreter allowed for non-English speaking witness; interpreter must take oath as well
·            MRE 601 difference: in a case where one spouse is a party litigant, the other spouse shall not be competent as a witness w/o the consent of BOTH spouses
o        Exceptions
§         601a1(: when husband or wife is called by spouse
§         601a1: controversy is b/n spouses
§         601a2: wrongful acts w/regard to children
·            Issues not in Rules
o        Children: per se competent, however judge will ‘voir dire’ child to determine competency of child, i.e. Does the child understand what is going on?
§         Moore v. State: children of tender years may testify. Discretion of trial judge to determine competency
o        Lawyers: no per se rule against, but may violate ethical rules
o        Insane: not per se incompetent
o        Dead Man Statute: Old Law; formally, claimant in action against an estate was not allowed to testify b/c there was no one to counter the claim
§         No longer good law
·            602: Requirement of Personal Knowledge
o        Witness must have personal knowledge (PK) of the matter they are testifying about
§         Must perceive with their senses
o        BOP to establish PK is on partying offering the testimony
MECHANICS OF EXAMINATION
·            Direct Examination
o        Types of questions
§         Narrative: allows the witness to ‘tell a story”
§         Specific: asks for pinpoint, concise info
o        611c: the ct shall exercise r;ble control over the mode and order of interrogating witnesses, therefore it is at the discretion of the trial judge whether to allow a narrative or not.
·            Leading Questions
o        Phrasing a question in a way that suggests a certain answer
§         Is it not true that….
o        Rule 611c sets out rules for when leading questions are allowed
§         Cannot use on direct (exceptions below)
·         Presumption that witness called on direct is friendly to the caller
·         Greater possibility that a friendly witness will answer in the way the friendly lawyer suggests
§         Can be used on cross
·         Same presumption

ss record indicates an objection
o        R, 103(a): Harmless Error
§         A mistaken ruling must be more than mere harmless error before it will be deemed erroneous
o        R. 103(a)(1): Timely and specific: objections must be…
§         Timely: as soon as r’bly competent lawyer would have made the objection
·         When question is posed; except
o        Answered; move to strike
o        Apparent at later time; move to strike
§         Specific: must give a legal reason
·         Helps trial judge make ruling
·         Allows opponent to cure
o        Motion in Limine
§         Made prior to trial to exclude a certain type of evidence
·         Think of as pre-trial objection; preemptive strike
§         Test (Whittley v. City of Meridian: notice letter case)
·         Will the evidence be inadmissible at trial?
·         Would any reference to the evidence unduly prejudice the jury?
o        R. 103(d): Plain Error
§         If an error of the court is so egregious, appellate court may cure the error even there was no objection made at the time of the error
·         Rare
o        Other issues
§         Continuing objections (MRE 103(a)(2))
·         Opponent puts on evidence, enters subject you believe to be inadmissible, objection is overruled; next question seems objectionable, Must you object again?
·         MRE allows continuing objections
§         Motion in Limine
·         Motion for X not to be admitted in limine, allowed. Opponent asks question about X; must you object
·         MRE 103(a)(2) says no
o        But play it safe and object
§         Depositions
·         Considered prior testimony
·         Deposition as evidence (most likely hearsay)
o        Witness has copy, lawyer has copy