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

EVIDENCE
I) Competency of Witnesses – witness must be competent
A) FRE 601: every person is competent to be a witness except those provided in the rules
1) 602: “special incompetence:” lack of personal knowledge
(a) a witness cannot testify to a matter unless evidence is introduces sufficient to support a finding that the witness has personal knowledge of the matter
(i) witness must have perceived the event w/ his/her senses
(ii) atty must lay foundation that witness has personal knowledge
(b) when it becomes apparent that a witness does not have personal knowledge of an event, the opposing counsel can have any testimony that the witness gave stricken, even if he failed to object before the testimony
2) 603: failure to take an the oath: if the witness will not swear or affirm to tell the truth, then he/she is not competent
B) 604: a person is not incompetent merely b/c he/she can’t speak English
C) Spouses
1) where one spouse is a party to the case, the other spouse is not competent w/o the consent of both spouses
2) exceptions:
(a) spouses may be introduced by each other in all cases
(b) controversies btwn the spouses
(c) criminal prosecutions of one spouse for
(i) criminal act against any child
(ii) contributing to delinquency of a child
(iii) desertion or non-support of children under 16
D) Children
1) at C/L children were permitted to testify IF the trial judge determines that the child has the mental ability to
(a) understand and remember events,
(b) answer questions intelligently, and
(c) understands the importance of telling the truth
2) Moore v. State (MS 1991): MS S. Ct. affirmed the C/L rule’ this is still the law in MS
3) 18 U.S.C. § 3509: Fed’l rule dealing w/ competency of a child
(a) child is presumed to be competent
(b) trial judge will question child to determine competency only if a party objects to competency
E) Attorneys
1) At C/L and under FRE, an atty for a party to the case is not as such incompetent
2) However, the ct has wide discretion to refuse to permit an atty to testify in favor of his client
3) Ivy v. State:
(a) MS S. Ct. held that rules of ethics for lawyers are not the equivalent of rules of evidence
(b) Thus, a violation of ethics does not necessarily disqualify an atty from testifying
F) Jurors as Witnesses
1) Rule 606(b): inquiry into the validity of a verdict
(a) gen’lly, a juror may not testify about what happened in the jury room during deliberations — you can’t call a juror to testify to impeach his own verdict
(b) Exceptions: juror may testify as to:
(i) whether extraneous prejudicial information was improperly brought to the jury’s attn
(ii) whether any outside influence was improperly brought to bear on any juror
2) Brake v. Speed: there is no rule making it unethical for a lawyer to talk to a juror, after the case is over with, about what went on in the jury room
II) Exclusion of Witnesses
A) MRE/FRE 615: Exclusion of witnesses from hearing the testimony of other witnesses
1) At the request of either party (“invoking the rule”) the ct will order witnesses excluded so that they cannot hear the testimony of other witnesses
2) Exceptions: 615 does not apply to
(a) A party who is a natural person
(b) An officer or employee of a party which is not a natural person designated as its representative by its atty
(c) A person whose presence is shown by a party to be essential to the presentation of the party’s cause (usually an expert witness)
(d) S person authorized by statute to be present
B) Moffit v. State (MS 1989):
1) it is a violation of 615 for an atty or anyone else to tell a prospective witness what another witness has testified to
2) however, it is permissible to prep a witness to find out what the witness has personal knowledge of
C) What happens when 615 is violated?
1) Opposing counsel will move to have witness disqualified, but this is an extreme measure
2) Cts are reluctant to disqualify a witness from testifying unless 615 has been deliberately violated in bad faith
3) Usually, the ct will allow
(a) the other side to tell the jury that 615 has been violated, AND
(b) the other side to suggest that the testimony of the witness has been tailored based upon overheard testimony
4) Basically, the ct will allow the other side to use a violation of 615 to attack the credibility of the witness
III) Direct Examination — Form of Questions
A) Specific Questions v. Free Narrative
1) The direct examiner, in eliciting testimony from the witness, has two choices re: how to question the witness
(a) to ask specific question about the facts, or
(b) to ask general questions eliciting a narrative from the witness
2) Dangers and Advantages of Each Type
(a) Specific Questions
(i) Advantage: give the questioner tight control over how the witness testifies, so that the facts can be presented in the desired, most comprehensible order, and with the greatest clarity
(ii) Disadvantage: very specific questions may, by their nature, suggest to the witness what answer is desired by the questioner, and thus may be held to be leading (and thus disallowed)
(b) Free Narrative
(i) Advantage: witness is testifying completely in his own words, so that there is no danger that he is being “led”
(ii) Disadvantage: the witness may blurt out inadmissible evidence
* in this case, the opposing counsel will not be able to object to the question before the answer is given, as he could w/ a specific question
* therefore, the ct’s only remedy is to order the inadmissible portion stricken
3) The rules do not require or prefer either form
4) It is w/in judge’s discretion to allow either specific questions or free narrative on direct
(a) purpose of discretion: to control the form of the examination to allow facts to be clearly and expeditiously presented
(b) this discretion is not reviewable except for abuse
5) Rule 611(a): Control of the Court – the trial ct is to exercise control over the interrogation of witnesses to
(a) make the questioning effective for the ascertainment of the truth
(b) avoid needless consumption of time
(c) protect witnesses from harassment or undue embarrassment
B) Leading Questions
1) What is a leading question?
(a) A leading question is one that suggests to the witness the answer desired by the questioner
(b) Questions that begin “Isn’t it true that…” or end “…were you not?” are invariably leading
(c) Generally, questions that begin “what,” “where,” “when,” “why” or “how” are not leading questions
2) General rule: leading questions are not permitted on direct examination
(a) Rationale: presumed friendly relationship btwn witness for a party and that party’s atty, so that the witness will want to give the “right answers”
(b) Exceptions:
(i) unfriendly witness
* opposing party (Rule 611(c))
* witness identified w/ opposing party
* hostile witness (witness being deliberately uncooperative)
(ii) preliminary matters: leading questions may be used to develop preliminary matters not in dispute
(iii) suggestion of topic: when question merely suggests a subject rather than the desired answer
(iv) forgetful witness:
* witness has been fully directed by non-leading questions w/o securing from him a complete account of what he is believed to know
* in this case, the witness’s memory is said to be exhausted
* the ct may allow leading questions to jog the memory, so long as the judge is convinced the effect is not to put words into the witness’s mouth
(v) less competent witness
* witness has a communication difficulty
* witness is deficient in English language proficiency
* witness is a child
* witness is unusually unintelligent or timid
(c) Leading questions can also be used to lay a foundation for a piece of evidence (e.g. “Is this picture a fair and accurate representation of the building?”)
3) Leading questions are permitted on cross-examination (Rule 611(c)) b/c no presumption of friendly relationship
IV) Admission and Exclusion of Evidence
A) Admission
1) when looking to introduce a piece of evidence, you should first have it marked for identification
2) You must have the evidence marked for identification in order to make it a part of the record for purposes of appeal
B) Objections to the inclusion of evidence
1) Rule 103(a)(1): you must make a timely and specific objection to the inclusion of inadmissible evidence
(a) timely means when a r’bly prudent atty would object b/c evidence is not admissible
(b) this is usually as soon as the question is asked by the opposing counsel
(c) if a witness answers before the atty can object to the inadmissible evidence, the atty should make a motion to strike
(i) the mx to strike should state the specific grounds for objection if the specific ground is not apparent from the context
2) Depositions
(a) deposition: a witness’s out-of-court testimony, given in answer to questions given to him/her by attys, to be used in court
(b) usually, no judge is present
(c) Objections during deposition
(i) minor objections must be made during the deposition
(ii) major objections (relevancy, hearsay, competency, etc.) do not have to made at time of deposition
3) Motion in Limine
(a) definition: a mx for an advance ruling on the admissibility of evidence
(b) Whittley v. City of Meridian: held that a mx in limine should be granted only when the ct finds two factors are present
(i) the material or evidence in question would be inadmissible at trial under the rules of evidence
(ii) the mere offer, reference to or statements made during trial concerning the material will tend to prejudice a jury
4) MRE 103(a)(2): continuing objections to evidence of the same or similar nature or subject to the same or similar objections may be allowed at the discretion of the trial ct
5) Tactics of objecting: objections should be few and should be directed only to the evidence which , if admitted, will be substantially harmful, and then only if the objector believes he/she can obtain a favorable ruling either at trial or on appeal
C) Ruling and Offer of Proof
1) Rule 103(a): The Effect of an Erroneous Ruling — error (on appeal) cannot be predicated on a ruling that admits or excludes evidence unless a substantial right of the party has been affected AND
(a) 103(a)(1) Objection: the party made a timely and specific objection to the admission of certain evidence
(b) 103(a)(2) Offer of Proof: the party made an offer of proof in response to a ruling of the ct excluding certain evidence
2) Offer of proof
(a) Usual method is to state to the judge:
(i) what the witness would say if he were permitted to testify as to the excluded matter
(ii) what you hope to prove by the answer to the question
(b) Primary reason for offer of proof is to include what the witness would have testified to in the trial record for purposes of appeal
3) Rule 103(b):
(a) allows a judge to explain his ruling on admissibility of the evidence
(b) allows the ct to requires that the proponent make the offer in question-and-answer form
4) Rule 103(c): an offer of proof on possibly inadmissible evidence should be conducted outside the presence of the jury
D) Plain error doctrine: MRE 103(d) & McCollum v. Franking
1) An un-objected-to error may lead to reversal, at the option of the appellate ct, if it is a “plain” error
2) Error, either plain or harmless, may not be predicated upon a ruling that admits or excludes evidence unless a substantial right of a party is affected
E) Preliminary questions: Rule 104
1) Rule 104(a):
(a) judge must decide preliminary questions as to
(i) admissibility of evidence, or
(ii) competency of witness
(b) in making its determination, the ct is not bound by the rules of evidence except those w/ respect to privileges
2) Rule 104(b):
(a) when the relevancy of evidence is conditioned on the existence of a fact, the ct shall admit it upon, or subject to , the introduction of evidence sufficient to support a findin

1) An expert witness is one whose specialized knowledge will be helpful to the jury in deciding the case correctly
2) Rule 702: 5 requirements that expert testimony must meet in order to be admissible:
(a) It must be the case that scientific, technical or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue
(b) the witness must be qualified as an expert by knowledge, skill, experience, training, or education
(c) the testimony must be based upon sufficient facts or data
(d) the testimony must be the product of reliable principles and methods
(e) the witness must have applied these principles and methods reliably to the facts of the case
3) Specialized knowledge that will be helpful:
(a) cts usually find the subject of expert testimony to be appropriate where it involves the interpretation of facts of a sort that lay persons are not usually called upon to evaluate
(b) cts are much more reluctant to allow expert testimony to aid the jury in making the kinds of evaluations that juries and lay ppl customarily make
4) Qualification: how to qualify a witness
(a) establish education
(b) establish experience
(c) establish membership in learned societies
(d) establish publication
(e) establish experience in testifying
(f) then tender witness to ct as an expert in that field
(g) opposing counsel can cross-examine as to qualifications
(h) judge decides whether to accept witness or not — has a great deal of discretion
(i) if judge does not accept witness as an expert, you should make an offer of proof
5) Tendering an expert witness
(a) if a witness is to testify as an expert, he/she must be tendered to the opposing counsel
(b) the other side gets a chance to voir dire the witness after establishing qualification but before substantive testimony
6) Basis for expert’s opinion: Rule 703
(a) 3 sources of expert opinion
(i) Personal knowledge
(ii) Observation of prior evidence
* Usually, this is done through a hypothetical question: the questioner asks the expert to assume that the prior testimony is true, and then to give an inference or opinion
* this presents difficulties when
– prior witnesses disagreed or gave ambiguous testimony, or
– the prior testimony itself was an opinion
(iii) Outside data: Rule 703 says that an expert may rely on any facts or data, perceived or made known to him at or before the hearing
(b) Admissibility of factual basis
(i) traditionally, cts refused to allow an expert to give an opinion based on facts not supported by admissible evidence
(ii) under Rule 703, if the facts/data are of a type r’bly relied on by experts in the particular field in forming opinions or inferences upon the subject, the facts or data need not be admissible in evidence in order for the opinion or inference to be admitted
(c) Disclosure of factual basis
(i) Rule 703: Facts/data that are otherwise inadmissible shall not be disclosed to the jury by the proponent of the opinion or inference unless the ct determines that their probative value in assisting the jury to evaluate the expert’s opinion substantially outweighs their prejudicial effect (Note: this ¶ does not appear in MRE 703)
(ii) Rule 705:
* The expert may give his/her opinion without prior disclosure of the underlying facts or data, unless the ct requires otherwise.
* The expert may in any event be required to disclose the underlying facts or data on cross.
* Comment: 705 is an attempt to eliminate/reduce the use of the hypothetical question b/c it is unduly complex and time-consuming
VI) Relevance
A) Definition and General Rule
1) Rule 401: Relevant evidence is evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more or less probable than it would be w/o the evidence
(a) Weems says it should be: any evidence that has any tendency to resolve an issue of the case
(b) Direct evidence of a fact at issue is always relevant; circumstantial evidence is sometimes relevant
(i) Direct evidence: evidence which, if believed, resolves a matter in issue
(ii) Circumstantial evidence: evidence which, even if believed, does not resolve the matter at issue unless additional reasoning is used to reach the proposition to which the evidence is directed
(c) How to determine relevancy:
(i) assume that some evidence has been heard and you are X % sure that a fact at issue is true
(ii) evidence is relevant if its introduction changes the % at all
(d) probative value: the judge makes his assessment of probative value by applying his own experience, general knowledge and understanding of human conduct and motivation
2) FRE 402: All relevant evidence is admissible except as otherwise provided by
(a) the U.S. Constitution