Evidence Outline

EVIDENCE

Bowman—Fall 2001(edited for Fall 2008)

I. EVIDENCE AND THE TRIAL PROCESS 8/23/01

Why Rules of Evidence? (overhead)
– Preference for Neutral, Ignorant Fact-Finder
o No prior knowledge of the facts upon which the case will be decided
o Result: can hold trials on the spot and we can’t use people who know most about the case to judge it
o Therefore – facts presented long after event occurred to people who weren’t even there – \ need rules about how this evidence is brought into trial before these people
– Conservation of Judicial Resources
o Also – concern for scarce judicial resources and \ the rules must take account of that fact
o Also – some witnesses may not be necessary \ need to weed those out of the process
o Choice of these rules will very likely effect the outcome of the case
– Manage the Adversarial Process
o Ensure equality
o Prevent abuses by either party
o Parties will attempt to ‘selectively present’ facts in their favor – \ the Rules create a standard for helping to decide what gets in and who gets to testify for each party
– Distrust of Juries
o If we did not have jury trials, would we need rules of evidence?
§ We do not trust juries to disregard facts they’ve heard that are later considered inadmissible. – we only trust judges to do this – \ we want to keep inadmissible material from ever being heard by a lay juror – \ must determine admissibility of evidence prior to any chance jury may hear it.
o Law tries to restrict certain kinds of evidence from the jury – that which the law deems to be inadmissible
– Concerned about Accuracy of Result
§ Design rules of evidence that promote the accuracy of the result – they should not be an impediment to the determination of truth
o RELEVANCE
§ The evidence must have something to do with the facts of the case
§ Excluding any evidence that is not logically relevant to a trial issue
o Passion, Prejudice or Confusion
§ Exclude evidence that will distort juries thinking by appealing to passion or prejudice of jury.
o Good Quality Evidence
– Privileged Information – Preserving Values Other Than Truth-Seeking
o Reflects societal judgment that protects some interest that is more important than getting at the truth and the accuracy of results.
– Creating a Record for Appeal
o Set of rules which help the lower court to create a record upon which a court of appeals can rule

II. WHO MAY BE A WITNESS? (COMPETENCY)

Evidence rules encourage the introduction of reliable evidence and the restriction of unreliable information
Characteristics of Reliable Witnesses
(1) Capacity – for accurate data collection and interpretation
– ability to perceive reality accurately
– ability to interpret what you perceived
– ability to relate, to recount, or to tell your interpretation to the trier of fact
(2) Choice:
– Will the witness tell the truth – relate his perception of reality to the best of his ability?
– Or will he lie – knowingly distort what he believes to be true?

Infant and Mentally Disabled Persons – –
– concern is that they cannot actually interpret what they perceive – \ cannot relate it accurately
– \ potential for lack of competency here (although not always)

At common law – courts were more stringent than they are today
– strong presumption that mentally impaired could not testify, and rebuttable presumption that children below a certain age were incompetent to testify due to ability to perceive and relate accurately.
– Other concerns à may not know what truth is at this point.
– May not grasp what the Oath means in order to actually have “undertaken the oath” which is required by the rules.
– Grasp of real consequences of committing perjury is weak and socialization at that stage is likely to be weak on the truth knowing portion of the oath
Competency – must have a more complicated degree of cognitive capacity

B. Competency – The Modern View

FRE 601, 602 and 603 govern Competency

Rule 601. General Rule of Competency
– everyone is competent unless the opposing party proves otherwise

Under what circumstances will a witness be deemed to be incompetent to testify?

United States v. Lightly – pg. 528
– Gov’t claims: joint assault on McKinley by McDuffie and Lightly
– Lightly charged and he claims: McDuffie did it and he merely broke up assault
– Lightly wants to call McDuffie and during proffer of evidence it comes out that McDuffie would say that he did it himself b/c “star child” told him to kill McKinley
– Court precludes McDuffie’s testimony
– Court of Appeals reversed b/c it found McDuffie met the competent standard
– WHY? Holding:
o FRE 601 – everyone presumed competent to be a witness unless:
§ The witness does not have personal knowledge (FRE 602)
§ Does not have capacity to recall, or (not directly from Rule but still right)
§ That he does not understand the duty to testify truthfully (FRE 603)
o Insanity and inability to stand trial protects different interests than competency to testify – \ it is not necessarily true that an insane person cannot provide relevant and accurate information to the court
o Difference between knowing if you’ve done something and knowing that it was wrong
o HERE: Question of whether McDuffie can recall what he did is the key here and it does not matter whether he can help his own lawyer in his defense – different interests protected – FRE ensure that court system and parties give the access to widest possible array of valuable evidence. So here – fairness to Lightly was the key, not fairness to McDuffie

D. The Child Witness 8/28/01

Ricketts v. Delaware – pg. 532

– common law – or formally – there were specific rules that set out a specific age above which children were presumed to be competent and below which they were considered to be incompetent.
– Issues arose during child abuse cases – \ these rules were abolished by some states – and Indiana has done this – \ very young children may take the stand.
– Competency becomes the question –
o May be able to say they understand the difference between truth and lie – but very young children, their capacity to decipher between fantasy and reality and are very open to suggestion.
o Also – certain kinds of testimony of older children may be processed differently than adult brain functions
– ISSUE: Question: How to deal with witnesses whose perception of reality is not perfect or near abnormal??
o Most jurisdictions – presumption in favor of admitting testimony combined with the faith that the cross-examination will expose and faults or problems with the testimony

Personal Knowledge Requirement – FRE 602
– Rule 602 – prohibits witness from testifying unless that witness has personal knowledge as to what he/she is testifying to
o Its placement directly behind FRE 601 – suggests that this personal knowledge rule is a competency rule as well
– Not an all or nothing proposition
– OBJECTION: LACK OF PERSONAL KNOWLEDGE

How to present Evidence – not in the FRE’s

– witness needs a question to testify
– identity of the questioner –
o tells us that the process of admitting evidence is going to be adversarial
§ since lawyers do the questions, the parties will be primarily responsible for shaping evidence that jury hears.
§ Judges have rights to call witnesses and ask them questions – but not really exercised.
· Judges primary job is to regulate the trial proceedings and make legal rulings as to what is and what is not going to be admitted
o Jury’s role is to passively listen and sort out the facts and is prohibited from doing what they really want to do = ask more questions!
– Since judge is referee – what function does question and answer format serve?
o Prevents a narrative babbling from a witness – creating problem of restricting the judge from preventing what should come out and what should not as inadmissible evidence.
o No way with out Q and A format is a party or judge going to be able to object to inadmissible evidence.
o Also, logical sequence to help move things along.

What kinds of questions can and cannot be asked? – SEE SYLLABUS HANDOUT SHEETS
Ambiguous Question – Rule 611(a)
– You testified that George and Johnny were fighting. Which hand did he hit him with?
o Ambiguous – who hit with whose hand?

Argumentative Question – Rule 611(a)
– Isn’t it true Mr. so-called expert, that you hadd your mind made up about this case before you ever performed any tests at all?
o Want to ascertain truth but also want to avoid harassment of witness.

Asked and Answered – Rule 611(a) = source of this objection
– Q: Where were you the night of May 4th? A: At my home Q: So, you were at home on May 4th?
o Objection

Assumes Facts Not in Evidence – Rule 611(a)
– Lawsuit over whether island vacation package included jet-ski and parasailing excursion
– Q: Please state you name. A: Fred Smith. Q: After you arrived at the resort and complained to manager that you paid for this already and how did he respond?
o Assumes facts not in evidence yet b/c those questions weren’t asked of the witness yet.

Compound Question – Rule 611(a)
– Q: Where did you go and what did you see there?
o Self-explanatory – restricts witness

Confusing – Rule 611(a)
– self-explanatory – if not understandable it will be objectionable

Harassing the Witness – Rule 611(a)
– can’t continually harass and abuse the witness

Leading Question – Rule 611(c)
– (1) one that suggests to the witness the answer the questioner would like to hear.
– (2) Any question that calls for a yes or no answer???
o Not always – it is often a clue that it was leading, but not end of story
§ Example – on August the 15th, did you go to the mall? – A: yes.
– Can be used to develop the witnesses testimony under direct.
– Should not be used on Direct but are ordinarily permitted on cross
o Why the difference?
§ Where a party presents a witness on direct they want to present them to be truthful – and in general a witness presented by that party may be sensitive to counsels suggestions b/c they may be sympathetic to their cause
§ Whereas on cross – it may be necessary in the interests of finding the truth to allow leading questions to jog memory of opposing witnesses.

Admitting Evidence
– is the object what it is purported to be?
– If the exhibit is what it purports to be, is it relevant to the case at hand?

Chapter 2: RELEVANCE

FRE –
– Substance è generally prohibit character evidence for the purpose of proving a separate fact – limitation on the substance of the evidence – fundamental to this idea is relevance
o RULE 401 and 402
– Form è general rule against hearsay evidence
o Example: Hearsay
§ Sally: “I saw Joe murder his wife.”
§ Jane: “Sally told me she saw Joe murder his wife.”
§ Jane’s testimony is inadmissible but Sally’s testimony is admissible in form
FRE 402
– Relevant evidence is admissible, irrelevant evidence is not admissible

Question then becomes, what is relevant???? – LOOK TO FRE 401

FRE 401
– “Relevant evidence” means – evidence having any tendency to make the existence of any FACT [that is of consequence to the determination of the action (MATERIALITY PORTION OF THE DEFINITION)] /more probable or less probable than it would be without the evidence (RELEVANCE PORTION OF DEFINITION)/.
o Proponent of evidence must identify some fact that the evidence makes more or less probable and that this fact relates to the case at hand.
o Need both relevancy AND materiality to get the evidence admitted.

Problem 2-A. Was he going too fast?
– two people in collision
– Issue: Whether it was relevant that a previous driver (Hill) saw the D driving fast and swit