EVIDENCE OUTLINE
Professor: Cynthia Ford
Fall 2010
Hearsay portion removed because professor tests separately on hearsay.
I. GENERAL CONSIDERATIONS
A. Mantras:
i. “Don’t screw up!” How do you avoid screwing up, “Prepare! Prepare! Prepare!”
ii. “You’re screwed if you don’t object!” You must always object and do it
in a timely manner.
iii. “NOTHING WALKS ITSELF INTO EVIDENCE.” p. 905
iv. The trial lawyer must bring the evidence to court either through testimony
of a witness or by some tangible form. “It’s your job to pack the bag with
evidence that you want the jury to see.”
a. Two boxes of tangible evidence:
i. One goes to the jury.
ii. The other remains in storage until appeal. Both boxes
go to Supreme Court.
v. “NEVER ASK A QUESTION YOU DON’T KNOW THE ANSWER
TO.”
B. Three Sources of Evidence Law:
i. State common law and miscellaneous state statutes;
ii. Comprehensive state evidence codes, and
iii. the Federal Rules of Evidence.
C. Threshold Admissibility Issues:
i. Generally, relevant evidence is admissible if it is competent. Under the Fed. Rules, relevant evidence tends to prove (probativeness) any fact of
consequence to the action (materiality). Evidence is competent if it doesn’t violate any exclusionary rule.
D. Direct and Circumstantial Evidence:
i. Direct Evidence involves no inferences. It is testimony or real evidence
that speaks directly to a material issue in the case. Circumstantial
Evidence is indirect and relies on inference. It is evidence of a subsidiary
or collateral fact from which, alone or in conjunction with other facts, the
existence of the material issue can be inferred.
E. Why have Rules of Evidence??
i. Efficiency. Avoid wasting time by court and jury.
– A system of free proof allowing the litigants to do more or less what they
liked would lead to a substantial wasting of judicial resources.
ii. To maintain safeguards of reliability.
iii. Accuracy. Avoid red herrings.
– Help jurors avoid reaching erroneous conclusions.
iv. Policy.
– Various policies extraneous to the system of litigation itself are affected by litigation. Example: protecting certain communication to preserve
social relationships, both professional and personal (husband-wife, attorney-client)
II. RESEARCH ROUTE FOR MT RULES OF EVIDENCE
i. Look at the Rule itself (MT Rule of Evidence)
ii. Read the Montana Commission Comments
(contained in the Annotations to the MCA)
iii. Look to Montana cases on the rule.
(contained in the Annotations to the MCA)
IF still uncertain…look to persuasive federal authority…
iv. Compare to Federal Rules of Evidence (FRE) to see if they are the same.
v. If they are similar, go to Federal Commission Comments
(explaining the purpose and intent of the amendments to the rules)
vi. Look at Federal Treatises: Wigmore, Wright and Miller
vi.. Look at Federal Cases construing the rule.
vii. Look to case law of other states which have similar rules of evidence (38 states,
including MT, have adopted rules of evidence based on the federal model).
viii. This is the correct order to take.
III. HOW TO MAKE AN OBJECTION
A. Stand up when speaking to Judge. Stand up every time. It shows respect to the
court and proceedings. Stand all the way up; do not crouch half-way.
B. FORMULA FOR ALL OBJECTIONS:
1. “I object” (NOT “I’d like to object,” or “I might object,” or “I’m fixin’ to
object.”)
2. Basis for Objection, in one to five words, e.g. “Irrelevant.”
3. Cite Rule, e.g. “Rule 402 states that evidence which is irrelevant is not
admissible.” à Better to explain crux of the rule as opposed to just giving
Rule number because the judge may not recognize the Rule by its number.
à Use words of rule verbatim.
4. Commission Comment, if helpful.
5. Case name that applies to rule.
6. Policy explanation. “This is the reason there is a rule on relevance … (has
nothing to do with the case at hand, wastes time, confusing, prejudicial.)
Note: Rule 103, Effect of Erroneous Ruling: To appeal because of erroneous
ruling, have to have made an objection or motion to strike on the record
stating the specific ground of objection if the specific ground was not
apparent from the context.
C. FORMULA FOR ALL RESPONSES
1. Stand up to speak. Wait until your opponent has completed her objection:
do not interrupt.
“Your honor, may I be heard?”
2. This evidence IS admissible.
3. Cite Rule. Use words of rule verbatim.
4. Commission Comment.
5. Case.
6. Policy Explanation: “This evidence does tend to prove …, which the jury
must know in order to determine … This is the most direct way of proving
that fact, and will avoid waste of time or confusion on this underlying
issue.”
D. POSSIBLE JUDGE RESPONSES TO OBJECTIONS
1. Sustained: evidence is not admissible.
2. Overruled: evidence is admissible.
3. “Can you rephrase, counsel?” is technically not a ruling.
4. Ruling reserved (try again later).
** Judge can look at evidence as an island or as part of the whole.
E. WHAT TO DO IF YOUR OBJECTION IS OVERRULED/SUSTAINED:
1. If your valid objection is overruled, and evidence goes in?
à Nothing at trial: you’ve made your objection, noted by court reporter in
record.
à After trial: Appeal. To appeal because of erroneous evidence ruling,
have to have made an objection or motion to strike on the record, stating the specific ground of objection if the specific ground was not apparent from the context.
2. If opponent’s objection is sustained, and your important evidence
does not go in?
a. If judge has made final ruling, your evidence will not go in.
You have lost this battle. To win the war, you have to go to a
higher authority.
b. Preserve your Record for Appeal
You must be able to show the Supreme Court what the evidence
would have been so it can determine:
i. Ju
up the law, using oral testimony of witnesses and physical
evidence.
B. Trial
i. Voire Dire – choosing the jury. Venire – group from which choose jury.
ii. Opening Statements – A compact narrative of what the lawyer believes
in good faith the evidence will show.
iii. Plaintiff’s Case-in-Chief:
a. PL has burden of proof
b. PL presents evidence and question witnesses on direct questioning.
c. DEF cross-examines witnesses (can only ask questions relating to
direct)
d. PL can re-direct and question that same witness about things DEF
brought up on cross-examination.
e. DEF can then do re-direct.
f. PL then rests.
iv. DEF may move for directed verdict, or in a Federal Civil Case, a motion
for judgment as a matter of law – DEF believes PL failed to meet the
burden of production on each element of the claim.
v. Defendant’s Case-in-Chief:
a. direct examination of witnesses
b. PL cross-examines
c. When DEF rests, its case, PL has opportunity to call witnesses in
rebuttal case: can rebut by bringing in other witnesses – it is NOT
the witness presently on the stand.
Rebuttal Evidence
i. Scope of rebuttal evidence limited. MUST respond to
either:
1. matters raised as part of DEF’s affirmative defenses; OR
2. attacks during the DEF case on credibility of the
PL’s evidence.
vi. Questioning Witnesses
a. SEE FRE 611 BELOW.
happened next?”, “What did you see?”
vii. Closing Arguments:
a. CANNOT assert a fact if there was no evidence of it in trial.
b. Critical Feature: to explain to the jury the chain of inferences that
connect the evidentiary facts heard by the jury with the facts of
consequences in the case.
c. Attorney should point out evidence corroborating key points of
their case as well as evidence that undermines the credibility of
witnesses whose testimony contradicts key points.
d. Important to weave key jury instructions so attorney can show jury
how they believe the evidence maps onto controlling substantive
law.
viii. Jury Instructions:
