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Evidence
University of North Carolina School of Law
Mosteller, Robert P.

EVIDENCE MOSTELLER FALL 2012

I. Introduction to the Adversary System

A. Characteristics of the Adversary System

The Role of the Judge and the Jury

1. FRE 104 – Preliminary Questions

(a) Questions of Admissibility Generally:

(1) the qualification of a person to be a witness,

(2) the existence of a privilege, or

(3) the admissibility of evidence

shall be determined by the court, subject to (b), can use any evidence to make determination, except privileged information.

(b) Relevancy Conditioned on Fact: When relevancy depends on the fulfillment of a condition of fact (i.e., did x hear y), the court shall admit if there is evidence to support a finding of the requisite fact or fullfillment.

(c) Hearing of Jury: Hearings on admissibility of confessions are outside hearing of jury, so is anything else that justice requires, or when witness is D and requests it.

(d) Testimony of Accused: in a preliminary matter does not subject him to cross as to other issues in the case.

(e) Weight and Credibility: evidence can be heard by the jury. For example, if court rules confession admissible, D can tell them it was not voluntary because this determinative of the level of probative value of the confession.

2. FRE 614 – Calling and Interrogation of Witnesses by Court.

(a) The Court may call witnesses and all parties are entitled to cross-examine.

(b) The court can interrogate witnesses, their own or by the partys.

(c) Objections can be made at time of calling or interrogating, or at next opportunity that jury is not present.

The authority is abused when the judge abandons his proper role and assumes the role of advocate. Advisory notes, Beaty.

3. United States v. Beaty [3rd Cir] (1983) – Examination of a Witness by the Trial Judge – FRE 614(b)

Rule: The trial judge may manage the trial and his actions create reversible error only where he has manifested to the jury a prejudice to one side.

Þ Facts: Where Beaty (D) and Ballouz (D) were charged with attempting to import illegal drugs and at trial, Beaty (D) presented no evidence but his counsel vigorously cross-examined the prosecution’s witness concerning the truth of her testimony and received several warnings from the judge regarding his cross-examination, and Ballouz (D) presented alibi evidence in the form of testimony from Mrs. Alexson and the court in the presence of the jury conducted an examination of her to determine her close relationship with Ballouz and her credibility, did the judge’s actions chill Beaty’s counsel from adequately representing him and did the judge show partisanship to the prosecution by cross-examining a key defense witness? Yes and No. A trial judge may manage the trial, and his actions are reversible error only where he manifests a prejudice to one side in front of the jury. In this case, the judge’s comments to Beaty’s (D) counsel were not such as would prejudice the fairness of the trial because full cross-examination of the witness was pursued showing no actual chill. On the other hand, the cross examination of Mrs. Alexson was prejudicial error because it induced the jury into believing that the judge was questioning the credibility of the defense witness, Mrs. Alexson and this crossed the line from impartial manager to advocate.

Þ Outcome: The judge is often viewed with great respect by the jurors; therefore any favoritism show by the judge may have a significant impact on the jurors. FRE 614(b) codifies the judge’s right to interrogate witnesses, yet it does not allow manifestations of partiality.

Þ Mosteller: Judge can do more than referee (i.e. umpire) but cannot do to much more. Judge can be more of an umpire – can be a moderator (“for the purposes of eliciting the germane facts can interrogate witnesses…” Judge can advance the inquiry if the two sides are not doing it properly. The judge cannot be an advocate and cannot express an opinion about who should win – worrying about prejudicing a jury. Jurors generally think that the judge is the person that knows the most about the case and is the most impartial. Lawyers are not supposed to be able to give an opinion directly. Opinions cannot be given by the advocate. Jury almost expects the lawyers to say I believe that my client is innocent – but should not say it directly.

Þ Can Clarify – Judge is neutral truth seeker. Judge can say “ What do you mean by that?” – this is a clarification and is acceptable.

Þ Should not get involved in Credibility. Factors that affect credibility. Not clarifying but rather disputing a persons testimony. Judges cannot get involved in credibility because it will tend to express their opinion.

Þ Judge should not be able to Communicate their belief – i.e. should not Crossexamine. They should not be leading. Leading – Asking a question that conveys its intended answer. If you ask a leading question then you tell the witness and the jury about how it should come out. Cross examination should be avoided because it tends to convey the judges opinion.

4. Crane v. Kentucky -Credibility of Confession to a Crime Subject to FRE 104(e)

Rule: A jury should not hear a confession unless and until the trial judge (or some independent decision maker) has determined that it was freely and voluntarily given.

Þ Facts: D claims that his confession involuntary and coerced from the police. The confession attained was rifed with inconsistencies.

5. Huddleston v. United States-

Rule: A preliminary finding by the court that the Government has proved an act by a preponderance of the evidence is not called for under Rule 104(a)

6. State v. Maynard [NC Sup Ct] (1922) – Judicial Discretion to Admit Testimony – FRE 104(a)

Rule: A trial judge has the discretion to admit testimony given by a witness at a previous trial if that witness is now unavailable.

Þ Facts: Where Maynard (D), Barnes, and two others were indicted for breaking into a storehouse, Barnes escaped from jail before trial but after having given testimony at a preliminary inquiry and the prosecution introduced evidence that Barnes had escaped from jail, the State (P) introduced a stenographer, who, after being sworn, testified that he had taken the stenographic notes of Barnes during the preliminary investigation (notes had not been read to Barnes, not signed by him, nor was a copy filed with the clerk of the court), although counsel for Maynard objected, the court allowed the stenographer to state to the jury the evidence which Barnes had given during the preliminary investigation and the judge denied a request by Maynard (D)for a limiting instruction to the jury stating that the stenographer’s testimony was not admissible unless it appeared to the jury that Barnes was absent by inducement from Maynard; Maynard was convicted and appeals arguing that the trial judge erred in allowing the stenographer to testify, does the trial judge have discretion to admit testimony given by a witness at a previous trail if that witness is now unavailable? Yes. Where, in a judicial proceeding before a court having power to compel the attendance of witnesses, administer oaths, and hear evidence pertinent to the inquiry, a witness has given evidence, and the defendants are present and have the right to cross-examine the witness, such testimony, when properly attested and verified, may be introduced and used during a second trial of the cause where the witness is unavailable.

Þ Outcome: FRE 104(a) provides “Preliminary questions concerning the qualification of a person to be a witness, the existence of a privilege, or the admissibility of evidence shall be determined by the court . . . In making its determination it is not bound by the rules of evidence except those with respect to privilege.”

Þ Mosteller: The preliminary factual determination should be decided by the judge without an instruction to the jury – Would the D be prejudiced by the absence of the witness and whether the D made or contributed to the disappearance of the witness.

7. State v. Walton [NC Sup Ct] (1916) – The Admissibility of Confessions – FRE 104(c)

Rule: A statement may be adopted through the silence of a party.

Þ Facts: Where Walton (D) and a co-defendant were indicted for fornication and adultery and on one occasion, a policeman went to the co-defendant’s (Mrs. Harris) house to have her fill out a certificate of the birth of a child, and during this visit, Walton (D) stood some four or five feet away when in answer to a question posed by the policeman as to who the father of the child was and Mrs. Harris, in the presence of Walton (D), said that the child’s father was John Walton, and Walton then saying nothing, exited the room and when the statement was introduced in court Walton’s motion to exclude the statement of paternity was denied, and he was subsequently convicted of the crimes charged, was the declaration of paternity improperly introduced into evidence? No. A declaration in the presence of a party to a cause becomes evidence, as showing that the party, on hearing such a statement did not deny its truth; for if he is silent when he ought to have denied the statement, there is a presumption of his acquiescence.

Þ Outcome: FRE 104(c) states that “Hearings on the admissibility of confessions shall in all cases be conducted outside the hearing of the jury. Hearings on other preliminary matters shall be so conducted when the interest of justice require or, when an accused is a witness, if he so requests.”

Þ Mosteller: The conditional relevance point was whether the statement was heard and whether hearing this statement would have cause the D to deny the statement.

Þ Walton convicted of fornication and adultery. He appeals the admission of testimony that when a woman named him as the father of her child he did not object. He claims he did not hear her say it. Court did not err in instructing jury that if they decide that defendant heard the statement they can consider the evidence that he did not object, but, if they find he did not hear the statement, then they should not consider his lack of objection. Affirmed.

(a) This is different from Maynard, Supra because here court says jury decides admissibility whereas in Maynard, court said that judge decides admissibility. This is Rule 104(b)

(b) Apparent majority view is that for adoptive admissions, that is not denying something, whether person heard statement, understood it, or had opportunity to respond are matters of conditional relevancy to be decided by the jury under Rule 104(b). On the other hand, whether reasonable person would have responded at all is question of fact determined by the court under Rule 104(a).

8. United States v. Zolin [Sup Ct] (1989) – Attorney-Client Privilege

Rule: A court may conduct an in camera review to determine whether privileged attorney-client communications fall within the crime-fraud exception.

Þ Facts: Where the IRS (P) contended that the crime-fraud exception to the attorney-client privilege should allow it to investigate documentary material relating to the Church of Scientology (D) activities, but the trial court refused to inspect the allegedly privileged material absent independent evidence of crime or fraud, should the applicability of the crime-fraud exception to the attorney-client privilege be determined by an in camera inspection to determine whether the alleged privilege communications fall within the crime-fraud exception? Yes. The question of the review becomes whether the policies underlying the privilege and its exceptions would be better fostered by permitting such review or preventing it. The court determined that the cost of imposing an absolute bar to consideration of communications in camera for the purpose for establishing the crime-fraud exceptions would be too high. The standard that strikes the right balance is that, before engaging in in camera review to determine the applicability of the crime-fraud exception, the judge should require a showing of a factual basis adequate to support a good-faith belief by a reasonable person that in camera review of materials may reveal evidence to establish the claim that he crime-fraud exception applies. Moreover, the party opposing the privilege may use any unprivileged evidence in support of its request for an in camera review.

Þ Outcome: When determining admissibility of evidence, FRE 104(a) does not exclude form consideration all materials as of which a claim of privilege has been made.

-Rule: In camera review may be used to determine whether allegedly privileged attorney-client communications fall within the crime-fraud exception.

-Before a district court may engage in in camera review at the request of the party opposing the privilege, that party must present evidence sufficient to support a reasonable belief that in camera review may yield evidence that establishes the exception’s applicability.

-The threshold showing to obtain in camera review may be met by using any relevant evidence, lawfully obtained, that has not been -adjudicated to be privileged.

Þ Mosteller:

(a) Rule 104(a) does not prohibit the use of in camera review of material claimed to be privileged to determine if there is a valid exemption to privilege that is applicable. Review in camera does not destroy the privilege.

(b) Party opposing privilege must make some showing as to the inapplicability before in camera review will be ordered. Standard is a good faith belief by a reasonable person. Bald assertion is not enough. Any non-privileged evidence can be used to show the good faith belief even if not independent of the allegedly privileged evidence.

(c) Rule 104(a) applies to 500 series (privilege), 700 series (experts), and 800 series (hearsay).

(d) Rule 104(b) comes with a hook-up instruction to jury, that is “if you find the needed fact existed for relevance, use the evidence, if you don’t find it, don’t use it.”

(e) Under Rule 104(c) things like voir dire of experts is usually done in presence of jury to avoid duplication if witness is qualified as expert by the judge.

9. Problem 1-2(B)

Þ Randy is on trial for crime A. The prosecution wants to present evidence of crime B because they claim Randy did it and it makes it more likely that he did this one as well.

(a) This is a Rule 104(b) issue inside the rule 404(b) determination because the evidence of crime B is not relevant unless the jury finds the conditional fact that Randy committed crime B. Under Rule 404(b), if the judge finds that there is sufficient evidence such that the jury could find that Randy committed crime B, then it comes in.

Þ D is charged with one burglary against Victor and the prosecutor wants to introduce evidence about a prior second burglary against Vicki. [Rule 404(b) – Can use one crime to help prove identity in the second crime as long as they are connected.]

(a) The test is to figure out whether there is a conditional relevance point. Is the issue of connecting the D to the crime a rule 104(a) or rule 104(b) question? The question is whether the inferential link (Is Red Ski Jacket the same as Red Parka?) can be admissible against Randy to prove the burglary against Victor. There is a preliminary determination about whether the crimes are similar (park and ski coat may be similar or different (Factual Determination for the Judge Rule 104(a)). There also has to be a preliminary determination about whether Randy is logically connected to the burglary that is desired to be used against Randy (Conditional Determination for the Jury Rule 104(b)).

(b) The D tries to argue that the burglary against Vicki should not come in unless he was convicted (i.e. clear and convincing evidence). This is not what the Rules of Evidence say and it comes from the Huddleston Case.

Þ Huddleston: The standard is whether a reasonable juror could have determined that the burglar in Vicki’s case could have been the same burglar as the one against Victor. The standard is preponderance of the evidence. Scalia in Huddleston tries to advance the Plain Meaning argument (When a statute on its face answers a question then there is no need to go further).

Þ Therefore: Judge would determine whether there was sufficient evidence for the a reasonable juror to find that Randy did both crimes then there would be an instruction to the jury saying that they can make the decision even though the judge lets in the evidence.

B. Party Responsibility-Offers of Proof

1. FRE 103 – Rulings on Evidence

(a) Effect of Erroneous Ruling: Harmless error rule. A substantial right of a party must be affected and

(1) Objection: if error was admission, it must have been objected to with specificity; or

(2) Offer of Proof: if error was exclusion, there must have been an offer of proof.

(b) Record of Offer and Ruling: the court can add to the record of an exclusion or admission

(c) Hearing of Jury: inadmissible evidence shall be kept from the jury to the extent possible

(d) Plain error rule. Even if not objected to or no offer made, court can notice a plain error.

2. FRE 105 – Limited Admissibility

When evidence is admissible as to one party or purpose but not another and it is admitted, upon request, the court shall give a limiting instruction as to the use of the evidence.

3. First Security Bank v. Burgi [Utah Sup Ct] (1952) – Errors in Rulings on Admissibility – FRE 103(a)(2)

Rule: One who complains on appeal of exclusion of evidence must show affirmatively that he was injured thereby

Þ Facts: Where Fred Burgi executed a warranty deed dated 11/18/36, which purported to convey certain real property to his son Clyde (D), but this conveyance was not recorded until 02/07/50, five days after Fred’s death but on 01/29/37, Fred had executed a bill of sale which had assigned all of the stock of groceries, fixtures, and furnishings of the grocery business that was later conveyed to Clyde (D), and the trial court found that there was no delivery of the deed or the bill of sale, that they were executed for an with the intent that they would not be operative until after Fred’s death, and concluded that he documents were testamentary in intent and that therefore the property and the business were to revert to the estate to be administered by the Bank (P). At trial, the judge upheld an objection based on privilege preventing Fred’s attorney from testifying regarding the preparation of the deed in question, on appeal Clyde argued that he was injured by the exclusion of the testimony, must he have shown affirmatively that he was injured by the exclusion? Yes. Where an objection to evidence is sustained, the general rule is that the record must disclose the substance of the proffered evidence before there can be a reversal because of its rejection. The reason for this rule is that judgments are not reversed unless there is more than harmless error and without something in the record to disclose the substance of the rejected evidence, error does not appear.

Þ Outcome: Where a party objects to the admission of certain evidence, Federal Rules of Criminal Procedure 51 requires that the offering party make known to the judge the specific grounds on which the claim of admissibility is made. The same result would be reached in a civil action, under Federal Rule of Civil Procedure 46, governing exceptions to orders of the court.

Þ Mosteller: If evidence is ruled to be excluded, this ruling cannot be reversed on appeal unless there is an offer of proof by the party wishing to admit the evidence. This is so because the reviewing court must be able to determine whether the party seeking admission was prejudiced by the exclusion of the evidence. No offer of proof was made so counsel loses the right to appeal the exclusion. If modern case would be Rule 103(a)(2)

4. Luce v. United States [Sup Ct] (1984) – Permissible Impeachment Evidence

Rule: In order to raise and preserve for review the claim of improper impeachment with a prior conviction, a defendant must testify at trial.

Þ Facts: Where Luce (D) was indicted on chares of conspiracy and possession of cocaine with intent to distribute and during his trial Luce (D) moved for a ruling precluding the Govt (P) from using a 1974 state conviction to impeach him if he testified. The District Court ruled that the prior conviction fell within the category of permissible impeachment evidence under FRE 609(a). Therefore Luce (D) did not testify and the jury returned a guilty verdict, in order to raise and preserve for review a claim of improper impeachment with a prior conviction, does a defendant have to actually testify? Yes. Under FRE 609(a)(1), which directs the court to weigh the probative value of the prior conviction against the prejudicial effect to the defendant, to perform such a balancing, a court must know the precise nature of the defendant’s testimony, which is unknowable when the defendant does not testify as was the case here.

Þ Outcome: As a method of impeachment, evidence of conviction of a crime is significant only because it stands as proof of the commission of an underlying criminal act. Some crime are obviously usable as impeachment while it is unclear whether all crimes should be used as such. Traditionally, use of felonies has been accepted and for crimes involving dishonesty or false statements without regard to the grade of the offense.

Þ Mosteller:

Þ Felony convictions can be introduced to impeach the credibility of persons. There is a set of rules, 609 that govern this. Convictions come in for credibility only, not to show whether predisposed to commit crime.

Þ D says I want to take the stand, before I do so, I want to know if you will allow the prior conviction in to impeach me. Judge makes in limine ruling that if he testifies, it will go in. D says that then I will not take the stand.

Þ RULE: only if D takes the stand and is impeached can he object to the admission of the prior conviction. This is federal law only, but most courts have followed it.

5. Ohler v. United States

Rule: A party introducing evidence cannot complain on appeal that the evidence was erroneously admitted.

If a party who has objected to evidence of a certain fact himself produces evidence from his own witness of the same fact, he has waived his objection.

Þ Outcome: A D who preemptively introduces evidence of a prior conviction on direct examination may not on appeal claim that the admission of such evidence was error.

C. Party Responsibility-Objections

1. Bragg v. Metropolitan St. Ry. Comp. [MO Sup Ct] (1905) – Objections to Admitting Evidence – FRE 103(a)(1)

Rule: When an objection is made to a question propounded to a witness, it should be sufficiently specific to inform the court and opposing counsel of the real point of the objection.

Þ Facts: Where Bragg (P) sued Metropolitan (D) for injuries sustained when a car in which he was a passenger collided with a Missouri-Pacific train and at trial Bragg called Dr. Snell, who had examined Bragg, to testify and P’s counsel asked Dr. Snell whether the f

best evidence but rather should have been excluded because of hearsay. The P has to make an offer of proof so that the appellate court could make an informed decision. Must make an offer of proof in order to have an appellate court consider whether by excluding the excluding the evidence, whether there would be a substantial right affected.

Þ (B) Open objection made and sustained. Since opponent did not seek clarification of basis for sustaining, he cannot get reversal now.

Þ (C) If an objection is sustained for the wrong reason but the another reason would have kept it out, but the other reason was correctable, i.e., amend pleadings, then appellate court reverses. What would be an argument that the P would still lose even if there is an offer of proof. If the right result is given on the wrong ground then it will be upheld on appeal because there is no reason to go back to the trial court if it is simply going to be excluded again. However, if the evidence is curable [1-3C] – excluded because it opened up a new issue not within the pleading – this could be cured by a Rule 15 amendment of the pleadings so that it would result in a new trial because it could be cured and there might be a different result if the evidence was admitted properly.

Þ (D) “irrelevant, incompetent, and immaterial” is open objection. If overruled and if there is actual grounds for sustaining, appellate court will not review since no specific objection.

Þ (E) If the judge correctly overrules an objection at trial, appellate court will not reverse if there is an unstated grounds for sustaining.

Þ Car accident case. objections are hearsay and best evidence. Whenever paper is introduced there are 4 objections

(a) Relevance

(b) Best evidence

(c) Hearsay

(d) Authentication

II. Framework of Decision

A. The Order of Proof

1. Rule 611(b) – Scope of Examination

Cross is limited to the subject matter of direct testimony and matters affecting credibility. The court can permit other matters but it will be in the posture of direct examination.

(a) Mosteller: The party calls a witness (P). W testifies that they witnessed a traffic accident and whether the light was red or green. Under the Federal Rules should be able to address the subject matter of the direct and impeachment. Therefore, only subject as well as whether credible (convicted of fraud, work for D, proximity to accident, etc.) The Federal Rule says that the cross examination should be limited to the subject matter of the direct examination and credibility.

(1) “Objection, Scope of Cross Examination” – The Court may (discretion) allow inquiry into additional matters as if on direct examination. The mode of examination changes and there can no longer be leading questions as there normally can be on cross examination. This might makes sense because it leads to little more orderly presentation. Also might be difficult to rule on the relevancy issue because if the evidence is coming out of order then it might not be relevant.

(2) A counter argument is that the witness should tell everything that he/she knows while the witness is on the stand. About ten states have a “Wide Open Rule.” The scope of cross examination is anything relevant to the issue in the case as well as credibility. Note 2 p 206.

(b) Mosteller: What does it mean to be relevant to the subject matter of direct examination? This could be interpreted very narrowly or very broadly. Interstitial material that was connected to but not specifically mentioned. A contrary proposition is that anytime there is testimony toward the major issue then anything is allowed that negates the prima facie case. Another example is a W that testifies to an alibi. The prosecutor can ask about elements of the crime because the testimony that the W gave was essentially Not Guilt and therefore a prosecutor can ask questions that counter the statements relating to “Not Guilt.” The difference between the “Orthodox Rule” in Federal court (which is generally liberally interpreted) brings it closer to the “Wide Open Rule.”

(1) Testimony regarding Damages v. Liability is probably one of those situations where there would be different results under the two different rules.

2. Liptak v. Security Benefits Ass’n [Sup Ct IL] (1932)

Rule: The Party that asserts the affirmative of an issue is entitled to begin and reply. The right to open and close is a substantial right coexistent with wit h the burden of proof. The D will acquire the right to open and close only if the P has nothing to prove in order to get a judgment in his favor.

Þ Facts: Where Liptak (P) brought suit as the widow of Julius Liptak against Security Benefits (D), to obtain the benefits of a benefit certificate issued to decedent on 11/26/21, in the amount of $1000. Security Benefits (D0 set out a special plea where it stated that under certain sections of its bylaws, decedent had been suspended for failure to pay his premiums and Liptak (P) countered stating that John R. DeBow, an officer of Security Benefit (D), had come to the home of the decedent and had received the payment for the month in question. When the case was called for trial, Sec Benefits (D), admitted the issuance of the certificate, the relationship of the parties, the correctness of the bylaws, admitted the death of the insured and receipt of proof of death, and moved the court that it be permitted to take the lead in the examination of the jury on account of the fact that under the pleadings, the burden of proof was on Security Benefit (D). This motio nwas denied nad similar motions were made and denied later in the proceedings, and the jury returned a verdict for Liptak. Is the party who asserts the affirmative of an issue entitled to begin and reply? Yes. Whenever the Plaintiff has anything in order to prove in order to secure a verdict, the right ot oen and close belongs to him. The right to open and close is not a matter resting in the discretion of the trial court, but is a substantial right in the person who must introduce proof to prevent judgment against him. Because the right of Security Benefits (D) to open and close was a substantial right, the case is reversed and remanded.

Þ Outcome: This case represents the majority view concerning the order of proof in civil actions. The Defendant in a civil action will acquire the right to open and close only where the Plaintiff has nothing to prove in order to secure a judgment.

Þ Mosteller: The right of the party with the burden of proof to go first and last. If you are the P or prosecutor then you get to argue first and present evidence and also get to argue last. Also the P or prosecutor sits closest to the jury. This can be changed around if for example it is an insurance case where the only real proof is that the party is insured and the main proof of the case is actually on the insurance company.

3. Seguin v. Berg [NY App Div] (1940)

Rule: A party must put in all of his evidence for his affirmative case before he rests, but evidence that would be applicable to prove a P’s case in chief may also be applicable to rebut the evidence presented by the D and therefore be admissible.

Þ Facts: Where on 01/02/38, the automobiles of Seguin (P) and Berg (D) collided and each of the owners charged the other with negligence in causing the accident. In support of his cause of action to recover damages, Seguin (P) offered his own testimony and that of the mechanic that fixed his car. AT the conclusion of Berg’s case, Seguin called three witnesses that had been passengers in Seguin’s car when the collision occurred. Upon objection by Berg (D) the evidence was excluded on the ground that it was not proper rebuttal evidence. After the jury returned a verdict in favor of Berg (D)m Seguin appealed contending that the exclusion of the witness testimony was reverible error. Must a party put in all his evidence before he rests? Generally yes. The Plainitiff is not entitled to put in merely enough evidence to prove a prima facie case and then reserve the rest to meet emergency needs. Here though, Seguin (P) had the right to offer such testimony in support of his cause of action. The evidence , while it could have been part of his case in chief, was also competent to rebut the contention by Berg that the accident was due solely to the negligence of Seguin.

Þ Outcome:

4. Duran v. Neff [FL Dist Ct App] (1979)

Rule: A trial judge is given broad discretion in the control of causes of action before him (particularly jury cases) and will only be overturned for an abuse of discretion.

Þ Facts: Wher in a medical malpractice actionfiled by Duran (P) against Neff (D), Duran (P) sought and received the right to have her case heard first thing on Monday morning. On Monday afternoon at 5:10, Duran’s (D) counsel suggested that he court take a short recess before permitting him to put on his somewhat lengthy expert testimony. The court declined and instead recessed until the next day at which time Duran was unable to produce the witness. Does the trial judge have broad latitude in the control of the order and timing of the cases before him? Yes. The trial judge did not abuse his discretion in not allowing Duran’s expert to testify on the first day.