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

Evidence Mosteller Fall 2013
1 – The Adversary System
Evidence Outline
I.                    Roles of the Judge and Jury
a.       General Demeanor
                                                               i.      Judge may play an active role, more than an umpire, but may not assume the role of advocate.,
1.       Case: U.S. v. Beatty – whether judge’s lengthy questioning of D1’s alibi witness, suggesting she was not credible, where jury’s decision turned on witness’s credibility, was prejudicial
a.       Held: prejudicial b/c judge’s manner of questioning was akin to cross-examination, reserved for advocates
b.      In same case, judge had become increasingly frustrated and annoyed w/ D1’s counsel in front of jury; Held: no prejudice
b.      Witnesses
                                                               i.      Rule 614: Judge’s Calling or Examining a Witness
1.        (a) Calling. The court may call a witness on its own or at a party's request. Each party is entitled to cross-examine the witness.
2.        (b) Examining. The court may examine a witness regardless of who calls the witness.
3.        (c) Objections. A party may object to the court's calling or examining a witness either at that time or at the next opportunity when the jury is not present.
                                                             ii.      Sometimes judges call witnesses that neither party wants to call
                                                            iii.      You may want to save objection so jury doesn’t hear something, or to avoid embarrassing judge in front of jury
c.       Determining Admissibility
                                                               i.      Judge decides fact issues of hearsay, expertise, best evidence, privilege, and excitability
1.       Rule 104(a)
a.       (a) In General. The court must decide any preliminary question about whether a witness is qualified, a privilege exists, or evidence is admissible. In so deciding, the court is not bound by evidence rules, except those on privilege.
2.       This is where judge is making determination bsed on facts (e.g. is this person an expert? Is this material privileged?)
3.       Standard of Proof is preponderance of the evidence (51%)
4.       A judge can consider evidence in camara to determine these fact issues, so long as there is a modicum of evidence showing that a reasonable person w.
a.       Case: U.S. v. Zolan – Pr claimed evidence he was trying to admit fell within the crime-fraud exception to attorney-client privilege; whether Pr had to establish the admissibility of the evidence through independent evidence (since judge couldn’t determine question w/o seeing evidence)
                                                                                                                                       i.      Held: No. Dispute can easily be resolved by in camara review
                                                                                                                                     ii.      Judges are competent enough to use evidence only for its proper purpose
                                                                                                                                    iii.      If judge couldn’t ever look at privileged matter, we would write crime-fraud exception out of the law
                                                             ii.      Judge also decides logical relevance.
1.       This is step 1 of the conditional relevance quesion: assuming the fact is true, is it relevant to proving the thing it is alleged to be proving?
2.       Is it probative?
                                                            iii.      Jury decides fact issues dealing with conditional relevance
1.       Rule 104(b)
a.       (b) Relevance That Depends on a Fact. When the relevance of evidence depends on whether a fact exists, proof must be introduced sufficient to support a finding that the fact does exist. The court may admit the proposed evidence on the condition that the proof be introduced later.
2.       Jury is deciding whether the evidence admitted is true – and if it is, then using it to make a determination about the case
3.       Ex. If jury finds D wrote the confession note, then jury can use that note to determine whether D committed the crime
4.       Judge still must screen evidence to make sure it is substantial enough that jury could find authentication
a.       Standard of Proof: substantial enough that a reasonable jury could find (40%)
a.       Case: Huddleston v. U.S. – whether Pr could introduce evidence that D had been charged w/ crime of selling stolen goods twice before to show knowledge element of crime
                                                                                                                                       i.      Held: Standard of review for judge is not “clear and convincing” but instead whether a reasonable jury could ind
                                                                                                                                     ii.      Relevant evidence is permissible, unless the rules provide otherwise
b.      Judge may not weigh credibility, just whether it is a tryable issueJudge’s first role is to determine whether, if the fact is true, it will be relevant (logical relevance)
c.       Judge must then determine whether jury could reasonably find condition to be fulfilled
5.       Case: Crane v. Kentucky – whether circumstances surrounding taking of a confession (which D alleges was coerced) is considered for admissibility by judge or jury
a.       Held: judge must decide legal issue of whether confession was constitutionally voluntary, and jury must decide factual issue of whether confession is worthy of belief
                                                           iv.      Credibility evidence is always permitted
1.       Rule 104(e)
a.       (e) Evidence Relevant to Weight and Credibility. This rule does not limit a party's right to introduce before the jury evidence that is relevant to the weight or credibility of other evidence.
                                                             v.      When necessary, judge can conduct hearing outside of jury’s hearing to decide preliminary admissibility questions
1.       Rule 104(c)
a.        (c) Conducting a Hearing So That the Jury Cannot Hear It. The court must conduct any hearing on a preliminary question so that the jury cannot hear it if:
                                                                                                                                       i.       (1) the hearing involves the admissibility of a confession;
                                                                                                                                     ii.       (2) a defendant in a criminal case is a witness and so requests; or
                                                                                                                                    iii.       (3) justice so requires
d.      No Jury Trials
                                                               i.      Judge is responsible for considering evidence only for its proper purpose, and we assume he/she will be able to do this.
                                                             ii.      Parties should still object, but reversal is only possible if judge made a finding on an improper basis
II.                  Party Responsibility
a.       Preserving Your Appeal if Evidence is Admitted
                                                               i.      Rule 103(a)(1)
1.       (a)  Preserving a Claim of Error. A party may claim error in a ruling to admit or exclude evidence only if the error affects a substantial right of the party and:
a.       (1) if the ruling admits evidence, a party, on the record:
                                                                                                                                       i.       (A) timely objects or moves to strike; and
                                                                                                                                     ii.      (B) states the specific ground, unless it was apparent from the context; or
                                                             ii.      You need to object with specific grounds, unless it’s obvious from the context
                                                            iii.      It’s only reversible if error affects substantial rights of losing party
1.       If judge ruled wrongly on one ground, but would have been correct on other grounds, then it’s harmless error
                                                           iv.      If you don’t ask the other party to specify grounds, then it’s assumed you agreed to those grounds
b.      Preserving Your Appeal if Evidence is Excluded
                                                               i.      Rule 103(a)(2)
a.        (2) if the ruling excludes evidence, a party informs the court of its substance by an offer of proof, unless the substance was apparent from the context.
                                                             ii.      If opponent’s objection is susta

ting instruction upon request from a party
1.       Case: Sherman v. Burke Contracting, Inc. – D objected to introduction of impeachment evidence and lost, but failed t request limiting jury instruction
a.       Held: Must request limiting instruction for there to be error, mere objection is not enough
b.      Rationale: Many lawyers don’t request instruction b/c afraid it will do more harm than good – and those people can’t have their cake and eat it too
III.                Order of Proof
a.       Mode of Doing a Trial
                                                               i.      Plaintiff/Prosecution puts on case, then D puts on defense, then P gets a rebuttal.
                                                             ii.      This rebuttal must be a true rebuttal, and not part of the prima facie case
1.       Case: Seguine v. Burg – P tried to save some witnesses for rebuttal
a.       Held: P can’t do that
b.      Rationale: P can’t just barely make out a prina facie case and then use rebuttal for offering other proof, and therefore get the last word
                                                            iii.      Whoever has the burden of proof gets to open and close
1.       Case: Liptak
b.      Judge’s Discretion in Timing
                                                               i.      Rule 611(a)
1.        (a) Control by the Court; Purposes. The court should exercise reasonable control over the mode and order of examining witnesses and presenting evidence so as to:
a.        (1) make those procedures effective for determining the truth;
b.       (2) avoid wasting time; and
c.        (3) protect witnesses from harassment or undue embarrassment.
                                                             ii.      Case: Duran – whether judge abused discretion by refusing to lengthen trial past 5:30pm b/c expert witness was not available the next day
1.       Held: No. Judge has wide discretion to run trial the way he wants to, and advocate is responsible for establishing early that an expert has limited availability
2.       Rationale: It’s hard to keep the dockets moving as it is
                                                            iii.      Case: Boomer – whether judge absued discretion by refusing to allow D to introduce witness b/c he had messed up and accidentally closed his case
1.       Held: Witness should have been able to come in, could have been there really quickly
2.       Rationale: Even though attorney messed up, this is not a game, it’s a justice system
c.       Scope of Cross-Examination
                                                               i.      Rule 611(b)
1.       (b) Scope of Cross-Examination. Cross-examination should not go beyond the subject matter of the direct examination and matters affecting the witness's credibility. The court may allow inquiry into additional matters as if on direct examination.
                                                             ii.      Approach 1: Narrow Rule (Old) – Cross-examination is limited to matters touched on or inferable from statements made in direct examination
1.       Rationale: Each side gets to present his own play in his own time, and we have respect for orderliness
2.       It’s also difficult to rule on what’s relevant beyond scope of direct examination, since D hasn’t put on case yet
3.       Case: U.S. v. Atkins
                                                            iii.      Approach 2: Wide Open Rule – Anything can come in on cross-examination that is relevant, no regard for Rule 611
1.       This si the rule in NC: “a witness may be cross-examined on any matter relevant to any issue in the case including credibility”