Introduction
What is Evidence?
Evidence is testimony or tangibles offered to prove or disprove the truth of a proposition of fact under investigation or litigation.
Testimonial Evidence and Tangible Evidence
Testimonial evidence is a witness’s spoken report of a happeningor circumstance observed by him. Such a report may be either direct or circumstantial evidence of a proposition of fact that is of consequence to the action (formerly called a material proposition of fact).
Tangible evidence is a person or thing that is itself direct or circumstantial evidence of a proposition of fact of consequence to the action (formerly called a material proposition of fact). Tangible evidence is sometimes further subdivided into real evidence and demonstrative evidence.
Direct and Circumstantial Evidence
Direct evidence. Whenever evidence is introduced which does not depend on any inference for its relevancy other than the credibility of the witness through whom the evidence is presented to the court, the evidence is said to be direct.
Circumstantial evidence. Whenever evidence depends for its relevancy not only upon the credibility of a witness but also upon an inference to be drawn from the evidence, the evidence is said to be circumstantial.
The Federal Rules
In 1975, the Federal Rules of Evidence (FRE) became effective, after having been enacted by Congress. These rules apply to all trials in federal courts, whether civil or criminal, and whether to a judge or a jury. See FRE 101. The FRE are so influential, and generally regarded as so well-drafted, that over four-fifths of the states have adopted them in one form or another.
Examination of witnesses
The examination of a given witness proceeds through up to four states:
First, the party who has called a witness engages in the direct examination. Generally, the direct examiner may not use leading questions (i.e., questions that suggest the desired answer). Instead, the direct examiner must let the witness give his own testimony.
The trial judge has the discretion to control the form of direct examination of witnesses.
Particularly in a criminal case, a trial judge may sustain an objection to the question: “What happened on April 5, 2000?” because of the risk that the witness may state matter which is incompetent and even constitutionally inadmissible.
Leading questions should not be asked on direct examination; except for the following: (1) preliminary matters, (2) children and others having communication difficulties, (3) witnesses whose memories have been exhausted, (4) adverse witnesses, and (5) hostile witnesses.
After the side that called the witness has finished the direct examination, the other side has the chance to cross-examine the witness. Here, because the witness may be expected to be hostile to the examiner, leading questions could be permitted.
The calling side then has an opportunity to conduct re-direct examination of the witness. Re-direct is generally limited to rebutting points made on cross-examination.
Finally, the cross-examining side gets a brief opportunity to conduct re-cross. This is limited to rebutting the effect of re-direct.
Making and Responding to Objections
When inadmissible evidence is offered, it is not the judge’s responsibility to notice this and to exclude the evidence. Instead, the responsibility is on the other party to object to the evidence; only after a timely objection will the trial judge determine whether the evidence is admissible.
The objection should be “sufficiently specific for the judge and opposing counsel to know which of the rules of evidence is being invoked.” FRE103(a)(1) allows the appeals court to consider an evidentiary ruling only if the opponent made a timely objection “stating the specific ground of objection, if the specific ground was not apparent from the context.”
The “Plain Error” and “Harmless Error” Doctrines
Not every error in the admission or exclusion of evidence will be grounds for reversal. Conversely, not every error to which no objection (or an incorrect objection) is made, will lead to an affirmance. An error will not lead to reversal if it is “harmless;” conversely, an unobjected-to error may nonetheless lead to reversal if it is “plain.”
Chapter 3. Procedures for Admitting and Excluding Evidence [FRE Art. I]
1. FRE 103(a)(1), Objections and Motions to Strike
Making and Responding to Objections
When inadmissible evidence is offered, it is not the judge’s responsibility to notice this and to exclude the evidence. Instead, the responsibility is on the other party to object to the evidence; only after a timely objection will the trial judge determine whether the evidence is admissible.
The objection should be “sufficiently specific for the judge and opposing counsel to know which of the rules of evidence is being invoked.” FRE103(a)(1) allows the appeals court to consider an evidentiary ruling only if the opponent made a timely objection “stating the specific ground of objection, if the specific ground was not apparent from the context.”
Motions in limine
Motion to exclude evidence < time at which it is to be introduced (usually < trial).
Judge may allow, exclude, or reserve ruling for the time at which the evidence is offered
Traditional rule that an overrules motion in limine does NOT preserve error and trial objection is required à FRE103(a)(2) says party need NOT renew objection to preserve.
FRE 103(a) and (b)
In order to lay the groundwork for appeal from an ERROR, the attorney must:
Make a timely objection to the admission/denial of evidence (Archibald)
When offeror claims evidence will be “connected up” and meet conditional relevancy requirements, the attorney must renew the objection by bringing motion to strike at the appropriate time (usually at the close of the offeror’s evidence)
Attorney may make continuing objection to connected evidence or questions, but only if it is specific and unambiguous.
Specifically explain why there was an error, unless clear from context
Give judge opportunity to do the right thing
Don’t preserve for appeal if objecting to the wrong thing
Must be an offer of proof to find error from exclusion of evidence (make court aware of the substance of the evidence that would have brought in were it not for the exclusion) in order to show the reviewing court that a party is prejudiced. FRE 103(a)(2) and (b).
Offer of proof in two ways:
Lawyer tells judge what answer WOULD have been if witness was permitted to answer.
Ask the judge to let the jury leave and let the witness answer out of its presence.
If no offer of proof, then argue FRE 103(a)(2) is apparent from the context, but risky!
Bottom line is that the lawyer should make an offer of proof on direct and cross-examination.
The error must affect a substantial right of the party
Harmless error if not
Summary:
Improper admission of evidence: need timely objection (or plain error); evidence was actually inadmissible due to grounds given in the objection; party suffered impairment of substantial right
Improper exclusion: offer of proof made; evidence not excludable on any grounds; exclusion was prejudicial.
2. FRE 104, Preliminary Questions
Preliminary questions concerning the qualification of a person to be a witness, the existence of privilege, or admissibility of evidence are questions of law to be determined by the court (Ex, whether hearsay statement is statement against interest). FRE 104(a).
Conditional Relevance
Court may admit evidence that becomes relevant upon fulfillment of a condition of fact. FRE 104(b) à “2 – Relevancy Requirements”
Accused’s testimony on preliminary matter doesn’t open him to cross-examination on other issues of the case. FRE 103(d).
Rule: When the relevancy of evidence depends upon the fulfillment of a condition of fact, the court shall admit it upon, or subject to, the introduction of evidence sufficient to support a finding to the fulfillment of the condition. FRE 104(b)
State v. Kotsimpulos “Stolen Tenderloins”
Meat inspector convicted of stealing 5 pork tenderloins. D wanted to introduce evidence that supervisor threatened him in order to suggest the tenderloins were planted. The court found that evidence of another person’s threats toward D, standing alone, was not admissible to show that the other person had anything to do with the crime charged or the prosecution of D. There must be additional evidence connecting the other person with the crime or the proceedings before his feelings towards the defendant become admissible [Me. R. Evid. 104(b)]. The probative value was too slight to warrant confusing the jury.
3. FRE 105, Limited Admissibility
When evidence is admissible as to one party or purpose but NOT as to another party or purpose AND it is admitted, the court, upon request, SHALL restrict the evidence to its proper scope and instruct the jury accordingly.
Ex. Evidence admissible against A but not B. Judge tells jury to only consider against A.
Pratical?
Factfinder heard the damning evidence, so it might be hard for them to really ignore it or not be persuaded by emotiona
the piece of evidence and the factual proposition to which the evidence is addressed. That is, the evidence must make the factual proposition more (or less) likely than it would be without the evidence.
Insufficient Probative Value – State v. Kotsimpulos “Stolen Tenderloins”
Meat inspector convicted of stealing 5 pork tenderloins. D wanted to introduce evidence that supervisor threatened him in order to suggest the tenderloins were planted. The court found that evidence of another person’s threats toward D, standing alone, was not admissible to show that the other person had anything to do with the crime charged or the prosecution of D. There must be additional evidence connecting the other person with the crime or the proceedings before his feelings towards the defendant become admissible [Me. R. Evid. 104(b)]. The probative value was too slight to warrant confusing the jury.
Probability – State v. Nicholas “Secretor Test”
The state of Washington (P) prosecuted Nicholas (D) for burglary and rape. Over D’s objection, P put in evidence testimony concerning the results of an acid phosphatase test performed upon bodily fluids taken from the victim after the rape. The test showed that “the rapist was either a type O secretor or a non-secretor, categories covering about 60% of the population.” Because D was a type A non-secretor, “he was not ruled out by the test.” On appeal, D concedes that evidence of this test result increased the probability of his guilt, but insists that the trial court should have excluded it as not relevant, because it did not connect him, in any way, to the charged offense.
Evidence that tends to limit the field of possible perpetrators is relevant within the meaning of FRE 401 on the issue of identity, because the results of the acid phosphatase and secretor type tests tended to some degree to make it more probable that D was guilty of rape and burglary.
Materiality
The evidence must be material. That is, there must be a link between the factual proposition which the evidence tends to establish, and the substantive law.
Relevancy v. Materiality
If evidence is offered to prove a matter not in issue, the evidence is said to be “immaterial” (EX: if liability is conceded and the case is being tried only on the question of damages, evidence which is probative only of liability and not of damages would be immaterial). Evidence which is offered to prove an issue in the case, but which in fact does not tend to establish that issue is said to be “irrelevant.” FRE 401 does not deal with materiality separately but rather includes the concept in its definition of relevant evidence by requiring that the evidence pertain to a fact “that is of consequence to the determination of the action.”
FRE 403: Exclusion of Relevant Evidence (Policy Reasons)
Rule: Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.
· Evidence excluded under FRE 403 is relevant under FRE 401, but excluded for policy reasons.
· “Relevant evidence is inherently prejudicial; but it is only unfair prejudice, substantially out-weighing probative value, which permits exclusion of relevant evidence under FRE 403. A piece of logically probative evidence that would severely tempt the jury to abandon or abridge those processes can be excluded as unfairly prejudicial.All evidence against D is prejudicial – must not be unfair in a way that causes the factfinder to react to the evidence in a manner that is not part of the evaluation process. (McRae)
Requires a balancing test between the probative value vs. prejudice, unless the
