Evidence
Devitt
Spring 2011
General Provisions: Rules 101-106: The Scope and Applicability of The Federal Rules of Evidence
Rule 101. Scope
These rules govern proceedings in the courts of the United States and before United States bankruptcy judges and United States magistrate judges, to the extent and with the exceptions stated in rule 1101.
• Rules apply to civil and criminal cases.
• Federal courts in diversity jurisdiction situations face the Erie problem. Generally, federal rules apply, but where it affects a substantive right then the state evidence rules often apply. State rules apply in terms of presumptions, competency of witnesses and privileges. This can affect the outcome of the case= need to know which rule will govern.
• Privileges applies at all stages of all actions, cases, and proceedings. Including, interlocutory appeal/writ of mandate.
• Rules inapplicable when:
• Preliminary questions of fact: Don’t need admissible evidence to determine whether something else is admissible.
• Grand jury: Proceedings before grand juries, i.g. no federal hearsay rule would apply.
• Miscellaneous proceedings: sentencing, probations, warrants, criminal summonses etc.
• Note: Trial judges are equally bound by the rules.
Rule 102. Purpose and Construction
These rules shall be construed to secure fairness in administration, elimination of unjustifiable expense and delay, and promotion of growth and development of the law of evidence to the end that the truth may be ascertained and proceedings justly determined.
• CA rules differ in some important respects from the federal rules, but generally they are very similar.
Rule 1101. Applicability of Rules
(a) Courts and judges. These rules apply to the United States district courts . . . (broad range of courts listed)
(b) Proceedings generally. These rules apply generally to civil actions and proceedings . . . to criminal cases and proceedings . . .
(c) Rule of privilege. The rule with respect to privileges applies at all stages of all actions, cases, and proceedings.
Rule of privilege applies at all stages of the litigation.
(d) Rules inapplicable. The rules (other than with respect to privileges) do not apply in the following situations:
(1) Preliminary questions of fact. The determination of questions of fact preliminary to admissibility of evidence when the issue is to be determined by the court under Rule 104
(2) Grand jury. Proceedings before grand juries
(3) Miscellaneous proceedings. Proceedings for extradition or rendition; preliminary examinations in criminal cases; sentencing, or granting or revoking probation; issuance of warrants for arrest, criminal summonses, and search warrants; and proceedings with respect to release on bail or otherwise.
• The trier of fact is not always the jury (e.g. a bench trial). A Пs lawyer generally should not give up the jury trial (you want to be able to tell your clients story). The federal rules still apply during a bench trial.
Importance of Evidentiary Issues at All Litigation Stages
Litigation Stages
• Pretrial
• Pretrial stage is very important! Talk to the jury from day one.
• Discoverable evidence need not be admissible evidence.
• Summary judgment (56 civ. Pro.) is not appropriate if there are material issues of fact in dispute.
• П must show that there is a question of fact – do something!
• If you don’t have anything you need to file for a continuance (further discovery.)
• Trial
• П: Expert testimony as to the standard of careà Breach of the standard of careà Damages proximately caused
• Δ: Affirmative defenses
• A great trial lawyer is a great storyteller, and preparation is the key.
• Tell the story at every stage of litigation.
• Post Trial
Litigation Process
Pretrial
COMPLAINT AND ANSWER
PRE-TRIAL DISCOVERY (Rule 26)
PRE-TRIAL MOTIONS (Rule 12(b)(6))
MOTIONS IN LIMINE (can be filed before or during trial; purpose = limit certain evidence)
JURY SELECTION (VOIR DIRE) (golden opportunity to chat with jury)
Trial
PLAINTIFF’S OPENING STATEMENT (whoever has the burden of persuasion goes first)
DEFENDANT’S OPENING STATEMENT
PLAINTIFF’S CASE IN CHIEF
MOTIONS AT THE CLOSE OF PLAINTIFF’S CASE
DEFENDANT’S CASE IN CHIEF
REBUTTAL EVIDENCE
PLAINTIFF’S CLOSING ARGUMENT
DEFENDANT’S CLOSING ARGUMENT
PLAINTIFF’S REBUTTAL ARGUMENT
ARGUMENTS REGARDING JURY INSTRUCTIONS
JURY INSTRUCTIONS
JURY DELIBERATION
VERDICT AND ENTRY OF JUDGMENT
Post-trial
POST-TRIAL MOTIONS
APPELLATE REVIEW (be sure to reserve your objections!)
Making Objections and Preserving Them For Appeal
Objections can be Sustained or Overruled by the Judge:
· Sustained = objectioner wins
· Overruled = objectioner loses
Objection Examples
(Remember that NOT all objections are in the FRE)
• Addressing juror by name during trial (can only do so in voir dire)
• Vague and ambiguous
• Assumes facts not in evidence
• Argumentative
• Know when to shut up.
• Asked and answered
• Compound question
• A Q that the answer to would be unclear (i.e. yes could mean more than one thing.)
• Calls for a narrative
• This is good on direct b/c we want our witnesses to tell their story (if you can get away with it on direct try to- if there is an objection try saying –“ok, what happened next.”)
• Purpose is to elicit info through question and answer (and on cross you don’t want to elicit a narrative)
• Narratives don’t allow the other side the opportunity to make objections
• Can be effective strategy on direct (someone else tells the story for you)
• Unresponsive
• Only the lawyer asking the Qs can make this objection.
• Speculative
• Witnesses can’t speculate- they must have a basis in order to testify.
• Never ask a witness a Q on cross that you do not know the answer to!
Example Objections to Opening Statement
ied the right, an error
• On appeal, need something more than an error, has to make a substantial difference to the outcome of the case.
Preservation of Erroneous Rulings for Appeal
• In the situation of the erroneous admission of evidence, a proper and timely objection must have been made.
• Failure to do so will waive these issues for appeal.
• In the situation of the erroneous exclusion of evidence, a proper and timely offer of proof must have been made
• Failure to do so will waive these issues for appeal.
• Motion to Strike – if the witness answers/responds before you can object; make a motion to strike and consider to move for retrial
• One exception is plain error = when an egregious plain error has been made that counsel did not object to in court
• A judge would be more likely to find plain error when there is NOT an objection b/c unlike when there is a failure to make an offer of proof (and nobody ever sees the evidence) when a lawyer fails to object, the court has the evidence in front of them and therefore its more likely to find substantial plain error as a result.
Be Careful! Preserve your right of appeal.
• New language in 103(a)(2) “Once the court makes a definitive ruling on the record admitting or excluding evidence ,either at or before trial, a party need not renew an objection or offer of proof to preserve a claim of error for appeal.
• How do you know its definitive? – Supervisory Committee note: “The amendment imposes the obligation on counsel to clarify whether an in limine or other evidentiary ruling is definitive when there is doubt on that point.”
• Note: In limine means “on the threshold; at the outset.”)
• Don’t fall for the trap.
• Ct. can add to the record- don’t push issue too far or could loose ability to appeal.
• Should you file a motion to reconsider if you’ve already preserved the right? Might hurt you, annoy judge, timely, and most importantly, judge could beef up the record against you.
• See 103(b) – Court may add any other further statement which shows the character of the evidence.
• 103(d) Plain error – more likely to find a plain error where there was not a timely objection made, the evidence got in, it was egregious, judge should have objected to it sua sponte.
• California is Fundamentally different in this regard
• The Ct. of appeal goes out of the way to dispose of appeals by finding no timely objections or offer of proof.
