EVIDENCE
DEVITT
SPRING 2012
I. GENERAL PROVISIONS:
A. Rule: 101 – Scope
1. Rules apply to all federal courts and proceedings, with exceptions under Rule 1101
B. Rule: 102 – Purpose
1. To administer proceedings fairly
2. Eliminate unjustifiable expense and delay
3. Promote development of evidence law
4. Ascertain truth and securing just determination
C. Rule 103 – Preserving a Claim of Error
1. A party can claim an error in a ruling to admit and exclude evidence IF:
a. the error affects a “substantial right” of the party
i. If the error is in ADMITTING evidence, party must:
A) timely object or make a motion to strike, AND
B) state the specific ground of objection or motion UNLESS it’s apparent from the context
1) NOTE: If there are multiple grounds for objection list EACH one with specificity.
ii. If the error is in EXCLUDING evidence, party must make an offer of proof of the substance of the evidence, UNLESS substance was apparent from context
2. Once the court DEFINITIVELY rules ON THE RECORD, either before or during trial, a party need not renew an objection or offer of proof to preserve claim of error for appeal.
a. NOTE: it is unclear what a “definitive” ruling actually is. In order to preserve for appeal, the lawyer should ask on the record whether the judge’s ruling is definitive.
i. As a practice tip, it’s best to bring up the objection or offer of proof again anyway.
3. Court may make ANY statement about character or form of evidence, objection made, and ruling. May direct offer of proof be made in question and answer form
4. Court must do it’s best to prevent jury from hearing inadmissible evidence
5. Court MAY take notice of a “plain error” affecting a “substantial right” EVEN IF the claim of error was NOT properly preserved.
a. It’s easier to find plain error for erroneously admitted evidence because it’s already in the record.
b. NOTE: there is NO “plain error” rule in California.
D. Rule 104 – Preliminary Questions
1. COURT must decide any preliminary questions about:
a. Whether a witness is qualified – (meets the “competency” requirements)
b. The existence of a privilege
c. If evidence is admissible
i. In making its decision, court is NOT bound by evidence rules EXCEPT with respect to privilege.
2. When RELEVANCE of issue depends on whether a fact exists, SUFFICIENT PROOF must be introduced to support a finding that the fact DOES exist
a. Court MAY admit proposed evidence on the condition that proof be introduced later.
3. Court MUST conduct a hearing that the jury CANNOT hear when:
a. The hearing involves the admissibility of a confession
b. A DEFENDANT in a CRIMINAL CASE is ALSO a WITNESS and requests it
c. When “justice so requires”
4. If a defendant in a criminal case testifies on a PRELIMINARY QUESTION, he DOES NOT become subject to cross-examination on other issues in the case
5. Rule 104 DOES NOT limit a party’s right to introduce evidence that is relevant to the WEIGHT or CREDIBILITY of OTHER evidence.
E. RULE 105 – Limiting Evidence That is NOT Admissible Against Other Parties or for OTHER Purposes
1. If the court admits evidence that is admissible against a party for a certain purpose, but it INADMISSIBLE for ANOTHER purpose or against a DIFFERENT party then:
a. Upon a TIMELY REQUEST, court must restrict the evidence to its proper scope and instruct jury accordingly.
F. Rule 106 – Related Writings or Recorded Statements
1. If a party introduces all or PART of a writing or recorded statement then:
a. An adverse party may request, AT THAT TIME, the introduction of ANY OTHER PART or any other writing or recorded statement that “in fairness” should be considered at the same time.
G. Rule 1101 – Applicability of the Rules
1. Courts Affected:
a. U..S. district Courts, U.S. bankruptcy and magistrate judges, U.S. Court of Appeals, U.S. Court of Federal Claims, district courts of territories.
2. Cases and Proceedings affected:
a. Civil cases, criminal cases, contempt proceedings
3. Rules on Privilege – Apply to ALL stages of case or proceeding
4. Exceptions to when rules DON’T apply:
a. Court’s determination of preliminary question (Rule 104) with respect to qualification of witness and admissibility of evidence
b. GRAND JURY proceedings
c. Miscellaneous proceedings:
i. Extradition or retention, issuing arrest warrant or criminal summons, preliminary examination in criminal case, sentencing, granting or revoking probation, bail issues.
II. WITNESSES:
A. Rule 611 – Direct and Cross Examination
1. Court should exercise reasonable control over mode and order of examining witnesses and presenting evidence so as to:
a. Make procedures effective in determining the truth
b. Avoid wasting time
c. Protect witnesses from harassment and undue embarrassment
2. Scope of Cross
a. Should NOT go beyond subject matter of the direct examination AND matters affecting witness’s credibility.
i. Court MAY allow inquiry into additional matters as if on direct examination.
ii. NOTE: only addressing the credibility of that PARTICULAR witness, not other witnesses.
3. Generally, leading questions SHOULD NOT be used on direct examination. Should only be used:
a. During cross-examination; AND
b. When a party calls on direct examination a hostile witness, an adverse party, or a witness identified with an adverse party.
B. Rule 612 – Refreshing a Witness’s Memory
1. A witness’s memory can be refreshed with a writing:
a. While testifying; OR
b. Before testifying, if court decides that “justice requires such”
2. In general, an ADVERSE party is entitled to:
a. Have the writing used for the refreshing of memory produced
b. Ability to inspect the writing
c. Ability to cross-examine the witness about it
d. To introduce into evidence ANY portion that relates to the witness’s testimony.
3. If producing party claims that a portion of the writing includes unrelated matters, the court must delete the portions related to the unrelated matters and order the rest delivered to the adverse party
a. Any portion deleted over objection MUST be preserved for the record.
4. If writing is NOT produced or delivered, court may issue an appropriate order
a. NOTE: in a criminal case, if the writing is NOT produced, the court MUST strike the witness’s testimony and MAY even declare a mistrial.
5. NOTE:
a. Rule 612 only deals with writings, but a witness’s recollection can be refreshed with ANYTHING, even otherwise inadmissible evidence.
C. Rule 615 – Excluding Witnesses
1. A party or the court on its own can exclude a witness from hearing the testimony of another witness. However, a witness CANNOT be excluded from hearing testimony of other witnesses IF
a. The witness is a party to the proceeding and is a “natural person”
b. An officer or employee of a party that is NOT a natural person, after being designated as the party’s representative by its attorney
c. A person whose presence a party shows to be ESSENTIAL to presenting the party’s claim or defense
i. Example: an expert witness
d. A person authorized by statute to be present.
i. Example: Federal Compensations and Victims Act: allows victims to be present during public court hearings.
D. Rule 601 – Competency to Testify
1. In general, every person is competent to testify as a witness.
a. In CIVIL diversity cases, state laws regarding competency of witnesses applies.
i. Example: Dead man’s statutes – Many states still have statutes that bar the testimony of “interested parties” – (ones having direct involvement in the case) when one of the parties to the transaction is now deceased.
b. NOTE: under common law, many people were excluded from testifying do to being “incompetent” (mental incapacity, religious belief, criminal conviction, infancy, etc.) The federal rules changed this and instead addresses these issues with respect to the CREDIBILITY of the witness
2. U.S. v. Lightly – case where court held that inmate was “incompetent” to testify because psychiatrist declared him to be insane.
a. Case Rule: Being “insane” or incompetent to stand TRIAL does NOT make one per se incompetent to TESTIFY. These are two different things. A person is competent to TESTIFY so long as he meets four requirements:
i. Has personal knowledge of the matter
ii. Must be able to “bridge the temporal gap” and recall the personal knowledge at the time of trial.
iii. Has the ability to communicate the personal knowledge
iv. Takes an oath or affirmation and understands its implications.
b. NOTE: Competency is established even for alcoholics, drug addicts, and persons under the influence even while testifying. Goes to credibility instead.
3. Ricketts v. Delaware – Man accused of molesting his girlfriend’s 5 year old daughter. Daughter testified against him. Competent witness?
a. Case Rule: EVERYONE is presumed competent to testify as a witness under Rule 601, even children. So long as a child has personal knowledge, remembers it, has the ability to communicate what she saw, and is able to take and understand an affirmation, then she is a competent witness.
i. NOTE: Some states don’t adhere to this and presume children as incompetent below a certain age
4. Rock v. Arkansas – Wife shot husband and was charged with murder. Could not remember details of shooting so went under hypnosis. Remembered that firing mechanism on gun was faulty and accidentally went off. Wanted to testify to such at court. Arkansas had per se exclusion rule with respect to testifying to evidence previously recalled through hypnosis.
a. Case Rule: In a CRIMINAL case, a per se exclusion rule that acts to prevent the defendant from testifying on her own behalf is unconstitutional
i. NOTES: the courts rule only applies to CRIMINAL cases where the DEFENDANT is testifying on her own behalf. Exclusions of testimony recalled through hypnosis can still be excluded in CIVIL cases AND in CRIMINAL cases where the witness IS NOT the defendant.
A) Some states allow hypnotically refreshed testimony, or using a balancing test to allow it, and others bar it except in circumstances found in Rock
E. Rule 602 – Need for Personal Knowledge
1. Witness can only testify if he has PERSONAL KNOWLEDGE of the matter.
a. Evidence of personal knowledge may include witness’s own testimony
b. This DOES NOT APPLY to witness expert testimony under Rule 703.
c. Also does NOT apply to an ADMISSION by a party opponent.
i. Party can admit guilt or liability even if he didn’t witness the acts
F. Rule 603 – Oath or Affirmation to testify Truthfully
1. Witness must give Oath or Affirmation to testify truthfully. Must be in a form designed to impress that duty on witness’s conscience
2. U. S. v. Fowler – tax evasion case. Defendant was criminally charged, and court refused to allow him to testify because he would not give an oath or affirmation.
a. A person is REQUIRED to give some form of oath or affirmation that they will tell the truth. Applies in ALL cases, even criminal cases where the defendant is testifying.
b. NOTE:
i. If under subpoena, refusing to swear an oath or affirmation could be held as contempt of court
ii. The oath and affirmation are flexible. Don’t need to raise hand or “swear” to a deity. Can be tailored to a person’s religious or cultural beliefs
iii. No requirement that witnesses must be told of the ramifications of perjury.
G. Rule 604 – Interpreter
1. Interpreter MUST be qualified and must give oath or affirmation to make a true translation.
H. Rule 605 – Judge’s Competency as a Witness
1. Presiding judge CANNOT testify as at witness at the trial.
a. Party need not object to this to preserve the issue
I. Rule 606 – Juror’s Competency as a Witness
1. Juror CANNOT testify as a witness before other jurors at the trial.
a. If juror is called to testify court must give adverse party an opportunity to object OUTSIDE the jury’s presence
2. In general, during an inquiry into the validity of a jury verdict or indictment, a juror CANNOT testify about:
a. Any statement made or incident that occurred DURING DELIBERATIONS.
b. The effect of anything on his or another juror’s vote
c. Any juror’s mental processes concerning the verdict or indictment.
i. The court MUST NOT receive a juror’s affidavit or evidence of a juror’s statement on these matters.
3. EXCEPTIONS: A juror CAN testify about whether :
a. Extraneous prejudicial information was brought to the juror’s attention
b. An outside influence was brought to bear on any juror
c. A mistake was made in entering the verdict on the verdict form.
4. Tanner v. U.S. – Case where guy was convicted of mail fraud. Jury was drinking and doing drugs, and defense wanted one of the jurors to testify to such to show that 6th Amendment right to trial by competent jury had been violated
a. Case Rule: Rule 606 (b) prohibits testimony by a juror regarding juror conduct during deliberations, except for the exceptions of extraneous prejudicial information, outside influence and mistake on verdict form.
i. Drug and alcohol use by the jury is NOT considered “outside influence”, so juror can’t testify about it.
b. NOTES:
i.
mount of evidence needed in order to convince the trier of fact in one’s case (could be judge or jury) that your argument is the right one
i. The amount of evidence needed depends of the standard of review:
A) Preponderance of the evidence – “more likely than not” or 51% certain. Applies to most civil cases.
B) Clear and convincing evidence – Stricter standard that applies to fraud cases. This is because it is a “damaging” accusation
C) Beyond a reasonable doubt – Criminal cases
B. Presumptions
1. NOTE: There is a DISTINCTION between a presumption and a “factual inference”
a. Factual inferences – These merely allow a fact-finder to conclude that if fact A is proved, fact B might also exist. There is no shifting of any burdens, and no requirement that fact-finder must find fact B to exist if fact A is proved. It’s important to distinguish between an inference and a presumption.
i. Example: If it was a fact that it was raining yesterday, then if can be FACTUALLY INFERRED that the road conditions were slippery.
b. Presumptions – These actually SHIFT the burden of moving forward, and the other party must rebut the presumption by attacking either the Basic Fact – (the fact the presumption is based on) or the Presumed Fact.
i. Basic Fact- That which the presumed fact is based on. A presumption applies ONLY if the trier of fact finds that the Basic Fact has been established
A) If there is sufficient evidence to dispute the Basic Fact, then it becomes a jury question as to whether or not the Basic Fact has actually been established.
ii. Presumed Fact – That which is based off of a Basic Fact.
A) NOTE: If there is NO evidence to refute a presumed fact, then the presumed fact is considered to be ESTABLSIHED (assuming the Basic Fact has already been established)
1) In such as case, the court is required to instruct the jury that it MUST take the presumed fact as established. THIS IS THE MAIN DISTINCTION BETWEEN A PRESUMPTION AND A FACTUAL INFERENCE!
iii. NOTE: There ARE NO PRESUMPTIONS IN CRIMINAL CASES. We will never make a presumption regarding an element of a crime and then shift the Burden of Production over to the accused. Doing so would be considered reversible error.
2. Rule 301 – Presumptions in CIVIL Cases Generally
a. In a CIVIL case, UNLESS A FEDERAL STATUTE OR THE FRE PROVIDE OTHERWISE, the party AGAINST WHOM THE PRESUMPTION IS DIRECTED has the burden of PRODUCING evidence to rebut the presumption.
i. This DOES NOT shift the burden of PERSUASION, which remains with the party who had it originally.
3. Rule 302 – Applying STATE Law to Presumptions in CIVIL Cases
a. In a CIVIL case, where there is diversity jurisdiction applying STATE law, then STATE law governs the effect of a PRESUMPTION regarding a claim or defense.
4. Sources of Presumptions:
a. Statutory Law
b. Case Law
c. State Evidence Codes
d. NOTE: The Federal Rules of Evidence DO NOT provide a list of presumptions.
5. Attacking Presumption – There are three ways to attack a presumption. First, the party can attack the basic fact. Second, the party can attack the presumed fact. Third, the party can attack both the basic and presumed fact.
a. Attacking Basic Fact. If the party attacks the Basic Fact with evidence contesting its existence, then the jury is instructed that the presumed fact is conclusively established if and only if the jury concludes that the basic fact is proved.
i. Note: attacking the basic fact leaves the presumption intact for the jury to decide.
ii. Note: This assumes the party did not also attack the presumed fact, but only attacked the basic fact.
b. Attacking Presumed Fact. If the party attacks the presumed fact, the amount of evidence put forward attacking the presumed fact determines the result of the attack.
i. Cogent and Compelling Evidence. If the party puts forth evidence so compelling that a reasonable jury could not conclude otherwise, then the presumption is completely overcome and it disappears. Once the presumption disappears, the burden of going forward then shifts BACK to the original party.
ii. Raises Jury Question. If the party puts forth enough evidence sufficient to create a jury question as to the existence of the presumed fact, then one of two theories is applied.
A) Bursting Bubble Theory—FRE View. The burden of going forward shifts BACK to other side; the presumption disappears. This is the view adopted by the FRE and used in FEDERAL courts.
B) Morgan Theory – MOST adopted view in STATE courts. Could be used in DIVERSITY cases where state law applies. The presumption remains in effect, and the BURDEN OF PERSUASION shifts to the other party to disprove the existence of the presumed fact. Once the Basic Fact is proven, the BURDEN OF PERSUASION is shifted to the other side and DOES NOT shift back, even if evidence is presented that brings the presumption into question.
1) CA adopts BOTH views. CA follows the same rule as the FRE for presumptions based upon PROBABILTIY AND LOGICAL INFERENCE, but CA follows the Morgan view for presumptions based on PUBLIC POLICY.
2) Presumptions in Civil Actions Under FRE 301. Under FRE 301, the burden of persuasion is NOT shifted. But this applies only where not otherwise provided for by Act of Congress. So if the presumption is created by a federal statute, the statute itself may provide for a shift in the burden of persuasion as part of the presumption.
