EVIDENCE SPRING 2013 DEVITT
SCOPE AND APPLICABILITY OF THE FRE
1. Good Trial Lawyers:
A. Prepared: Worry about evidence in Pretrial stage
B. Good Story Tellers: Tell your story at every stage of litigation.
2. Law of Evidence provides how each side should set up it’s case.
3. FRE: applies in fed court and utilized in civil and criminal cases
A. Sometimes state law will apply in diversity cases where there is a state law issue.
B. Know that there is a political aspect behind the rules.
C. Think about what drives a rule that would allow us to take otherwise relevant evidence and exclude them.
4. FRE Outline:
A. General Provisions (R 101-106)
B. Judicial Notice (R 201)
C. Presumptions in Civil Actions and Proceedings (Rule 301-302)
D. Relevancy and its Limits (R 401-415)
E. Privileges (R 501)
F. Witness (R 601-615)
G. Opinions and Expert Testimony (R 701-706)
H. Hearsay (R 801-807)
I. Authentication and Identification (R 9-1-903)
J. Contents of a Writing, Recordings, and Photographs (R 1001-1008)
K. Misc. Rules (R 1101-1103)
5. Litigation Stages:
A. Pretrial:
i. Admissibility: Reasonably calculated under Civil Procedure
ii. What might happen before you get to talk to the jury.
iii. MSJ- No material factual issue- against opponent (FRCP 56).
iv. FRCP 56: States that parties can move for SJ when:
a. No material facts
b. If the movement shows that
c. There are lots of things that are attached- when you look carefully
d. FRCP 56(c)4: An Affidavit or Declaration used to support an opposition to a motion must be made from personal knowledge and set out facts that would be admissible evidence.
1. and competent to testify
2. if not admissible and not shown to be admissible –failure may result in MSJ being granted and TJ will strike it from the record.
B. Trial:
i. Plaintiff:
a. Expert testimony is the standard of a case.
b. Show a breach of standard of care.
c. Damages were proximately caused.
ii. Defendant
a. Affirmative defenses
C. Post-Trial:
6. The Adversary System and the Necessity for the Rules of Evidence
A. Rule 102: Purpose and Construction:
i. Trying to do in the best way possible
ii. Better have a good reason to exclude the evidence
B. Rules are broadly applied.
i. Rule 1101 and Rule 101:
a. Apply in district courts, etc. in civil and criminal cases (1101(b))
b. Generally apply whether under fed or state court
c. Exceptions: Diversity cases where there are privileges
1. Presumption, competency of witnesses, etc.
2. Rule 1101(d)
i. Courts determination under Rule 104(d) under a preliminary question of admissibility
ii. Grand Jury Proceedings
iii. Misc. Proceedings
3. Section (e)- Special Rules that are applicable
7. Rationale for FRE
A. Mistrust of Juries
i. Not all relevant evidence is admissible
B. Provide a mechanism to favor/disfavor certain claims or parties.
i. FRCP 9- Heightened pleading standard for fraud
C. Further substantive policies-both Intrinsic and Extrinsic (unrelated to present litigation)
i. Rule 407- policy reasons might drive the rule.
D. Ensure accurate fact-finding
i. We want foundation- we don’t just want a gun placed at the scene.
E. Provide a mechanism to limit scope and duration of trials
F. Provide a mechanism for the protection of private relationships.
i. Spousal privilege
G. Allow for due process at trial.
8. Litigation Process:
A. Complaint and Answer
B. Pre-Trial Discovery
C. Pre-Trial Motions
i. Motions in Limine: Restrict types of evidence
D. Jury Selection (voir Dire)
E. P’s Opening Statement
i. P usually has the burden of persuasion/proof
F. D’s Opening Statement
G. Case-in-Chief of P
H. Motions at the close of P’s case
i. Motion for a directed verdict- defendant
I. Case-in-Chief of D
J. Rebuttal Evidence
K. P’s Closing Argument
L. D’s Closing Argument
M. P’s Rebuttal Argument
N. Argument Regarding Jury Instructions
i. Judge determines the law
ii. TJ gives instructions to the jury- submitted by the lawyers at TJ discretion
iii. Make on the record if you disagree with instructions
O. Jury Deliberation
P. Verdict and Entry of Judgment
Q. Post-Trial Motions
i. New Trial
ii. JNOV
R. Appellate Review
S. NOTE: This is an important process- every stage you should be worried about your story and how you are going to present your story and obtain the necessary evidence.
OBJECTIONS
1. Act promptly
2. Know your judge
3. Always be courteous
4. Reserve objections for Important Matters
5. Be Specific
6. If more than on objection is present, name them all
7. Request the court to make appropriate instructions on evidence
A. Ask the court to limit the evidence as it is coming in and give appropriate instructions on the evidence.
B. Decide whether you want to be heard at side bar
C. When appropriate, use the opportunity during your opponent’s direct examination to voir dire the witness for the purpose of an objection.
i. Can test the credibility during cross- expert witness
D. Know the rules of evidence and be comfortable with utilizing them
8. Objection Examples:
A. Addressing juror by name
i. Only during jury selection because the jury sits as a body.
ii. “Objection, it is improper to identify a particular juror and address the juror by name.
B. Vague and ambiguous
i. Do not want the record or the trier-of-fact to assume who is being talked about.
C. Assumes facts not in evidence.
i. Important to understand how they knew the evidence.
D. Argumentative
i. Can’t continue to argue with a witness.
ii. Only ask questions that you know the answer to.
E. Asked and Answered
i. Only answered when it truly responsive- can keep asking when evading.
F. Compound Question
G. Calls for a Narrative
H. Unresponsive
I. Speculative
9. Objection Examples to Opening Statement:
A. Addressing juror by name
B. Arguments of Facts or Law.
C. Arguing the credibility of anticipated witnesses
D. Referring to evidence which has been excluded by Motion in Limine.
10. Objection Examples to Closing Argument:
A. Addressing juror by name
B. Appeal to passion or prejudice
C. Comment on claim of 5th amendment
D. Inflammatory Argument
E. Misstating law or facts
F. Unduly Emotional Argument
G. Urging Matters Outside of the Trial Record
H. Mentioning the Wealth and Poverty of the Parties
I. Advice from MD: request transcript from opening statement and point out when they do not offer evidence in trial to attack their credibility.
i. When deposing witnesses don’t ask them things in chronological order, make them tell the story multiple times to expose lies, juries hate lies.
PRESERVING ISSUES FOR APPEAL
1. IF YOU DON’T OBJECT YOU CAN’T APPEAL
A. Offer of Proof
i. If the TJ says that you want to exclude, you have to make an offer of proof so that the Court of Appeals can see what the evidence will be.
ii. You need to make a record
iii. Normally made outside the presence of th
al, the court must decide any prelim question about whether a witness is qualified, a privilege exists, or evidence admissible. In so deciding, the court is not bound by evidence rules except those on privilege.
3. Examples of Prelim Facts to be Decided by the Court
· Judge has the responsibility in these situations
A. Facts affecting competency or evidence
B. Requirements for a privilege
C. Requirements for hearsay exceptions
D. Lack of mental capacity
E. Qualifications of a witness as an expert
· When the relevancy of evidence depends on condition of fact: Court shall admit it upon or subject to introducing sufficient evidence to support a finding of the fulfillment of the condition –must prove fulfillment of condition in order for evidence to be admissible.
o Examples:
§ Alleged expert a qualified physician
§ Is a witness whose former testimony is offered available?
§ Was a stranger present during a conversation between attorney and client?
· Only Exception for prelim question is 104b for court and the jury.
o The jury is going to have role in determination of relevancy.
o Assume that you saw someone running out of the first national bank dripping with money:
§ Take witness stand and you say you saw someone running out of the bank.
§ Conditionally relevant- condition that you saw it, can see, etc.
4. Limited Admissibility
A. FRE 105: on timely request – the court is required to restrict the evidence to the proper scope and instruct the jury accordingly.
B. Limited Admissibility
a. Evidence which is admissible as to one party or for one purpose but not admissible as to another party or for another purpose.
b. Party seeking admission of evidence can be required to specify the purpose for which admission is sought.
c. The court, upon request shall restrict the evidence to its proper scope and instruct the jury accordingly.
C. CA Evidence Code 355
D. Alternatives to Limiting Instructions
· Exclusions
· Redaction
· Separate Trials
5. Rule of Completeness
A. FRE 106 : Remainder of or Related Writing or Recorded Statements
a. If a party introduces all or part of a writing or recorded statement, an adverse party may require the introduction at that time, of any other part – or any other writing or recorded statement that in fairness ought to be considered at the same time.
b. Committee Notes:
c. Based on two considerations
· First the misleading impression
· Inadequacy of statement
d. Case Law:
· 10th Circuit: Applies only to writings and recorded statements. Rule of completeness is substantially applicable to oral statements under 611(a) make the interrogation effective. If you take it out of context they will read 106 to be applicable.
· 7th Circuit: when the Police was allowed to read his notes about the license number of the getaway car, 106 did not require the TJ to read the other notes in that context. Only that which in ought of fairness should be considered
e. CA Evid Code 356: same subject- language might be a little broad.
f. Needs to be at that time- “in fairness” – ought to be
g. Rationale: misleading impression when taken out of context, inadequacy of repair when delayed to later point in trial (impeachment -> goes to credibility)
h. Practical Point: DO NOT BE FOOLISH! Do not open the door to bring it in if using out of context -> goes to credibility
i. Extends to oral testimony, not just writing. Doesn’t pave way for unrelated context.
