Evidence – Devitt
DISCOVERY (26): Must be reasonably calc’d to lead to admissible evidence (incl. inadmissible things!)
MSJ (56): Puts burden on adverse party to put forth evidence that is otherwise admissible, showing he has a case.
MISTAKES: You must lay the foundation… ????
FED PRIVILEGE RuleS (501): point to the common law (no detailed list of privileges, as CA state law does).
EVIDENCE:
Direct: evidence which, if accepted to be true, establishes the point for which it is offered
Circumstantial: facts which if proved, may provide a basis for an inference that other facts are true
Ex: paternity case, showing the similarity btwn the alleged father and child.
Ex: it was raining, leads to inference that it was slippery).
Original v. Prepared (aka Demonstrative, Illustrative)
ORDER OF W EXAM:
Direct exam by the party calling the W (diff rules depending on whether W is adverse or hostile)
Cross-exam by opposing party
Redirect exam by party calling the witness
Re-cross by opposing party, then further redirect and cross.
Effective Cross-Exam
– Respect the jury’s intelligence
– Be succinct and simple.
– Always use leading q’s
– Listen carefully to W’s answer
– Don’t quarrel w/the W
– Take full advantage of pre-trial discovery
– Be prepared (to give your closing arg before the trial starts)
– NEVER give W the oppty to once again tell his story.
– NEVER permit W to explain, yes or no questions only
– NEVER ask q’s you don’t already know the answer to!
– AVOID the one-too-many question!!
OBJECTIONS: To preserve issues for appeal, keep trial moving on, and draw errors to the party and the court.
FREs do not contain a list of objections. Some are derived from the rules, some are not.
Vague and Ambiguous (eg who does “he” refer to?)
Assume facts not in evidence
Argumentative
Objections to Opening Stmt
Using peremptory challenges to throw out jurors based on race, etc. (Note, judges look unfavorably on trying to challenge a juror for cause)
Arguing the law or facts (can only give the straight facts during opening).
Addressing a juror by name
Arguing the credibility of anticipated Ws
Referring to evidence that was excluded in limine.
Objections to Closing Argmt
Addressing a juror by name
Appealing to passion or prejudice
Commenting on D’s refusal to testify
Misstating law or facts
Mentioning the wealth or poverty of the parties (exception: punitive damage case)
Rules to Live By
Know the FREs and be comfortable w/utilizing them.
Act promptly, be specific.
Know your judge! Always be courteous. Reserve objections for important matters.
If more than one objection: ask the court to make appropriate instructions on evidence.
Decide whether you want to be heard at sidebar
If appropriate, during your opponent’s direct exam, you can voir dire the W for
th (some courts split).
1B: Co-P1 made the objection, Co-P2 wants to use it. Args: If Co-P2 wanted to preserve it, he shlda objected. BUT policy reason is met: it’s brought to the attn of parties and ct.
Plain Error: nothing in this rule precludes an appeal based on plain error affecting substantial rights, even if not objected to or brought to attention of the court.
Easier where evidence was erroneously admitted aot excluded (bc there’s nothing in the record)!
Useful if you inherit a mistake w/no timely objection/OOP
Rule 104: PRELIMINARY QUESTIONS FOR THE COURT TO DECIDE:
FREs do not apply here, except wrt privileges!
(A) Preliminary Q’s: The following are determined by the court and not subject to the FREs (except those wrt to privileges): quals of persons to be a W, privileges, admissibility of evidence.
The JUDGE decides preliminary q’s, like whether there’s a hearsay exception, or a privilege
Ex: A and B (close friends) are on trial for rape. Two yrs ago B was convicted of another unrelated rape. A shld worry that the evidence against B will taint jury’s view of A. You could either:
bifurcate the case, or
