EVIDENCE
Professor Devitt
General Rationales behind the Federal Rules
1) Mistrust of Juries – regulate evidence during trial
2) Mechanism for favoring/disfavoring certain claims (elevated standard of proof in fraud claims)
3) Mechanism for accurate fact-finding (authentication, foundation etc.)
4) Mechanism to encourage important public policies unrelated to the litigation
5) Protect private relationships (privileges)
6) Limit the scope and duration of trials
Motions in Limine – motions made before or during trial to exclude certain evidence (seeking an order instructing other side not to introduce certain evidence)
Objections to Evidence – most aren’t in FRE but are inherent in judicial process
1) Addressing a juror by name 2) Vague and Ambiguous 3) Assumes facts not in evidence 4) Argumentative 5) Asked & answered 6) Compound question – two questions in one 7) Calls for a narrative – too broad asks witness to tell the whole story 8) Unresponsive – witness doesn’t answer the question 9) Speculative – calls for testimony for which witness has no support or basis
Objections to Closing Arguments
1) Appeals to passion or prejudice of the jury 2) Inflammatory argument 3) Misstating the law or facts 4) Unduly emotional argument 5) Using matters outside the trial record 6) Comment on failure of accused to testify or on claim of 5th Amendment privilege 7) Mentioning the poverty or wealth of the parties (unless punitive damages sought)
Real Evidence – tangible things directly involved in the transactions or events of the litigation
Direct – if accepted to be true, establishes the point for which it is offered
Circumstantial – if proved, provides a basis for an inference that other facts are true
Example: Fact to be proved = John struck Sam. Direct = I saw John hit Sam. Circumstantial = I saw them arguing right before Sam appeared with a bruised face.
Original – existed as part of the event or transaction, Prepared – made specifically for use in the case
Admissibility
Rule 101 – Applicability of Federal Rules
Applies to all courts of the United States regardless of what is the source of substantive law (very broad)
Exception: in diversity cases, state law governs presumptions, competency of witnesses and privileges
Rule 1101(d) – When FRE don’t apply
1) Preliminary questions of fact – such as admissibility (see Rule 104(a) below)
Judge decides these facts – note: judge can also be trier of fact but Devitt suggests avoiding this and always get a jury
2) Hearings before a Grand Jury
3) Other Miscellaneous Proceedings (extradition or rendition or other criminal matters – sentencing, warrants etc.)
Rule 102 – rules shall be construed to secure fairness, eliminate undue expense and delay and so that the truth may be ascertained.
Rule 103(a) – Rulings on Evidence
To be assigned as error a ruling must 1) affect a substantial right 2) be called to the judge’s attention 3) with a timely objection, motion to strike or offer of proof made stating the specific ground of objection if it was not apparent from the context.
Proper and Timely Objections and Offers of Proof – must be made to preserve the issue for appeal
Offer of Proof – offering evidence that is being excluded usually outside the presence of the jury (lawyer states in detail for the record what evidence would be or puts witness on stand for questioning). Why? If evidence that is excluded is not offered, the court of appeal will have no way of telling (from the record) what the evidence was.
Rationale: efficiency, allow judge to correct errors at trial and limit the issues on appeal
103 Amendment (recent) says that once a court makes a definitive ruling on the record admitting or excluding evidence, a party need not renew an objection to that evidence in order to preserve the issue for appeal.
But be careful …the amendment also imposes the duty on counsel to clarify whether a ruling in limine is definitive (not tentative)
Motion to Strike – if evidence is admitted before you can object (witness testimony), your objection should be in the form
their actions on the stand a witness is found to be hostile, an attorney can ask to treat them as such and ask leading questions or 3) for questions regarding preliminary matters (name, address etc.) or 4) forgetful or frightened witness or 5) child witness.
Effective Cross-Examination (see handout) requires a balance between controlling the witness and not quarrelling with the witness, respecting the jury’s intelligence and never asking a question you don’t know the answer to.
What happens when your witness freezes or can’t remember what they are to testify about?
Options: 1) Request a short recess 2) Ask leading questions regarding preliminary matters
3) Try to refresh the witness’ memory using anything, admissible or not (limitation: lawyer may not assist or school a witness in twisting or distorting their subjective memory) but be careful…
Rule 612. Writing Used to Refresh Memory – if a writing is used to refresh a witness’ memory either during testimony or before (at the court’s discretion), the opponent can review it, cross-examine the witness on it, and have the related portions admitted into evidence. (Keep in mind – attorney-client privilege and waiver)
If all else fails 4) Ask to have written statement admitted into evidence under past recorded recollection exception to hearsay under Rule 803(5)
Rule 614 – Calling and Interrogation of Witnesses by the Court
a) The court may, on its own motion or at the suggestion of a party, call witnesses and parties and cross-examine them.
b) The court may interrogate witnesses whether called by itself or by a party.
c) Objections to court calling or interrogating can be made at the time or at the next avail. opp. when jury isn’t present
