Evidence
Devitt
F2009
General Tips
· Be prepared—don’t ask a question to which you do not know the answer
Types of Evidence
· Direct
o If established to be true, establishes the point for which it is offered
· Circumstantial
o Facts, which if proved, may provide a basis for an inference that other facts are true
o Permissible factual inferences
· Original evidence
o That which existed as part of the transaction in question (murder weapon)
· Prepared evidence
o Models, sketches, etc.
Scope of Evidence (FRE 101)
· B—these rules apply to both civil and criminal cases
· The rules of evidence generally apply regardless of whether state or federal law drives the decision
o EXCEPTION: diversity cases—difference in presumptions, competency of witnesses, privileges
Rules not Applicable (FRE 1101)
· D—preliminary questions of fact, grand jury proceedings, miscellaneous proceedings
o Ex: hearsay may be considered during a suppression hearing; sentencing hearing; capital penalty cases; sentencing phase of crimes (death penalty); immigration (asylum)
· E—there are special rules for the anti-smuggling act
Why FRE?
· Failure to trust juries
· Provides a mechanism for accurate fact-finding (authentication of documents)
· Mechanism to favor/disfavor certain claims (fraud)
· Mechanism to encourage important policies (FRE 407: Subsequent Remedial Measures)
· Provides protection of private relationships
· Mechanism to limit scope and duration of trials
Objections
· Examples
o Asked and answered
o Compound questions
o Calls for narrative
o Unresponsive
o Speculative
· Objections to opening statement
o Addressing jurors by name
o Argument of facts/law
o Arguing credibility of anticipated witnesses
o Referring to evidence that has already been excluded by motions in limine
· Objections to closing argument
o SEE SLIDE
· General tips for objections
o Act promptly
o Be courteous
o Know your judge
o Request appropriate instructions (i.e., ask the judge to ask the jury to disregard info)
o Sidebar
· Make sure you get a definitive ruling on your objection
· Reasons for objections
o Keep evidence out
o Preserve issue for appeal
§ If you don’t make a timely objection/offer of proof, you waive the objection for purposes of appeal
§ Ex: FRE 103(d) The Plain Error Rule
· Used by Ct. Apps. to mitigate egregious results
· The reviewing court is not allowed to look beyond the trial record
§ The court of appeals is more likely to find reversible error when a timely objection is not made rather than when an offer of proof isn’t made because the grounds for the objection would be in the record.
FRE 103
· Rulings on evidence are not error unless
o It is more than harmless error (a substantial right is affected) AND
o The error is brought to the judge’s attention
· Amendment: once the court makes a definitive ruling on the record admitting or excluding evidence, either at or before a trial, a party need not renew an objection or offer of proof to preserve a claim of error for appeal.
o Imposes an obligation on counsel to clarify whether an in limine or other evidentiary ruling is definitive when there is doubt on that point
o Make sure you find out whether the ruling is definitive
· A(2)—offer of proof not necessary ONLY WHEN the substance of the evidence is clear from the evidence itself
o If the judge doesn’t let you make the offer of proof, make sure you get that on the record
· B—the court may add any other or further statement which shows the character of the evidence and may direct the making of an offer in question/answer form
o Trial judge can add stuff to support her opinion
· When a witness begins to answer before you have an opportunity to object, you can…
o Motion to strike
o Motion for mistrial
Problem 1-B, p. 48 “He Didn’t Object!”
· Only one of the coΠs objected at trial. On appeal, another Π wants to raise the issue. Argument for why it shouldn’t be waived: it is a waste of the court’s time for everyone to object, especially in cases of multiple plaintiffs.
Preliminary Questions
· The rules of evidence do not apply to preliminary questions
· The court determines these under FRE 104(a)
o Examples: hearsay, competency of evidence, requirements for privilege, lack of mental capacity, qualifications of witness as an expert
o EXCEPTIONS: FRE 104(b)—conditional relevancy rule
· The judge does not decide the credibility of witnesses—the jury gets to do that
Example: A and B are close friends, and they are on trial for the rape of a young girl. Assume there is a piece of admissible evidence against A, which is very damaging. B’s concern is the “spillover effect.” If A looks guilty, then so will B. To remedy this, the party seeking evidence can be required to specify the purpose of the evidence. The court can also restrict evidence to its proper scope. Further, separate trials can be requested.
Limited Admissibility (FRE 105)
· Ask for the instruction to the jury immediately
o Alternatives to limiting instructions—exclusion, redaction, separate trials
Completeness (FRE 106)
· Requires an adverse party to require the introduction of the rest of it at the time
o Ex: “I shot the sheriff”
· If the other side puts something in out of context, and you want to put it into context, and the stuff you want to use is inadmissible, you can still do it because the other side opened the door.
o Examples: the written contract, the gun, etc.
Cross-Examination (FRE 601)
· A—court exercises reasonable control over the mode and order of interrogating witnesses
· B—cross should be limited to the subject matter of the direct and matters affecting credibility of the witness
o CA rule: upon the discretion of the trial judge, cross examination is wide open
· C—leading questions should not be asked on direct, but leadi
under the rules, but this is subject to restrictions from the code of professional responsibility
Jurors cannot be witnesses (FRE 606)
· A–Jurors cannot testify before the jury in the trial where they are sitting
· B—we are concerned with protecting the jury’s verdict
o Helps for finality
o What happens n the jury room is off-limits
o Jurors cannot even present affidavits to show that they ignored the court’s instructions
· EXCEPTIONS
o Extraneous prejudicial information
o Outside influence
o Pre-and post-deliberative conduct
§ Bribes
Tanner: In a case where a juror wanted to testify that the jury was “one big party,” the court said that they needed more of a showing of incompetence. The court also concluded that the problem was internal, and therefore could not be allowed in.
Dead man statues
· These vary from state to state and can operate to disqualify witnesses
· These operate to block witness testimony regarding transactions with the deceased.
· Rationale: witness has incentive to lie
Spousal privilege
Rock v. Arkansas
USSC rejected a per se rule that hypnotically refreshed testimony is inadmissible—let the jury decide whether the witness is credible.
Sua Sponte Witnesses (FRE614)
· A-the court may call a witness on its own
· B—the court may also interrogate a witness
· C—objections regarding this may be made at the time or at the next available opportunity
JUDICIAL NOTICE
· This is when the court “takes notice of” (determines) certain facts or law
· Disputed issues cannot be noticed
Judicial Notice of Adjudicative Facts (FRE201)
· A—rule only deals with adjudicative facts (the who, what, where, when, and how of the particular case)
· B—only applies to facts that are not subject to reasonable dispute or that are generally known to territorial jurisdiction
· C—the court has discretion—it can opt to take judicial notice whether requested or not
· D—however, judicial notice is mandatory if requested by a party and supplied with necessary information
· E—the party must have an opportunity to be heard
· F—judicial notice can be taken at any stage of the proceeding, including appeal
· G—jury instructions are different in civil and criminal cases
o Civil: jury SHALL accept as conclusive
§ Judicial notice may by taken for the first time on appeal in these cases
