FLANNAGAN EVIDENCE OUTLINE – FALL 2006
Chapters 1 &2 : The Structure of the Trial
I. Order of Proceedings
A. Voir Dire – jury selection – FRCP 47a, FRCrimP 24a – ct conducts, atty may add questions; preemptory challenges – right of a party to excuse prospective juror or for no reason at all; Opposing counsel can voir dire to test witness’ qualifications
B. The Trial – after π and ∆ case in chief (where ∆ would present counterclaim), π can rebut and may present new witnesses or it may recall witnesses; admissibility is trial ct discretion, may be repetitive info; during π’s rebuttal is when he responds to ∆ counterclaim
C. Reopening a case – ct’s discretion
D. Jury Instructions – some state ct judges comment and summarize the evidence; in fed ct, usually not exercised
II. Types of Evidence – 1) testimony, 2) documentary, real, and demonstrative evidence, 3) experiment, transport to look at property
III. Preliminary Questions of Admissibility
A. Rule 104 – Preliminary Questions – ct determines admissibility; in determining admissibility in a crim or civil case, the ct should apply a POE standard; judge not bound by rules of ev except those w/respect to privileges (ex. can look at conversation to determine if admissible)
§ (a) Questions of Admissibility Generally – ct determines witness qualifications, privileged, and admissibility of ev
§ (b) Relevancy Conditioned on Fact – ct may admit ev subject to the introduction of ev that fulfills a condition of fact
– If jury can’t reas find the condition was fulfilled, ct could instruct jury to disregard the ev; motion to strike can be made if promise to connect ev doesn’t happen
§ (c) Hearing of Jury – admissibility of confessions will be determined out of hearing of jury (including const issues, like Miranda); hearings on other matters are conducted as justice requires
§ (d) Testimony by Accused – when accused testifies on a prelim matter, he doesn’t become subject to cross-exam as to other issues in the case
– But testimony may be admitted to impeach ∆; similarly if statement suppressed for failure to give Miranda warnings, if statement shown to have been voluntarily made, the statement can be used to imeach
§ (e) Weight and Credibility – rule doesn’t limit ability to introduce ev relevant to weight or credibility
IV. Hearing of Jury; Motions in Limine
A. Rule 103 – Rulings on Ev – *note – difficult to appeal a case based on evidence objections
§ (a) Effect of Erroneous Ruling – a ruling will not predicate error unless it affects a substantial right and either objection is made or offer of proof; once ct makes a definitive ruling on the record admitting/excluding ev, a party need not renew an objection or offer of proof to preserve a claim of error for appeal (ruling not definitive and doesn’t preserve error requires party to make a provisional or tentative ruling)
– (1) Objection – record of objections are stated when ev is admitted and opposing counsel has objected – preserves error; must be timely (sometimes objection not made for tactical reas b/c draws attn to it, ev may not hurt party)
– (2) Offer of Proof – if ruling excludes ev, substance can be made known from an offer of proof
§ (b) Record of Offer and Ruling – ct may add further statement showing the character of ev, form it was offered, the objection, and the ruling
§ (c) Hearing of Jury – prevent inadmissible ev from being suggested to the jury
– Motions in limine use to determine admi
y of ev when an appeal ct reviews; hard to overturn a case on evidentiary grounds; most cases w/ev problems are criminal cases and in those cases there’s not much discovery, so ev not anticipated
C. Rule 611(a) – Mode and Order of Interrogation and Presentation – Control by ct. The ct shall exercise reas control over the mode/order of interrogating witnesses and presenting ev so as to 1) make interrogation and presentation effective for the ascertainment of the truth 2) avoid needless consumption of time, and 3) protect witnesses from harassment or undue embarrassment
Chapters 3 & 4: Relevance and the Exclusion of Relevant Evidence
I. Relevance
A. Rule 401 – Definition of Relevant Evidence – ev that has any tendency (i.e. more than zero) to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be w/o the ev *Note – rare objections sustained on relevance basis
§ “fact of consequence” (a proposition in the case) is used instead of materiality – clarifies that the breadth of admissibility of relevant ev extends to facts not in dispute
§ The relevance of a fact of consequence doesn’t mean the info has to prove the argument – the pieces of evidence may be small and may add up to the big picture
§ fact of consequence is determined by the substantive law within the framework of the pleadings
