Evidence Outline

(10. Jan. 07)
Federal Rules of Evidence – took effect in 1976; before that time, rules came from common law. Privileges can only be amended by Congress; the other rules can be amended w/o Congress. SC rules mirror the Federal Rules of Evidence with only a few differences.
 
Themes:
1) “we don’t want the whole truth” – Rules of evidence keep the truth out for policy reasons; attorney-client privilege protected evidence which can’t be admissible at trial for the free enterprise of ideas; subsequent remedial measures (Rule 407) – subsequent repair is not admissible at trial in order to encourage repairs
 
2) “we judge the acts, not the person” – character evidence: the fact that a person is a bad person is not admissible; only the facts at issue is important. Past conduct or character is not admissible.
 
3) “we don’t want a three-ring circus” – focuses on one issue at hand
 
4) “you snooze, you lose” – if you don’t object to a piece of evidence, you won’t be able to get relief; you have waived that right; need good working knowledge of evidence rules in order to object to the evidence being submitted
 
Terms:
1) 4 kinds of evidence:
                a) real evidence – the real thing; i.e., O.J. Simpson’s glove
                b) demonstrative evidence – not the real thing, but a recreation of the real thing, i.e.,
computer animation, model, etc. to keep the jury’s attention; reproduction of the
evidence
c) documentary evidence – paper such as contract, deed, hospital bill
d) testimonial evidence – testimony from the witness or “vive voce” usually expert
witnesses
 
Stages of a trial –
(1) preliminary matters (typically motions regulatory of the proceedings not already ruled on in pretrial; for example, sequestration of witnesses)
(2) jury selection
(3) preliminary instructions by the judge
(4) plaintiff’s opening statement
(5) defendant’s opening statement
(6) plaintiff’s witnesses:
                a) direct
                b) cross by defendants (order usually based on appearance order in case caption)
                b) re-direct (usually limited to cross) – usually to question new matters brought by cross
examination; usually stops here
                c) re-cross (usually limited to re-direct)
                d) etc., until the judge has had enough
(7) plaintiff rests.
(8) Motion for judgment as a matter of law (only the defendant has this motion available at this point since defendant has not presented his case). (state court – motion for directed verdict)
(9) Defendant’s witness (same procedure as plaintiff, in multi-party cases, usually co-defendants would cross-exam before plaintiff following the order in which the parties are listed in the complaint)
(10) defendant rests
(11) Plaintiff’s rebuttal witnesses (usually limited to new