Evidence Anderson Fall 2017
Chapter 1: Mode and Order of PRESENTATION of Evidence
OBJECTIONS derived from these rules of evidence (not explicit), question of fact irrelevant or unfair to case. MAC CAN BABAB PC: Authority for these rules comes from 102, 403, and 611(a)
Misstatement of Evidence – inaccurate description of evidence drawing inferences.
Assumes facts not in evidence – asserts facts not in evidence at trial.
“He just won the lottery. Didn’t you think he’d pay you.”
“Isn’t it true that D’s mouth is so small that he could not reach up and get it wide enough open to get it in P’s ear.”
Used to induce the witness to affirm counsel’s interpretation of the evidence.
Cumulative – calling several witnesses to testify to same issue or numerous similar exhibits (10 firemen to testify a fire happened). Not same precise question, but same information generally
Calls for a narrative – ask witness to go on long narrative, could open up witness to say things opposing counsel can’t object to. We want straight question and answer.
“Tell us what happened”
“Tell us your story”
Ambiguous – question not clear or well thought out.
Nonresponsive – ask question a, witness answers question b. Usually there will be a “striking it from the record”
“… everyone knows he was cheating on his wife” – juror.
Badgering – intimidating witness.
“Don’t machine's malfunction?” as he is in witnesses face.
Argumentative – arguing with juror, not asking questions.
“Come on, you hate my client, don’t you?”
This is not badgering because he was still at the podium.
Beyond Scope of Direct
“Did the fire cause a loss of business”
Also, on re-direct, you need to stay within scope of cross.
Asked and answered – repetitive questions can be objected to.
After rephrasing, attorney says, “so, it was arson?”
Beyond matters of credibility
Some leeway given, :has my client ever not paid a debt” (deals with credibility of the witness).
Pitting one witness against another – trying to get one witnesses to characterize other witness’ testimony.
Exception – expert witnesses can criticize findings/methodology of other expert.
“If I bring in another witness, would they be lying?”
Compound Question – multiple questions in one sentence (ambiguous, confusing, misleading).
On cross, “you have poor vision and are blind, right?”
American Rule of Cross Exam: FRE 611(b) – ordinarily questions should be limited to
Subject matter of DIRECT exam, AND
Matters affecting CREDIBILITY of the witness (matters of impeachment).
Exception: court may allow inquiry into additional matters as if on direct (time saver).
US. v. Williams: D did not want to get on stand but wanted to do demonstration. Court said demo, not testimony, did not have to be cross examined.
McCauley v. Anas: in med mal case, treating physician, who was a fact witness and not an expert, also gave opinion on standard of care during direct
So opposing counsel got to ask about standard of care in cross ex.
English rule is wide open on cross
If you want to ask a witness about new material, bring him as your own witness and ask him on direct (instead of on cross during opponent’s presentation).
On direct: it comes out that D was carelessly driving.
Cross: turns out D had three beers (jurisdiction allows wide scope of cross)
Redirect: Attorney can ask “did you notice any change in P’s behavior after the three beers?”
CANNOT: go into more of a discussion about the carelessness because it was already discussed on direct.
First Day of Class: Basic Themes: Not many broad themes; cobbled together
Rule 1. We don’t always want the whole truth (FRE 403)
Keep out some evidence because want to focus on more important evidence. Don’t want distractions from real issue. Only keep probative (relevant) evidence.
Subsequent remedial acts: events taking place after fault-producing event (safety measures) can’t come into evidence because don’t want to discourage safety.
Rule 2. Judge the acts, not the person (FRE 404)
Past crimes/character assassinations not admissible because past actions don’t mean did same thing again.
Pyromaniacs can’t be cured, but that’s not admissible evidence that he lit the fire.
Rule 3. Don’t want a 3-ring circus – want to focus on one controversy, the one at hand
Keep eye on the ball (did THIS person rob the bank/run the stop sign).
Rule 4. You snooze, you lose (Plain Error Rule not applied in SC)
If don’t object properly, objection has been waived and can’t raise issue on appeal. Evidence isn’t really inadmissible, it’s objectionable.
Rule 5. Doors can be opened (FRE 404)
If D starts talking about his character, it can be talked about (in criminal trial, not usually in civil).
Rule 6. Almost every rule has an exception
29 hearsay exceptions.
Rule 7. Every word of every rule is there for a reason
Four types of Evidence: Dr. DT
Demonstrative, Real, Documentary, Testimonial
3 types of rules: Rules of the Road, Truth Seeking Rules, Policy Based Rules
Control by the Court: Rules give judge broad authority to manage the docket
FRE 102 – rules should be construed so as to administer every proceeding fairly, eliminate unjustifiable expense and delay, and promote development of evidence law, to the end of ascertaining the truth and securing a just determination.
FRE 403 – Court may exclude evidence if its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusion the issues, misleading the jury, undue delay, waste of time, or needlessly presenting cumulative evidence.
FRE 611(a) – court controls mode and order of examining witnesses to determine truth, avoid wasting time, protect witness from harassment and embarrassment.
Scheduling witnesses: Judge can let witness go out of turn if scheduling conflict.
Putting in evidence late: judge can give counsel more time to adjust numbers on their reports.
Or insert Table of Mortality: In class example
US. V. Reaves: judge set time limit because US was taking too long to present case in chief. Didn’t want to waste time.
Allowed because of 403 and 611(a)
Form of Questions to Witnesses
FRE 611(c) – NO leading questions (suggest what the witness should say) “should” be used on DIRECT examination of a witness (Straub v. Reading—can’t ask leading questions on direct) (“arson was involved, wasn’t it!” “would you say he is six feet?”) EXCEPT:
As necessary to develop witness’s testimony (DCDP)
Difficulty recalling (only in tangential matters)
Preliminary, undisputed info about collateral matters (saves time).
Note: This saves time
When party calls hostile witness, adverse party, or witness identified with an adverse party.
Adverse party – opponent in the case.
Hostile witness – biased witness, who wants you to lose the case (being argumentative).
Ordinarily ok to lead on cross,
ver offered proof of what the substance of the excluded hearsay testimony. Because an offer of proof was not made, the court did not find error under Rule 103.
Not Needing to Renew an Objection or Offer of Proof – Once court rules definitively on the record, party doesn’t have to renew objection or offer of proof to preserve claim of error for appeal (in limine motions or motions during trial)
Only “sustained” or “overruled” is definitive. If in doubt, ask the judge if ruling was definitive.
Motion in limine: pretrial motion/objection or during trial before witness is called or evidence offered, asking judge to make ruling on evidence, either allowing or excluding evidence. Presumed timely and specific. Say what you think they'll say and why you object.
Usually reserved for really important pieces of evidence.
Judge doesn’t have to rule on in limine motions.
Judges welcome in limine motions because gives them time to consider and research issues.
Renewal Rule: If make motion in limine, and judge makes a ruling admitting evidence, do not have to renew objection in trial
In the video, the motion in limine was not definitively ruled on and then is was about to be played. You must renew the objection to preserve the appeal.
But if judge does not make definitive ruling, must renew (ask if unsure)
Preventing Jury from hearing inadmissible evidence – court must be conducted in way so that inadmissible evidence is not suggested to the jury by any means.
Dismiss jury from courtroom while ruling made (really serious issues).
Sidebar conference: lawyers meet with judge at the bench to talk about issue out of earshot of the jury.
Plain error: so obvious and prejudicial that an appellate court should address it despite parties’ failure to make an objection.
Example: a decapitated human head is admitted and the one party does not object. Appeal is not waived because it was a plain error.
Harmless: technical error that does not affect substantial rights of parties and may be disregarded on appeal.
Plain Error Rule: Judge can hear late objection on appeal if
Offer of proof was made
Evidence isn’t inadmissible under any theory
Excluding evidence was not harmless error
SC DOESN’T RECOGNIZE PLAIN ERROR RULE ON APPEAL. IF YOU DON’T OBJECT, CAN’T APPEAL.
If you snooze, you lose (if you don’t object, evidence will be admitted; if definitely inadmissible, judge will object, but rare).
Procedure for objections
STAND up (anytime talking to the court, you stand) (GA/NC sits).
Say “I object”
Give specific grounds
Judge hears from other side
Can either rule, have sidebar discussion, or dismiss jury for discussion.
Judge makes ruling.
If lose objection, must make offer of proof to preserve for trial.