Evidence Hutton Fall 2015
2011 – Sylistic changes to Federal Rules of Evidence (1974 enacted code)
State of SD Rules are still the prior version of the Federal Rules of Evidence
Chapter 1: Evidence and the System
South Dakota Supreme Court adopted most of the Federal Rules
A. Why Rules of Evidence
Five Rationales of Evidence Law
We believe that a lay jury cannot properly evaluate statements made outside its presence
It serves substantial policies relating to the matter being litigated
It serves substantive policies unrelated to the matter in litigation
To ensure accurate fact finding
To control the scope and duration of trials
What Happens at Trial?
(1) Jury Selection (aka Voir dire)
Questioning procedure
Reveals statutory qualifications
Min and Max age (18 and 72)
US Citizenship
Exclusions for Cause
Relation to the party
By blood, marriage, business connection
Prejudiced
Each party may make as many challenges for cause as they wish, the judge will rule on each one
Preemptory Challenges
Fixed number
Entitles party to exclude potential jurors for any reason at all
In state court, voir dire is usually the duty of the lawyer
In federal court, a judge may conduct voir dire
(2) Opening Statements:
The State or the Plaintiff is usually first [party w/ the burden of proof]
This is not a legal argument; purpose is to persuade and give a summary of the facts that are going to be presented
(3) Presentation of proof:
Order of Proof:
(1) π or prosecution presents case in the chief then rests
(2) Δ presents case then rests
(3) π or Prosecution presents rebuttal
(4) Δ presents case in rebuttal [a.k.a. Rejoinder]
(5) Each side presents further case is rebuttal
(4) Order of Examination:
(1) Direct examination by calling party
(2) Cross-examination by adverse party
(3) Re-direct by calling party
(4) Re-cross by adverse party
(5) Re-direct and re-cross as may be necessary
(5) Closing Argument and instructions
Pieces of Evidence
Phrase said
Demeanor spoken
Credibility
Bakker v. Irvine (SD 1994)
Woman rear ends; the other person sues
The Δ puts in all this background about how nice this girl-Δ is and the jury screws the π
Making the Record
What is the record and how is it made?
“Official Record” includes 5 different kinds of material:
(1) Filed documents
All papers filed w/ court, motions, accompanying briefs, discovery documents, jury instructions, court orders etc.
(2) Record of proceedings: trial transcript
(3) Exhibits: all physical exhibits offered during trial
(4) Docket entries: court's ledger of proceedings
(5) Pleadings: complaint/answer (civil), indictment/plea (criminal)
ow Evidence is Admitted or Excluded
irect Examination
Lays the background, then foundation, then substance
Must be done by non-leading questions
There is no simple test for non-leading questions.
Something that doesn’t call for a yes or no answer
Forces the witnesses to tell the story, not the attorneys
Forces the party with the burden of proof to prove it up
Limiting the Scope of Direct
FRE 611(b) – Scope of Cross examination
Cross examination can only talk about the stuff discussed on direct examination
Can narrow questioning of a witness to preclude cross-examination that is not w/in the scope of direct
It allows the attorney to control what the witness says and what the opposition can ask
What’s fair game?
(1) Just the point raised
Narrowest
You can definitely do this
(2) The whole transaction?
You can argue for it but its not really what the rule allows
(3) Any issue affected by that testimony?
Broadest
This is truly a violation of the rule, but many judges allow it
Kappenman v. Action Inc. (SD 1986)
Scope of direct
Witness testified only about who manufactured the reigns
Δ made him talk about proper horsemanship
Trial court judge and Supreme Court just let it slide
Rationale: its going to come in anyway, lets let it in now
This is a clear violation of the rule, but it is probably not harmful because the evidence would have been admitted later anyway
The court would typically care more about this in a criminal case
Cross Examination
You can and do ask leading questions
What is a leading question?
Some are mildly leading, moderately leading, and brutally leading
Depends on the content of the question and demeanor spoken
Ex: “You shredded those documents didn’t you?!?”
Credibility is ALWAYS fair game on cross
If what you want to accomplish can be done in only one question, then only ask ONE question
The whole purpose is for you to exercise some control over the witness by bringing out and focusing on what you want to focus on
You don’t want to repe
evidentiary exclusion, must make an offer of proof
FRE 103a(2)
Lets the appellate court know what was excluded from the case and what the evidence would have been so it can determine if the evidence was excluded in error
Can be a transcript of testimony that would have occurred
State v. Pugh (2002 SD 16)
Rape case, victim was in her 30s and was a virgin
Defense made a motion in limine
Trial court grants the motion in limine, Supreme Court reverses stating that prior virginity was not overly prejudicial
FRE 104(a) and (b) – Preliminary Questions
Judge has the sole responsibility to make threshold decisions about admitting evidence
Judge alone will deal with qualifications, privilege
Judge’s may also give conditional rulings [evidence is admissible subject to being “proved up”]
Under this circumstance you are required to have several witnesses and evidence to meet a certain standard of proof
(b) Relevancy conditioned on fact
If multiple witnesses are needed to establish the relevance of a particular piece of evidence, the judge may give a chance to “prove it up”
The evidence is let in a preliminary matter subject to being proven up
If the party fails to prove it up, then the judge will exclude it and if the failure to prove it and introduction of the evidence proves to be overly prejudicial, it could result in a mistrial
Consequences of Evidential Error
FRE 103 – (a) – a party may claim error in a ruling to admit or exclude evidence only if the error affects a substantial right of the party
1. The Appeals Process
Very few evidentiary mistakes result in relief on appeal
Types of Error
(1) “Harmless” error
The person’s substantial rights were not effected
No relief on appeal even though there was error
(2) “Plain” error
Error that was not brought up by either side
The appellate court grants relief even though nobody objected
Very, very rare
(3) “Reversible” error
The person’s substantial rights were effected
