2010 Evidence Outline
Hutton’s Helpful Hints:
*Evidentiary Foundations – Ed. J. Imwinkelried
*Making and Meeting Objections – Wenke
*Weinstein on Evidence
*Mauet, Objections (Good summary, behind desk)
*Scientific Evidence in Civil and Criminal Cases,
Moenssens. (Deals w/the actual science, not the rules)
*Do CALI, Best, and Casebook problems.
“Please introduce yourself to the jury.”
—Introduction to Evidence—
—Evidence and the System—
South Dakota
State Supreme Court adopted most of the Federal Rules (which came into effect in ‘75)
There are a few key differences
Five Rationales of Evidence Law
(1) We believe that a lay jury cannot properly evaluate statements made outside its presence
(2) It serves substantial polices relating to the matter being litigated
(3) It serves substantive polices unrelated to the matter in litigation
(4) To ensure accurate fact finding
(5) 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 – the reason need not be stated
In state court, voir dire is usually the duty of the lawyer
In federal court, a judge may conduct voir dire
· (2) Opening Statements: (not considered evidence)
o The State or the Plaintiff is usually first: (Person w/ the burden of proof.)
o This is not a legal argument; purpose is to persuade and give a summary of the facts that are going to be presented at the trial.
· (3) Presentation of proof:
o Order of Proof:
§ (1) P or prosecution presents case in the chief then rests.
§ (2) D presents case then rests.
§ (3) P or Prosecution presents rebuttal.
§ (4) D presents case in rebuttal. (a.k.a. Rejoinder)
§ (5) Each side presents further case is rebuttal.
· (4) Order of Examination:
o (1) Direct examination by calling party.
o (2) Cross-ex. by adverse party.
§ Forms of leading questions are: 1)mildly, do, did, was, were, and are. 2)fairly, don’t, didn’t, wasn’t, weren’t, aren’t. 3)brutally
§ Do NOT just rehash direct. Direct was done in that way because it was helpful to Their side.
· Focus on the 1 or 2 things that help you, then sit down and shut up.
· Do Not ask “WHY” on cross unless you already know and it helps.
o (3) Re-direct by calling party.
o (4) Re-cross by adverse party.
o (5) Re-direct and re-cross as may be necessary
· (5) Closing Argument and instructions.
Pieces of Evidence
Phrase said
Demeanor spoken
Credibility
How to Prepare
Start with Closing Argument
This is when you get to persuade the jury about your point of view
Its based on your theory of the case
When the law is applied to the facts, I win
You need to come up with a story
This should be the wrap up of your theory
You may refer to evidence and reasonable inferences from the evidence
If you didn’t get it into evidence, you don’t get to argue it
*Bakker v. Irvine
SD Car accident case
Woman rear ends
The other person sues
The defense puts in all this background about how nice this girl is and the jury screws the plaintiff
*Kappenman v. Action Inc.
SD 1986
Scope of direct
Justice Saber’s case
Witness testified only about who manufactured the reigns
Defense made him talk about proper horsemanship and what not
Judge and SC just let it slide
“its going to come in anyway, lets let it in now”
Clear violation of the rule
What is the record and how is it made?
o “Official Record” – 5 Different kinds of material:
o (1) Filed documents: all papers filed w/ ct, motions , accompanying briefs, discovery documents, jury instructions, ct. orders etc.
o (2) Record of proceedings: Trial transcript.
o (3) Exhibits: All physical exhibits offered during trial.
o (4) Docket entries: ct’s ledger of proceedings.
o (5) Pleadings: complaint/answer (civil), Indictment/plea (criminal).
Direct Examination
· Lays the foundation
· Must be done by nonleading questions
o There is no simple test for nonleading questions.
o Some say a question with a “yes” or “no” answer
Why don’t we use leading questions on direct?
We want the witnesses to tell the story, not the attorneys
We want the party with the burden of proof to prove it up
Limiting the Scope of Direct
FRE 611(b)
Cross examination can only talk about the stuff discussed on direct examination
You can narrow your questioning of a witness to preclude cross-examination that is not within the scope of direct examination
It allows you to control what your witness says
So if you want to limit the exposure of your witness on cross, limit the scope of your question on direct
So how can you tell what qualifies, what’s fair game?
(1) Just the point raised
Narrowest
g can object and have those statements stricken
“Move to strike as nonresponsive”
You are objecting to your own question’s answer
The only one where the questioner gets to object
Motion in Limine
A motion “at the threshold”
Made at the beginning of the case
It is made to prevent the other side from bringing up a particular subject or piece of evidence at trial
If you know that there is a bit of evidence that is going to be controversial, you deal with it in a motion in limine
This is not listed in the FRE
o FRCivP 7(b)
o FRCrimP 12
What do you do if the other side ignores the motion and just starts talking about it?
Ask the judge to instruct the attorney for the other side to instruct his witnesses not to talk about it
If you highlight the importance of keeping the evidence out, you are reinforcing for the judge the importance of the ruling
Be careful of not falling into the “waiver” trap
A judge will take second looks at their decisions
*First Premier Bank v. Kolcraft Ent.
(2004 SD 92)
Little kid gets burned by the mattress
Lots of evidentiary issues
Motion in Limine
Parties submitted about 40
Trial judge refused to rule on any of them
The judge also said that what the council’s state in openings is not evidence
The councils then used their opening statements to bring in all kinds of inadmissible evidence
Eventually the case is reversed
Offer of Proof
This occurs when the other side objects to the evidence you want to get in, and the court agrees with them
If you are not happy with this ruling and want to preserve the issue you have to make an offer of proof
FRE 103(2)
This lets the appellate court know what was excluded from the case and what the evidence would have been so they can determine if it was excluded in error
The offer of proof can be done in different ways
Can be a transcript of testimony that would have occurred
*Pugh
(2002 SD 16)
Rape case
Women in her 30’s was a virgin
Defense made a motion in limine
Court allows it
