Pro. Black Evidence Fall 2014
Chapter 1—Evidence Law and the System
1) Why we have rules of evidence
i) Mistrust of juries
ii) To serve substantive policies relating to the matter in suit
(1) Ex. rules that set and allocate burdens of persuasion
iii) To serve substantive policies unrelated to the matter in suit—extrinsic substantive policies
(1) Ex. privileges between parties
iv) To ensure accurate fact finding
v) To control the scope and duration of trials
(1) Rule 101—Scope: These rules apply to proceeding in US courts. The specific courts and proceeding to which the rules apply, along with exceptions, are set out in Rule 101.
(a) Civil case: means a civil action or proceeding;
(b) Criminal case: includes a criminal proceeding
(c) Public office: include a public agency
(d) Record: includes a memorandum, report, or data compilation
(e) A rule prescribed by the supreme court means a rules adopted by the supreme court under statutory authority; and
(f) A reference to any kind of written material or any other medium includes electronically stored info
(2) Rule 611: Mode and order of examining witnesses and presenting evidence
(a) Leading Questions
2) Why rules instead of common law?
a) Success of the rules: brevity and simplicity have made the federal rules so influential.
b) Before the rules of evidence was common law
3) What Happens at Trial
a) Jury Selection
b) Opening Statement
c) Presentation of Proof
i) P(or prosecutor) presents case in chief
(a) case in chief: everything necessary to establish his case, reserving only what he may need to rebut his opponents case in chief
ii) D presents case in chief
iii) P presents case in rebuttal
iv) D presents case in rebuttal (aka cases in rejoinder)
v) Each side presents further cases in rebuttal
d) Then order of examination:
i) Direct examination by the calling party
ii) Cross examination by the adverse party
iii) Redirect examination by the calling party
iv) Re-cross by the adverse party
v) Further direct and rec-ross as may be necessary
e) Trial Motions
f) Closing Arguments
i) P usually gets to make two, with D in the middle
g) Instructions
h) Deliberations
i) The Verdict
j) Judgment and Post-Trial Motions
k) Appellate Review
4) Making the Record
a) The reporter is a skilled public servant and officer of the court and his task is to record the official record which consist of:
i) The pleadings
ii) Filed documents
iii) The record of proceedings
iv) The exhibits
v) Docket Entries
5) Beware the pitfalls—What not to do!
a) Echoing
b) Overlapping
c) Numbers, names, and big words
d) Exhibits
e) Pantomime, nonverbal cue, gestures, and internal reference
f) Going off the record—be careful
g) The side bar conference
6) Taking Care—What to do! A trial lawyer should ensure two things:
a) Utterances important to his cause, whether his own or those of witness or the judge, are spoken clearly enough to be put down by the reporter; and
b) Those utterances will have meaning when they appear in printed form in the transcript.
7) How evidence is admitted or excluded
a) Getting evidence in
i) Direct examination—3 basic things to do to each witness
(1) Bring out background info
(2) Lay the foundation of the testimony
(3) Asks substantive questions (not leading questions)
ii) Cross examination, can have leading questions
(1) Leading questions good b/c
(a) Invokes the consciousness of the witness
(b) Expose limits or inaccuracies in their memory
(c) Focus their attention on important details
(2) Scope-of-Direct Rule
(3) Critique of Scope-of-Direct
(a) Administration
(b) Impediment to truth
(c) The voucher principle (FRE 607 does away with this)
8) Problem 1-A, pg. 25
a) Within scope of directàgoes to witness credibility
b) Within scope of direct examinationàFelsen will argue this act is the proximate cause of the accident, also same sequence of events, same transaction. Or not within scope of direct–> Barton was contributorily negligent b/c she was looking backwards driving into a green light. It raises a different legal question so that could mean beyond the scope.
c) Outside the scope of the causation question, not part of the same sequence of events. Can only be relevant to contributory negligence.
9) Demonstrative and Real Evidence: refers to the tangible things directly involved in the transactions or events in litigation.
a) Evidence must always be admitted with an exhibit number.
b) Demonstrative: real object, but not the real object from the accident used for illustrative purposes
i) Sometimes just a replacement item to demonstrate
(1) The manican in the Travyon Martin trial (which had to be approximately the same size as Zimmerman
(2) Video from the expert witnessà Attorneys like to use this type of demonstrative
ii) Remember, demonstrative is not real evidence
10) Writings—All of them must be introduced as evidence with an exhibit number
a) Opinions about the contract are not evidence
Keeping Evidence Out
1) The Objection: Lawyers object when they want to keep evidence out. Objection helps the trial court, the judge can’t know all evidence law or be expected to pick up everything and the objection should say what it is meant to exclude.
a) An objection should be made at the earliest possible opportunity, preferably before the answer is given.
b) What should be included in the objection?
i) Need to state the reason why the evidence is objectionableà Grounds for Objection
c)
e, order of evidence, cumulative, waste of time
ii) Also discretions when the evidence ruling requires preliminary fact finding by judge
iii) Judge can be upheld on any basis, even if not the one upon which he or she ruled (not true for parties)
5) Procedural Pitfalls and Adversarial Gambits
a) Appellate Courts often don’t reach these question of error if one of these three occur:
i) Failing to object or offer proof
ii) Inviting Error
iii) Opening the Door
6) Problem 1-B: Yes, it is sufficient that the co-party objected. It is important that Barton objected, but that is sufficient that Dreeves can argue to preserve the appeal. But, Dreeves is limited by the objections expressed by co-counsel. Also, if allowing the officer to testify was an evidential error, should the appellate court reverse the outcome of the trial? No, b/c jury already said D was not negligent and it doesn’t matter if P was contributorily negligent so this was a harmless error.
Obtaining Review of Evidence Points
1) Appeal from Judgment
2) Interlocutory Appeal
Chapter 2—Relevance
1) Evidence is
a) Direct; or
b) Circumstantial
2) Rules
a) 401 Test for Relevant Evidence
i) Evidence is relevant if:
(1) It has any tendency to make a fact more or less probable than it would be without the evidence
(2) The fact is of consequence in determining the action
b) 402 General Admissibility of Relevant Evidence
i) Relevant evidence is admissible unless any of the following provides otherwise:
(1) US Constitution;
c) 403 Excluding Relevant Evidence for Prejudice, Confusion, Waste of Time, or Other Reasons
i) Court may exclude relevant evidence if its probative value is substantially outweighed by a danger of one or more of the following
3) Relevance Defined through 401, thus it includes. Evidence is relevant if it has any tendancy to make the existence of any consequential fact more or less probable.
a) Logical Relevance
b) Materiality
4) Relevant to What?
a) Requires understanding of substantive law
b) Issues raised by parties
c) And what the evidence can or cannot show
d) *logical problems most likely to arise with circumstantial evidence
5) No general rules beyond 401 that tells us more specifically what is relevant
