Select Page

University of Toledo School of Law
Eisler, Beth A.

Evidence Outline
Professor Eisler
***Evidence is the framework of rules of case law, practice, and customs within which trial attorneys work***
               TYPES OF EVIDENCE
I.                    Documentary, Demonstrative, and Real Evidence
a.       Testimonial
i.   Statements of witnesses on the stand
1.       Direct and cross examinations
a.       Direct examination
i.   Leading questions are inappropriate
b.       Cross examination
i.   Leading questions are permissible
ii. Structure of Examination
1.       Background information
a.       State your name, occupation, etc.
2.       Lay foundation
a.       Are you familiar with what has been marked for identification as people’s exhibit I?
3.       Ask substantive questions
iii.Pitfalls of Examination
1.       Echoing
a.       Repeating the answer after the witness has given it for the record.
b.       After every answer, stating, “ok” or “alright”
2.       Exhibits
a.       Must be introduced for identification first, then
b.       Entered as P/D exhibit
3.       Attorney must clarify physical gestures made by witnesses for the record
4.       Tendency for attorneys to use eloquent words when asking lay witnesses questions
b.       Scope of Direct—Questioning is limited to matters explored on direct.
i.   Subject matter of direct examination
1.       Particular facts in direct examination
a.       The blue car ran a red light
2.       The transaction or occurrence testified to in direct
a.       The accident itself OR
3.       The issue presented in direct
a.       Negligence of the driver
ii. Although it is outside the scope of direct, matters of witness credibility FRE 611(b) can be properly raised in cross-examination.
1.       The attorney on cross should not wait to attack the credibility of a witness because:
a.       Jury may be crediting testimony that it should be discrediting
b.       Attorney should be allowed to impeach credibility immediately
iii.Judicial Discretion over scope of direct rule
1.       Judges have great discretion in determining the scope
2.       An objection to the scope of direct is rarely won on the appellate level. Rather, it is won at the trial level
3.       Why Judicial Discretion?
a.       Efficiency
b.       Party autonomy to put on its case
c.        Opposing party’s opportunity to defend
d.       Preserve the record for appeal
iv.            Application of scope of direct rule
1.       Application will vary depending on which side you’re on
a.       Interpret broadly or narrowly
I.                    Mistrust of Juries
II.                  Substantive policies—Subject matter of the litigation
a.       Each party bears some burden
i.   Production OR
ii. Persuasion
III.               External policies unrelated to the subject matter of litigation
a.       Privileges
IV.                Discern the Truth
V.                  Efficiency
I.                    Generally
a.       Immediately sustained by the court e.g., Attorney: OBJECTION . . . Court: Sustained.
b.       Objections used to buy time or disrupt examination
i.   PA requires grounds for objection to be stated by objecting attorney
1.       See Dillipaine v. Lehigh Valley Trust
c.        Object where context leaves no doubt
d.       Types
i.   Substantive
1.       Exclusionary principles founded in the FRE
2.       Keep the evidence out completely
3.       Example
a.       Hearsay
b.       Best Evidence Doctrine
c.        Attorney/Client privilege
ii. Formal
1.       Focus on the manner of questioning
2.       Not enshrined in particular FRE
iii.Speak to broad authority of the trial judge to regulate the trial
1.       SEE ATTACHMENT—list of objections
II.                  FRE Requirements
a.       FRE 103(a)(1) requires objections to be
i.   Timely AND
ii. Specific
1.       Otherwise, there would be errors throughout the trial with no chance for the judge to correct
2.       Appeals are lessened by dealing with errors immediately
3.       Helps the trial court and appellate court
b.       Motions in Limine
i.   Request for an order at the threshold—before trial commences
1.       made in anticipation that particular evidence will be offered by opposing counsel to which the moving attorney will object OR
2.       made in anticipation that particular evidence the moving attorney wishes to offer will be objected to by opposing counsel
ii. FRE 103(a)(2) provides
1.       Once a definitive rule is made on the [motion in limine] 2.       The party need not object again at trial when the issue is raised.
c.        Offers of Proo

an electric contractor forgets to turn of the circuit breaker before he works on wires. As a result, he suffers a shock and an injury to his right arm. At a hearing for the electrician to recover workers’ compensation benefits, counsel for the contractor attempts to question the electrician about his failure to turn off the circuit breaker. P’s attorney objects, arguing that his client’s negligence is not at issue in this case. The court would probably sustain because negligence is not an issue in recovery for worker’s comp benefits. Under FRE “objection, irrelevant” would suffice. Pre FRE—“objection, immaterial” would suffice. 
2.        Old Chief I v. US: D charged with (1) felon who is in (2) possession of a firearm. D stipulated that he was charged with a prior felony (assault causing serious bodily injury) thus proving that element. Prosecution brings in evidence detailing the prior felony. D objects, arguing that the details of the underlying felony are irrelevant because the D conceded he was charged with a felony and that the details told to the jury would be prejudicial. The court held that the details of the underlying felony were relevant because they provide (1) narrative richness (2) details were required to meet the expectations of jurors and (3) prosecution has autonomy of presenting evidence.
c.        Conditional Relevancy
i.   FRE 104(a)
1.       The trial judge decides
a.       Qualifications of witnesses
b.       Existence of a privilege
c.        Admissibility of evidence
2.       Not bound by the rules except for those with respect to privileges
ii. FRE 104(b)
1.       Where determination of relevancy requires the fulfillment of a condition of fact
2.       Court admits it upon or subject to
a.       Introduction of evidence sufficient to support a finding of the fulfillment of the condition
3.       Jury makes this determination