Evidence Outline
Prof. Berner
F2012
1. General History
a. The federal rules were compiled in the 1970s. The federal rules developed in the common in law in England. Statutes were passed as issues came up (common law approach). Many of them came out of case law. In the 1960s, a huge group gathered the federal rules and put them in a book.
b. They’re amended pretty much every year; they must be approved both by the Supreme Court and Congress.
c. These apply only to federal courts. However, state rules are patterned after these federal rules (most times).
d. Most rules of evidence are procedural (federal rules apply rather than state rules) for purposes of the “Erie Doctrine.” However, there are four or five instances that state law governs
2. Why do the Rules Exist?
a. Generally
i. Both the common law and the rules of evidence today recognize that they’re written by and for human beings.
1. These rules depend a great deal on understanding human psychology.
ii. We have rules of evidence that we apply everyday on a few different levels b/c our minds/senses are finite
1. Conscious Level
a. Visual:
i. We cannot take in all of the visual and auditory things we come across every day. It would overwhelm our senses.
b. Auditory:
i. We hear only a small band of frequencies. Perhaps, in the past, there was a species that could process everything… but they are not extinct.
c. We simply cannot process all of the data we’re exposed to
2. Subconscious/Preconscious Level
a. We don’t know why we don’t believe Bob, but we could figure it out if we thought about it.
b. We are especially good at filtering items that we don’t believe… When we are called racist, prejudice, etc, we use this mechanism.
c. ** “Nobody starts by considering the evidence. Everybody starts with frames or theories in which they put the evidence they see.”
i. “You see what you look for…” –Gorilla suit example
d. A lot of the rules are based on the idea that people will do all kinds of things in particular types of situations
e.
3. The rules were created to help us overcome our limitations as human beings and codify certain types of data we already know to be true about human behavior
3. Five Unusual Features of our System
a. It starts with an overall mistrust of juries especially in certain areas
i. There has been a reduction in the amount of mistrust of juries then there used to be.
ii. There has been a move from rules that exclude evidence to rules that include evidence
b. It tries to serve substantive policies related to the matter being litigated
i. The rules are often crafted to make evidence more or less admissible based on social policies whether or not we want to make it easier or harder to prove such a fact.
ii. Ex:
1. Presumptions, privilege
2. Whenever a privilege is recognized, the jury will not get the whole truth based on policy
c. It tries to ensure accurate fact-finding
i. “Best evidence rule”
ii. Limited to writings
d. It controls the scope and duration of trials
e. It helps the jury evaluate the credibility of witnesses at trial
i. Authority (credibility)
1. Education, character, etc.
ii. Plausibility (fitness)
1. Does the person’s testimony fit with our understanding with how the world operates?
2. The more plausible a testimony is to us, the less authority we need
4. Introduction
a. Rule 101: “Scope and Definitions”
b. Rule 102: “Purpose and Construction”
i. The FRE shall be construed to achieve:
1. Fairness in administration
2. Elimination of unjustifiable expense and delay
3. Promotion of growth and development of the law of evidence to the end that truth may be determined
c. Rule 1101: “Applicability”
i. Federal rules apply to both criminal and civil cases (and a bunch of other random things)
1. However, the rules themselves sometimes distinguish between the two types of cases.
ii. Rules do not apply to:
1. The court’s determination, under Rule 104(a) on a preliminary question of fact governing admissibility
2. Grand-jury proceedings; and
3. Extradition, rendition, issuing an arrest warrant, criminal summons, search warrant, preliminary examination in a criminal case, sentencing, granting or revoking probation or supervised release, or considering whether to release on bail or otherwise
4. However, a federal statute or a rule prescribed by the SC may provide for admitting or excluding evidence independently from these rules
5. RELEVANCY: Rule 401-402 [Threshold Question: “Is it relevant?”]
a. Analysis:
i. Is it relevant?
ii. Does it have probative value (“material”)?
iii. Even though it is relevant, does the prejudicial value of the evidence outweigh its probative value (balancing test under 403)?
b. Rule 402:
i. Relevant evidence is admissible unless any of the following provides otherwise:
1. The U.S. Constitution, a federal statute, these rules, or other rules prescribed by the SC
ii. Irrelevant evidence is not admissible
1. Unless… the other party doesn’t object to it
2. However, if properly objected to, there is no case where irrelevant evidence will be admitted
c. Rule 401: Evidence is relevant if:
i. It has any (even an extremely remote one) tendency to make a fact more or less probable than it would be without the evidence; and
1. Any evidence that has “probative value”
a. Probative evidence doesn’t have to convince us of anything
b. Probative value means anything that moves however slightly your belief that this belief probably happened or didn’t happen
c. “A brick is not a wall” – McCormick: usually you prove a case by a lot of pieces of evidence and then you build a wall
ii. The fact is of consequence in determining the action (“material”)
1. To know evidence, you have to know torts as well to know what evidence is “of consequence”
d. Types of Evidence
i. Direct:
1. We go directly from the testimony of a witness to the element
2. “All the jury has to do is believe this witness” and if the jury does believe him then the prosecution has proved an element of the lawsuit
a. “I saw the D rob the bank”
ii. Circumstantial:
1. We can’t go directly from the testimony to the element
a. “I heard a gunshot and then saw the D running away”
2. Guilty people tend to run away; therefore, it’s more likely that he committed the crime than if he weren’t running away.
a. More probable than not
e. Exclusion (of relevant evidence) under Rule 403
i. Generally
1. This is the last chance to keep evidence out: a “403 problem”
2. Certain issues won’t get touched by 403 if they are addressed by 404-415
3. The difference between 403 and the rest of these is that here the rule makers don’t want to leave it up to the judge’s discretion. The legislature wants these to be determined by the legislature and the SC in its rulemaking authority and not the discretion of the judge
ii. A Balancing Test
1. As with any balancing test, this gives the judge substantial discretion
2. It’s not a fair balancing test b/c for one of the sides to win, the negative effect of the evidence must “substantially” outweigh the probative value
3. Unless the probative value of the evidence is “substantially outweighed,” it should be allowed
a. Photos are often challenged under Rule 403 and often on “unfair prejudice” grounds
b. However, gory photos in a personal injury/criminal case are usually permitted b/c they demonstrate some material issue (“damage” or “result”) though they have a tendency to inflame the jury.
c. If, however, the photos are misleading or cumulative (too many), some of them may be struck down under 403
iii. Four Horsemen/Three Trial Concerns
1. [Surprise]
a. Used at common law, but no longer applicable today
2. Unfair Prejudice
a. All relevant evidence turns the jury one way or another…
b. It suggests a reason for deciding the case which is irrelevant and irrational
3. Confusing the Issue
a. There must be something about the evidence which unnecessarily confuses the questions which the jury is going to be asked
4. Misleading the Jury
a. It takes the jury on the wrong path
b. Looking at irrelevant facts
5. Undue Delay
6. Wasting Time
7. Needlessly presenting cumulative evidence
iv. The party objecting (“opponent”) has the burden under Rule 403
1. He must then make the argument for which of the trial concerns is involved
2. Each piece of evidence has a different amount of probative value
v. The Effect of a Stipulation under Rule 403
1. When a party is willing to concede to something, which the other side has to prove, “We are not going to argue about this element,” and the fact of stipulation matters to a 403 argument.
2. The stipulation to an element makes the probative value of a piece of evidence less, but it doesn’t by itself rule it out.
3. “Evidence has moral force” and actually hearing the witness say it or seeing it or seeing a photograph have much more moral play and be more persuasive than a stipulation
4. The opponent may argue, “Because I stipulated to it your honor, why are we going to waste all this time on it…”
a. Don’t let the other side block powerful evidence with stipulations. “We will stipulate that he was ‘hurt’”… No, we want you to stipulate that he was beaten to a pulp, not just “hurt”
b. Also, a party cannot stipulate to “cause of death,” for example, and then attempt to block all of the opponent’s proof on such issue b/c opponent is entitled to the “moral force” of his evidence, which may be stronger than stipulation.
6. Competency of Lay Witnesses: Rules 601-606, 615
a. Rule 601
i. The presumption is that everyone is competent to be a witness unless there is something that takes that person out of that category
ii. At the common law, there were a lot of reasons people couldn’t be trusted to be a witness
1. “No one is competent to be a witness unless…”
iii. ** In a diversity case, the state law of competency will govern the case, rather than the federal rules
iv. Dead Man’s Statute (no longer followed by FRE)
1. If a person has a conversation with the deceased and now is trying to say that the deceased said something in that conversation which is in favor of the witness and against the deceased, it will not be allowed
2. “Since death has closed the mouth of one person, this court will close the mouth of the other”
3. Now the jury is given the discretion to determine whether the
“your honor may I proceed to ask the witness leading questions b/c he is an adverse party?”
b. Leading questions will often bring out only the portion of the leading testimony that is favorable to the asker. Even a witness who is trying to be fair will give in to being led.
5. Almost all courts will accept leading questions when they are preliminary, uncontested or inconsequential matters (including name, date, birthday, etc)
a. You may use leading questions to:
i. Younger witnesses, elderly, etc.
ii. A witness who is being impeached by the party talking to him
iii. A witness whose memory is exhausted (some witnesses are nervous to death and freeze under pressure)
v. Test for leading questions:
1. Is the question, by its very text, already suggesting the desired answer?
a. “Isn’t it a fact that the D is left-handed?” [leading]
b. “Is D right or left-handed?” [ok]
c. “Did you go there at 10 o’ clock?” [leading]
d. “What time did you go there?” [ok]
e. “Did X call you, or did you call X?” [ok]
f. “Did he seem really angry to you?” [leading]
g. “What was his disposition when you saw him?” [ok]
2. You need to object a question before the opposition actually asks the leading question. You’re actually objecting a question too early just to put the opposing party and the judge on notice
b. Compelling Attendance (no FRE on this: I’m just randomly putting it right here)
i. Ordinary witnesses are subject to subpoena and it can be either a subpoena asking them to show up or a subpoena which asks them to bring with them certain listed items
1. Experts may not be subpoenaed
ii. The witness must be properly served (within the jurisdiction of the state court)
1. In federal cases, subpoenas reach throughout the US
2. In diversity cases, the subpoena must be within the forum state or within a 100 mile of the court
3. A witness who does not comply with a valid subpoena may be held in contempt of court
iii. A witness may only resist a subpoena if he has immunity or in connection with a subpoena duces tecum, it may be quashed if it is oppressive (asks for too much) or asks for information that is privileged
iv. Subpoenas should not always be viewed as nasty devices. There are a lot of witnesses who would prefer having a subpoena. It will help at their place of employment to get off of work. Friendly witnesses may also be subpoenaed. Ask them if they would prefer receiving a subpoena for any reason
c. Rule 612 “Writing to Refresh a Witness’s Memory”
i. If you need to use a writing to refresh a witness’s recollection and the witness looks at it while on the stand, then the other side will get to see it.
1. 612 does not say that the other side gets to look at everything the witness looked at before he took the stand but justice may so require… (pretty unusual)
ii. Nothing in 612 makes any limitation on the writing itself
1. Ex:
a. The witness may have made the writing
b. The attorney may have made it
c. It could even be an article in the newspaper
iii. It must have the capacity to refresh the memory of the witness. At this point the writing is being introduced into evidence b/c it’s merely being used to refresh the memory of the witness
8. Hearsay
a. Protections against bad testimony
i. Contemporaneous cross-examination
ii. Oath or affirmation
1. People act different when they’re under oath
iii. Presence in court
1. There’s something different about being present in a courtroom
b. Analysis/Strategy for Hearsay [See yellow “Hearsay Overview” handout]
i. Who is the declarant?
1. Sometimes, the declarant is unknown (writings, the declarant is “whoever wrote this”)
2. Sometimes, someone will say, “That tall guy is the one who robbed the bank!”
3. Sometimes the declarant is hidden (everyone)
a. A reputation is a accumulation of things people are saying, writing, or communicating about you
ii. Was the declarant making an assertion?
1. Most verbal things are assertions
a. However, there are some verbal things that are not assertive
2. Most non-verbal things are not assertions
3. The actor must intend his assertion to be such; did the actor mean to imply something to an observer?