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Villanova University School of Law
Poulin, Anne Bowen

Villanova University School of Law
Professor Poulin
Fall 2014
I.                  Background
●       Definition of Evidence:
o   Testimony, writings, material objects, or other things presented to the senses that are offered to prove the existence or nonexistence of a fact
·         Types of Evidence:
o   Oral Testimony:
§  Fact witnesses – people who perceived facts related to the lawsuit and testify about those facts. Some are eyewitnesses.
§  Expert witnesses – people who use specialized knowledge to interpret evidence or explain it to the jury.
§  Character witnesses – people who offer information about the good and bad character of a party or witness. Rules limit their ability to testify.
o   Real Evidence:
§  Any physical evidence that a party claims played a direct role in the controversy.
§  Must be authenticated.
o   Documents:
§  Any type of writing or recording of information.
§  Most documents must be authenticated.
o   Demonstrative evidence:
§  Created to illustrate concepts or facts to the jury.
§  Examples: charts, tables, pictures, maps, and graphs.  Can be staged literal demonstrations by actors or witnesses.
§  Judges more cautious in admitting demonstrative evidence than real evidence.
o   Stipulations:
§  Both parties must agree to the language of a fact, then it is read to the jury as a stipulation.
o   Judicial Notice:
§  Fact must be “generally known” or “accurately and readily determined.”
§  Judge takes judicial notice if the fact is indisputably true.
○       Photographs and Videos:
§  Either real or demonstrative evidence:
·         Ex. of real – footage from a bank security camera that captured a robbery on tape.
·         Ex. of demonstrative – photos of a crime scene.
○       Circumstantial Evidence:
§  Any evidence that requires the jury to make an inference connecting the evidence with a disputed fact:
·         Ex. – A witness testifies that he saw the defendant washing blood off his hands shortly after the victim was killed. Requires assumptions by the jury that the defendant is guilty.
§  Line between direct and circumstantial evidence is unclear:
·         Not separate categories of evidence, but ends on a continuum.
·         The distinction has no legal effect:
·         Circumstantial evidence can support a verdict as effectively as direct evidence.
●       The Four W’s of the Federal Rules of Evidence:
○       Why:
■       Rules adopt a generous view of admissibility, giving parties as much leeway as possible to prove their cases.
■       Rules exclude evidence to achieve one or more of these ends:
●       To protect the jury from misleading information
●       To eliminate unnecessary delay and promote efficiency
●       To protect a social interest, such as a confidential relationship
●       To ensure that evidence is sufficiently reliable
○       Who:
■       Notes written by the Advisory Committee
■       Committee Reports and other legislative history from Congress
○       Where:
■       Rule 101. Scope; Definitions:
●       (a) Scope. These rules apply to proceedings in the United States courts. The specific courts and proceedings to which the rules apply, along with exceptions, are set out in Rule 1101.
■       Rule 1101. Applicability of the Rules:
●       (a) To Courts and Judges. These rules apply to proceedings before:
○       United States district courts;
○       United States bankruptcy and magistrate judges;
○       United States courts of appeals
○       the United States Court of Federal Claims; and
○       the district courts of Guam, the Virgin Islands, and the Northern Mariana Islands.
●       (b) To Cases and Proceedings. These rules apply in:
○       Civil cases and proceedings, including bankruptcy, admiralty, and maritime cases;
○       Criminal cases and proceedings; and
○       Contempt proceedings, except those in which the court may act summarily.
●       (c) Rules on Privilege. The rules on privilege apply to all stages of a case or proceeding.
●       (d) Exceptions. These rules – except for those on privilege – do not apply to the following:
○       (1) the court’s determination, under Rule 104(a), on a preliminary question of fact governing admissibility;
○       (2) grand-jury proceedings; and
○       (3) miscellaneous proceedings such as”
■       extradition or rendition;
■       issuing an arrest warrant, cri

he burden of proof presents first. Defense can go immediately after the Prosecution/Plaintiff or wait until before its case-in-chief.
■       Attorneys increasingly use visual aids in their opening statements.
○       Plaintiff’s/Prosecutor’s Case-in-chief:
■       Consists of all the evidence – witness testimony, real evidence, documents, and demonstrations – that comprise the plaintiff/prosecutor’s case.
■       Defense will move for judgment as a matter of law or judgment of acquittal at the close of the P’s case-in-chief.
○       Defendant’s Case-in-chief or Case-in-defense:
■       Criminal defendants often choose not to testify.
○       Plaintiff’s/Prosecutor’s Case-in-rebuttal:
■       May call new witnesses and bring in new evidence, but it must focus on issues raised by the defense.
○       Defendant’s Case-in-rebuttal or Case-in-rejoinder:
■       Defense’s response to P’s rebuttal. Must be limited to evidence produced in the preceding phase.
○       Further Rebuttal and Rejoinder:
■       Trial judge has discretion to allow or not.
○       Closing Statements:
■       Visual aids often used.
○       Instructing the Jury:
■       Some judges give instructions before closing arguments; others give them after closings.
■       Instructions usually center around how the jury should handle items of evidence.
○       Deliberation:
■       Juries are limited in what they can bring into the deliberation room.
○       Verdict:
■       Trial ends with the jury’s verdict and the court’s entry of judgment on the verdict.
■       Parties may file a variety of post-verdict motions.
■       Parties, except for the prosecutor in a criminal case, may file an appeal.
■       Criminal cases that end in convictions also have sentencing hearings.