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Villanova University School of Law
Moreland, Michael P.

August 26, 2008
Evidence: Study of rules governing the admissibility of testimony, documents, stipulations, physical objects and information at trial
These rules are mostly a set of restraints that courts enforce against attorneys who wish to submit information to the finder of fact
Why have rules of evidence?
***Mistrust of juries*** (the most important factor)
To serve substantive policies related to the matter being litigated (i.e. rules concerning burden of persuasion, etc.)
To serve substantive policies unrelated to the matter being litigated (i.e. spousal privileges, etc.)
To ensure accurate fact-finding
To control scope and duration of trials
History of Evidence
John Wigmore – 1904 – published Wigmore on Evidence
Law of evidence was almost exclusively a common law subject in the early 1900s
Until … around 1960s and 1970s when they decided at the federal level to codify rules of evidence; 1975 – Federal Rules 1st became federal law – not only apply in all federal subject-matter litigation, but also cases involving diversity jurisdiction
Various states – now 42 in all – have adopted the federal rules – although sometimes with minor changes
Under 28 U.S.C. sec. 2074 – Procedure for promulgating Rules of Evidence;
1.)              Advisory committee formed to promulgate new rules or amendments;
2.)              Supreme Court approves and transmits rules to Congress;
3.)              A.) Congress does nothing – amendments become law on December 1; OR B.) Congress can amend or reject (i.e. Watergate time period – amendment concerning privileges {no federal rule other than directing federal judges to look at states privilege law)
Anatomy of a Trial
1.      Motions in Limine (“at the threshold” – pieces of evidence/witnesses that attorneys know will be controversial – judge requires motion to be filed so information is on record)
2.      Voir Dire/Jury Selection
3.      Opening Statement
4.      Plaintiff/Prosecutor’s Case – Party with Burden of Persuasion goes 1st
a.       Direct Examination (see pg.
b.      Cross-Examination
c.       Re-direct Examination
d.      Re-cross Examination
5.      Defendant’s Case
6.      Plaintiff/Prosecutor’s Rebuttal
7.      Closing Arguments
8.      Jury Instructions
Direct & Cross-Examination – Types of Evidence
a.       background (name, etc.)
b.      lay foundation
c.       tell story
–          Cross-Exam
–          Re-Direct
Real Evidence – tangible evidence (guns, knives, etc.)
a.                   mark for identification
b.                  show to witness
c.                   witness authenticates
– authenticating real evidence – Rule 901 – Must have “evidence sufficient to support a finding that the matter in question is what its proponent claims”
d.                  move into evidence (objection)
e.                   publish to jury
f.                   use describe item
Writings (documents)
·         MUST be authenticated (almost always stipulated)
·         MUST have the actual document (or photocopy)
·         Contents CANNOT be testified to orally
·         Tangible/visual evidence which played no role in events leading up to the trial, BUT instead were created FOR the trial (models, re-enactments, drawings, etc.)
·         Photographs in between real evidence and demonstrative evidence
·         MAGIC WORDS: “Is this a fair and accurate representation of X at the time of the occurrence?”
Stipulations/Judicial Notice
·         Instead of needing to establish something, both parties agree to certain evidence
Keeping Evidence Out
·         Default Rule: Evidence is admitted
·         Opposing party MUST OBJECT to prevent evidence from coming in (Rule 103)
·         Rule 104 – Judge makes all determinations on the admissibility of evidence; is judge bound by Rules of Evidence in hearing argument on admissibility? NO (except for privileges)
·         If objection is sustained: (1) Evidence is excluded; OR (2) Curative Instruction {Judge tells jury to ignore what they just heard or judge may give “limiting” instruction}; OR (3) Mistrial
·         Trial court is almost always the final word – very difficult to reverse ruling on mere evidentiary ruling
·         Appellate Court must rule that trial judge performed an ABUSE OF DISCRETION in order to possibly reverse trial court ruling
·         Harmless Error –
Article VI – Witnesses
(Two Kinds of Rules in Article VI)
1.      (A) Who can testify … SEE BB
Rule 611 Objections
Asked and Answered
Assumes a fact not in evidence
Compound Question
Calls for narrative
Beyond the Scope – Rule 611(b)/ See Pros & Cons of this rule
Direct Examination
3 Parts: (1) Background of witness; (2) …
Cross-Exam Problem 1-A (pg. 25)
Objection Overruled – relationship affects witnesses credibility
Objection Possibly Sustained – could constitute an affirmative defense
Objection Possibly Sustained – could constitute an affirmative defense
Although #2 and #3 would probably be allowed by a judge – most of the time judges are impatient with people who overuse the beyond the scope objection
August 28, 2008
Beyond the Scope – Federal Rule 611(b)
Beyond the scope one of the available objections – not something one should be inclined to be u

epositions, etc.)
B.        “Almanac Facts” – State of Illinois v. Armstrong (1858) – murder trial;   Armstrong alleged to have committed a murder; couldn’t pay for representation – neither could his parents; wrote to Abraham Lincoln for support – who took the case; state’s case rested on testimony of an eye witness who alleged he had seen Armstrong pull a gun and hit the victim; famous cross-exam by Lincoln;  pulled out an almanac to show that contrary to what the witness stated, there was not a full moon on the night of the murder – almanac-like facts (encyclopedia, etc.) – not in the court records or common knowledge – yet is the type of fact court can take judicial notice of – see Henry Fonda movie Young Abe Lincoln)
Must be precise as to what you take judicial notice of – i.e. moon was not full on the night of the 20th; if you move onto something that requires more determinative judgment, judicial notice not appropriate
C. Scientific Basis/Technological Fact – (speeding example – defendant was driving a car over the speed limit; then need the testimony of the police officer that the radar gun reading exceeded the limit)
2.      Evaluative Fact –  
Legislative Fact – See Muller v. Oregon (1907) – involved state statute that limited the number of hours could work in a laundry facility; Muller convicted of having violated this statute; in famous Brandeis brief,  don’t come up often in actual trials; Houser v. State – constitutional challenge of the drinking age (pg. 748) –
Law – process by which the court determines the applicable law for the case, thereby relieving the parties of formally proving that law; almost never open to dispute (pg. 750 …)
September 2, 2008
Burdens of Proof & Presumptions: Civil Cases – Chapter 10 (pg. 675)
A.        Burdens
·         Trial Burdens: (1) Production; AND (2) Persuasion
·         Jury carries responsibility of deciding the burden of persuasion – exact dynamics depend on the nature of the case
Levels of Burden of Persuasion
·         Lowest burden of persuasion in civil case is: Preponderance of the Evidence (more likely than not that evidence is true)