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Evidence
Wayne State University Law School
Rosen, Hon. Gerald E.

Evidence
Judge Rosen
8-31-10

Evidence includes 5 categories (only type that Jury can interpret):
– 1) Testimony: answer witnesses give when under oath
– 2) Documents: from time to time lawyers have exhibits and charts.
– 3) Material or tangible items: ex: a coffee cup or gun in a murder trial, something you can feel whole.
– 4) Any facts that are judicially noticed: universally accepted and susceptible of coberation without having to analyze it.
– 5) Facts that are stipulated by parties by their lawyers for which they do not have to produce tangible evidence, document, or testimony.

Not evidence:
– Statements that lawyers make not evidence, just opening statements.
– Arguments lawyers make to you, such as closing arguments.
– Objections lawyers make to questions or exhibits.
– Questions lawyers ask the witness not evidence.

2 categories of types of evidence:
– Direct evidence: evidence that directly proves the fact, testimony of eye witness.
o Ex: witness says she was walking on the beach and say footprints at 10 in the morning.
– Circumstantial evidence: a chain of circumstances that indirectly prove a fact, which the jurors may conclude or infer other facts exist.
o Ex: if believe that witness that there were footprints on beach 10 am, you could infer that someone was walking on the beach before 10 in the morning.

Why evidence:
– We are concerned jurors misuse evidence. Ex: “hearsay” or jurors may draw the wrong inference.
– Rule 6-11-C: gives judge discretion to clean up the court room.
– Predictability: if everyone uses same rules, the proceedings will more uniformed and predictable.
– To ensure accurate fact-finding: ex: requiring a foundation for exhibits, before you can introduce a document into evidence or the murder weapon in a murder trial, you have to have someone with personal knowledge to a jury under oath, the evidence is what the party is purporting it to be.
– Some serve social policy: substantive policy in the court room, need burden proof which has a big impact on who wins inside the courtroom. Outside the courtroom, the policy makers, such as attorney-client privilege. If within privilege we don’t admit it.

Background:
– The federal rules of evidence were first adopted in 1975. Before that, rules of evidence were left to individual judge to individual case formed by precedent on common law. Hard to determine with certainty how judge was going to administer his/her trial. Many states have codes of evidence but that too was Unsatisfactory.
– Now every federal court governed by federal rules of evidence which are virtually identical.
– There are 68 rules with subparts.
– Rule 402:

What happens at trial:
– Jury Selection
o The voir dire jury panel comes into the courtroom, a certain number of prospective jurors seated, and the judge and attorneys question them. It is used to determine if any juror is potentially biased and/or cannot deal with the issue fairly.
§ Lawyers are then give the opportunity to excuse jurors for cause (unlimited amount of challenges) or without cause
– Opening statement:
o An outline of what lawyer is going to prove and how facts relate to the larger picture.
o Usually party bearing the burden of persuasion, most times the P, has the right to make the 1st opening statement.
o Not an argument BUT sums up the facts that each party contends that her proof will establish. “the evidence will show”
– Presentation of Proof:
o Where each party seeks to build his case and tear down his opponents.
o Each party presents his “case-in-chief” and has to establish everything he must prove in order to win. When he finishes he “rests” and yields stage.
o After both put their cases in chief, the party who opened has another chance, this time to present his “case-in-rebuttal.” They can go back and forth until both parties are satisfied.
o During case-in-chief, each party calls every witness on “direct examination”, introduces tangible evidence, and opponent gets to “cross examine” the witnesses. Then can “redirect examine” again and again.
– Trial Motions:
o When evidence on both sides is in, a party confident that a reasonable person could only find in his favor may make a “motion for judgment” where the court has a chance to take the case from the jury if a reasonable person could resolve the dispute only one way.
– Closing argument:
o Opportunity for you the lawyer to bring facts together in cohesive way that allows jury to go back and make a decision.
o The party bearing the burden of persuasion, usually P, has the right to make 2 closing arguments, 1 before and 1 after his adversary.
– Instructions:
o Judge instructs the jury on the law, so it understands what it must decide in order to reach a verdict for either party.
o Judge also instructs jury on evidentiary matters, may admonish the jury to exclude from consideration certain testimony that it heard called “curative” instruction.
o Sometimes jury is instructed to draw an inference form particular proof.
– Deliberations:
o Jurors go back in a room and secretly inform a decision in order to encourage jurors to share their views with one another. Another purpose is to protect the jurors from public scrutiny.
o If the case is notorious or controversial, the jury may be sequestered during trial and deliberations to insulate it from outside influence & pressures.
o If controversy occurs, can ask the judge to declare a “mistrial.” Often judge then instructs jury to try again, reminding it of the time already spent & expense of a new trial.
– The Verdict:
o Usually jury gives a “general verdict” of who wins and amount of recovery.
– Judgment & Post-Trial Motions:
o Generally the prevailing party prepares the judgment for the court’s signature and the clerk “enters” judgment by notation in the docket book.
o Time for appeal begins to run and judgment awarding relief becomes effective that it can be “executed” against property owned by the D.
o Losing party may request an appeal or new trial.
§ In federal court and many states, motion must be made no later than 10 days after entry of judgment.
– Appellate Review:
o Even when judgment has been entered, a party may obtain full appellate review only if it has “preserved” its claim of error by stating its position promptly and clearly at trial. Relief may be granted if the reviewing court concludes both that the trial court erred and that the error probably affected substantial rights of the appellant, hence that the error was “reversible” rather than merely “harmless.”

Making the Record

– Remote audience:
o Is the appellate tribunal, which neither sees nor hears the performance, and depends entirely on a secondhand source—the “cold” written “record.”
o Court reporter prepares the record of the trial.
– Official Record consists of 5 different kids of material:
o 1. The pleadings: include compliant & answer, 3rd party claims, counterclaims, cross-claims, and answers to these.
o 2. Filed documents: includes all papers filed in court, motions & briefs…
o Record of proceedings: a verbatim memorial of what transpires in court as the action is tried and captures whatever is said
o The exhibits:
o Docket entries: a dated line items entered in chronological order form the beginning to the end of the proceedings.

What not to Do:
– Echoing: Repeat yourself, make sure you breathe.
– Overlapping: Don’t all speak at once or interrupt each other.
– Numbers, names, and big words:
– Exhibits: Must find an unambiguous way of referring to such evidence so his questioning is intelligible in the transcript.
– Pantomime, nonverbal cue, gesture, internal reference
– Going “off the record”:

How Evidence is admitted or excluded
– Testimonial Evidence: Examination of Witnesses
o 1: brings out background information- name, address, and other basic facts.
o 2: “lays the foundation” by asking questions that show that the witness has “personal knowledge” of the matters to which he will speak.
o 3: lawyer asks “substantive questions” getting at the witness’s knowledge of pertinent facts- ex: direction of the car, how fast…
§ Questions should be NON LEADING and should NOT unnecessarily push the witness toward a particular response.
§ “Isn’t it a fact that” or “Did you not” suggests a response is leading
– Direct Examination: No leading questions!
o Bad policy to ask such questions anyway, b/c want the jury to hear the story out of the witness’s mout

nce (practically). Rules of Evidence are exclusionary, want to keep it out. FRE 401, only relevant evidence is admissible, but not all relevant evidence is admissible. If you object, then judge might ask for the argument at sidebar (always away from jury).
o Objections Required: Preserves for appeal, gives the other side op to correct the problem. A lot of them will be formal, like leading or compound questions. Limits the possibility of a long trial with no complaints and then a party that was disfavored complaining about stud later. Also helps the trial court so they are alerted as to possible problems with the evidence, and helps offering party cure any problems with proof.
§ Must be timely (raised at the earliest reasonable opportunity)
§ Should include a statement about the underlying reason (ground) and should be specific, not general.
o Objectionable Answers: There can be objectionable answers, so move to strike to get jury to disregard the testimony. Can be the basis of mistrial (drastic). Technically still on transcript.
o Objections can be Substantive or Formal:
§ Substantive: Rest on particular rules of evidence, hearsay and best evidence doctrines included in this.
§ Formal: These are objections to the manner of questioning. Shows broad authority of trial judge to control format of trial. Ex include:
· Asked and Answered- accuse lawyer of being to hard on witness, but its important for witness (esp on cross) to testify accurately
· Assumes facts not in evidence: if important facts are part of the questions, they should be facts already established.
· Argumentative: can’t make an argument in questions
· Compound
· Leading the witness:
· Misleading- question misstates the evidence
· Speculation or Conjecture- This has substantive content, a witness isn’t supposed to guess.
· Ambiguous, uncertain, and unintelligible
· Non-responsive to the question (lawyer objects to the witnesses response if witness doesn’t answer the question asked). But DON’T ask open-ended questions, b/c the answer will be responsive and you’re stuck with it.
· General Objections- not effective for preserving for the record. But sometimes useful when you know its objectionable but not why, or reason is so obvious it doesn’t have to be stated.

Motions in Limine:
– Made at the threshold of trial. Made before-and to avoid problems at trial. By state statute or CL in pretty much every jurisdiction. According to FRE 103(a), don’t have to make another objection at trial if a definitive ruling was made in a pre-trial motion.
o Can be to exclude an item of proof
o Can be to admit an item of proof.
o Problem is that it is separate from trial record so difficult to say it should come in on appeal, but then should give an offer of proof to show it should come in because–. Ex of excitement of utterance exception to hearsay (but must actually show it was an excited utterance).
– Offers of Proof- This is the counterpoint to the objection. Not as memorable as the objection. Give this in response to an objection. The lawyer faced with a ruling excluding evidence must make a formal offer of proof to preserve for appeal. Must make the substance of the proof known to the court. FRE 103(a)(2). Reasons for the offer of proof:
o Makes the appeal process fair by making a party act proactively.
o Preserves record for review
o Disclosive function
§ Enables objector to refine objection