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

Winter 2015 Evidence Outline – Judge Gerald Rosen

I.  Evidence Overview

A.  Introduction

Federal instruction to jurors: What is evidence: “you must make your decision based only on the evidence you have seen and heard here in the courtroom and nothing else; this includes what the witnesses said while testifying under oath and any exhibits entered into the record, and any facts stipulated to by counsel or judicially noticed by the court.  The law makes no distinction as to the weight that you the jurors should give to the direct and circumstantial evidence.

·         Categories of Evidence:
1.      Direct–  evidence that directly proves a fact without having to draw an inference about that fact.  Eyewitness testimony is direct evidence. 
§  Hypo: witness says it’s raining, and you believe it…that is direct evidence.
2.      Circumstantial–  proof of facts from which the jurors can infer or conclude that other facts exist.  For example, fingerprints at a murder scene.
§  Most evidence in both civil and criminal is circumstantial evidence.
§  There is a fallacy that circumstantial evidence carries less weight, but that is not true.
§  Hypo: someone comes inside the classroom wearing a rain coat and dripping of water, you can conclude that it was raining
§  the law makes NO distinction between direct and circumstantial evidence
§  The distinction between direct and circumstantial is left entirely up to the jury.

·         Five Types of Evidence
1.      Witness Testimony (“Testimonial Evidence”) (8:215) –  the answers they give to questions asked by lawyers, the judge, or (sometimes), jurors.  The answers may be verbal or non– verbal.
§  Voice samples offered for purposes of identification are not testimonial.
2.      Real Evidence (8:360) –  any tangible thing having substantive significance due to its direct role in the events at issue. 
3.      Documentary Evidence (8:425) –  writings (letters, contracts, emails, text messages), tape recordings, photographs, charts, graphs, etc..  It is admissible if:
a.       It is relevant.
b.      It is properly authenticated.
c.       It meets the requirements (or falls within an exception to) the “best evidence rule.”
d.      It is not otherwise inadmissible under an established exclusionary rule.
4.      Stipulated Facts (8:1020) –  facts agreed upon by the parties (through their lawyers); the stipulation will be read to the jury and the judge will instruct the jury that they should consider the facts as to be proven without calling a witness.
§  Advantages of stipulating–
·         Save time and expense of producing evidence on undisputed matters
·         Eliminate the risk that jurors may disbelieve evidence on these matters
·         Sometimes better proof than testimony by weak witnesses
·         May tone down the emotional impact of evidence it replaces (from D’s POV).
§  Disadvantages–
·         Far less dramatic impact (from P’s POV).
·         Deprive the party of “wiggle room” on weak points
·         May cover up unexpected holes in the opposing party’s case.
5.      Judicially Noticed Facts (8:801) –  “judicial notice” is the court’s recognition of the existence of a fact without the necessity of formal proof.  For example, the day a certain date fell on. 
§  FRE 201–  Judicial Notice of Adjudicative Facts
6. Demonstrative evidence and parole evidence are not actually evidence for the jury to consider.

·         Things that are not evidence–
o   Statements of the lawyers (including opening/closing arguments)
o   Questions that the lawyers ask the witnesses
o   Demonstrative exhibits, unless admitted into the record
o   Objections
o   Judicial rulings or any questions the judge asks
o   Parol evidence (this is just whether contract negotiations can be introduced as evidence.)
·         Why do we have rules of evidence? 
o   We don’t trust the jury.  Do not know how they will use certain evidence (hearsay, prior bad acts, etc.).  –  they are lay people and maybe they don't know how to use certain information;
o   Protects everyone’s rights since some evidence might be so negative that jurors can’t see past it and evaluate it in a proper context
o   Efficiency of the trial – control the scope and duration of the trial – finite end to trial
o   Consistency and Predictability
o   Substantive policies [some rules serve substantive societal policies] 1.   Privilege, etc., outside of courtroom. (husband/wife. Dr/Patient) –  ex: Cl/Att. à want people to know that what they tell their lawyers will be kept in confidence even though it is relevant
2.   We think these are important policies inside ctroom – regarding burden of proof.
o   To ensure accuracy of the facts –   to keep out relevant but inaccurate evidence
3.ex: rule 901 requires foundation – before u can introduce document into evidence u have 2 have someone with personal knowledge. We dont just let anything be admitted into the record–  authenticating evidence, labeling exhibits
o   overarching reason of why we have rules of evidence: to ensure predictability, regularity and fairness in the trial [so diff judges don't apply different rules]. à if att. does not know what the rules are, he does not know what is going to be admitted and he cannot prepare for trial b/c he does not know what will and will not be admitted
·         The Federal Rules of Evidence
o   Adopted in 1975.  Before that, there was just common law.  All federal courts use them and 44/50 states have adopted codes of evidence based predominantly on the FRE.  The rules were completely re– written in 2011.
o   There are 68 rules, but only 30– 35 require attention.
o   Purposes–
§  Predictability, regularity, and fairness–  know what rules will or should apply.
§  Promotes efficiency– creates a finite framework in which cases are tried
§  Mistrust of jurors–  we don’t want jurors to give undue weight to untrustworthy evid. (such as hearsay which could potentially be explosive)
§  Policy (societal reasons) –  for example, privileges (spousal, attorney– client).
§  Accuracy–  ensure accurate fact– finding.

·         What Happens at Trial
1.      Venire panel of potential jurors comes in (approximately 40 in a federal criminal case).
2.      Voir dire (to see and to speak).
§  In federal court, the judge does the voir dire, based on questions submitted by the lawyers.  Criminal takes about 1 ½ hours, civil takes about an hour.
3.      Challenges to the jurors.
§  For cause–  gives the lawyers the opportunity to challenge a juror based on the juror’s testimony that causes the lawyer to believe that the juror cannot be fair and impartial.
§  Peremptory–  in civil cases each side gets 3.  In criminal cases the government gets 6 and the defendant gets 10.
4.      The jury is selected.
5.      The judge gives preliminary instructions, such as “do not discuss” and skeletal instructions about issues in the case.
6.      Opening statements.
§  The party with the burden of persuasion goes first.
§  Each lawyer gives a brief overview of what the case is about; they do not make arguments.  Tell the jury what the elements are and what the evidence is for each element.  The defense lawyer will point out the holes.
§  Trial practice–  the entire trial should have a theme (tell a story), which should be made clear in the opening argument.
·         like  a jig– saw puzzle, but no one knows what the final picture looks like. 
o   You want the jury to see the picture you want.
7.      Proofs–  proceed with the evidence.  The party bearing the burden goes first (plaintiff, usually).
A.     Case in Chief.
B.     Case in Rebuttal (or “case in rejoinder”). 

Order of Proof:
1) Plaintiff (or prosecutor) presents his case– in– chief, then rests
2) Defendant presents his case– in– chief, then rests
3) Plaintiff (or prosecutor) presents his case– in– rebuttal
4) Defendant presents his case– in– rebuttal
5) Each side presents further cases– in– rebuttal

8.      When evidence from both sides is in (sometimes earlier), the parties will make motions for a directed verdict (now known as motion for judgment as a matter of law (JMOL)).  Then, if it is denied, the other will present their proof, and then may make their own motion.
9.      Closing arguments.
§  Trial practice–  talk about the inconsistencies in testimony. 
§  Connect the dots.  How the evidence either proves your case or disproves the OP’s case.
§  like a jig– saw puzzle; you want the jury to see the picture you paint.
10.  Jury instructions.
§  The parties draft the instructions and submit them to the cour

o beyond the subject matter of the direct examination and matters affecting the witness’s credibility.  The court may allow inquiry into additional matters as if on direct examination. 
o   This is not efficient.  If the cross-examiner wants to introduce new information, he has to call that witness again as his own.  In Michigan, a witness can be examined on any matter relevant to the issues of the case on cross. 
o   2 goals:
§  Undermine credibility of witness; make them less trustworthy and less impactful.
§  Impeach
·         Cardinal rules of cross examination:
1.      Never ask a question that you don’t know the answer to.
§  Abe Lincoln fight in a field story.
2.      Don’t let the witness repeat the same story he/she told on direct.  You will not undermine the witness by simply yelling at him/her and/or speaking in an undermining tone.
§  Triangle Shirtwaist Company fire story.
3.  Don’t ask a question just to ask a question.
4.  Don’t use legal jargon.
5.  You can lead on cross exam (611(c))
6.  You are not obligated to address every issue that was presented on direct. (don’t need to chase every rabbit down every hole. 

·         The point of cross-examination is to undercut the credibility of the witness. 
o   Don’t chase every rabbit down every hole.
o   You don’t have to address every issue.

Problem 1– A How Did it Happen?, page 25
·         Facts: Barton was driving a car.  Dreeves was also in the car.  Barton’s car collided with Felson’s car.  At trial, Barton calls Dreeves as a witness.  Dreeves testifies that Felson ran a red light.
·         Issue: is it permissible for Felson’s attorney to ask the following questions on cross?
o   Regarding Barton and Dreeves having a romantic relationship.   Yes–  it goes to the witness’ credibility.
o   Isn’t it true that Barton had turned around to look out the back window?  Attempting to impeach the witness–  if Dreeves saw Barton turn around, he couldn’t have seen Felson run the red light.  Even if this is beyond the scope of direct, it goes to the witness’ credibility.
o   Didn’t Barton have three glasses of wine at lunch?  This is beyond the scope of direct, but the lawyer could just recall Dreeves and ask it, so the judge would probably permit it.

2.  Keeping Evidence Out

·         FRE 103(a) Preserving a Claim of Error.  A party may claim error in a ruling to admit or exclude evidence only if the error affects a substantial right of the party and
o   (1) if the ruling admits evidence, a party, on the record:
§  (A) timely objects or moves to strike and
§  (B) states the specific ground, unless it was apparent from the context; OR
o   (2) if the ruling excludes evidence, a party informs the court of its substance by an offer of proof, unless the substance was apparent from the context.
·         1. It must be timely.  An objection is timely if it is made as soon as the opponent knows, or should know, that the objection is applicable. (8.4631)
·         2. Specific ground must be made known (if the ground is not apparent from the context).
·         Absent a timely challenge in the trial court, any error in the admission of improper evidence is waived and normally cannot be raised for the first time on a motion for a new trial or appeal (unless it is plain error 103(e)).  The error has to be so plain and so affect the basic substantial rights of the client that the result of the trial will be deemed to have been unfair.