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

Wayne State – Evidence Outline – Rosen Fall 2016

Categories of Evidence

– evidence that directly proves a fact without having to draw an inference from those facts. Eyewitness testimony is direct evidence.

Hypo: witness says it’s raining, and you believe it…that is direct evidence.

– a chain of circumstances that indirectly proves a fact; 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 both direct and circumstantial evidence [esp in crim].
There is a fallacy that circumstantial evidence carries less weight, but that is not true.The law does not value one over the other – jurors attribute to both the direct and circumstantial evidence whatever weight they believe based on their own experiences/common sense.
Hypo: someone comes inside the classroom wearing a rain coat and dripping of water, you can conclude that it was raining

Circumstantial evidence is often more probative and important than direct evidence.

Less probative:bedroom of the defendant/victim – no weight to fingerprints there

5 Types of Evidence

[first three: must have a foundation/must be authenticated]

Witness Testimony (“Testimonial Evidence”) (¶ 8:215)- the answers they give to questions WHILE UNDER OATH. The answers may be verbal or non-verbal. Lawyers words/questions not evidence.

Voice samples offered for purposes of identification are not testimonial.

Real/Material/Tangible Evidence (¶ 8:360)- any tangible thing having substantive significance due to its direct role in the events at issue [ex: murder weapon, seized drugs, packaging material, drug scales, knife]. Admit by laying a foundation to authenticate.
Documentary Evidence (¶ 8:425)- writings (letters, contracts, emails, text messages, tweets), sound recordings, photographs, charts, graphs, things on the internet, etc. Have to lay a foundation for it. Witnesses has to have personal knowledge. It is admissible if:

It is relevant.
It is properly authenticated.
It meets the requirements (or falls within an exception to) the “best evidence rule.”
It is not otherwise inadmissible under an established exclusionary rule. (e.g., exception to hearsay rule e.g., Rule 803(18), which is the exception for learned treatises.

Stipulated Facts (¶ 8:1020)- facts which are MF ASD/SDFs 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 ∆’s POV).

Far less dramatic impact (from π’s POV).
Deprive the party of “wiggle room” on weak points
May cover up unexpected holes in the opposing party’s case.

Judicially Noticed Facts (¶ 8:801)- “judicial notice” is the court’s recognition of the existence of a fact without the necessity of formal proof [so widely accepted and objectively verifiable that no reasonable objection could be lodged against them

Ex: day of the week of a certain event occurring on a particular date in 2007
NOTE: not covering this in this course
FRE 201- Judicial Notice of Adjudicative Facts
NOTE: usually these kinds of things are proven through witnesses anyway as a matter of course

EVIDENCE for the jury to consider:

Demonstrative evidence (illustrative evidence) (¶ 8:600) – differs from real evidence in that it played no real role in the events at issue in the trial. An aid to demonstrate or illustrate testimony. Assists the jury in understanding the testimony. If both sides agree that it should be an exhibit then you can enter it into the evidentiary record. Demonstrative evidence does not go into the jury room (substantive evidence does).

Ex: drawing that witness uses to illustrate his or her testimony while testifying; animations
Ex: transcript that accompanies a sound recording [will often give to jury to follow along]

“to assist you we have provided you with a transcript of the sound recording, however listen closely because if anything in the transcript differs from the sound recording, you must disregard the transcript and only consider what you heard in the sound recording.”
Transcript would not ever be allowed if there is a tape – gov. would not seek to admit

Don’t confuse this with summaries, graphs, charts under FRE 1006. This can be introduced into evidence as substantive evidence.
Can be very tricky – if showing something untrue or fabricating can be sued (explosive packs in Ford Broncos).

Parole evidence [rule of construction in k cases] (the actual evid = testimony and other docs)

NOTE: laying a foundation/authenticating evid = showing fact-finder that the evid is what you purport it to be (not a high threshold)

Ex: testimony: most common requirement = personal knowledge (FRE 602) [diff for expert witnsess, etc.]

Things that are not evidence-

Statements of the lawyers (including opening/closing arguments)
Arguments that the lawyer’s make
Questions that the lawyers ask the witnesses
Demonstrative exhibits, unless admitted into the record –

Judicial rulings or any questions the judge asks
Parol evidence (this is just whether contract negos can be introduced as evidence.)

Parol evidence permits the introduction outside the four corners of the contract when the contract is ambiguous.

The Federal Rules of Evidence

Adopted in 1975.Before that, there was common law but it was not consistent.All federal courts use them and 45 of the 50 states have adopted codes of evidence based predominantly on the FRE.The rules were completely re-written effective at the end of 2014. Rewrite simplified language, clarity.
There are 68 rules, but only 30-35 require attention.

Some you will not use (e.g., Rules 101, 102).
Some are common sense. (e.g., Rule 402: Relevant evidence is admissible)

BIG REASON: Consistency, predictability, and fairness- know what rules will or should apply so that you know what’s going to be admitted. Helps to prepare and present a case.
Promotes efficiency-creates a finite framework in which cases are tried
Aid the fact-finder in knowing what to do (mistrust of jurors)- we don’t want jurors to give undue weight to untrustworthy evid. (such as heresay which could potentially be explosive)
Policy (societal reasons)- for example, privileges (spousal, attorney-client).
– ensure accurate fact-finding/most reliable info
Limits the scope and duration of the trialRule 611(a), Rule 403

What Happens at Trial

Venire panel of potential jurors comes in (approximately 40 in a federal criminal case). Standard is minimum of 12 in criminal and 6 in civil (unless parties stipulate to fewer).
Voir dire (to see and to speak).

State ct: usually lawyers are permitted to conduct it.
In federal court, definitive trend = judge does the voir dire, based on questions submitted by the lawyers.Criminal takes about 1 ½ hours, civil takes about an hour.
In big cases, attorneys and clients will spend big money on jury consultants.
Lawyers don’t really want an impartial jury – the judge does – lawyers want sympathetic

Challenges to the jurors.

For cause- gives the attnys 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 (despite juror’s best efforts).
-attnys can excuse limited number of jurors for any reason they want other than illegal reason suce as race (civil: each side gets 3; criminal: gov’t gets 6 and D gets 10).

The jury is selected (empaneled and sworn in).
The judge gives preliminary instructions, such as what is evidence, judging credibility, how jurors should conduct themselves, note taking (remind jurors not to give undue weight to evidence just because written down), “do not discuss,” and skeletal instructions about law/issues in the case, burden of proof explanation.
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 you think the evidence will be for each element.The defense lawyer will point out the holes.
Trial practice- the entire trial should have a theme, which should be made clear in the opening argument [make it short] Opening statements are a roadmap – what you expect the evidence to show and map out the trial.In criminal, lawyers will put evidence up on screen and go through it talking about how they expect the evidence to go.BE CAREFUL – if you have doubts about the evidence or about how a witness will perform, don’t say it.Opposing counsel will use against you in their closing argument “He promised this, did not deliver, argument built on house of cards.”Opening statement is your first opportunity you will have to introduce your theme to the jury.You should start thinking about the theme of your case from day one and constantly think about it/evolve it.
This is a good time to start using an really critical exhibits – charts, graphs, demonstrative evidence but don’t overdo it – jurors quickly get overwhelmed (patent lawyers are notorious for this).

Proofs- proceed with the evidence.The party bearing the burden goes first (civil: P; must prove be preponderance of evid; crim: gov’t; must prove beyond a reasonable doubt). In crim case, D doesn’t have to put on a case (never happens, though).

Criminal case:5th amendment and presumption of innocence so D does not have to prove his innocence.Very often, a D won’t put on a case at

tioning witnesses-

Have talking points that you want to make sure you cover with the witness.

However, don’t write a script.

Don’t echo the witness- it is monotonous, time consuming and clogs the record.

However, every once in a while, repeat an important answer to embed it or reinforce it in the jury’s mind.

Make sure the witness speaks plain English.No fancy legal terminology.
Make sure the witness gives verbal answers.Keep the record clear.


If your witness is reasonably effective on direct and was not badly damaged on cross, don’t do a redirect.The witness may add something that the other party can re-cross and dilute or trip up the witness.Don’t feel obligated to have the witness repeat what was already stated.

Cross Examination – Ch. 10, Ch. 12

to make the witness’s story less impactful and less credible than it was at direct
FRE 611(b) Cross examination should not go 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.

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.
2 goals:

Undermine credibility of witness

Rationale: presumption in favor of allowing party to choreograph testimony of his witness [counter: judicial economy]

Cardinal rules of cross examination:

Never ask a question that you don’t know the answer to.

Abe Lincoln fight in a field story.

Don’t let the witness tell and re-tell 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 (story just becoming engrained in jury’s mind).

Triangle Shirtwaist Company fire story.

3. Don’t ask a question just to ask a question [always have a purpose –either to discredit the witness or turn the witness and enhance/support for own case]

4. Don’t use legal jargon.

5. You can lead on cross exam (FRE 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)

Cross Examination and the 5th Amendment

States vary as to how broad a D’s waiver is on cross: some say that D has only waive right against self-incrimination wrt to issues answered on direct examination. Others say that once D answers questions on direct, he waives his privilege against self-incrim “as to all other relevant facts.” (p. 24)

Problem 1-A How Did it Happen?, page 26

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?

Regarding Barton and Dreeves having a romantic relationship.
Isn’t it true that Barton had turned around to look out the back window?
Didn’t Barton have three glasses of wine at lunch?

2. Keeping Evidence Out

Objections See ¶ 8:4630

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 if the ruling admits evid, party must (on the record)

a) timely object/motion to strike AND
b) state specific ground [unless apparent from the context] [103(a) regulates the preservation of objections for appeal]

(2) if the ruling excludes evidence [objection is sustained], a party informs the court of its substance by an offer of proof, unless the substance was apparent from the context.