Select Page

Wayne State University Law School
Browne, Kingsley R.

A.      INTRO
1.       cornerstone of evidence is personal knowledge
2.       also anyone testifying must be under oath and subject to cross
3.       types of evidence: testimony, tangible/real evidence, documents, stipulated facts, and facts that are judicially noticed (so obvious that not questioned, ex: Feb 14th was a Tuesday)
4.       Demonstrative Evidence not really evidence:
o        no independent value, illustrates testimony and helps jury understand evidence
o        ex: sketches police draw of accident site
1.       if you believe witness it directly proves fact, no logical inferences necessary
2.       eyewitness testimony is most common
1.       requires an inference
2.       not necessarily weaker than direct (eyewitness often inaccurate)
3.       most things established in courts based on circ evidence
4.       ex: evidence of finger prints from murder scene – can infer they were at murder scene
1.       why we don’t just let anything come in:
o        mistrust of jurors – they will come to incorrect decision b/c swayed by things they shouldn’t have heard, we want to make sure jury uses info correctly
o        substantive policies with respect to matter being litigated (ex: who has burden of proof/persuasion)
o        substantive policies unrelated to matter in litigation (encouraging people to communicate fully and openly with their lawyers)
o        help ensure accurate fact-finding
o        control scope and duration of trial
o        predictability is overlying reason (knowing how to prepare for trial)
2.       prior to adoption of Rules, looked at treatises which were often contradictory

1.       voir dire
2.       challenge jurors for cause or with peremptory challenges
3.       once selected, judge instructs them not to talk to anyone or to each other
1.       tells jury what they are going to prove
2.       “the evidence will show”
1.       case-in-chief where must prove everything you need to in order to prevail
2.       calling witnesses – direct examination and cross and redirect
3.       start with П and once go thru all his witnesses do same thing with ∆’s witnesses
1.       after all evidence has been presented can move if believe there is no way someone could not find in your favor
2.       acquittal or JNOV
1.       more argument than opening statement was
2.       what evidence has proved, credibility of witnesses, arguments, has opponent delivered what he promised
1.       explaining what the law is then jury deliberates and brings verdict
2.       in controversial or high profile cases, jury may be sequestered

1.       lays out background information – name, address, occupation, etc
2.       then lay foundation for testimony to follow to show witness has special knowledge
3.       next ask substantive questions to show witness’ knowledge of pertinent facts
4.       no leading Qs allowed
o        exception when you have a hostile witness (FRE 611) or for procedural matters that aren’t at core of case and are just done to speed up process
5.       idea is that testimony comes from witness not lawyer (need personal knowledge) so better advocacy to not ask leading Qs – makes witness seem more credible
1.       direct is for witness to tell story but cross is to point out weaknesses or inconsistencies in witness’ testimony or bias against your client
2.       leading Qs allowed and desirable b/c want to pin that person down
3.       never ask Q you don’t know answer to b/c risky, you want to be in control of evidence that comes in
4.       limitation on scope – limited to subject matters raised in direct, if you want to bring up something new you have to call him yourself
5.       under FRE 611(b), judge has power to allow further testimony
6.       MI though says that witness can be interrogated on any matter that’s relevant but judge can limit cross to those matters raised in direct
C.      PROBLEM 1A (26)
1.       accident between B driving Fiat, (with passenger D) and F, driving Buick. B sues F and gets D to testify on direct that F ran red light, F then cross-examines D
2.       Issue is which questions are acceptable for F to ask D on cross
while technically beyond the scope of substantive Qs, asking whether B and D are seeing each other socially is proper because it goes to bias
on direct D testified to seeing F, can’t ask about what B’s actions because beyond the scope of direct – could maybe argue that could come in as impeachment
can’t ask whether B drank wine at lunch before accident b/c beyond scope of direct which focused on what happened at time of accident – this matter isn’t relevant to whether F ran red light – might be able to use this for impeachment if asked whether D drank might go to his credibility as eyewitness
1.       real evidence (tangible)
o        things relevant to what you’re trying to prove (ex: the gun)
o        proponent of evidence needs to lay foundation to prove thing is what it purports to be (authentication)
2.       documentary evidence
o        must lay foundation for jury to show evidence is in fact what you’re saying it is
3.       stipulated evidence – [arties agree/stipulate something happened
4.       demonstrative evidence – made up for purposes of trial (diagram of intersection or graphs), usually doesn’t come in as exhibits
5.       writings
o        to lay foundation, need to authenticate writing and show that it falls within a hearsay exception
1.       burden of proponent of evidence to show that evidence is relevant and admissible
2.       other side can object to evidence being admitted
o        objections must be timely and include grounds for objecting
o        substantive objections to keep evidence totally out
o        formal objections focus on form/manner of Qing (leading Qs, argumentative or sarcastic, compound Q, assuming facts not in evidence, misleading Q, ambiguous)
3.       can move to strike when witness answers before you object but not effective b/c jury has already heard answer
4.       motions in limine are objections before trial even starts
o        happens if party anticipates that particular evidence will be objected to or that he will object to evidence coming in
o        gives parties chance to brief important evidence issue and discuss more elaborately than possible at trial
1.       telling judge that if this witness is allowed to testify this is what he will testify to
2.       when your evidence is excluded, critical that you make formal offer of proof
3.       FRE 103(a)(2) – when rule is one which excludes evidence, substance of evidence has to be made known
4.       FRE 103(b) – court may add any statement which shows x-ter of evidence, form in which it was offered, objection made, and ruling thereon
o        court may direct making of an offer in Q and A form
5.       FRE 103(c) – proceedings should be conducted to extent practicable so as to prevent inadmissible evidence from being suggested to jury by any means
1.       Reversible error – basis for appellate ct to overturn was that it was prejudicial enough that it did affect the outcome
2.       Harmless error – trial ct made mistake but it did not make a difference in the case b/c enough evidence in the case would have produced same outcome
3.       Plain error – appellate ct will review even in absence of objection or offer of proof
o        to be plain = would be obvious error, probably reversible and impairing substantial rights
4.       Constitutional Error – evidence was introduced in violation of the constitution
H.      REVIEW OF EVIDENTIARY ISSUES – deference to trial ct depends on issues
1.       Abuse of Discretion
2.       De Novo – Matter of Law
o        hearsay is a matter of law and therefore trial ct gets no deference unless it turns on a matter of fact
I.        PROBLEM 1B (48)
1.       D joins B in a suit against F. B objects to testimony by H saying B was speeding, but D does not raise objection. Court finds in favor of F – so D appeals but F argues his appeal should be dismissed because of failure to object below.
o        Can D ap

that B fell from over-waxing
o        in order to show relevance from prior evidence must lay foundation
§         similar conditions, prior slips happened right after waxing
1.       FRE 403
o        even if evidence is relevant, may be excluded if probative value is substantially outweighed by danger of unfair prejudice, confusion of issues, misleading jury, or considerations of undue delay, waste of time, or cumulative evidence
o        presumption that relevant evidence comes in, this is an exception
o        prejudice must be unfair
o        use this rule as last resort after determining that no other rule will preclude it
2.       State v. Chapple (71)
o        on trial for murder, gruesome photos used in trial and he claimed this was unfair prejudice towards him
o        not denying victim was shot by “Dee” but rather claiming he is not Dee and doesn’t want photos to be shown to jury
o        argue irrelevant and then if judge doesn’t agree try unfair prejudice
o        where evidence is inflammatory, court must go beyond question of relevancy and consider whether probative value outweighs danger of prejudice
o        evidence excluded b/c didn’t go to matter being contested (whether ∆ is Dee) so only used for purpose of inflaming jury (no probative value)
o        not a general rule though – often times in murder cases pictures DO come in even when graphic or gruesome
3.       Old Chief v. US (74)
o        when weighing probative value against prejudice, one factor courts look at is alternative proof going to the same point
o        him admitting he committed crimes in past was enough to prove he was felon in possession, not necessary to also give details of crimes he was convicted for
o        must look at entire evidentiary record – here, ct abused discretion by admitting record of prior convictions when an admission by ∆ was available
o        limits holding (requiring courts to accept defense offers to stipulate instead of admitting evidence) to actions that involve proof that ∆ is a felon
o        further ∆ is also being tried for a similar crime he was convicted of so that makes it even more prejudicial (jury will assume his guilt b/c he’s done it before)
o        2 ways to analyze Q whether evidence is unfairly prejudicial:
§         look at each piece of evidence alone and decide whether piece is prejudicial
§         look at entire evidentiary record and decide whether each piece within that context is prejudicial (ct chooses this method)
4.       PROBLEM 2D (81)
o        D charged with murdering wife V. No doubt to cause of death nor that D played a role. D claims she fell on knife during argument; prosecutor offers testimony by counselor for battered women, that V had sought refuge at shelter previously
o        Relevant? Yes, fact that V went to a shelter tends to show she was abused in past or had fear of her husband – can infer husband threatened her, and more probable that D intended to kill her
o        Prejudicial?Yes, past abusive r-ship would inject passion and prejudice in jury
o        Admissible? Probative value of testimony that goes to intentelement probably outweighs prejudice that may follow. Plus, there is no less prejudicial alternative to establish this disputed element that V’s death was accidental (wife is dead so she can’t testify)
TEST: evidence: he abused her before and she went to shelter, fact: this was domestic