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Evidence
Wayne State University Law School
Mann, Lawrence C.

Evidence Outline

Chapter 1: Introduction To Evidence Law

Definition of Evidence: Testimony of the exhibits that are put into the trial
First Question: Is it admissible?
Proff’s Theory

Favors admissibility à Let it in, let the jury decide its weight
Except – Rape Shield Laws (Chapter 18, Pg. 443)

Read Rules together à If not excluded by 1 rule, may be excluded by another

Two Types of Questions:

(1) Substantive: Questions concerning statutory or written law that governs rights & obligations of those who are subject to them, Outcome-determinative, useful precedent & case law

Ex: Given the facts, was the relationship fiduciary, and therefore the contract was valid?

(2) Evidentiary: What can be considered to decide substantive questions, will probably not be outcome-determinative
o Ex: Is testimony admissible?

Far More Evidentiary Questions Then Substantive – Evidentiary Questions Are Decided Much Faster

Presentation of Proof

Case in Chief: During his 1st appearance each party presents his “case in chief” – establish everything he must prove in order to prevail. When he is finished, he rests & yields the stage to his adversary (starts with prosecutor/plaintiff)

Each party seeks to establish everything he must prove to prevail – introduces evidence to build case etc.

Case in Rebuttal (“Sometimes called case-in-rejoinder”): (Narrower than “case in chief”) After both have put on their “cases-in-chief”, the party who opened has another chance, this time to present his “case-in-rebuttal,” and then his adversary has a similar opportunity. The process may go on until each side is satisfied, or judge decides it has become repetitive or trivial.

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

FRE Rule 103 (a): Rulings on Evidence

The Offer of Proof – Get in on record:

Offer of Proof: If you begin to offer evidence and, before you can get it before the court, the other side objects and the court sustains the objection, you must move the court to allow you to make clear on the record what evidence was

If you don’t get your evidence in and don’t offer the proof, you’ll have nothing to appeal if the court rules against you, because the record will not show what the evidence would have been
On appeal the court will know what the excluded testimony was and what the basis for the exclusion was and can make an independent conclusion on it
In jury trials, offers of proof should be made outside the hearing of the jury

Offer of Proof has 2 Functions:

1) Tells Judge what the evidence was

2) Gets the evidence on the record

Consequences of Evidential Error:

Evidence error must have affected what Rule 103 (a) & (d) calls a substantial right – meaning essentially outcome; usual standard directs appellate courts to reverse a judgment only for error which probably affected the result

Kinds of Errors:

1) Reversible: Mistake that probably did affect judgment

2) Harmless: Mistake that probably did not affect judgment

3) Plain: Mistake in estimation of the reviewing court warrants relief on appeal even though appellant failed at trial to take steps necessary to preserve its rights (objecting or making offer of proof).

4) Constitutional: In criminal cases, a mistake by trial court in admitting evidence for prosecution that should have been excluded under the constitution.

Responding to circumstances that turns Reversible to Harmless

Cumulative Evidence: Affirmance despite errors; looks to whether evidence erroneously excluded for would have affected the outcome – if yes, then error calls for corrective action

Curative Instruction Doctrine: Avoid reversing evidence error by instruction to the jury – Ex: limiting instruction

Overwhelming Evidence Doctrine: If court finds evidence properly admitted supports judgment below overwhelmingly, generally it affirms, even in face of errors that might otherwise be serious

Two Categories of Evidence:

Direct Evidence: Evidence that, if accepted as true, establishes a point

Ex: It is raining outside – direct evidence that its raining (if we believe witnesses statement)

Circumstantial Evidence: Evidence that, even if fully credited, may nevertheless fail to support the point in question, simply because an alternative explanation is probable – requires an inference
o Ex: Someone comes into class with an umbrella and wet – we can infer it is raining outside.

Circumstantial is not inherently less worthy than Direct Evidence – there is no formal hierarchy

Sources of Evidentiary Doctrine
· Appellate reversal – Trial judges given lots of discretion – but not unlimited
· Constitutional reversal – rights of criminal defendants at stake
· Treatise writers (Wigmore, Weinstein & Berger, McCormick)
· Codification: (1) Model Code of Evidence (2) Uniform Rules of Evidence (states) (3) FRE

Why Rules of Evidence?

Mistrust of Juries: The Jury might make a bad decision giving weight into character of something not worthy
Serve Substantive Policies Relating to the Matter Being Litigated: Amount to substantive evidence law, existing in the hope and belief that they affect the outcome – in ways nearly as significant as purely substantive principles
Extrinsic Substantive Policies: Further substantive policies unrelated to the matter in litigation
Ensure Accurate Fact-Finding: Ensure accuracy – to force litigants and courts to be careful
Pragmatic: To control the scope and duration of trials; rules authorize the trial judge to confine and organize the dispute.

Why Rules Rather than Common Law?

Pre-Rules Evidence Law: Creature of common law tradition – inconsistent & in disarray
Federal Rules of Evidence (codification) = Matter of fairness

The Rules apply in federal courts in both criminal & civil cases, and generally they apply regardless whether federal or state law supplies the rule of decision

Some states that adopt the Rules (including Michigan) are slightly different than the Federal Rules

When Evidentiary Issues Are Raised:

(1) Motion in Limine – Before Trial

Motion made before trial starts – provides a chance for both parties to brief an important evidence issue and present more elaborate argument than is possible during trial. Can be brought offensively or defensively – But, judge doesn’t always rule on it

Advantages: Judge has a longer time to decide the issue, important because how you couch your case, turns on how certain evidence is admit

inal say – lawyers argue and the judge instructs à chance to out its last word to the jury
Party bearing the burden of persuasion (usually plaintiff or prosecutor) has the right to make two closing arguments, one before and one after his adversary

(5) Deliberations

Performance of jury takes place behind closed doors – jury selects a leader and deliberates its verdict à Secrecy is intentional
Jury may be segregated during trial – to insulate it from outside influence and pressures
Disagreement – leader tells judge & judge decide whether to declare a mistrial

(10) General Verdict

In civil cases, jury states who wins and (if applicable) amount of recover

Sometimes in civil cases jury answers special interrogatories to resolve particular issues

In criminal cases, jury states whether defendant is guilty or not guilty of the charges.

(11) Judgment & Post-Trial Motions

In both civil and criminal cases alike, entry of judgment starts the time for appeal – but prosecutor usually has no appeal from an acquittal
Post-trial motions present parties with last opportunity at trial level to obtain their desired sought

(12) Appellate Review

Principle of Finality: Under which appellate review may be had only at end of the case

Finality Principle applies to appellate review of evidence points

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

Chapter 3: Relevance

Defining Relevance
· Admissibility of evidence based on whether it has any tendency to prove or disprove a matter at issue to the case

Process To Determine Admissibility

1st Question: Is it relevant? (FRE 401 & 402)

What is the material proposition to which it is relevant? (Element of a claim or defense)

2nd Question: Does its probative value outweigh its prejudicial effect? (FRE 403)

Danger of unfair prejudice
Confusion of the issues (or misleading the jury)
Consideration of undue delay, waste of time, or needless presentation of cumulative evidence

3rd Question: Does an exclusionary rule prevent admissibility?

FRE Rule 401: Definition of “Relevant Evidence”
· Relevant Evidence = Evidence having any tendency to make the existence of any fact that is of consequence to the determination of an action more or less probable than it would be without the evidence

FRE Rule 402: Relevant Evidence Generally Admissible; Irrelevant Evidence Inadmissible

Presumption that relevant evidence is admissible – unless otherwise excluded by the Rules or some other governing body of law
Evidence that is not relevant = Inadmissible!!

Insanity Defense Instruction = Irrelevant (Shannon v. United States)
Hypo: Supreme Court held that defendant, who offered insanity defense, was not entitles to an instruction that he would be committed involuntarily if the jury accepted the defense, to keep the jury from mistakenly believing that a finding of insanity would allow defendant to go free
o Holding: Jury’s function to find facts and decide guilt – information on “consequences of a verdict” are irrelevant to this task à instruction = inadmissible