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


Monday, January 13, 2003


A. What is Evidence?

Evidence is information that may be used by the factfinder in determining the facts of a case. Evidence does not include arguments, statements or questions of the attorneys or rulings , questions or comments or rulings by the judge. There are five types of evidence and a sixth entry, which really is not evidence (demonstrative evidence)

1) Witness Testimony – answers given to questions by the lawyers (not the questions) [8:215 et seq.] 2) Documentary Evidence – documents, such as writings, that have been introduced following proper foundation [8:425 et seq.] 3) Real Evidence – tangible, material, actual things [8:360 et seq.] 4) Stipulated Facts – facts, agreed to by the parties, read to the jury [8:1020 et seq.](i.e in a drug trial, level or weight of the drugs)
5) Judicially Noticed Facts – well known or obviously determinable [8:801 et seq.] 6) Demonstrative Evidence – illustrations and the like which have no independent value outside of witness testimony (not substantive and does not go into the jury room)[8:600 et seq.]

Juries can only rely on the evidence presented in the case to come up with a decision.

B. Direct and Circumstantial Evidence [8:15-16]

There are two general categories of evidence, direct and circumstantial.

Direct evidence is evidence which tends to directly prove a fact – no inference need be drawn to establish the fact. – such as a testimony of a witness which tends to directly prove a fact.

Circumstantial evidence is proof of facts from which other facts can be inferred or concluded. Examples of circumstantial evidence include fingerprints and DNA traces.

Example: A witness walking on the beach testifies to seeing footprints in the sand. This is direct evidence of the footprints and circumstantial evidence that someone had recently walked on the beach.
Example: Witness (DIRECT) sees the man shoot a person, (CIRCUMSTANTIAL) but then also sees his car there, fibers from the killers shirt and have the gun with fingerprints.

One type of evidence is not favored over the other. Most cases turn on circumstantial evidence. Sometimes circumstantial evidence is more powerful.

C. Why Have Evidence Rules?

Evidence rules have been established for a variety of reasons, including the following:
1) Mistrust of juries’ ability to interpret some kinds of evidence. (Rule 403 – juries may misuse evidence)
2) Regulate the pace of trial.
3) Provide for efficient use of the courts.
4) Encourage accuracy of proceedings (accurate fact finding) – e.g., foundation.
5) Provide consistency and predictability (uniformity among all the courts) (main reason).
6) Policy purposes

Prior to the adoption of the Federal Rules of Evidence, most evidence was governed by common law. This led to wide disparity in evidence rules. The FRE is used by all federal courts, criminal and civil. About 36 states, including Mich., base their evidence rules on FRE.

There are 67 rules of evidence – into about three groups. A third you will not have to read, i.e. Rule 101, 102. Another third, only need to read once since they are common sense, i.e. Rule 402. The last third are very challenging

d order of interrogating witnesses and presenting evidence so as to
(1) make the interrogation and presentation effective for the ascertainment of the truth,
(2) avoid needless consumption of time, and
(3) protect witnesses from harassment or undue embarrassment.

A. Leading Questions [9:47-99]

A leading question asks the witness to acknowledge facts stated or suggested in the question, or points witness towards direction of the answer. Fed. R. Ev. 611(c) deals with leading questions. In general, leading questions are not allowed on direct examination and are allowed on cross-examination. Leading questions may be asked on direct under certain circumstances.

Rule 611(c) Leading Questions. Leading questions should not be used on the direct examination of a witness except as may be necessary to develop the witness’ testimony. Ordinarily leading questions should be permitted on cross-examination. When a party calls a hostile witness, an adverse party, or a witness identified with an adverse party, interrogation may be by leading questions.

Still required to ask your own witness with non leading interrogations.

Why do not allow leading questions?
Evidence have to come from the witness, not the lawyer doing the testimony. Also it will undermine the jury’s confidence in the witness.