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


Jury instructions – what is evidence? Must make decision based solely on evidence heard in court; what witnesses have said, stipulated facts, exhibits admitted into evidence

Statements, args by lawyers, questions, objections, judges’ rulings, comments à not evidence

Two categories of evidence:

Direct: if believed, this evidence proves a particular point directly w/o having to draw inferences (eyewitness testimony)
Problems of credibility, coercion, etc.
Even though direct, could still be weak

Circumstantial: chain of evidence that proves a point indirectly (person comes in wet, wearing raincoat à raining outside); could you come to the conclusion given the circumstances; could be other explanations; not necessarily weaker than direct
Requires one to draw inferences and/or conclusions
Can be very impactful (fingerprints)
Many criminal cases have NO direct evidence

Why have rules of evidence?
1. Mistrust of jurors – might misuse / have difficulty evaluating different types of evidence. There are some things we don’t want juries to hear; don’t trust them to dispassionately evaluate evidence – especially hearsay, unduly prejudicial material, appeals to sympathy, etc.
2. Substantive policies – presumptions, burdens of proof, etc. – could affect the outcome of the litigation
3. Privileges, exclusions, etc. – don’t directly relate to the outcome of the litigation; related to a different policy (protecting attorney / client privilege)
Say a landlord repairs a staircase after someone else already fell à inadmissible
4. Accurate fact-finding – deals w/ reliability of evidence [Rule 901 – foundation req] 5. Control the scope and duration of trial – don’t need redundant or irrelevant testimony
6. *Consistency and predictability*

42 states have adopted codes based on the FREs (including MI); others, like CA have their own codes

What happens at trial?

1. Jury Selection
Voir Dire – process to determine fitness of jurors (biases, prejudices) (diff b/w lawyer’s and judges perspectives)
Judge wants a fair jury; lawyers want juries to agree w/ them
In fed court, judge usually conducts
Lawyers prefer to ask questions themselves
Each party may challenge any number for cause – juror can’t be impartial due to someone’s background, knowledge of the parties, etc. (unlimited)
Plus, each party has a number (often 3; more in criminal trials – prosecutor 6, defense 10 often) of peremptory challenges – no cause needed; must still be a legal reason (can’t be based on sex, race, etc.)
Judge gives preliminary instructions – on evidence, etc.

2. Opening Statement
P goes first in civil; prosecutor goes first in criminal; D has option to defer until after prosecutor’s case in chief
Not really an argument, but more like telling the story of what happened, and what the evidence will show; tell the jury what you hope to prove in the case; establish theme
Primes the jury – but can be risky; don’t promise something you can’t establish / deliver; like a K w/ the jury
Don’t be afraid to use charts and graphs, but don’t become reliant on visual aids; must show them to the other side

3. Presentation of Proof
P puts forth its case in chief; then D goes (usually makes a motion to dismiss first – often denied)
Testimony presented through direct exam, then cross
In a criminal case, D doesn’t have to put on a case
Rebuttal – not part of the case in chief; must rebut the proofs of the other side

4. Trial Motions

5. Closing Argument
Opportunity to point out flaws in opponent’s case, witnesses, etc. (inconsistencies, omissions in testimony)
Marshal your most critical evidence and tie it all together; reinforce theme of the case; humor is often effective; ridicule is ineffective (either witnesses or opposing counsel)

6. Instructions
Jury is told what the law is
Need to think about what instructions to argue over; very few instructions should be controversial; if you argue over everything your credibility suffers
Get objections on the record

7. Deliberations
Jury can ask questions; most are routine; if you disagree, get it on the record

8. The Verdict
9. Judgment and Post-trial Motions

10. Appellate Review

5 types of evidence
1. Testimony of Witnesses
2. Real or material evidence – tangible items (drugs, weapons)
3. Documentary Evidence – writings (Ks, emails), photos, sound recordings, even animations, charts that rep

5. Proper way: what was he wearing? Could you tell us what he was wearing?

2. Cross examination
Rule 611 (c)
Often proceeds largely through leading questions – want to poke holes in the story; reduce the impact and credibility of a witness
Prior inconsistent statements, bad acts, crim convictions, bias, prejudice
The lawyer does most of the testifying
Structure of a leading question: you did this, didn’t you? Isn’t it true that…?
Rules of thumb:
**Don’t just let the witness repeat what he’s already said – reinforces in the juries mind
Want to control the witness
**Never ask a question if you don’t know what the answer is
Also, you must know when to stop
Know what you want to accomplish on cross – impeachment, etc.
Scope of Direct Rule – 611(b)
Limited to the topics covered under direct
If the court allows you to go beyond the scope, you proceed as if under direct examination (no leading questions, etc. (most judges let you go beyond, provided it’s relevant; more efficient this way) (but, interfering w/ a party’s presentation of proofs) (MI 611b – can cross on any matter relevant to the case; judge can limit; basically, the presumption is the opposite of the fed rule)
If D testifies, he’s waving his 5th Am rights; exposes himself to cross-examination (can’t then invoke the 5th)
If there were no limitation, the prosecutor could then enquire about anything!! (special case of the accused as witness)
If a party calls a witness who is declared to be hostile, may ask leading questions on direct examination (proceed like a cross-examination)

Importance of getting verbal answers on the record
Remember the 2 audiences: the courtroom (jury) and the appellate court

3. Real Evidence
Tangible stuff – guns, products