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

EVIDENCE OUTLINE
Rule from purple book Green are provisions from green book Supreme Court cases Lower court cases

I. Chapter 1—Evidence Law and The System: Why We Have Rules of Evidence and How They Work in an Adversary System
v     Introduction
o       Two broad categories: Direct evidence, Circumstantial evidence
§         Direct evidence: simply evidence like examination of a witness that proves a fact directly without any inference or conclusion
§         Circumstantial evidence: a chain of circumstances that indirectly prove a fact, proof of facts from which you can infer or conclude prove another fact
o       No distinction is made of the weight given to direct or circumstantial evidence by the law
§         This is left to the juror to give weight
§         Jurors can be both skeptical of direct evidence as well as rely on circumstantial based on the situation and amount of belief that specific juror has in that evidence
A. Why Rules of Evidence?
1. Why Evidence Law at All?
a) We have rules of evidence for
(1)      Consistency and predictability or fairness with everyone playing by the same rules
(2)      Mistrust of jurors ability to fully, dispassionately evaluate evidence
(3)      Substantive policies relating to the matter being litigated
(a)                  EX: doctor patient privilege, lawyer client privilege
(b)                  Presumptions and burdens of proof
2. Why Rules Rather Than Common Law?
a) Rules first adopted in 1975
(1)      Now have uniformity across the courts
(2)      Michigan rules map onto federal rules
b) About 67 rules divided into three groups
B. What Happens at Trial?
1. Jury Selection
a) Jury panel comes in are sworn in
(1)      Do voir dire to determine if there is any reason to exclude juror from service, opportunity to talk to jurors
(2)      Judges ask lawyers to submit questions in advanced and judge asks questions then after ask if any individual questions are to be asked to specific jurors or to panel
b) Challenges
(1)      Peremptory challenges can be for any reason so long as not a discriminatory illegal reason and each side usually has three
(2)      Challenge for cause: lawyer hears something they believe indicates that the juror cannot be impartial
c) Jury panel sworn in and impaneled
(1)      Criminal cases at least 12 jurors
(2)      Civil can have different numbers
d) Judge gives preliminary instructions
2. Opening Statement
a) Civil case plaintiff goes first, criminal case government goes first
b) Civil case defendant goes second, criminal case defendant can opt to remain silent and present no case or to go after the entire case has been presented
c) Not an argument—opening statement
(1)      Roadmap of what will happen
(2)      Tell jury what you intend to prove
(3)      Should think about what your theme is when you first get the case and that should come out in the opening statement
(4)      Contract with the jury, telling jury what the evidence is going to show
(5)      Think about proofs and quality of proofs—be sure to try your best case
(6)      Can use charts or graphs in opening but don’t overdo it or become reliant on these aids
3. Presentation of Proof
a) Case in chief
(1)      Criminal case defendant doesn’t have to put on a case, often asks for acquittal
(2)      Have direct evidence
(3)      Witnesses and examinations
b) Rebuttal comes next
(1)      Should only be rebuttal not part of case in chief
4. Trial Motions
5. Closing Arguments
a) Should be time to gather the most critical and important facts and arguments and tie them all together for the jury
(1)      Persuade jury
b) Point out strengths in your case and weaknesses in opponents
c) Get jurors to think about the evidence that the lawyer wants the juror to have in its mind when deliberating
(1)      How the lawyer wants the jury to see the case when it’s deliberating
(2)      Don’t be the show let the evidence speak for itself and choreograph the evidence
6. Instructions
a) Parties submit their proposed instructions often before the case begins in court
b) Think about what instructions you want to argue over
(1)      In any case very few instructions should be controversial and subject of argument
(2)      Focus on what is really important with instructions
(3)      Make a record of objections and of the proposed instructions
c) Judge chooses the instructions and instructs the jury as far as substantive laws, about the manner in which to deliberate and the need to decide on the basis of evidence, and on evidentiary matters
7. Deliberations
8. The Verdict
a) Be professional win or lose
b) If you lose poll the jury
(1)      In criminal cases the verdict must be unanimous, make sure that you’ve asked the judge to poll the jury to ensure that you’ve gotten a unanimous verdict
(2)      In civil cases poll the jury to ensure sufficient number of jurors for the particular verdict to pass
9. Judgment and Post-Trial Motions
10.         Appellate Review
C. Making the Record
1. What Is the Record and How Is It Made?
2. Beware the Pitfalls—What Not to Do
a) Echoing—can be effective if use once and a while o

ct matter of cross examination
(a)                  Admissible on cross if relates to motive and can impeach credibility, judicially efficient—Rule 611(b) states should be limited to matters affecting credibility of the witness
(b)                  Admissible on cross if concerns the incident itself and witness’ personal knowledge
(c)                  Admissible on cross if matter has direct impact on the accident itself and created credibility issues
c) Real Evidence
(1)      Real tangible evidence
(a)                  Foundation: shows that the evidence is what you purport it to be
d) Demonstrative Evidence
(1)      Category of evidence but not really evidence
(2)      Devices of all different kinds that lawyers use to help witnesses illustrate a fact
(a)                  Ex: car accident reconstructionist, transcripts of recordings
(b)                  A way the lawyer and witness use to illustrate evidence but these are not substantive evidence
(3)      Demonstrative evidence may become substantive evidence when parties stipulate that this can be added to the record as evidence
(a)                  Only evidence is taken into jury room
e) Writings
(1)      Document evidence
(a)                  Foundation: authenticate the documents
(b)                  Photographs, sound recordings, animations, charts
2. Keeping Evidence Out
a) The Objection
(1)      You must get up and timely state the objection and the grounds for the objection unless it is obvious, objections must be made in order to claim errors for the appellate courts
(a)                  Nothing precludes the court of appeals from viewing plain error that substantially affects the outcome of the parties
(2)      Why have objections:
(a)                  Helps trial court, offering party can cure a problem right on the spot
(b)                  Gives court and opposing counsel opportunity to hear and cure the problem
(c)                  Preserves record for appeal
(3)      Objection must be made as soon as practicable 8:4631
(4)      Types of objections: