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


Evidence includes only
What the witness said while testifying under oath
All of the exhibits received into evidence and all facts which have been stipulated to or judicially noticed. 

Not evidence
statements lawyers make
judge’s legal ruling are not evidence
any comments the judge or the lawyers
opening statements and closing arguments
The cornerstone of evidence is personal knowledge…the lawyers have no personal knowledge of their facts, they only know them derivatively from their clients, and the lawyers are not under oath, and the lawyers are not cross-examined.

There are only 5 types of evidence
answers that the witnesses give to lawyers while under oath. (NOT facts in lawyers questions)
Tangible (or real) evidence
something that you can hold (ie a murder weapon, drugs, ect)
Documents admitted into evidentiary record
paper—contracts, love notes, diaries, ect.
Stipulated facts (ch 8 para 1020)
facts that are agreed to by the parties through their lawyers usually, that are reduced to a stipulation and read to the jury. You don’t need to call a witness or bring an exhibit. (ie parties stipulation that 50 g of cocaine was compenstated and the purity was 80%. Therefore, a chemist doesn’t need to testify
Facts which are judicially noticed (paragraph 801 ch. 8)
Facts which are so obvious and undisputed that they cannot be questioned.
The fact that feburary 14th 1999 was a Tuesday.
this practically never happens

Demonstrative evidence (not really evidence) (paragraph 600 ch 8)
has no independent value, but illustrates or demonstrates a party’s testimony or theory of the case
Sketches that police draw of the accident site, anything that the witness uses to demonstrate his or her testimony is demonstrative and are not evidence at all.
Transcripts are demonstrative to help the jurors understand the evidence…they are not evidence themselves…they are visual aids

2 general categories of evidence
Direct Evidence
Testimony from an eye witness describing what they saw.
Direct evidence is simply evidence, like the testimony of an eye witness. If the witness testified that it was raining outside and you believe the witness, then it is evidence. 
Circumstantial Evidence
A change of circumstances that indirectly proves a fact. 
Proof of facts of which you can infer or conclude that other facts exist. 
Ex. If someone walked into the room wearing a raincoat, carrying an umbrella and dripping wet, this is circumstantial evidence that it is raining.
Sometimes circumstantial evidence is very strong.
Ie finger prints in a murder scene to someone who was not supposed to be there is strong evidence that they were at the murder scene.
Jurors are to give to the evidence, either direct or circumstantial the weight they find appropriate based on life circumstances.

Purpose of Rules of Evidence
Mistrust of juries and we want to keep things away from the jury that we believe they will have trouble evaluating or putting into context
ie character evidence.
If he has committed previous crimes, then the jury will think that he must have committed this crime too.
Ie inflammatory and overly prejudicial
Out of court statements offered in court, which were not under oath
Some rules serve substantive policies
ie presumptions and burdens of proof
the mailbox rule is a presumption. There is a presumption that if a letter was properly sent it is received. It is a rebuttable presumption
attorney client privilege
Further substantive policies unrelated to the matter in litigation—what we call extrinsic substantive policies
we want to encourage people to communicate with their lawyers fully and openly (rule 501)
the rape shield statute (rule 412)
Help ensure accurate fact finding
rule 602 requires a witness who is testifying have person

ntil each side is satisfied or until the judge determines that it’s enough

Motion for Judgment on the law (motion for acquittal) after the plaintiff puts on their case in a criminal case
When the evidence of both sides is in, a party confident that a reasonable person could only find in his favor may make a motion for judgment
Only defense can do this in a criminal trial
Judge may take “judicial notice of facts so well known and universally accepted as to be indisputable
Judge only rejects evidence that run contrary to the “laws of nature” or to matters that can be judicially noticed
Typically motions are denied
Most often granted for defendants in criminal cases and D’s in civil contract suits
Usually denied in jury cases bc the judge can always go against the juries decision and then this decision can be reviewed in appellate court and reinstate the juries decision if the judge erred

Closing argument
Lawyer marshals most credible facts and weaves theme into the theme they have been building.
Party bearing the proof gets to make two closing arguments – one before and one after the opposing party
He needs an extra chance to persuade since he loses if the jury finds the evidence equally balanced
Good closing argument use humor but never ridicule
Point out inconsistencies in evidence
Reasons why a witness wasn’t as credible as one would have hoped.

Judge gives jury final instructions.
You want to make sure your instructions get in. If they don’t make sure it is on the record what they want in.