Evidence – Winter 2004
Judge Gerald Rosen
“The young men know the rules, the old men know the exceptions” – Oliver W. Holmes
**Schedule a visit to J. Rosen’s courtroom
**Check out hardcopy of J. Rosen’s book in the library – Flowcharts
1 Combination of short essays (7-10), multiple choice (75-90 – including true/false questions).
2 The exam will be roughly 3.5 hours.
3 Pay attention to HYPOS and especially to Rosen’s answers to HYPOS.
4 Will include many of the HYPOS discussed in class.
5 Only the rules book will be allowed into the exam. You may add as much as you like to the rules booklet as you like, but you cannot cut and paste. Only written additions!
Monday, January 12, 2004
A. What is Evidence?
Evidence is information that may be used by the fact finder 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.] a. Personal Knowledge – A witness must have personal knowledge. A lawyer does not have personal knowledge. Therefore, questions asked by lawyers are not considered evidence. See Rule 602.
b. Under Oath – Lawyers are not under oath therefore questions asked by lawyers are not considered evidence.
c. Cross-Examination – Lawyers are not subject to cross-examination therefore questions asked by lawyers are not considered evidence.
2) Documentary Evidence – documents, such as writings, that have been introduced following proper foundation [8:425 et seq.] d. Authentication – Documents require authentication. See Rule 901. This is required because we want to know that the document being offered is actually what it purports to be.
3) Real Evidence – tangible, material, actual things [8:360 et seq.] e. Examples – Guns, knives, drugs, etc.
f. Authentication – Usually must be authenticated by a chain of events (i.e. how it was treated from seizure to trial, etc.)
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)
4) Judicially Noticed Facts – well known or obviously determinable [8:801 et seq.]. This doesn’t happen often.
g. Example – A day of the week a certain event took place (i.e. Jan 12, 2004 was a Monday).
5) 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.] h. Examples – Visual aids, charts, etc.
i. Photographs – Depending on the context, may be demonstrative or documentary. More later.
j. NOT PART OF THE EVIDENCIARY RECORD AND IS NOT USED IN THE JURY ROOM. 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 eviden
o 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 – hearsay.
Hearsay is an out of court statement offered in court and offered to prove the truth. THERE ARE MANY EXCEPTIONS!!
Rosen says you only need 25 rules. Focus of this course will be on: hearsay, character evidence, foundation evidence, competence, policy rules (i.e. 407), habit evidence, prior bad evidence rule (404b).
Overview of the trial process:
1. Veneering panel – group of potential jurors.
2. Voir Dire (Latin for “to see, to speak”) – questioning of the jurors to determine impartiality (State courts – attorneys do it, Federal courts – done by the judge)
3. Lawyers are allowed to challenge after voir dire for CAUSE (based on juror’s testimony) or PREEMPTORY CHALLENGES – allow a lawyer to discharge jurors. In Civil Trials – both sides get 4, Criminal Trials – Govt’s gets 6, Defendant get 10.
4. Opening statements – Tell the jury what the facts will prove. Some lawyers think of making a contract with the jury (i.e. “In this case, the evidence will show…”). This is not when you argue or posture the case. The most effective are simple recitations of the element. You want to get the jury to think of the case the way you are thinking about the case. The key is to boil the case down and distill the proofs. This begins with preparation and is outlined during opening statements.