Evidence – Prof. Capowski
Fall 2010
Evidence Law and the System
Why Rules of Evidence
i. Mistrust of juries
ii. To serve substantive polices relating to the matter being litigated
1. Burden of production or persuasion
iii. To serve substantive polices unrelated to the matter being litigated
1. Privileges
iv. To ensure accurate fact finding
1. Best evidence
v. To control the scope and duration of trials
1. Efficiency
Getting Evidence In
i. Scope of Direct Examination
1. Rule 611: Mode and Order of Interrogation and Presentation
a. Control by court: The court shall exercise reasonable control over the mode and 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.
b. Scope of cross-examination: Cross-examination should be limited to the subject matter of the direct examination and matters affecting the credibility of the witness. The court may, in the exercise of discretion, permit inquiry into additional matters as if on direct examination.
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. When a party calls a hostile witness, an adverse party, or a witness identified with an adverse party, interrogation may be by leading questions.
ii. Types of Evidence
1. Testimonial Proof
a. Direct Examination
b. Cross-Examination
2. Real Evidence – tangible things
3. Demonstrative Evidence – created for demonstrative purposes
4. Writings
iii. Pitfalls of Questioning
1. Echoing – repeating the witness’ answer
2. Not identifying items by name
3. Not verbalizing visual answers
4. Using big words or legal jargon
iv. Scope of direct examination options
1. Occurrence – the whole transaction or occurrence (an accident)
2. Issue – the overall theory (who was at fault)
3. The point raised – just the question asked (what color was the light)
4. Note: On appeal deference is given to the trial courts decision on scope of direct questions
Keeping Evidence Out
i. Objections – should be specific ad timely
1. Why we object
a. To preserve appeal
b. Inform the court
c. Inform opposing council
d. Inform appeals court
2. Substantive Objections – rest on particular exclusionary principles
a. Hearsay
b. Best Evidence
c. Privileges
d. Character evidence
e. Subsequent remedial measures
3. Formal Objections – focus on the manner of questioning
a. Asked and answered
b. Assumes facts not in evidence
c. Argumentative
d. Compound
e. Leading the witness
f. Misleading
g. Speculation or conjecture
h. Ambiguous, uncertain, and unintelligible
i. Nonresponsive to the question
4. General Objection – no reason given
a. When to use:
i. When context leaves no doubt
ii. When you need additional time
iii. When you don’t know why
1. Maybe the court will sustain it
5. What to do if an answer is excluded after it is given
a. Make a motion to strike
b. Ask for a mistrial
c. Ask the judge to instruct the jury to disregard
ii. Motion in Limine – “at the threshold”
1. Obtains a ruling on evidence in advance
2. Pre-trial request for an order on the inclusion or exclusion of specific evidence
3. No need to object to the evidence at trial unless you think the judge may have changed his mind
4. Your issue is preserved for appeal
iii. Offer of Proof
1. A lawyer faced with a ruling excluding evidence must make a formal offer of proof, if he want to preserve the point for later appellate review
2. The attorney offering proof will say what he expects the evidence will be. That way it is on the record.
a. Can be done at sidebar or in a Q&A after the jurors are removed
Error and Review
i. What we need for a appeal
1. Must show there was error and that it probably affected the outcome.
2. Must be based on a substantial right of a party being affected and must have been preserved
ii. Rule 103: Rulings on Evidence
1. Effect of erroneous ruling. Error may not be predicated upon a ruling which admits or excludes evidence unless a substantial right of the party is affected, and
a. Objection. In case the ruling is one admitting evidence, a timely objection or motion to strike appears of record, stating the specific ground of objection, if the specific ground was not apparent from the context; or
b. Offer of proof. In case the ruling is one excluding evidence, the substance of the evidence was made known to the court by offer or was apparent from the context within which questions were asked.
Once the court makes a definitive ruling on the record admitting or excluding evidence, either at or before trial, a party need not renew an objection or offer of proof to pres
is it now mountainous and windy
vii. Rule: The accepted rule that the prosecution is entitled to prove its case free from any defendant’s option to stipulate the evidence away rests in good sense. (Old Chief v. United States I)
1. Old Chief wanted to stipulate he was a convicted felon and the prosecution wanted to say he was convicted of assault causing injury
2. Reasons it is relevant
a. The party should be free to present their case how they see fit
b. Juror expectations – they would want to know
c. Descriptive richness
d. The jury may wonder why the party didn’t say
viii. Evidential hypothesis
1. Explaining why the proof is relevant
2. Steps
a. The defendant fled police
b. Flight shows consciousness of guilt
c. Consciousness of guilt shows consciousness of guilt for this particular crime
d. The defendant did this particular crime
3. Issues that arise
a. Length of time
b. Seriousness of another charge
ix. Hypo: Would an objection made by D1 or P1 be enough to preserve the issue for D2 or P2 on appeal
1. If the basis for the objection is the same as the basis for appeal it would be sufficient
x. Relevance is based in large part on context
1. Truth may be a defense to slander but not to extortion so whether or not someone is stealing money is only relevant in the slander suit
2. The more similar the situation is to the testimony the more relevant it is.
a. In a suit for negligence for a fall on a supermarket floor past falls may be relevant if it is the same wax and same wax machine. The prior falls may not be relevant if there is a new wax and a new machine. The les similar the less relevant
i. May show causal connection or notice of the condition
xi. Rule 104: Preliminary Questions
(a) Questions of admissibility generally. Preliminary questions concerning the qualification of a person to be a witness, the existence of a privilege, or the admissibility of evidence shall be determined by the court, subject to the provisions of subdivision
