Evidence
Professor Robinette
Fall 2016
Basics:
Why Rules of Evidence
Mistrust of juries
Serve substantive policies relating to matter in suit
Further substantive policies that are unrelated
*Ensure accurate fact finding*
control scope and duration of trial
Trial
Jury selection
Voir dire
Opening statement
Presentation of Proof
Party with burden of proof goes first
Witnesses
Demonstrative evidence
Real or original evidence
Documentary evidence
Trial motions
Closing argument
Instructions
Deliberations
Verdict
Post-trial motions
Appellate review
Record
Pleadings
Filed documents
Record of the proceedings
Transcript by court reporter: AVOID
Echoing, overlapping, numbers/names/big words, exhibits, pantomime/nonverbal cues/gesture/internal reference, going off the record, sidebar conference
Exhibit
Docket entries
Types of Evidence
Live testimony – witnesses
Direct testimony – cannot ask leading questions (611c)
Background facts
Foundation
Substantive questions
Cross examination – leading questions are allowed
Hitchhiking
Limiting
Impeachment
Scope-of-direct rule – 611(b)
Designed to control the presentation of the evidence
Cross examination must stick to the subject matter of the direct examination
Scope
Points raised – narrow, only exact things brought up in direct
Transaction involved – what happened, entirety of the event
Issue effects – can be unrelated to event, not allowed by most judges
Real evidence
Tangible, actual things involved in the transaction of the case
Must put forward information to connect the tangible item to the transaction
Demonstrative
Diagrams, computer generations, drawings
Must show that it is a fair and accurate depiction of the transaction
Writings
Objections
Timing – made before the answer but after the question
State reason – provide grounds to help judge make a decision
Substantive objections
Best evidence rule
Formal objections
Asked and answered
Assumes facts not in evidence
Argumentative
Compound
Leading the witness
Misleading
Speculation or conjecture
Calls for narrative response
Ambiguous, uncertain, and unintelligible
Nonresponsive to the question
Only needs to be made by one attorney
Admission/Exclusion
Motion in limine – objection to a piece of evidence prior to the trial beginning
Used by criminal defense attorneys in regards to whether past crimes can be brought in
Rule 103(b) – objecting again if not granted
Offer of Proof – 103(c)
Offering the proof that was objected – recording with the court what the witness would have said or the document
Timely and specific reason
Conditional Relevance – 104
A – judge makes the call as to whether evidence is admitted
B – jury makes final decision as to whether evidence is admitted
Judge plays screening role
Relevant during authentication and whether witness has personal knowledge
Relevance
Basics
Reasons for error
Rules are complicated, vague, parties trust lawyers
Types of error
Reversible – effected judgment
Harmless – did not effect judgment
Plain – error warrants relief
Constitutional – evidence should not have been admitted under constitution (criminal cases)
Doctrines (help to make reversible errors harmless)
ing insurance, and insurance paying if woman was at fault for the accident – some aspects of statement need to come in while others stay out
Completeness and Conditional Relevance
Completeness – 106
Two ways of implementation
Rule of interruption – other side must offer other parts at the same time writing is being offered
Rebuttal rule – adverse parties can answer an incomplete presentation later
Unresolved if rule of completeness trumps hearsay
Conditional Relevance – 104
A – judge decides preliminary questions
B – jury decides when relevance depends on whether a fact exists
Probabilistic Proof
Product Rule – probability of the joint occurrence of a number of mutually independent events is equal to the product of the individual probabilities that each of the events will occur
Problems
Probabilities may not be accurate
Only gives probability – doesn’t prove guilt
Must assume all characteristics are true
Undermines beyond a reasonable doubt standard (no exact %)
Collins Case – probability that a mix raced couple in yellow car would be present at that time was small
Sometimes used in civil law (paternity, DNA) for preponderance of the evidence standard (<50%)
Market share liability – spreading damages, damages are split between all possible defendants
Willing to use statistics for damages, but not guilt
