Evidence
FALL 2006
Professor Robinette
Article I. – Introduction.
I. Why do we have evidence law (Policy Arguments)
a. Mistrust of juries (the biggest reason).
b. To ensure accurate fact finding.
c. Serve substantive policies of the matter being litigated (Allocation of burdens for example)
i. Preponderance of the Evidence (lowest burden of proof know to law – more likely than not)
ii. Clear and Convincing
iii. Beyond a reasonable doubt.
d. Further substantive policies unrelated to the matter in litigation (extrinsic substantive policies)
i. Rules in this category seek to affect behavior or quality of life outside the courtroom. (Privileges)
e. (Efficiency) To Control the scope and duration of trials, because they must run their course with reasonable dispatch.
i. Achieving a resolution is valuable, even if not perfect.
II. Making the Record.
a. What is the Record (only prepared when appeal is filed and prepared by appellant)
i. Pleadings.
(1) Complaint, Answer, New Matter, Counterclaim etc…
ii. Filed documents.
(1) Motions and briefs, discovery etc…
iii. The record of the proceedings.
(1) Puts into permanent form the testimonial evidence presented in the trial of the case, questions, objections, arguments, comments, and stipulations offered at trial by lawyers and rulings orally announced by the trial judge.
(2) A daily transcript is available.
(3) This portion of the record is critical in preserving for review the various points of evidence raised by the parties during trial.
iv. Exhibits.
(1) Included whether or not “admitted” into evidence for consideration by the trier of fact.
v. Docket entries.
(1) Ledger of proceedings kept by the clerk of courts in chronological order.
III. Pitfalls in making the Transcript
a. Echoing. – do not repeat the witnesses answer before proceeding to the next question. DON’T SAY OK after every question.
b. Overlapping – Whenever possible avoid jumping in …be clear who has the floor to the reporter can keep up with who is talking.
c. Numbers, names and big words – clarify the record whenever necessary because sometimes open to interpretation ….including spelling the words or clarifying what the witness is speaking of.
d. Exhibits – find an unambiguous way of refereeing to evidence…refer to the evidence by exhibit number.
e. Pantomime, nonverbal cue, gesture, internal reference – clarify in words to get on the written record.
f. Going off the record – The point here is to avoid cluttering up the record – make sure you get back on.
IV. How evidence is admitted.
a. Getting evidence in: Foundation and Offer
i. Testimonial Proof – Direct Examination – the lawyer tries to do three things with the live witness:
(1) (Phase 1) Brings out backround information (name, occupation, marital status—basic facts)what is going on here is as follows:
(a) Opening basic questions put the witness at ease.
(b) Along with the oath ritual impresses on the witness the seriousness of the occasion to behave responsibility.
(c) Familiarize the jury with the witness.
(2) (Phase 2) Each attorney “lays the foundation” that shows the witness has “personal knowledge” of the matters to which he will speak.
(a) Placing them at the scene of the accident
(b) In the case of an expert – the special skills and trainings providing the basis for testimony on unfamiliar matters and technical data.
(3) (Phase 3) Substantive questions getting the witnesses personal knowledge of the pertinent facts.
b. Form of questioning.
i. FRE 611(c) – N
amental to the adversary system that each party is responsible for making his own case and thus it follows that he should have considerable latitude to arrange his own presentation, hence control the order which evidence is introduced.
(3) Credibility is not beyond the scope of rule….its in the rule
(4) Argument against the rule:
(a) Administration…how much cross do we allow (see below)…judge has discretion.
(b) Impediment to truth – not allowing all relevent cross may not full yield the truth.
(5) Rule does not purport to determine the extent to which an accused who elects to testify thereby waives his privilege. When accused testifys..cannot raise 5th amendment as a shield against cross
(6) Always look at what the witness is testifying to before arguing what interpretation of this rule should apply.
(7) Three ways to interpret scope of rule:
(a) Points raised (Narrow/Majority Rule) – cross limited to facts raised on direct – color of light
(b) Transaction Described (Broader) – transaction or occurance of Entire event…what happened at the intersection.
(c) Issue Affected (Broadest) – Negligence of Defendant or Negligence of both parties.
c. Real Evidence.
i. Is tangible things directly involved in the transaction or events in litigation.
The gun, the defective steering wheel, the tire, the knife, the leg, the wound or injury by client, the written embodiment of the terms of agreement….etc…
