Halushka
Evidence
Fall 2011
Introduction
Types Of Evidence
Jury Instructions
i. Evidence
1. Jury makes decision based on what saw/heard in court. Only what witnesses said while testifying under oath, all exhibits in evidence, all facts, which are stipulated or judicially noticed.
ii. Not Evidence
1. Counsel statement/arguments, judge comments/questions, objections
Witness Testimony
i. Not questions, only answers that provide context to questions
ii. Direct/cross examination
iii. FRE 602-personal knowledge
iv. FRE 601-Must be competent to make that testimony
v. FRE 603-Must be under oath
vi. Verbal or non-verbal
Real/Material Evidence
i. One fact at issue, substantive impact in trial
ii. Tangible
iii. Requires authentication (FRE’s 901 & 902)
iv. Ex.) Defective tire, cut brake line, murder weapon
Documentary Evidence
i. Things that describe a transaction
ii. Admitted by judge-determines authenticity
iii. Requires authentication, includes hearsay issues
iv. Ex.) Ks, transactions, recordings, photos, medical records
Facts Proven By Judicial Notice/Stipulation Of Parties
i. Stipulation Of Parties
1. Ex.) Agree with other party that its cocaine
2. Not in controversy
ii. Judicial Notice Facts
1. Very obvious/easily observed, widely accepted and judge accepts as true
2. Ex.) The date, street location, TV schedule
Demonstrative Evidence
i. Not evidence/not fact to be proven
ii. Helps jury get picture of events that occurred/descriptive
iii. Ex.) Victim picture, prepared map
Categories Of Evidence
Direct
i. Link from the eyewitness about what happened
ii. Ex.) Witness said rain was falling, photos
Circumstantial
i. Chain of circumstances that indirectly proves a fact, done through inference to come to conclusion that fact you are trying to prove is true.
ii. Ex.) Person comes into class with wet coat/umbrella, trying to prove that it was raining outside.
HYPO
i. Whether Smith shot Jones
1. Direct-eyewitness saw S shoot Jones
2. Circumstantial-fingerprints, powder residue, bullet
Examination
Direct Examination
Leading Questions
i. Ex.) We talked about evidence, didn’t we?
ii. Witness is acknowledging facts stated in question/coached
iii. HYPOS
1. He was wearing a cowboy shirt, wasn’t he?-LEADING
2. Was he wearing a cowboy shirt-NOT LEADING
3. Was his shirt a cowboy shirt-LEADING
4. Was it a plain or cowboy shirt-NOT LEADING
5. What was he wearing-NOT LEADING
FRE 611(c)-Leading Questions
i. Leading questions should not be used on direct exam of witnesses
ii. EXCEPT as may be necessary to:
1. Adverse/Hostile Witness
a. Connected with other side
b. Your witness doesn’t comply-declare hostile
2. Develop Testimony (Timid, Stupid, Adverse, Old Witness)
3. Preliminary Matters
4. Uncontested Matters
5. Foundational Issues
6. Expert Qualifications
Cross Examination
Always ask leading questions
Not eliciting testimony, trying to prove established testimony is not credible
FRE 611(b)-Scope Of Cross
i. Cross-exam should be limited to the subject matter of direct exam
1. Ex.) Was the car in the accident red?
ii. AND matters affecting the credibility of the witnesses
1. Ex.) Ability to perceive in “My Cousin Vinny”
2. Perceive, communicate or recall
3. Witness bias
4. Other Issues
a. Inconsistency, reputation for untruthfulness, witness conduct relating to credibility, prior convictions
1-A: Page 25 (Objection Beyond Scope Of Direct)
i. Now D, you and B are seeing each other right?
1. FRE 611(b)-not beyond scope, not related to red light, credibility is affected by relationship
ii. Its true, D that at the time of the accident, B was looking out the back window
1. FRE 611(b)-not beyond scope, relates to subject matter of testimony (accident)
iii. D did you and B go to lunch and she drank three glasses of wine before the accident
1. FRE 611(b)-sustained, only testified about F’s negligence, not B’s
Objections
FRE 103(a)(1)-Objection
Error will not be found from an erroneous evidentiary ruling unless a substantial right of a party is affected and the objection was:
i. Timely
1. Made at the time evidence is offered
2. After objectionable question, before witness answer
3. Motion to strike-if not timely
ii. Specific Grounds For The Objection Were Stated UNLESS
1. State the right rule
2. If wrong ground-doesn’t preserve it for appellate review
iii. The Specific Ground Is Apparent From The Context
Types
Substantive
i. Rest on evidentiary subjects of law
ii. Case law, statutes, FRE
iii. Ex.) Hearsay, privilege, improper character evidence
Formal
i. Form of the question and how its asked
ii. Exs.) Asked and answered, assumes facts not in evidence, argumentative, compound question, leading question, misleading question, speculative question, ambiguous question, non-responsive to question, narrative
General
i. Ex.) Not fair, can’t do that, object/withdraw, motion in limine
ii. Doesn’t preserve issue for appeal
Common/Improper
Forms
Motion In Limine
i. At the threshold/pre-trial motions
ii. Obtain evidentiary ruling before trial
1. Provide predictability
2. Keep evidence out/get evidence in
iii. Not necessary to make continuing objections on evidence, as long as there is a definitive ruling on motion in limine
Motion To Strike
i. When objection isn’t made timely
ii. Needs to be timely/made at earliest opportunity
iii. Judge admits conditional evidence
Offers Of Proof
i. Judge has excluded evidence
ii. FRE 103(a)(2)-Offer Of Proof
1. Establishing what witness will testify to so that evidence will come under some other rule
iii. FRE 103(b)-Voir Dire The Witness
1. Court can call for record to be made as to the offer of proof.
2. Witness has to testify
3. Made outside presence of jury/ONLY jury trials
1-B: Page 46
i. Testimony: AB car was traveling 50 MPH before collision. CD didn’t object, AB did.
ii. FRE 103-made timely objection, AB stated grounds, this would affect CD’s substantial right. Objection is proper.
Relevance (Admissibility Not Sufficiency/Weight)
RELEVANCE ANALYTICAL MODEL
Is the evidence relevant under FRE 401
i. No-inadmissible
ii. Yes (FRE 403)-is there a danger of unfair prejudice?
1. Yes
a. Are there alternative forms of proof?
i. Yes-Alternative Evidence
1. Is there alternative proof more probative/less prejudicial
2. Yes-probative value of evidence is discounted/is the prejudicial value greater than the probative value of the proffered evidence
a felon, only slightly prejudicial. Nature of charges/similar nature of prior convictions, risk of unfair prejudice is higher.
2-E: Page 79
i. Passenger is killed when struck from behind by speeding car
ii. Evidence Relevant?
1. Trooper statement to speed-Relevant
a. F-speed at impact is consequence
b. T-makes it more probative that it would occur
c. M-is of consequence
2. Manslaughter Plea-Relevant
a. F-can prove wrongful death claim
b. T-has some tendency
c. M-is of consequence
iii. FRE 403-Prejudicial?
1. Trooper testimony-only probative
2. Manslaughter-misleading/confuses issue not admitted
Limited Admissibility
FRE 105-Limited Admissibility Of Facts
i. Evidence is admissible for one purpose/party
ii. Not admissible to another purpose
1. Ex.) Character trait not used for impeachment
iii. If admitted the court SHALL ON REQUEST (mandatory)
1. Restrict the evidence to its proper scope-AND-
a. Ex.) Impeachment evidence
2. Instruct the jury accordingly
iv. Only consider evidence for allowable purpose
2-G: Page 80
i. Whoever screws up, insurance pays, invokes FRE 411 that evidence of insurance isn’t admissible.
ii. This comes in and provides limiting instruction that it doesn’t determine if insurance covers/pays only used to show potential fault
FRE 106-Rule Of Completeness
i. When a writing/recording statement or part of it is introduced
1. Ex.) Video clip
ii. Adverse party may require admission of any other part
iii. Which ought in fairness be considered
1. Balance of statement should be considered (to put in context)
iv. When evidence is offered for substantive reasons
1. NOT IMPEACHMENT
2-H: Page 82
i. P called as adverse witness, testifies pilot error in letter, testifies on stand that it was plane error that caused crash.
1. FRE 106-portions of letter should be admitted if letter is examined on cross by P’s attorney.
Mode/Order Of Interrogation
FRE 611-Mode/Order Of Interrogation/Presentation
i. (a)-Court shall exercise reasonable control over mode/order of interrogating witnesses and presenting evidence
1. FRE 403-avoids wasting time
2. Protects witnesses from undue embarrassment
ii. (b)-Scope Of Cross-Exam
iii. (c)-Leading Questions
Writing Used To Refresh Memory
FRE 612-Writing Used To Refresh Memory (PRESENT MEMORY REFRESH)
i. If witness uses writing to refresh memory/memory is temporarily exhausted for purpose of testifying:
1. While Testifying-OR-
a. Ex.) Show witness previous written statement while on stand
b. Writing is not admitted, only triggers oral testimony
i. Take it back before testifying
c. Testifies from own memory
2. Before Testifying
a. If court determines necessary (discretionary)
b. Adverse party is entitled to have writing produced at hearing to inspect
c. To cross-exam witness on writing
d. Introduce portions that relate to witness testimony
