Evidence Outline

EVIDENCE OUTLINE
I.        TRIAL PROCESS
A.       2 Types of Trials:
1.       Jury Trial – jury determines outcome
2.       Bench Trial – judge determines outcome
B.       Types of Evidence At Trial
1.       Real Evidence – generated by the case itself; ie: murder weapon, set of keys, etc.
2.       Demonstrative Evidence – used to illustrate & explain evidence in a case; ie: maps, photos, charts, experiments etc.
3.       Testimonial Evidence – witness testimony answering questions under oath
i.         4 Testimonial Capacities
a.       Witness’s Perception – interpretation of his/her own sensory data
b.       Witness’s Memory
c.        Logic & Clarity of Witness’s Story – how well do they communicate & how clear is the story?
d.       Witness’s Veracity to Tell the Truth – do they have any reason to lie?
4.       Direct Evidence – eyewitness testimony based on witness’s personal knowledge gained through senses; if true, it proves a fact w/ inferences & presumption
5.       Circumstantial Evidence – requires fact finder to make an inference to reach a factual conclusion in the case
C.      Evidence admitted at trial by “exhibits” – given a # or letter; 1 side gets one & the other side gets the other
D.      Judge’s Role
1.       Controls the trial process by setting limitations on lawyers in order to achieve justice & efficiency
2.       FRE’s give judges a great deal of power & discretion to run their courtrooms, rule on objections & motions, & set limits on lawyers, as long as power & discretion is exercised fairly
3.       Sources Of Judge’s Power Under FRE’s
i.         FRE 102 – PURPOSE & CONSTRUCTION
a.       Gives judge’s power to use FRE to “secure fairness” & “eliminate undue expense & delay”
b.       Gives them the power to set reasonable time limits on the various stages of trial
ii.        FRE 403 – EXCLUSION OF RELEVANT EVIDENCE ON GROUNDS OF PREJUDICE, CONFUSION, OR WASTE OF TIME
a.       Recognizes the power & duty of judge to use their discretion to exclude relevant evidence, that’s otherwise admissible, when its probative value is substantially outweighed by the danger of 1 or more of the following:
A)      Unfair Prejudice
B)      Confusion of Issues
C)      Misleading the Jury
D)      Undue Delay
E)      Waste of Time
F)      Cumulative Evidence
iii.      FRE 611 – MODE OF ORDER OF INTERROGATION & PRESENTATION
a.       Commands the court to “exercise reasonable control over mode & order of interrogating witnesses & presenting evidence” for 3 reasons:
A)      Make the interrogation & presentation effective for the ascertainment of the truth
B)      Avoid needless consumption of time
C)      Protect witnesses from harassment or undue embarrassment
iv.      FRE 614 – CALLING & INTERROGATION OF WITNESSES BY THE COURT
a.       Gives judges the right to call & question witnesses to clear up confusion or manage trials whenever necessary, BUT can’t ask questions that signal their belief
E.       Order of Events For Trial
1.       Preliminary matters
i.         Pre-Trial Conference – required by federal procedural rules to narrow the factual & legal issues & identify witnesses & documents that will be offered into evidence
ii.        Pre-Trial Motions – may be made to attempt to control admissibility of evidence
2.       Voir Dire – jury selection
3.       Opening Statements
i.         Plaintiff/Prosecutor goes first
ii.        D goes 2nd, but can wait until they present their case-in-chief
4.       P’s Case-In-Chief & Direct Examination; D’s Cross
5.       Possible – D’s Motion for Judgment as a Matter of Law
i.         Requests judge to conclude that no rational jury could find P’s evidence satisfies the applicable standard of proof
6.       D’s Case-In-Chief & Direct Examination; P’s Cross
7.       P’s Rebuttal Witnesses
8.       D’s Rebuttal
9.       P’s 1st Closing
10.    D’s Closing
11.    P’s 2nd Closing – optional
12.    Jury instructions
13.    Deliberations
14.    Appeal – optional
 
II.      RELEVANCE
A.       The Threshold question of admissibility of ALL evidence
B.       Whether evidence is “relevant” is always the starting point & threshold question that must always be asked 1st before considering anything else!!
C.      ALWAYS TRUMPS HEARSAY!!!!
D.      3 Rules to Determine Whether Evidence is Relevant:
1.       FRE 401 – DEFINITION
i.         Evidence having any tendency to make any fact of consequence more or less probative that w/o the evidence
ii.        2 Concepts:
a.       “Fact Of Consequence To Determination Of The Action” – does this fact relate to an element of the case?
A)      This turns on the requirements of the underlying substantive law
B)      Could be elements of a claim, defenses & facts relating to the credibility of the testimony
b.       “Any Tendency” refers to “Logical Relevance” – this evidence must be probative based on common experience & knowledge; it makes it likely; its more or less probable w/o the evidence
A)      Any increase or decrease in probability of a fact or consequence will suffice, no matter how small
B)      ASK:  Does it seem like a jury ought to know about it for whatever its worth?
iii.      Probative Value – does evidence itself have to prove the fact at issue?
a.       NO – it can be combined w/other evidence to prove/disprove a fact
b.       Its probative if it results in any increase/decrease in the probability of a fact or consequence, no matter how small
2.       FRE 402 – PUTS DEFINITION (401) TO WORK
i.         Provides that all relevant evidence is presumptively admissible
Once judge determines it’s relevant, 402 deems evidence presumptively admissible EXCEPT when other legal authority says otherwise; ie. Constitution, FRE, or other SC case or statute
 
 
3.       FRE 403 – DISCRETIONARY BALANCING TEST
i.         A discretionary tool that gives the judge the power to exclude even relevant evidence if its probative value is substantially outweighed by the danger of 1 more of the counterweights:
a.       Unfair Prejudice
A)      Most evidence is unfair if its harmful to you
b.       Needless Presentation of Cumulative Evidence
ii.        These exclusions are called counterweights & the process of balancing the strength of the relevancy of the evidence against the counterweights is called determining “Legal Relevance”
iii.      IF ANSWER TO A – F IS NO = THEN ADMISSIBLE;   IF YES = INADMISSIBLE
iv.      Conducting the Balancing Test
a.       FRE 401 – determine whether evidence has probative value
A)      Is there any possibility of making a fact at issue more or less probable than w/o the evidence
B)      YES – presumptively admissible under FRE 402
b.       Judge estimates the strength of the probative value; the extent to which the evidence will say the jury
c.        FRE 403 – judge determines strength of the 6 counterweights & decides whether they substantially outweigh the probative value
 
 
E.       FRE 105 – LIMITING INSTRUCTIONS
1.       This essentially tells the jury to ignore the danger of unfair prejudice associated w/something; ie: admit a photograph, but give jury limiting instructions so the jury doesn’t unfairly prejudice the P or D
F.       FRE 104 – PRELIMINARY QUESTIONS
1.       A – generally provides that the judge, not the jury, makes preliminary legal decisions about the admissibility of proposed evidence, such as the qualifications of witnesses to testify or the existence of a privilege not to testify
2.       B – occasionally, a relevant piece of evidence is conditioned upon proof of other facts, making it “conditional”
G.      LIMITATIONS
1.       Even though it's relevant & otherwise admissible, 407-411 has set forth additional policy reasons for excluding this evidence, such as:
i.         Encouraging people to remedy harmful or dangerous conditions
ii.        Preventing unjust results
iii.      Encourage parties to settle
2.       FRE 407 – SUBSEQUENT REMEDIAL MEASURES
i.         Generally, NOT admissible to show negligence, culpable conduct, a defect in a product or its design, or a need for a warning for instruction
a.       Someone gets hurt by a microwave & a warning label is put on afterwards – not admissible
ii.        This is any action taken after a harm or injury has occurred that measure attempts to rectify the cause or the harm or injury
iii.      This ONLY applies to actions taken AFTER the harm or injury
a.       Evidence BEFORE the harm or injury isn't excluded by this rule
b.       Offer Limiting Instructions
c.        Only applies to parties
iv.      Public policy for inadmissibility – we want to encourage people to fix the problem so others don't get hurt
v.        EXCEPTIONS:
a.       It's admissible for any other purpose not prohibited by the rule (listed above), including:   (NON-EXHAUSTIVE)
A)      Ownership & control
1)       Ownership &/or control MUST be at issue – not using to show negligence, but to show D owns the building
B)      Feasibility of Precautionary Measures
1)       To rebut a claim of feasibility of precautionary measures (it's not possible to make it safe)
C)      Impeachment
1)       Solely to impeach, but not to prove fault
3.       FRE 408 – SETTLEMENT OFFERS
i.         Broad rule of exclusion & covers:
a.       Actual Compromises
b.       Offers to Compromise
ii.        General Rule – settlement offers in civil cases aren't admissible to prove fault, liability or amount of damage, or to impeach through prior inconsistent statements or contradictions, including: 
a.       Settlement agreements
b.       Settlement offers or counter-offers
A)      You can't use a prior inconsistent statements or conduct as “another purpose,” but can use to impeach, even though you can use bias
iii.      Generally inadmissible b/c strongly favored by public policy – the law loves settlement & FRE won't let parties to use such statements against each other to prove fault
iv.      EXCEPTIONS:
a.       Bias or prejudice
A)      Evidence of compromise offers, acceptance, or negotiations are admissible to prove that a witness is biased or prejudiced
B)      Can't be