Evidence Outline

Evidence
Langham
Summer 2012
 
v  Introduction
Ø  FRE were designed to help us determine what evidence is going to be allowed in trials.
Ø  If can’t introduce something in court, it doesn’t exist.
Ø  What is evidence?  It depends on whatever the judge or jury thinks it is.
Ø  Prosecutor and defendant have a right to a jury trial.  Both sides have to agree to a bench trial in order for there to be a bench trial.  The judge has no discretion in the matter. 
v  Acceptance or Exclusion of Evidence
Ø  Is the evidence relevant?  If no, evidence excluded; if yes, ask next question:
Ø  Does another rule of evidence exclude the evidence?  If Yes, evidence excluded; if no, ask:
Ø  Does the evidence survive a 403 analysis?  If not, evidence is excluded, if yes, evidence admitted.
v  Rule 403
v  Types of evidence
Ø  Testimonial – witness answers to questions under oath (credibility)
Ø  Tangible
§  Real – ex. keys, gun
§  Demonstrative
·         Ex. not the actual item itself, but a photograph of an item.  It helps to clarify the testimony of the witness.  It doesn’t come into evidence – it is not admitted.  At what point can you show demonstrative.  “May I publish by way of demonstrative?” – this is the way the lawyer is able to show the demonstrative evidence to the jury.    It’s just a blow-up of the actual evidence you have – the evidence can go back with the jury, but not the demonstrative.
Ø  Direct v. Circumstantial – it depends on the facts of the case which one is better.
§  You will always make inferences when dealing with evidence.  There is loads of circumstantial evidence in real trials.
v  Role of the judge
Ø  Time limits of presenting evidence
§  Judge asks both attorneys how long they think it will take to try the case, then judge will make a determination.
Ø  Order of witnesses and their testimony (very rare for a judge to get involved in this discussion)
Ø  Comments on evidence (also very rare)
Ø  Questioning witnesses (also very rare)
v  Rule 102 – Purpose and Construction
Ø  These rules shall be construed to secure fairness in administration, elimination of unjustifiable expense and delay, and promotion of growth and development of the law of evidence to the end that truth may be ascertained and proceedings justly determined.
Ø  They were created because we needed some rules.  48 states use the Federal Rules of Evidence.
v  Rule 403 – Exclusion of Relevant Evidence on Grounds of Prejudice, Confusion, or Waste of Time
Ø  Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.
Ø  This is commonly referred to as the 403 balancing test and is very important.
v  Rule 611 – Mode and order of interrogation and presentation
Ø  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.
v  Time limits of presenting evidence
Ø  U.S. v. Reaves
§  Criminal tax fraud case, parties object to time limits set by the judge
§  Prosecution wanted a longer time period.  Judge doesn’t allow it and says it is a waste of judicial and public time. 
§  Why not leave it up to the attorneys?
§  If they waste jury’s time, they will pay for it, it will be self-regulating?
§  Unfair denial infringing on each side’s strategic presentation?
§  Judge’s reasonable discretion – how bad of a limitation would it have to be in order to be reversed on appeal?  What if judge had only given them 2 days?  That might be grounds for appeal?
§  Is the judge being unfair to the jury – who may need the extra attention and information (since it was a complicated tax fraud case)?
§  Who is the judge’s client in the case?
·         The Public – taxpayers (who pay for the courts; not litigants’ filing fees)
§  What about litigants who file many (and long) pre-trial motions – wasting judicial resources?
Ø  Stone v. Peacock
§  Stone sues 3 correction officers for employment termination as retaliation for speaking out.
§  What does judge require?
·         That Stone testify first – why?  To lay out chronology for the jury.
§  Why did Stone’s attorney object?
·         Messed up the presentation, but what’s the harm, if any?
·         Should it be up to the attorney, or up to the judge, as to how to set up the chronology of the case at first?
·         Why no cross-examination of Stone?
·         Neither side prepared?
·         Should judges sit back and let the attorneys take control or should they be involved ‘protecting’ the public and the jury?
Ø  US v. Yates
§  Robbery conviction appeal, says his confession was not legitimate
§  Exhibit 2 was admitted – his written, signed confession at issue
§  What does prosecution want to do with Exhibit 2
·         Read it to the jury – D objects
§  What does judge do?
·         Agrees, says it will not be read, the jury can read it for itself, but also comments that it is clear Yates confessed to the bank robbery.
§  Prosecution – just a comment that the document is self-explanatory
§  Undermined defendant’s entire defense – once the comment is stated, it affects whole case.  “Can’t really unring that bell.”
Ø  Comments on the evidence
§  How realistic is it to expect attorneys to object to judge’s comments on the evidence?
§  Would you object in front of the jury or in a bench conference?
§  What if this were a bench trial?
·         Judge, in your capacity as the fact finder, please disregard what you said in your legal capacity as judge.  Can’t really do this – only avenue is to appeal.
v  Rule 614 – Calling and Interrogation of Witnesses by Court
Ø  Calling by court.  The court may, on its own motion or at the suggestion of a party, call witnesses, and all parties are entitled to cross-examine witnesses thus called.
Ø  Interrogation by court.  The court may interrogate witnesses, whether called by itself or by a party.
Ø  Objections.  Objections to the calling of witnesses by the court or to interrogation by it may be made at the time or at the next available opportunity when the jury is not present.  (Do this out of the hearing of the jury – ask to approach the bench.)
v  Crandell v. US
Ø  Medical malpractice case, daughter, failure to diagnose spinal meningitis.
Ø  Issue?  That judge badgered their expert witness by ridiculing the doctor for saying he can diagnose this problem without looking at the history, just look at the physical symptoms.
Ø  But there was no jury, it was tried to the judge, so isn’t it helpful to hear what the judge is thinking and try to respond to it?  “Inhibit” the witness and counsel?
Ø  The judge also prevented the cross-examination of the plaintiff’s most important witness.
Ø  Shouldn’t the judge allow and disregard, rather than fight?
Ø  Many trial attorneys wish they knew what jurors were thinking so they could address their issues, and even skepticism, during trial.
Ø  Ok if the judge were thinking all these things but just stayed quiet during trial – open-minded?
Ø  What about the appearance of justice and a fair fight?
v  Objections
Ø  Two basic reasons
§  To prevent the introduction of evidence, and
§  To preserve error for appeal when such evidence is admitted over objection in admission of that evidence for appeal.
§  The objection must be timely (must be before the witness answers the question).  What if the witness already answers the question before you fully get your objection out?  Then you move to strike.
§  Failure to object will often waive evidentiary error on appeal.
Ø  The court either
§  Sustains the objection, agreeing that the testimony or evidence is not admissible, or
§  Overrules the objection, finding that the evidence is admissible.  (Always thank the judge even if your objection is overruled.)
v  Rule 103 – Effect of Erroneous Ruling
Ø  Error may not be predicated upon a ruling which admits or excludes evidence unless a substantial right of the party is affected, and
§  (1) 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
§  (2) 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 preserve a claim of error for appeal.
Ø  Very seldom will an appellate court overrule a judge’s decision about whether or not to admit evidence.
v  Offer of proof
Ø  This is to ensure that you can appeal on this objection later on.  You ask for a bench conference or to dismiss the jury, and you can ask the witness the question. 
Ø  Made outside the presence or hearing of the jury.
Ø  Offers of proof are made by asking the witness in question and answer form what they would have asked had the objections been overruled, or;
Ø  The attorney summarizes the evidence for the record.
Ø  Ex. Narcotics case.  Clear plastic bag with white powder.  Officer field-tests it and finds that it’s cocaine.  It’s ta