Evidence Outline

EVIDENCE
CLEMENT
SUMMER 2012
 
 
General Trial Process
–       Preliminary motions
o   Motions in limine
–       Jury selection
o   Veneer: whole possible jury panel
o   Voir dire
o   Challenges – for cause and peremptory
–       Opening statements
o   Statements, NOT ARGUMENTS
o   Can merely state the legal theories of your case
o   “The evidence will show…”
o   Prosecutor/π first
o   Δ can then go OR reserve opening statement until after π’s case in chief
–       Evidence is the answers to questions posed to witnesses and any physical exhibits that are admitted into evidence (real OR demonstrative)
–       Π’s case in chief
–       Π rests
–       Δ’s motion for DV
–       Δ’s case in chief
–       Δ rests
–       Π case in rebuttal
–       Π rests
–       Closing arguments
–       Court’s instructions to jury
–       Jury deliberations and verdict
Terminology
–       Record: everything that is stated in open court, recorded by the court reporter
–       Direct v. leading questions
o   Direct question: open-ended question, asks the witness to be descriptive or narrative in their answer
§  On direct examination, you cannot lead the witness
o   Leading question: question that suggests the answer
§  On cross examination only – good cross actually uses a lot of leading questions
§  Cross examination is limited to the scope of the direct examination that just finished AND issues of credibility
–       Direct v. circumstantial evidence
o   Direct evidence: evidence which, if believed, revolves the fact in issue
o   Circumstantial evidence: serves as the basis for which the trier of fact can make reasonable inferences
–       Foundation: bedrock of evidentiary law, fancy way of telling a story, need to lay the proper foundation for evidence to be admitted and explored
Procedural Rules:
–       FRE 103: Objections / Rulings on Evidence
o   Objections need to be BOTH:
§  TIMELY, AND
§  SPECIFIC
o   Need to object immediately after question is asked and before answer is given
o   Need to indicate on the record specifically WHY you’re objecting
o   If judge gets it wrong, ruling will not be overturned unless the requirements are met and a substantial right of the party is effected
o   Make an offer of proof: presentation of the court, more for the record, of what the now excluded evidence would have been
o   103 (e): allows for reversal on plain error
–       FRE 104: Preliminary Questions
o   Ex. whether a privilege exists, whether evidence is admissible
o   Standard = a preponderance of the evidence
§  REMEMBER to talk about weight vs. admissibility
§  Admissibility is for the judge to decide, weight to give the evidence is on jury
o   104(a) hearing
§  Similar to a motion in limine
§  Made outside the presence of a jury
§  FRE do not apply at the hearing
o   104(b): Conditional relevance – something is conditionally relevant where it is relevant only if something else is true
§  Weight vs. admissibility: court is deciding whether or not it is admissible, jury decides weight of the evidence
–       FRE 105: Limited Admissibility
o   If the court admits evidence that is admissible against a party or for a purpose — but not against another party or for another purpose — the court, on timely request, must restrict the evidence to its proper scope and instruct the jury accordingly
o   Limiting instruction: judge saying to jury that they may only consider the evidence for a particular purpose
o   Ex. of slip and fall with the messed up sidewalk – can use it to prove ownership but not negligence
§  They ask for a limiting instruction to say that evidence is admissible for the one purpose but not the other purpose
–       FRE 611: Mode and Order of Examining Witnesses and Presenting Evidence
o   Court should exercise control over this so as to:
1.    Make those procedures effective for determining the truth;
2.    Avoid wasting time; and
3.    Protect witnesses from harassment or undue embarrassment
o   611(b): scope of cross examination
o   611(c): leading questions
–       FRE 614: Courts Calling or Examining a Witness
o   Court can call someone and ask to hear from them
–       FRE 615: Excluding Witnesses
o   Sequestering all potential witne sses, not allowing them in the courtroom while other witnesses are testifying so that their testimony is not tainted by anyone else’s testimony
o   EXCEPTIONS: the parties, the prosecuting official like the lead investigator
Substantive Rules
Competence (Witnesses)
–       First level of analysis = is this person competent to testify?
–       Then – is evidence they’re going to testify about relevant?
–       FRE 601: Competence to Testify In General
o   Every person is competent to be a w