Evidence Outline – Professor Langham – Fall 2011
Evidence: A Contemporary Approach (Interactive Casebooks) Sydney Beckman, et al
Overview:
Federal Rules of Evidence – What information we are trying to get in and what is kept out
You have a right to a trial by jury – both sides have to agree to bench trial. Prosecutor has to agree to a bench trial
Questions to ask:
Is evidence relevant
Does another rule of evidence exclude the evidence
Does the evidence survive a 403 analysis (a balancing test)
Types of evidence:
· Testimonial – witness answers to questions under oath (credibility)
· Tangible
o Real – keys, the gun – things you can touch
o Demonstrative – charts, photos
o (blowups of gun, etc) can’t admit into evidence
§ When can you admit it – foundational evidence – series of questions – publish by way of demonstrative – can’t take the drugs or gun into jury room
· Circumstantial – make logical inferences – testimony, and tangible
o Used example of pulling most disliked student from class, has gun, goes into hallway and shoots them – other students come out and see him w/ gun – that’s circumstantial but make great inferences
The process of proof and structure of the trial:
Role of judge
Time limits of presenting evidence – in pre-trial meeting
Order of witnesses and their testimony (rare)
Comments on evidence (rare)
Questioning witnesses (rare)
FRE – Rule 102 purpose and construction
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 the truth may be ascertained and proceedings justly determined.
Rule 403 – exclusion of relevant evidence on grounds of prejudice confusion, or waste of time
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
This is commonly referred to as the 403 balancing test
This is important.
Rule 611 – Mode and Order of Interrogation and Presentation
(a) 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 the witnesses from harassment or undue embarrassment…
Time limits of presenting evidence
US v Reaves – Criminal tax fraud case, parties object to time limits set by the judge – Prosecution wanted to present numerous tax returns, take many hours/days to do it (a month), judge gave him 10 days
Rule 403
Judge’s concern – Wasting judicial time and resources, protect jury from being in court for a month
Why not leave it up to the attorneys – if they waste jury’s time, they will pay for it, thereby self-regulating
Unfair denial infringing on each sides strategic presentation
Judge’s reasonable discretion – how bad of a limitation would it have to be in order to be reversed on appeal
Is the judge being unfair to the jury – who may need the extra time and information
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 (an long) pre-trial motions – wasting judicial resources
Stone v Peacock – stone sues 3 correction officers for employment termination as retaliation for speaking out about missing funds – judge said he had to testify first to lay out the chronology
Why did stone’s attorney object – it messed up the presentation – but what the harm, if any?
Should it be up to attorney, or up to the judge as to how to set up the chronology of case
Why no cross exam of stone
Neither side prepared
Should judges sit back and let the attorneys take control or should they be involved ‘protecting’ the public and jury?
U.S. v. Yates – D accused of bank robbery, says that he didn’t know he was signing a confession
What does judge do? – Agrees, says it will not be read, the jury can read it for itself – Comments that it is clear Yates he confessed to the bank robbery – “everybody knows he confessed”
Prosecution: Just a comment that the document is “self-explanatory”
Undermined D’s entire defense
How realistic is it to expect attorneys to object to judge’s comments on the evidence? – basically cannot
Would you object in front of the jury or in a bench conference?
What is this were a bench trial?
Judge, in your capacity as the fact finder, please disregard what you said in your legal capacity as judge
Appeal and get a new trial because he’s already made up his mind before all the evidence is in.
Rule 614 – Calling and Interrogation of Witnesses by Court
(a) 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.
(b) Interrogation by court. The court may interrogate witnesses, whether called by itself or by a party.
(c) 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.
Crandell v. United States – a bench trial – med mal case – judge kept interrupting – daughter was failed to dx spinal meningitis – judge badgered the expert witness – ridicules doc for saying he can dx this problem without looking at hx, just looking at physical sx. – case was remanded with a different judge.
But there was no jury, 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 & counsel?
Judge also prevented cross-X of the most important defense witness
Shouldn’t the judge allow and disregard, rather than fight?
Many trial attorneys wish they knew what jurors were thinking so they could address their issues, and even skepticism, during trial
OK if the judge were thinking all these things but just stayed quiet during trial – “open-minded”?
What about the “appearance” of justice and a fair fight?
Order of Events: The Trial
Preliminary Matters – pretrial conference, pretrial motions, motions in limine – needs to be heard
torney summarizes the evidence for the record.
Judge not allowing ev or testimony to come in, you need to make it part of the record to try to get judge to allow it or for making an appeal.
Relevance
401 – DEFINITION OF “RELEVANT EVIDENCE” –means evidence having a tendency to make the existence of any fact that is of consequence to the determination of the action MORE PROBABLE OR LESS PROBABLE than it would be without the evidence
If scales tip just a little bit, then it becomes relevant – not a high standard
· 402 – RELEVANT EVIDENCE GENERALLY ADMISSIBLE; IRRELEVANT EVIDENCE INADMISSIBLE
All relevant evidence is admissible, except as otherwise provided by the Constitution of the US, by act of Congress, by these rules, or by other rules prescribed by the SC pursuant to statutory authority, evidence which is not relevant is not admissible.
PEOPLE V ADAMSON – there was a murder and there were D bloody fingerprints in her garbage compartment. Police went to his house and found parts of her stockings. D claims it’s not relevant. He was convicted, and appeals. Ct says there is a logical link between the stockings at her house and his house and denies appeal.
Evidence that tends to throw light on a fact in dispute may be admitted.
The weight to be given such evidence will be determined by the jury…
The admission of such evidence must be regulated by the sound discretion of the court
Moreover, except in rare cases of abuse, demonstrative evidence that tends to prove a material issue or clarify the circumstances of the crime is admissible despite its prejudicial tendency.
Rule 402 – Logic Map –
Is evidence relevant (yes) is evidence excluded by US Constitution (no) is evidence excluded by Act of Congress (no) is evidence excluded by FRE (no) is eve excluded by other rules prescribed by the SC (no) -> Evidence admissible
Rule 403 – Basic Map –
Is probative value substantially outweighed by the danger of unfair prejudice (no) Is …….of confusion of issues (no) is……misleading the jury (no) is……..by considerations of undue delay (no) is……needless presentation of cumulative evidence (no) -> Evidence admissible
Carter v Hewitt – inmate in prisoner brings claim that guards beat him – D want to admit letter they found in his cell in which he is encouraging others to file false complaints and start an uprising. P says it’s not relevant because it was written 6 mo.s after the alleged beating.
Ct says that – All Contrary Evidence is Prejudicial
The rule only protects against evidence that is unfairly prejudicial.
Ultimately this letter goes to credibility.
