EVIDENCE
GLAZIER
SUMMER 2012
Chapter 2 – The Process of Proof and the Structure of Trial
Evidence: Testimony and Exhibits
– Two general forms of evidence
o The first type is testimony of witnesses answering questions under oath (“direct examination” is where witnesses have the opportunity to tell their story, while “cross examination” is where the opposing attorney tests/attacks their credibility).
o The second type is exhibits, or tangible physical evidence, consisting of “real evidence” (actual items involved in the case), and “demonstrative evidence” (items created for trial to help clarify testimony)
Direct and Circumstantial Evidence
– Direct Evidence is eyewitness testimony which, if true, does not require the fact-finder to make an inference to reach a factual conclusion on the case
– Circumstantial Evidence, if true, requires the fact-finder to make an inference to reach a factual conclusion in the case
– Neither is necessarily stronger or better evidence
Power and Discretion of the Trial Judge
– Trial judges have a great deal of power and discretion to run their courtrooms, rule on objections and motions, and set limits on lawyers, provided such power and discretion is exercised fairly and efficiently (REAVES CASE)
– Judges also have much power and discretion to control the mode and order of:
o Interrogating witnesses, and
o Presenting exhibits at trial (PEACOCK)
– Judges also have the power and discretion to comment on the evidence presented at trial, as long as such commentary is impartial (YATES)
– They can also question witnesses, but again, only if they do so impartially (CRANDELL)
Events at Trial
– Pretrial Conference
o there are several hearings in the weeks preceding the trial where the judge and lawyers meet and confer to narrow issues for trial, discuss witnesses and exhibits, and draft a “Pre-Trial Order” that serves to organize and govern the trial
– Pretrial Motions
o before trial, the judge will consider pretrial matters raised by the attorneys, such as “motions in limine”, where the attorneys request that certain evidence be admitted or excluded and that such decision be made now, instead of trial
– Jury Selection
o judge and counsel engage in questioning (voir dire) of potential witnesses to ensure the jury picked is impartial and unbiased
– Opening Statements
o Each side presents an introductory road map of what they think the evidence will show during trial
– Presentation of Evidence/Plaintiff or Prosecution Case in Chief
o Plaintiff or prosecution presents their case using their witnesses and exhibits. They do a direct examination of their witness, and the defense gets to cross examine them. Sometimes there is a re-direct (rehabilitation) of the witness and a re-cross
o Attorneys make objections during the questioning process if opposing counsel’s question is improper and/or calls for inadmissible evidence.
o Attorneys will also make a “motion to strike” if a witness answers a question by referring to inadmissible evidence.
o If an objection is sustained (upheld), then the attorney asking the question can make a Rule 103 “offer of proof” outside the hearing of the jury in order to preserve the evidence for appeal.
o An objection that is overruled is rejected, so that the question or evidence presented is deemed proper.
– Motions for Judgment as a Matter of Law
o If the plaintiff/prosecution fails to provide sufficient evidence upon which a rational jury could base a finding of guilt or liability, then the defense is granted a favorable judgment as a matter of law
– Presentation of Evidence/Defense Case-in-Chief
o This is the opportunity for the defense to present its case) its witnesses and exhibits) in the exact same manner as set forth in Step 5 above.
– Rebuttal and Surrebuttal
o After the defendants’ case-in-chief, additional witnesses can be called by either side to rebut (clarify or contradict) any testimony presented by either side in their case-in-chief. The “close of evidence” is after the last witness testifies
– Closing Arguments
o Each side has an opportunity to summarize the evidence and argue how the fact-finder should make findings and inferences based on the evidence provided during trial
– Jury Instructions
o The judge reads general admonitions to the jury about their deliberation process and the applicable law and legal elements to be applied in their deliberations
– Deliberations, Verdict Judgment
o The jury deliberates, renders a verdict and the judge enters a legal judgment based on the verdict, or on the judge’s factual findings in a bench trial.
Chapter 3 – Relevance – A Primer
Relevant / Irrelevant Evidence
– The initial inquiry into any evidentiary issue is relevance. It is a very low threshold: under Rule 401, if the proposed evidence has any tendency to make a disputed fact more or less probable (it has logical relevancy), and if it relates to a legal issue in the case (it has legal relevancy), then the proposed evidence is considered relevant. (ADAMSON CASE)
– Relevant evidence is admissible, provided that it does not violate any other rule of evidence.
o However, irrelevant evidence is always inadmissible under Rule 402.
Exclusion of Relevant Evidence
– Rule 403 gives the judge the discretion to exclude otherwise relevant evidence if the “danger of unfair prejudice” of the evidence substantially outweighs its probative value.
– The proposed evidence must contain so much unfair prejudice that it substantially outweighs the probative value (CARTER CASE)
– Rule 403 discretionary balancing test requires the danger of unfair prejudice to substantially outweigh the probative value, meaning that even If the danger of unfair prejudice merely outweighs its probative value, the proposed evidence will still be admissible.
– A strategic move to exclude evidence under Rule 403 is to offer to “stipulate” to a matter and thereby remove the justification for offering the evidence containing the unfair prejudice.
o “Stipulation” is a way to maintain some or all of the probative value of the evidence, yet still remove the unfair prejudice, because the evidence is not used
o A judge should consider an offer to s
inal defendant witness. (ROCK CASE)
A Witness’s Religious Beliefs
– Under Rule 610, a witness’s religious beliefs, or lack thereof, cannot be used to attack, bolster the witness’s general credibility.
– This represents the elimination of the common law competency disqualification of atheists or agnostics as witnesses.
o However, religious beliefs can be used for other purposes, such as possibly exposing a particular bias of a witness. (FIREMAN’S FUND)
Judges and Jurors as Witnesses
– Under Rules 605 and 606(a), judges and jurors are incompetent to serve as witnesses in a case in which they are serving given that their testimony would carry too much weight and opposing counsel might be reluctant to cross examine.
o However, after a verdict is rendered, a former juror may be called in a later proceeding attacking or supporting the former verdict under Rule 606(b), provided the juror testifies about “extraneous prejudicial information,” an “improper influence” on the jury, or a clerical error in transcribing the verdict form.
– Note that “internal” influences, even seemingly large, illegitimate influences (such as jurors drinking and taking drugs during trial) are still considered “internal” therefore, in such cases, a former juror would be incompetent to testify and the verdict will not be upset on appeal. (TANNER CASE)
– The policy concern is:
o Preserve verdict stability and
o Prevent harassment of former jurors
Oath or Affirmation
– Under Rule 603, witnesses must be willing to declare that they will testify truthfully by oath or affirmation administered in such a way as to awaken the witness’s conscience regarding their duty to tell the truth under penalty of perjury.
– There is no “official” oath, the witness simply needs to recognize the importance of telling the truth. (FOWLER CASE)
– Accordingly, the court has a great deal of discretion in formulating the particular words used for the oath for any witness.
Personal Knowledge
– Under rule 602, a witness is qualified to testify only regarding those matters about which the witness has personal knowledge.
o Thus, a witness may be competent to testify in general, but that competency is limited by the scope of the witness’s personal knowledge.
– Although there are exceptions to the rule, generally a witness can testify only to the extent of their personal knowledge – that is, the extent to which they actually perceived something first hand in the case (MCCRARY-EL CASE)
