Evidence Outline

Evidence Outline [Glazier 2013] What the hell is evidence? Testimony, writings, material objects, or other things presented to the senses that are offered to prove the existence or nonexistence of fact.
FRE
(Applies in Fed. Ct’s) – regulates/restricts what evidence is admissible & how to introduce it. MOST FRE TELLS US WHAT TO EXCLUDE.
Why have FRE? · protect jury from misleading info · eliminate unnecessary delay/promote efficiency · protect social interests 
· ensure evidence is suff. reliable.
FRE 101—Where? U.S. Ct’s.
FRE 1101 – lists category of Fed. Ct’s subject to rules. (district, bk & magistrate judges, appeals ct., fed claims ct., Guam/VI)
o    ≠ apply in U.S. Supreme Ct.
o    ≠ apply to summary contempt proceedings  (when the judges have the power to impose summary contempt when they directly witness contemptuous behavior, and further adjudication under FRE is not necessary)
FRE 1101(b)—when do FRE apply? Civil / Criminal / contempt unless (look up & look down at exceptions)
 
The FRE do NOT apply to the following
Preliminary Questions of Fact (FRE 104)
·         Under FRE 104, judges make preliminary questions of fact whenever a party challenges the admissibility of evidence, and can do so without following the FRE
·         Example
~         Determining if a witness is qualified as an expert witness
~         Determining whether a hearsay exception applies
Grand-Jury Proceedings
This is a prosecutor dominated proceeding where there is no judge presiding over the proceeding, and in federal courts, neither the potential defendant nor the defense attorney is present.
Prosecutor decides what evidence to present, and if the grand jury returns an indictment, it’s NOT a conviction.
Miscellaneous Proceedings, such as (non-exhaustive list):
Extradition or rendition
Issuing an arrest warrant, criminal summons, or search warrant
Preliminary examination in a criminal case (only determines if there is probable cause)
Sentencing (often center of evidence the FRE would otherwise exclude, like prior convictions)
Granting or revoking probation or supervised release
Bail hearings
 
Exception:  Privileges à rules on privileges apply to ALL STAGES of a case or proceeding – a judge must comply with the FRE when making a preliminary decision as to whether a privilege applies at ALL STAGES of a case. (FRE 1101(c)), including grand jury proceedings, preliminary questions of fact, and the other miscellaneous proceedings that are otherwise excluded from the FRE.            
Why? If this were not the case, the confidentiality promised by the privileges would be breached
TYPES OF COURTROOM EVIDENCE
Oral Testimony: witnesses answering questions under oath (credibility).
Fact Witnesses: [eyewitnesses] perceived facts related to the lawsuit and testify about those facts.
·         Must have personal knowledge (FRE 602) & be competent (FRE 601) to testify
Expert Witnesses: use specialized knowledge or training to interpret evidence or explain it to the jury. (FRE 703)
·         May, but is not required to have personal knowledge to testify
Character Witnesses: offer information about the good or bad character of a party or witness.  They do not testify about facts directly at issue in the lawsuit.à Limited by FRE 404, 405, 608
 
Real Evidence: physical evidence generated by the case parties want to present at trial to prove the existence or nonexistence of a fact [actually involved in the controversy] (murder weapon, bloody shirt)
·         No more important than any other evidence, but to be admissible, it must first be authenticated by laying a foundation with some proof that is sufficient for a reasonable jury to believe physical evidence is what s/he claims it to be [FRE 901-903] ·         Jurors tend to be fascinated by real evidence, so good lawyers use it whenever possible as it tends to make a story more concrete and more believable to jurors.
·         Documents: [MOST = SUBCATEGORY OF REAL E.] any type of writing or recording of information. 
·         Photos & Videosà if it depicts controversy directly = RE (compare to demonstrative) MUST pass FRE 901 (authentication) & FRE 1002 (best evidence rule)
 
How is real evidence admitted into evidence? “Exhibits”
In order to be admissible, Exhibits must be introduced by: àGiving it an exhibit number or letter- If Prosecutor’s exhibits are numbered as admitted (i.e., “Plaintiff’s Exhibit #1), then Defense’s exhibits will be lettered (“Defendant’s Exhibit A”) AND àShowing it is authentic (FRE 901)à authentication is a process that merely requires that the judge views the evidence only to see if there is sufficient evidence so a reasonable jury could find that the evidence is what it is claimed to be.- Typically by questioning a witness with knowledge of its accuracy
–          With tangible real evidence, the trier of fact (judge/jury) uses his/her own personal interpretation of the evidence by viewing/considering the exhibits themselves instead of being dependent on a witness’s interpretation of the evidence based on his/her senses.
 
Documents – Any type of writing or recording of info (contracts, wills, faxes, emails, etc.) – Really a subcategory of “real evidence.”
So common & critical, several special rules govern the use, including hearsay (out of court statements being offered), authentication, & best evidence rule.
 
Demonstrative Evidence: used to illustrate and explain the evidence in a case. IS A RE-CREATION OR IMITAITON OF THE CONTROVERSY
·         Sometimes physical, but unlike real evidence, it is not an object that played a role in the disputed events
o    Maps, photos, charts, experiments, computer simulations, etc.
·         Judges tend to be more cautious about admitting this type of evidence b/c it is a re-creation / imitation & lawyers are clever.
·         Photos & Videosà used for DE, must be authenticated by a witness to say that it represents a true depiction of what it demonstrates.  (compare to real evidenct)
 
Stipulations: when both parties agree on a fact, they can stipulate that the fact is true for purposes of litigation and not further evidence is needed to prove that fact.
Both parties must agree to the exact language and then the judge or proponent of the evidence reads the stipulation to the jury.
 
Judicial Notice: if a fact is indisputably true, the judge can take judicial notice of the fact, but the fact must be “generally known” or “accurately and readily determined.” Aka—uncontested matter.  Limitation à only Adjudicative facts (i.e. activities, biz, property, etc. of parties)
 
Direct v. Circumstantial Evidence à FRE ≠ use these terms; atty & judges do to deter if E. directly or circum. est. a fact at issue.
 
Direct Evidence: eyewitness testimony based on witness’s personal knowledge gained through senses (sight, smell, sound, touch, and taste).  If true, it proves a fact without inferences or presumptions.
Evidence: witness saw husband stab his wife à Fact: Defendant/Husband stabbed his wife
 
Circumstantial Evidence: requires a fact-finder to make an inference to connect the evidence with the disputed fact to reach a factual conclusion in the case. 
The longer the chain of inferences between a piece of evidence and the fact you need to prove, the less powerful
Evidence: witness saw husband washing bloody knife à Inference: few innocent reasons to be washing a bloody knife à Fact: Husband stabbed wife
 
**NOTE: the FRE treats direct and circumstantial evidence the same; circumstantial evidence can support a verdict as effectively as direct evidence [usu. Direct is more reliable & stronger, but not always, b/c based on eyewitness testimony that brings reliability, bad memory, bad eyesight, etc. Although FRE treats the same, w/ circum. E the longer the chain of inferences b/t a piece and the fact you need to prove, the less powerful (jury will less likely reach the decision you want). *always search for E w/ fewest inferences*
 
Present evidence in a step-by-step fashion by crafting Q’s for a witness to put together a story in a understandable, persuasive manner.
i.e. paint a picture OR put a puzzle together.
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
SOURCES OF JUDGES POWER UNDER FRE
       Controls the trial process by setting limitations on lawyers in order to achieve justice & efficiency
       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 [accomplished by – setting time limits of presenting evi. – adjust order of wits & wits testimony – can comment on evidence – can Q wits (bottom of OL pg. 14)]        Sources Of Judge’s Power Under FRE’s
FRE 102 – PURPOSE & CONSTRUCTION
~         Gives judge’s power to use FRE to “secure fairness” & “eliminate undue expense & delay”
~         Gives them the power to set reasonable time limits on the various stages of trial
 
FRE 403 – EXCLUSION OF RELEVANT EVIDENCE ON GROUNDS OF PREJUDICE, CONFUSION, OR WASTE OF TIME
~         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:
 
Unfair Prejudice                   Confusion of Issues            Misleading the Jury                            
Undue Delay                        Waste of Time                     Cumulative Evidence
 
FRE 611 – MODE OF ORDER OF INTERROGATION & PRESENTATION
~         Commands the court to “exercise reasonable control over mode & order of interrogating witnesses & presenting evidence” for 3 reasons:
§  Make the interrogation & presentation effective for the ascertainment of the truth
§  Avoid needless consumption of time
§  Protect witnesses from harassment or undue embarrassment
 
FRE 614 – CALLING & INTERROGATION OF WITNESSES BY THE COURT
~         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
 
FRE 615 – EXCLUDING WITNESSES
~         Requires judges to exclude wits from the courtroom while other witnesses are testifying; UPON REQUEST by either party or the judge.
~         3 Exceptions:
1.       Parties.  Parties to the case are allowed to watch the entire trial, even though they may be called as a witness. (FRE 615(a))
»         Criminal defendants have a 6th Constitutional right to confront the witnesses against them.
»         If the party is an organization, then an officer or employee represents the organization in the courtroom. (FRE 615(b))
2.       Necessary Witnesses. A witness “whose presence a party shows to be essential to presenting the party’s claim or defense” can watch the trial.
»         Typically this is an expert witness who sometimes has to hear the other witnesses’ testimony to gather data to support the expert opinion.
3.       A person authorized by statute to be present.
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
STRUCTURE OF A TRIAL
Bench Trials OR Jury Trials 
[FRE dictate admission of facts that relevant & reliable & exclude info that is prejudicial, confusing, speculative, cumulative, or otherwise unrelated (≠ relevant) to the caseà Judge is arbiter of rules w/ discretion]  
Pretrial Conference: required by federal procedural rules to narrow the factual and legal issues and identify witnesses and documents that will be offered as evidence; controls the presentation of each party’s case at trial
 
Pretrial Motions: filed by attorneys b/4 trial
Motions in Limine:  a motion relating to the admissibility of evidence at trial
 
Motions to Suppress: in criminal cases, a D may file a motion to suppress certain evidence b/c illegally obtained. (crim pro)
 
Motions for Summary Judgment: In civil cases, these motions are filed for difference reasons, such as “there is not genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law.” (civ pro)
 
Jury Selection (Voir Dire): Judge and attorneys ask questions of a panel of prospective jurors to determine if they are qualified to be selected to hear the case and objectively evaluate it. à not discussed in this class b/c no evidence is presented at this stage.
 
Opening and Closin