EVIDENCE OUTLINE Fall, 2004
I. FIVE QUESTIONS TO ASK YOURSELF WITH EACH PROBLEM:
a. What is the evidence?
b. For what purpose is the evidence being offered?
c. Is the evidence relevant for that purpose?
d. Is there a rule that excludes the evidence?
e. Procedure for admitting/excluding the evidence
II. GENERAL PROVISIONS
a. Scope
i. Apply in federal courts, bankruptcy courts, magistrate courts
ii. Apply to civil, criminal, contempt, bankruptcy proceedings
iii. Apply at all stages with respect to privilege
iv. Don’t apply to:
1. Bail hearings
2. Extradition
3. Forfeiture hearings
4. Grand Jury
5. Preliminary exams
6. Preliminary questions of fact (except privilege) – admissibility determinations
7. Probations
8. Sentencing
9. Warrant hearings
b. Purpose and Construction
i. Broad construction required
ii. Five goals:
1. Eliminate expense/delay
2. Fairness in administration
3. Promote growth of evidence law
4. Promote truth
5. Promote justice
c. Rulings on evidence
i. Preserving an evidentiary ruling for appeal
1. Admitting evidence:
a. Object at trial
b. Show prejudice
2. Excluding evidence
a. Offer of proof at trial
i. May consist of:
1. Witness testimony
2. Attorney summary
ii. Put the offer of proof on the record
iii. Jury won’t hear the offer
b. Show prejudice
ii. Evidentiary decisions are discretionary – reviewed under an abuse of discretion standard
iii. Plain error – will cause a mistrial or new trial
d. Preliminary questions
i. Questions of admissibility
1. Determined by trial judge
2. Not subject to FRE
3. In Camera
ii. Relevancy conditioned on fact
1. Court must hear/see evidence to determine admissibility
2. Accused who is required to testify isn’t subject to cross examination
e. Limited admissibility
i. Applies when evidence is admissible for one party or purpose but not for another
ii. Court must enforce this restriction with a limiting instruction to the jury
f. “Rule of completeness”
i. Applies when a party introduces only part of a writing/recorded statement
ii. The other side may require any other part of the writing to be introduced at that time
g. Witnesses
i. Competency
1. General rule
a. All people are competent to testify
b. State law controls competency when the substantive issue is state law
2. Circumventing the rule – attack:
a. Personal knowledge requirement – Kids, memory, facilitated testimony
b. Oath and affirmation requirement
3. Exceptions
a. Judges – can’t:
i. Testify as witnesses
ii. Use familiarity with facts/his own testimony in a bench trial
b. Jurors:
i. At trial – jurors cannot testify
1. Includes members of GJ that indicted the accused
2. If introduced, other side has chance to testify outside jury’s presence
ii. After trial:
1. Jurors can testify about extraneous prejudicial info
2. Jurors can’t testify about deliberations/thought process
ii. Personal Knowledge requirement
1. Evidence must be introduced to support personal knowledge of the matter
2. Usually contemporaneous – witness’s testimony
3. Trial court may decide if:
a. Witness was in position to observe events
b. Exclusion is required b/c of lack of personal knowledge
iii. Oath/Affirmation requirement
1. Before testifying, every witness must promise to tell the truth
2. Oath must be administered:
a. In a form
b. Calculated to
c. Awaken the witness’ conscience
d. And impress his mind
3. Witness must understand the oath and its ramifications
iv. Interpreters – Subject to FRE relating to experts and oath/affirmation requirement
h. Examination
i. Mode and order of Interrogation and Presentation
1. Court’s Control
a. Judge controls mode and order of introduction of evidence/testimony
b. Limits:
i. Judge must use this control only to:
1. Find truth
2. Be efficient
3. Protect witnesses
ii. Judge can’t prevent parties from proving their case (constitutional)
2. Scope of cross-examination:
a. Cross examination generally limited to:
i. Subject matter of direct exam
ii. Matters affecting witness credibility
b. Court may permit questioning into additional matters
3. Leading questions:
a. Not allowed on direct
b. Allowed for:
i. Cross-exam
ii. Hostile witness
iii. Adverse party
ii. Writing used to refresh memory
1. Witness uses it to refresh his memory about his testimony
a. Requires testimony that witness doesn’t remember
b. Writing doesn’t become evidence – and it’s not “read into” evidence
c. Witness doesn’t need to have previously seen writing
2. Adverse party may have the writing introduced into evidence
3. Challenges to introducing the writing:
a. Judge must examine writing in camera
b. Judge must remove irrelevant portions
c. Judge must deliver the rest of the writing to the party requesting it
d. Party must object to challenge this on appeal
4. Note: Lawyer’s interview summaries used to refresh memory waives attorney-client privilege
iii. Calling and Interrogation of witnesses by court
1. Court may call witnesses
a. May happen by court or pa
es only
1. Prosecutor’s case-in-chief: Not admissible
2. Δ may open the door – Limited by 405:
a. Opinion or reputation only
b. Pertinent trait
3. Prosecutor’s cross:
a. May inquire about specific, relevant acts
b. No extrinsic evidence allowed
4. Prosecution’s rebuttal:
a. Character evidence admissible
b. Limited by 405:
i. Opinion or reputation only
ii. Pertinent trait
5. Δ’s cross on rebuttal:
a. Δ may inquire into prosecutor’s witness’s specific acts
b. No extrinsic evidence allowed
ii. Character of the alleged victim – criminal cases only
1. Prosecutor’s case-in-chief: Not admissible
2. Δ may open the door
a. Self-defense case only
b. Limited by 405
i. Opinion or reputation only
ii. Pertinent trait – only victim’s violence/peacefulness qualifies
c. ANY suggestion that victim was the first aggressor opens the door – prosecutor may put on character evidence about Δ and victim (405 limits)
3. Prosecutor’s cross:
a. May inquire about specific, relevant acts
b. No extrinsic evidence allowed
4. Prosecution’s rebuttal:
a. Character evidence admissible
b. Limited by 405:
i. Opinion or reputation only
ii. Pertinent trait
5. Δ’s cross on rebuttal:
a. Δ may inquire into specific acts
b. No extrinsic evidence allowed
iii. Character at issue cases
1. Character evidence is admissible without limitations
2. Examples:
a. Defamation cases – truth is an absolute defense (Δ would intro it)
b. Negligent hiring
c. Negligent entrustment
c. Habit
i. General rule:
1. Evidence of a person/organization’s habit or routine practice is admissible
2. Must be to prove that:
a. Conduct
b. On a particular occasion
c. Was in conformity with habit
ii. Requirements:
1. Unique response to specific situation
2. No corroboration requirement
3. No need to duplicate climatic conditions
d. Sex cases
i. Character evidence against accused/defendant
1. Evidence that Δ committed another sex crime/act à admissible – criminal or civil
2. No need for conviction
3. Evidence still subject to 403 balancing – strong presumption of admissibility
a. Δ must prove something more than previous sex crimes are prejudicial
b. Case-by-case determination – look for:
