Evidence – Spring 2011 Outline Professor Flores
· Evidence
o Anything of value that is considered by the trier of fact that can help them come to their decision
§ Anything that assists the trier of fact
o Body of law regulating the admissibility of what is offered as proof into the record of a legal proceeding
· Major Areas
o Relevance
o Witness and Character; AND
o Hearsay
· Minor Areas
o Authentication
o Best Evidence Rule; AND
o Privileges
· Evidence
o The body of law regulating the admissibility of what is offered as proof into the record of a legal proceeding
· Types of Evidence
o Testimonial Evidence
§ Witness’ answers to questions under oath
· Credibility
§ Personal knowledge
§ Expert witnesses are the only witnesses allowed to testify without having personal experience of the claim or event
§ The fact finder must depend on the witness for the truth
· Judge / Jury
o Tangible Physical Evidence
§ Real / Tangible and Fungible Evidence
· Real / Tangible Evidence
o Actual items involved in the case
§ EXAMPLE: set of keys, gun, knife
o Need to make it credible
§ Specific
§ Establish a chain of evidence
· Who tested it?
· Where’d you get it?
· Who gave it to you?
· What did you do with it?
· Fungible Evidence
o Not credible
§ Objection
· Lack of foundation
o Its lacking something that makes it credible
§ Demonstrative
· Items created for trial to help clarify testimony
· EXAMPLE: maps, drawings, photographs, diagrams, tapes (audio/visual)
o Direct vs. Circumstantial Evidence
§ Both are fallible
§ Direct Evidence
· Evidence which, if believed, does not resolve the matter at issue
o UNLESS additional reasoning is used to reach the proposition to which the evidence is directed
· EXAMPLE: “I saw John hit his wife”
§ Circumstantial Evidence
· Evidence which, even if believed, does not resolve the matter at issue
o UNLESS additional reasoning is used to reach the proposition to which the evidence is directed
o EXAMPLE: character evidence, habit evidence
· Compares the substantive law with the real world
· Usually demands a Rule 401/403 Analysis
o Is it relevant?
§ NO – Evidence is excluded
§ YES – Does another rule of evidence exclude the evidence?
· YES – Evidence is excluded
· NO – Does the evidence survive the Rule 403 analysis?
o YES – Admitted
o NO – Evidence is excluded
· Rule 101 – Scope; Definitions
o Scope: These rules apply to proceedings in US courts.
§ Rule 1101(d) – Exceptions
· The rules of evidence – except for those on privilege – do NOT apply to the following:
o The court’s determination, under Rule 104(a), on a preliminary question of fact governing admissibility;
§ The determination of questions of face preliminary to admissibility of evidence when the issue is to be determined by the court under Rule 104(a)
o Grand-jury proceedings; AND
§ Proceedings before the grand jury
o Miscellaneous proceedings, such as:
§ Extradition or rendition;
§ Issuing an arrest warrant, criminal summons, or search warrant;
§ A preliminary examination in a criminal case;
§ Sentencing;
§ Granting or revoking probation or supervised release; AND
§ Considering whether to release on bail or otherwise
o Definitions
§ Civil Case
· Civil action or proceeding
§ Criminal Case
· Criminal proceeding
§ Public Office
· Public agency
§ Record
· Includes a memorandum, report, or data compilation
§ Rule Prescribed by the Supreme Court
· A rule adopted by the Supreme Court under statutory authority
§ A reference to any kind of written material or any other medium includes electronically stored information
· Examination of the Evidence
o Direct Examination
§ Trust it because it is followed by cross-examination
o Cross-Examination
§ All about leading the witness
§ Questioning
· Credibility
· Memory
· Reliability
· Bias
o Does the witness have a stake in the case?
§ Destructive Cross-Examination
· Used 5-10% of the time
· Badgering the witness to make them look weak to the jury
· Meant only for impact
o The jury isn’t really supposed to get anything substantive from the cross-examination
§ Concessive Cross-Examination
· Used 90-95% of the time
· Not asking questions
o Just stating facts that the witness continuously says “yes” or “no” to
o To develop a relationship with them
o Get them to answer “yes” to a question that they don’t want to
Order of Events: The Trial
· Basic Stages According to the Book
o Pretrial Conference
o Pretrial Motions
o Selection of the Jury
o Opening Statements
o Presentation of the Evidence
§ Plaintiff / Prosecution Case-in-Chief
§ Defense’s Case-in-Chief
§ Rebuttal and Sur-Rebuttal
o Closing Arguments
o Jury Instructions Read to the Jury
o Jury Deliberates
o Verdict
· Basic Stages
o Preliminary Matters
§ Pretrial Motions
· Motions in Limine
o When the lawyers are moving the judge to do something
§ EXAMPLE: motion to suppress statements because the Defendant was forced to say something
· Tactically, these are necessary
o You need to know what evidence is coming in or not coming in during or before the trial
§ You need to be prepared for trial
· You want to know what you can and can't ask the witnesses
o Asking the court for guidance
§ If certain evidence is inadmissible, you want to know this before trial so you can stay within the limits
§ In order to go through the steps, you need to know what kind of evidence is coming in
· 2 Basic Steps
o Opening Statements
§ Gives the lawyers an opportunity to give the jury a summary of their theory of the case and to describe evidence the jury will hear during trial in support of that theory
§ Lawyers need to make certain that the facts they describe in the opening statement are admissible
· If they aren’t, the jurors are liable to remember what was promised and hole the failure to produce the evidence against the lawyer’s client
§ The Plaintiff / Prosecution’s side gives the 1st opening statement
· Defense gives the 2nd opening statement
o Voir Dire
§ The lawyers are looking for the objective trier of facts
§ Both parties are fighting over the fact pattern
· So the lawyers are look
ged
o Plaintiff’s Closing Argument (First)
o Defendant’s Closing Argument
o Plaintiff’s Closing Argument / Rebuttal (Last)
o Jury Instructions
§ Both sides hand in jury instructions
§ Should be talked about before closing instructions
§ Any good judge will discuss jury instructions before closing arguments so that the lawyers know what they can discuss during their closing arguments
§ Can be done in various ways
· Judges will read the instructions to the jury, and they also get written instructions
· Probably one of the most appealable issues is whether the judge read the jury instructions and whether he read them correctly
o Deliberations, Verdict, and Judgment
§ Deliberations
· Supposed to be confidential
· Sometimes law clerks and/or bailiffs are set up in the room to make sure it is working efficiently
§ Verdicts and Judgments
· Most of the time they come out with a verdict sheet
o Post Trial Motions, Judgment Notwithstanding the Verdict, and Appeals
· Rule 103 – Rulings on Evidence
o You have to make a record at the time of the event that is objectionable happens
§ There is really only one good reason to be held in contempt of court
· Where the judge doesn’t allow you to make a record
· Beware of the judges that call everyone to their chambers or the bench frequently
o There is never a record made because the judge did it all up close
o Some judges want to avoid making records
o You have to timely object
o If you expect to keep talking after a ruling has been made, expect to be yelled at
Role of the Judge
· Purpose and Construction
o Rule 102 – Court’s Control and Purpose
§ These rules should be construed so as to …
· Administer every proceeding fairly;
· Eliminate unjustifiable expense and delay; AND
· Promote the development of evidence law
o To the end of ascertaining the truth and securing a just determination
o These rules are intended to secure:
§ Fairness and administration
§ Elimination of unjustifiable expense and delay
§ Promotion of growth
§ Development of the law of evidence to the end that the truth may be ascertained and proceedings justly determined
o Value and Interests Reflected
§ Relevancy
§ Reliability
§ Policy
· Social
· Systematic / Institutional
o The court may place time limits for the presentation of evidence provided such power and discretion is exercised fairly and efficiently
o United States v. Reaves
§ To curtail presentation of cumulative evidence in a criminal tax fraud case, the judge placed time limits on various stages of the trial
