v What is evidence?
Ø Facts, Witnesses, Exhibits.
§ Testimony: Only the answers are evidence, not questions.
§ Physical Items: Of which judge has admitted. Need a motion to get in.
§ Facts: Plainly observable are facts that are evidence (judicially noticed). Ex: Tuesday was Jan. 3rd.
Ø Direct Evidence: Testimony of eye witnesses observes a fact. I saw it raining.
Ø Circumstantial Evidence: Chain of facts which can infer existence of fact to wish to prove:
§ 1. Observable facts to create inference that fact is true
§ 2. Series of inferences to prove a given fact.
· Example: I saw that the chairs were wet outside- so it must have been raining.
Ø Rules of evidence exist because: guide process and ensure predictability.
§ 1. Mistrust jurors: Keep jurors on point.
§ 2. Substantive Policy: Protect rulings, keep integrity of substantive law.
§ 3. Public Policy: ex: spousal privilege
§ 4. Accurate Fact Finding
§ 5. Control scope and duration of trial.
Ø Trial Process:
§ Voir Dire: Jury selection “to speak truth”.
§ Judge’s preliminary instructions
§ Opening Statements – no argument, give roadmap of case.
§ Plaintiff/Prosecutor’s Case in Chief: witnesses, etc.
§ Defense Case in Chief: move for directed verdict.
§ Closing Arguments: P gets to rebut D’s case.
§ Closing Instructions
§ Jury Deliberations
§ Verdict
Ø Types of Evidence:
§ Witness Testimony: Verbal and nonverbal answers on direct/cross
§ Real or Material Evidence: tangible things: the gun
§ Documentary: contracts, diaries, photos, recordings: Need foundation and authentication and moved into evidence- and survive other evidentiary exceptions.
§ Stipulated facts: observable facts- deemed to be true, neither side will argue.
§ Judicially noted facts: plainly observed
§ Demonstrative evidence: map, etc.
v Rule 611: Leading Questions:
Ø Maybe is leading is yes/no question
Ø Leading if framed to suggest the answer desired.
§ Not allowed on direct examination
§ Allowed in cross examination, must stay within scope of direct (not MI), and credibility of witness.
§ Also allowed when:
· If used for preliminary or introductory matters
· When witness needs the aid to respond because of loss of memory, immaturity or physical or mental weakness
· When witness is hostile and uncooperative.
· When witness is an adverse party or is a person identified with an adverse party.
v Rule 103a Objections:
Ø Unless an objection is made by opposing counsel, almost any kind of evidence will be admitted. Failure to object is deemed a waiver.
Ø 103a: An objection is sustained when:
§ 1. Substantial right of a party is affected and:
§ 2. Timing: Objection is made after the question and before the answer if apparent that question calls for inadmissible matter; hearsay or improper form (leading).
¨ As soon as witness’s answer emerges as inadmissible, ask for a motion to strike.
§ 3. Objection should state grounds. (unless ground is obvious).
¨ Because objections preserve evidence for the appeal.
Ø Types of objections:
§ 1. Substantive: rests on a particular evidentiary principle (hearsay, privileged- applies to fed rules)
§ 2. Formal: Objects to the form/manner of questioning. (argumentative, asked and answered, leading)
§ 3. General: “I object”.
§ 4. Common (but improper)
§ Forms of objections:
· 1. Motion in Limine: get an evidentiary ruling in advance of trial. Can file to keep it in or out. Can be offensive or defensive.
· 2. Motion to Strike: Still has to be timely (earliest opportunity) State ground.
· 3. Offers of Proof: if not allowed by judge, can make an offer of proof to tell judge why evidence should be in. Offer of Proof discloses the nature, purpose, and admissibility of the rejected evidence.
§ Improper Questions & Answers:
· Misleading: If answered, would make an unintended admission “Do you still beat your wife?”
· Compound: Questions that require a single answer to more than one question “Do you see and hear the intruder?”
· Argumentative: “Why were you diving so recklessly?”
· Conclusionary: Asks the witness for an opinion or conclusion they are not qualified to answer.
· Assuming the facts not in evidence: Question assumes a disputed fact is true when it has not been established
· Cumulative: Question that has already been asked an answered.
· Harassing or Embarrassing
· Calls for Narrative Answer: “Tell me what you did on Sept. 22”
· Calls for Speculation: Question that asks witness to theorize, as to fact, not based on witness’s personal knowledge.
· Lack of Foundation: Witness must have personal knowledge as to the facts of his testimony. Also is a lack of foundation for real evidence if proponent has not shown that it is what he purports it to be.
· Nonresponsive Answer: Response must address only the specific question asked by the atty.
v Relevance:
Ø Rule 402: Evidence can be admitted when is relevant and material.
§ Logical Relevance: fact must be able to prove or disprove.
§ Strength of evidence is immaterial.
§ Need reasonable inference
§ Determines if fact is of consequence.
§ Does not have to be in dispute.
Ø Rule 401: EFTMA: Relevant evidence is evidence having any tendency to make the existence of any fact that is of consequence to the determination of an action more probable than it would be without the evidence.
§ E: What is the evidence?
§ F: What fact are you trying to prove? – broad: any fact…
§ T: does it have the tendency to make the fact more or less probable? – very broad. Is there any T?
§ M: Is the fact material?
§ A: Otherwise admissible.
Ø Rule 104: Preliminary Questions: Who determines relevance?
§ 104a. General admissibility: Preliminary questions regarding admissibility of evidence is for judge to decide. Judge determines simple relevance issues.
· Simple relevance: judge is saying this has a tendency to make it a fact of evidence. Does not speak to weight of evidence, but says it’s at the least, relevant.
§ 104b. Conditioned on a fact: When relevancy of evidence depends upon the fulfillment of a condition of a fact, the court should admit it up, or subject it to: the intro of evidence (fulfilling the condition)
· Relevance turns on some facture issue. (Ex: is the document real? If yes, then ok the evidence)
· 1. Judge is the screening device – allow
has to wait for confrontation so W can testify without fear.
Ø Hypnotized Witness:
§ Rock v. Arkansas: D could not recall how she killed husband. Was hypnotized and could remember. AK had a per se rule disallowing hypnotically refreshed memory. Court concluded the rule violated D’s right to testify on her own behalf. Was not constitutional. Up to jury to decide if it proves a fact. Certain guidelines (performed by a doctor, neutral setting, recorded) and if there is corroborated evidence.
Ø Rule 615: Sequestration of Witnesses-
§ Witnesses not sitting in on the trial when other witnesses are testifying.
§ At request of party the court should order witnesses excluded. Court can motion it. If requested, must be granted.
§ With permission from the judge, does not have to exclude:
· Party
· Officer or employee of a party (corp’s representative)
· Essential Person (expert witnesses, investigating officers)
· Person authorized by statute (crime victims)
§ Split: if order extends to witnesses out of court to not discuss their testimony.
§ Split: if lawyer can convey to witness other’s testimony
§ Split: Witnesses excluded during opening statements.
Ø Rule 601: Competency of Witnesses:
§ 1. Witness must have Personal knowledge
§ 2. Must declare he will testify truthfully (Rule 603)
· Unlike the CL, the Code deems every person competent to be a witness except as otherwise provided.
¨ Incompetent if:
Ø 1. Refuses to take the oath or
Ø 2. Completely incapacitated.
§ In diversity cases, where state law supplies the rules for decision, competency is based on state law.
· US v. Lightly: did not allow convicted felon to testify. Court determined he was ok unless:
¨ 1. Had no personal knowledge.
¨ 2. No capacity to recall
¨ 3. Doesn’t understand the duty to testify truthfully.
Ø Rule 603: Oath Requirement:
§ Every witness is required to declare that he will testify truthfully, by oath or affirmation administered in the form calculated to awaken the W’s conscience and impress the W’s mind with the duty to do so.
Ø Rule 601: Dead Man’s Statute:
§ Adverse party is not competent to testify about a conversation or transaction with person who has died. Cannot testify to a personal transaction or communication with the deceased. Public Policy is to protect estates from perjured claims.
§ Dead Man’s Statute v. FRE 601 (presumes competent)
· Split of Authority:
¨ If DM statute is substantive? Yes, then state law controls.
¨ If DM statute is procedural? Yes, then fed 601 applies.
Ø Erie Doctrine
