Evidence Outline- Spring 2010
How Evidence is Admitted or Excluded
Getting Evidence In: Foundation & Offer
Testimonial Proof – Direct Examination
3 Things are done with each witness under direct examination
Bring out background info
Includes name, address, other basic facts
puts the witness at ease
jury wants to know who is talking & get used to the person & their voice
any person giving evidence must be identified for the record.
“Lays the foundation” for the testimony to follow
by asking questions that show the witness has “personal knowledge” of matters to which he will speak
expert witnesses – party brings out special skill or training that provides the basis for his testimony on unfamiliar or technical matters.
Substantive Questions are asked – Gets at the witness’s knowledge of pertinent facts
Form of Questioning
Must proceed by non-leading questions – Q’s should not unnecessarily push the witness toward a particular response
Certain phrases can be leading: “isn’t it a fact that” or “did you not”
A question that frames the only likely alternatives in an evenhanded way is not leading: “did you call him or did he call you?”
The witness should do the testifying during direct examination and not the attorney
Questions pushing too hard in one direction or the other are bad because they may:
Invoke in the witness a false memory of events
Induce him to lessen efforts to relate what he actually remembers and to acquiesce instead in the examiner’s suggested version, and
Distract him from important detail by directing his attention only to selected aspects of the story.
Testimonial Proof – Cross-Examination
Cross-Examination seeks to set limits or bring out inconsistencies in the direct testimony
Leading Questions
Cross is different from direct because counsel is in the limelight, and the substance of what is conveyed to the jury emerges more from the questions than the answers.
Cross is about control. The main instrument for control is the LEADING QUESTION
During cross, leading questions may:
Invoke the conscience of the witness and awaken his memory sufficiently to dislodge him from his previous version of events in favor of what he himself considers a more complete or accurate version,
Expose limits or inaccuracies in his memory, and
Focus his attention on important details.
Scope-of-Direct Rule
The questioning is limited to the matters explored on direct examination.
minimizes the interruption of the calling party’s case caused by the opponent’s cross
each party is responsible to make his own case, and it follows that each should have considerable latitude to arrange his own presentation, hence to control the order in which he introduces evidence.
Critique of scope-of-direct rule:
Administration
It is said to be hard to administer & lead to “quibbling” objections
Impediment to Truth
It may prevent the cross-examiner from exploring admittedly relevant matters within the knowledge of the witness
Defense of the scope-of-direct rule
The order of proof – rule enables parties to control the order in which they present their evidence.
the special case of the accused as witness
when the accused testifies, he cannot raise the 5th amendment as a shield against reasonable cross.
The waiver is limited to matters related to the direct testimony
The voucher principle
Old principle that meant that a party could not impeach a witness he called.
FRE 607 did away with the voucher rule, any party may impeach, including the party calling the witness.
PROBLEM 1-A HOW DID IT HAPPEN? P.26
Situation: Passenger riding with a P, who testifies that the othe
of the apple.
“The ct may, in the exercise of discretion, permit inquiry into additional matters as if on direct examination”
D will argue for this by reminding the ct of the expense and time of recalling the witness & that it benefits the jury so there is no confusion or disjointment. E.g “These acts of primary negligence and contributory negligence are very difficult to separate because its all happening simultaneously. It’s misleading to separate out actions within the view that are happening all at the same time.” This is the best argument, though not necessarily a winning argument.
Book Notes:
Real Evidence
Def – tangible things directly involved in the transactions or events in litigation.
Apart from writings, the law of evidence ordinarily does not require production of such items, and their existence and nature may be established by testimonial account
Best Evidence Doctrine – generally does require the introduction of writings (or an excuse for not producing them), and all such items are generally considered relevant.
Laying the Foundation
the trier of fact may not assume that an item is “what it seems to be”
the proponent must prove this point thru the process of “authenticating” the evidence.
Authentication is usually taken care of by stipulation, or by testimony from a witness having firsthand knowledge
Marking for identification
all physical objects that a party expects to offer are routinely marked in a preliminary way.
