Criminal/civil distinction; there is no evidence fight if lawyers don’t object;

The EQUATION:

1)Procedurally proper?

2)Proper mode of proof?

3)If 1 and 2, then ok if RELEVANT

4)But can still be excluded if PRIVILGED

PROCEDUREAL RULES / Article 1 Tell you how to raise ev. Issues, make and preserve objections / Article 11 When rules apply—Not in sentencing in criminal cases, not in ex parte proceedings, not in administrative proceedings
MODES OF PROOF / Article 6/7 Witnesses, competency, lay/expert testimony, impeachment, direct and cross exam / Article 8 hearsay witnesses, exclusions and exceptions / Article 9/10 documents: exhibits, foundations, identifications, documents and best evidence rule
SUBSTITUTES FOR PROOF / Article 2/3 substitutes for proof
RELEVANCE / Article 4
All modes of proof only can be used if relevant
Relevance objection WAIVED if not made at trial
Relevance a SCREEN, screens out otherwise would fit in under the rules
PRIVILEGES / Article 5
Privileges TRUMP ALL other rules!
If privileged = excluded
4 and 5 are HURDLES to overcome once find evidence introduced procedurally properly and a proper mode of proof

Purpose and Construction of FRE’s (Rule 102): The FRE’s should be construed to promote fairness, efficiency, and growth and development so that the truth can come out.

IS THERE A PROBLEM WITH THE FORM OF THE QUESTION?

IS THERE A COMMON SENSE OBJECTION?

Rule 403 allows exclusion of relevant evidence when probative value is substantially outweighed by either:

(1)The danger of

  1. Unfair prejudice,
  2. Confusion of the issues, or
  3. Misleading the jury; or

(2)Considerations of

  1. Undue delay,
  2. Waste of Time, or
  3. Needless presentation of cumulative evidence.

Rule 611(a)control by court – court shall exercise reasonable control over the mode and order of interrogating witnesses and presenting evidence so as to:

(1)make interrogation and presentation effective for ascertainment of the truth,

(2)avoid needless consumption of time, or

(3)protect witnesses from harassment or undue embarrassment.

This permits a judge to impose restrictions on the presentation of evidence that go beyond ruling on objections and on particular offers of evidence. Many of these don’t officially appear in the Rules of Evidence.

Some common procedural objections based on these two rules:

Question Calls for a Narrative Response (too general, indefinite, lacks specificity): Not asking Q, just asking witness to talk, too vague, witness will make speech. (ex: “What happened the day of the murder?”)

Non-responsive (narrative, volunteered): Witness goes off subject, though original Q not objectionable. If objectionable answer prejudicial, atty should, in addition to making objection, move to strike objectionable answer and ask for jury instruction to ignore that part of the answer. (ex: Did you see D the night of murder? “Yes, he had had a lot to drink and was angry and abusive.”)

Assumes Fact Not in Evidence: Question asserts facts not yet established at trial (ex: “when did you stop beating your wife?”

Compound Question: single question seeking multiple answers, can be confusing or misleading. (ex: “Did you see D on night of murder and did he seem upset?)

Ambiguous or Confusing Question (vague, misleading, confusing, unintelligible): Q was not reasonably clear or specific and may not be understood by jury. (What did you or did you not see if not anything when D entered the bar?)

Asked and Answered (repetitive):a rule 403 waste of time repeated question

Cumulative: calling several witnesses to testify on same issue or introducing numerous similar exhibits

Misstatement of the Evidence: Interrogator inaccurately describes evidence or draws inferences that were for the jury to make, confuses testimony (ex: when no such testimony, “you testified on direct that D was drunk, didn’t you?”)

Argumentative: make when rhetorical question attempts to assert interrogator’s meaning or implication of testimony. (ex: Why would you, in your right mind, agree to such a stupid idea?)

Badgering the Witness: examiner attempting to unfairly intimidate the witness. (ex: with voice raised, “Now why would you, in your right mind, agree to such a stupid idea?”)

IS IT A LEADING QUESTION?

Rule 611(c) Leading Q’s: A leading question is a Q that suggests the desired response or instructs the witness how to answer. Generally, many questions that require a “yes” or “no” answer are leading.

(1)Ex. “Isn’t it true that…?” or “You…, didn’t you?”

  1. To avoid leading Q’s, use “who, what, when, where, why”

(2)On Direct Exam:

  1. Generally can’t use leading Q’s
  2. Exceptions (still up to court’s discretion whether to allow):
  3. Undisputed, preliminary and basic matters (name, address, etc.);
  4. Necessary to develop witness testimony (needed to get info and doesn’t prejudice other party, such as where witness incompetent or child);
  5. Used to refresh W’s recollection;
  6. Hostile witness or adverse party or W associated w/adverse party

(3)On Cross Exam:

  1. Generally can use leading Q’s, almost always allowed (but at court’s discretion)
  2. Exceptions:
  3. friendly witness, associated w/party cross-examining them

IS IT OUTSIDE THE SCOPE OF CROSS EXAMINATION?

Rule 611(b), Scope of Cross Examination

  • **CREDIBILITY OF THE WITNESS ALWAYS W/IN SCOPE
  • Scope of Cross is governed by the subject matter covered in Direct exam
  • Note: is subject matter, not exhibits used that define scope
  • If you bring it up in Direct, opens door to q’s on that subject in Cross
  • If cross-ex side wants to ask other q’s, can add witness as their own direct witness
  • Though courts have discretion to allow more Q’s on cross to save witness from coming to testify 2x
  • Re-direct: is only to address new issues brought on cross
  • Re-cross: Generally, if not brought up witness credibility on Cross, not able to bring it up on re-cross unless some new reason why raised on re-direct.

IS THE OBJECTION AND OFFER OF PROOF PROPERLY MADE AS TO PRESERVE THE OBJECTION FOR APPEAL/ERROR?

Rule 103

103(a): Error may not be predicated upon a ruling which admits or excludes evidence unless:

  • a substantial right of the party is affected
  • beyond reasonable doubt would affect outcome
  • harmless error- won’t reverse holding on technicalities, even if was error to admit/exclude

AND

  • 103(a)(1): When ruling is one admitting evidence:
  • Timely objection (for improper Q) or motion to strike (when question proper but answer not)
  • timely = first reasonable opportunity, usually right after question asked or before next question,
  • Timely can also = objection made IN LIMINE, pre-trial or before witness is called, but In Limine objection MUST be made again when witness on stand to appeal!
  • Stating the specific ground of objection (if specific ground not apparent from context)
  • Specific = key, can’t make a different argument later (US v. Wilson) (ex: can’t object on relevance and later claim was hearsay)

OR

  • 103(a)(2): When ruling is one excluding evidence:
  • Substance of the evidence excluded was made known to the court by OFFER OF PROOF (if not apparent from context in which questions asked)
  • When A objects, judge sustains, b must make known substance of ev. excluded
  • Made outside hearing of jury, can be in written form, q & a, etc. (103(c))
  • Cross examiner (who not prepared witness) not have to make same offer of proof as direct examiner b/c not know what witness was going to say

Plain Error -- 103(d)

If you fail to object, and object properly, your only hope to appeal is based on PLAIN ERROR

  • Plain error means would be a miscarriage of justice
  • S.C. Olano ruling- must be clear or obvious error and affect outcome of case

***Once court makes a definitive ruling on record admitting or excluding evidence, at or before trial, party need not renew objection or offer of proof to preserve claim of error for appeal UNLESS circumstances change (then no ruling deemed definitive)

Prudent counsel renew objections

HYPOTHETICAL rulings may not be appealed

  • Ex: Luce – D’s testimony may be used to impeach him, but he does NOT testify at trial, it is like the judge’s ruling never took effect, so this cannot be appealed (doesn’t matter, didn’t change outcome of trial)
  • *some states reject Luce, used in all fed. courts

IS THE JUDGE PLAYING THE PROPER ROLE?

Party claiming benefit of rule of evidence must show entitlement to it

Rules of evidence will NEVER make it impossible to prove something that is required by law to establish a claim or defense

Rule 104

104(a): Judge fact finder, final decision maker on questions of admissibility, most issues of evidence are 104(a)

  • competency is a 104(a) question for judge

104(b): Judge screens evidence but for jury to decide if relevant and what it purports to be

  • Comes up when one piece of evidence only has meaning if another piece of evidence is presented
  • If a jury can reasonably find all linked pieces of evidence to be true, OK, if not judge can exclude (Q = could reasonable jury believe this?)
  • Personal knowledge issues decided under 104(b), see Rule 602

104(c): confessions or ev. arguments that can improperly influence jury should be heard outside the hearing of jury

104(e): Judge defines admissibility, if admitted, evidence can be attacked, the JURY decides the weight to give admitted evidence.

ARE THERE ANY PROBLEMS WITH THE WITNESS?

Is the witness competent?

Everyone is competent except when otherwise presented in these rules

  1. As long as can 1) take oath; 2) understand the Q’s; 3) communicate answers
  2. Judge decides competency (104(a)), jury decides credibility
  3. Prior inconsistent statement NOT = incompetent
  4. Drug use may temporarily render witness incompetent
  5. Mental exams of witness exception, not rule
  6. Child witness:

No fed. Rules for minimum age (though states often have presumptions, ex: at 10 or 12 child = competent unless show can’t understand oath or need to tell truth or questions)

If child incompetent, hearsay might be admitted to child’s statements outside court

Child not need to understand all words of oath, just that must tell truth

  1. Interpreters (rule 604)

Interpreter must qualify as interpreting expert and take oath to interpret accurately

To qualify as expert, methodology must be reliable

Watson v. State: Sad cases where can’t prove interpreter qualified if they are only person who can understand witness in the world, here, interpreter said could understand patient’s signals, but NO way to test and know if what she’s saying consistent w/what witness was saying

**Note: also need court reporter that can understand witnesses’ language, so if there is issue w/their testimony later, have record of their testimony

  1. The Competent Incompetent

US v Phibbs: as long as witness appreciates duty to tell truty and is minimally capable of observing, recalling and communicating events, testimony should come in for whatever it is worth

**Prior determinations of incompetence do not bind the current court

3 exceptions to presumption of competency:

  1. Rule 605: Judge cannot testify as witness in own trials
  2. Rule 606(a): Juror can’t also be witness
  3. Rule 606(b) Jurors can’t testify to impeach the verdict they reached
  4. Exception: CAN testify about extraneous influences, such as bribes, information not in evidence, outside discussions w/witnesses, threats against jurors, etc.
  5. CANNOT testify about decision-making process; ex: anger, boredom, inattentive, desire to go home, not feeling well, drug use, drinking, sleepy, etc.
  6. Ex: Tanner: illegal drug use in jury room not an extraneous influence that can be testified about to get a new trial (**Though note, this is an issue of jurors commiting felonies in jury room, conflict of interest for prosecutor to go after jury, jurors biased by own conduct)

Did witness take oath (rule 603)?

Every witness must swear or affirm they will testify truthfully

No particular form necessary

If can’t take oath, witness NOT competent and judge won’t let them testify

If someone forgets to give the oath and no objection, it is waived and the witness cannot be prosecuted for perjury

Does witness have personal knowledge of what testifying to?

Rule 602, 701

  • Generally, witness testimony that she has knowledge is sufficient (US v. Davis)

Unless EXPERT witness, see rule 703

LAY witness, rule 701, requires personal knowledge

  • Test: Judge screens under 104(b), asks if a reasonable jury could find that this witness had personal knowledge?

Interpreted liberally, jury can make credibility call if admitted

Must be personal—witness reading about event not = personal knowledge

Absolute certainty not required, what you can remember is sufficient

Inconsistency not negate claim of personal knowledge

US v. Davis—Officer says guns w/police until 3/82; almost certain officer not have personal knowledge of when guns released, unlikely was at evidence room at time of release. Must have looked at log book, now he doesn’t have record at trial and fakes personal knowledge. His testimony of personal knowledge accepted (*though good lawyer ask if he was physically present, he’d have to say no or lie, if he says heard property room person say it was released then, object as hearsay)

Does the witness have memory problems?

refreshing witness’s recollection

  • lawyer says “do you think it might refresh your recollection if I show you this document/thing?”
  • past writing, physical object, leading Q, anything can be used (Baker v. State)

it is not evidence, so not need for authenticity, best evidence

If use privileged document to refresh, may waive any privilege/work product protection

  • Rule 612:

if use while testifying, or before testifying (if the court in its discretion determines it is necessary in the interests of justice), opposing counsel is entitled to have the writing produced at hearing, inspect document, cross examine witness on it, and introduce into evidence portions that relate to witness testimony;

**In crim cases, gove NOT have to turn over writing to D before testimony (section 3500 of title 18)

If is extraneous stuff in document, judge can study in camera and excise extraneous and give remainder to witness (rule 612)

Adversary may offer document to challenge claim of memory refreshed; document not used by adversary to prove truth of contents, but to show memory claim is false

Document not used by refreshing counsel to prove contents, used solely to refresh recollection

  • If witness looks at document and says still can’t remember, NOT introduced into evidence.

Past recollection recording

Rule 803(5), past recollection recorded NOT excluded by hearsay, though contents are admitted for their truth (unlike record used to refresh memory)

6 Pre-reqs for recorded recollection

  • (1) witness once had knowledge
  • (2) but now has insufficient recollection (3) to enable the witness to testify fully and accurately
  • Memory need not be completely gone, but atty must show memory impaired before introducing
  • Can use w/reluctant witness, but witness must lay foundation (made adopted by me, accurate)
  • Unusual case where direct examiners uses it b/c witness is fighting him, such as US v. Williams, where witness not want to say he thought checks were stolen.
  • (4) shown to have been made or adopted by the witness
  • Witness need not record or sign statement, another person may record it, both may be needed for foundation??
  • (5) shown adopted/made by witness when the matter was fresh in the witness’ memory
  • not demanding standard, 3 years ok in Senak
  • (6) and also shown to reflect that knowledge correctly (ie: witness says what I recorded was accurate)

If admitted, party relying on record has it read into evidence but record may not itself be received as an exhibit (unless offered by an adverse party)

Witness can exclude the statement by claiming memory was not good when record made or statements not accurate—Q of if foundation is satisfied is for trial judge under 104(a)

Hypnotism to refresh memory

  1. Trend against using hypnosis to refresh b/c it can be suggestive
  2. Some courts say OK if can show only testifying to knowledge had pre-hypnosis
  3. Stay away from this—may disqualify witness
  4. Rock weird case, SC says can’t exclude D’s testimony just b/c he was hypnotized, constitutional limits on excluding criminal D’s testimony

IS THE EVIDENCE RELEVANT?

Relevance defined, Rule 401: Evidence having tendency to make existence of any fact of consequences more or less probable

  • Not a high standard, ANY more/less probable ok
  • Relevance different from sufficiency, can be relevant and admissible but still insufficient to meet burden to prove/defend case
  • Rule 401 subsumes “materiality” in relevance, so not need to say is “irrelevant and immaterial” just that it is irrelevant.
  • Judge determines relevance, credibility for fact finder
  • Substantive principles may dictate relevance: ex: statutory rape = strict liability, so D’s belief of victims age NOT relevant.

Conditional Relevance, Rule 104(b)

  • Where evidence only relevant if a condition exists, judge decides if conditional relevance is satisfied, proponent of evidence must show foundation that condition exists, see if enough ev that all conditional facts could be present
  • Ex: Fact A—D’s cousin had shotgun; fact B—D borrowed from cousin on day of shooting; fact C—ev D shot the victim; can only admit A if B and C, only admit B if C; so must be sufficient ev for jury to find all 3 facts by a preponderance (even in crim trial)
  • Lawyer says “I’ll tie it up w/other evidence, judge “make a proffer”, proffers not made w/in hearing of jury
  • Note* 4 cond. Situations for 104(b): when fact B need to make fact A relevant; personal knowledge (rule 602); rule 901, authentication; Rule 1008, otherwise Rule 104(a) applies.

Evidence Types:

  • Direct: No inference needs to be drawn, answers issue definitively
  • Circumstantial: need to draw inference
  • Direct ev. not necc more relevant than indirect (ex: $100,000 in trunk of car more relevant than shaky/almost blind witness saw me rob bank)

Rule 402: All relevant ev. admissible except as otherwise provided by (1) Constitution, (2) act of Congress, (3) federal rules, (4) or other rules enacted by Rules Enabling Act by S.C.

  • IRRELEVANT evidence NEVER admitted unless no one objects (waives claim of error)
  • Local Rules are not grounds for excluding relevance evidence, courts will look for specific exclusionary language in statutes before they will allow exclusion of evidence that is relevant.
  • ***Basic exclusion of Relevant Information—RULE 403

Relevant Ev Can be Excluded if Probative Value “substantially” outweighed by:

  • Confusion of the issues; Misleads the jury; Cause undue delay; Waste of time; Needless presentation of cumulative evidence or
  • Danger of UNFAIR PREJUDICE
  • Defined: ev which affects jury in way not attributable to the PERMISSIBLE probative force of the evidence, leads to irrational or emotional decision or cause jury to use evidence in impermissible way
  • OLD CHIEF: SC-when weighing, take into account alternative evidence that is still probative but may be less prejudicial (ex: man stipulating he was felon left out prejudicial details of felony)
  • * prejudice NOT issue in bench trial, insulting to judge to suggest, though undue consumption of time may be excluding issue.
  • ***Presumption in favor of admitting over excluding evidence if it is a close call, it goes in
  • Judge should balance on the record
  • Judges can usually rule either way

EXAMPLES under 403 balancing: