Spring 2005, Prof. Weems
EVIDENCE (just what he talked about)
Order of Trial: Voir Dire; Opening; “What says the plaintiff” (are you ready?); “Rule invoked?”
- P’s case in chief: Direct, tender-Cross, redirect (only new stuff from cross), re-cross
o On direct,Пmust ask of each witness everything he wants to get, can’t wait for re-direct to ask the “Million Dollar Question.” (note, D must object)
- After П rests, D moves for directed verdict (P gave no prove as to essential element).
- D’s Case in chief: Same, except now the defendant has direct. After, П may move Dir. V.
- P’s Rebuttal: ONLY if new issues were brought up in D’s case in chief.
o P can’t wait to call a great witness that he could have called earlier
R 615 (p.4): Judge or attorney may “invoke the rule.”
- A witness that is going to (may) testify may not listen to testimony of others (can after).
o Purpose-Witness may conform to testimony of other witnesses.
- 3 Exceptions:
o Party who is a “natural person” may stay (i.e.-P/D).
o Corporate party may designate a representative to sit in for them.
o Expert - Someone “Whose presence is shown to be essential to the party’s case.”
§ Must notify judge that expert will use info to help in his testimony.
- Violation: (usually a violation is inadvertent)
o Extreme: Ct can exclude the witness’s testimony (usually, only if intentional).
§ L can’t tell witness how others testified. Violates rule. Thin line-prep OK.
o Usual (i.e.-inadvertent): Opposing allowed a “very stringent” cross.
§ Let jury know Wit shouldn’t have been there. Ok to raise inferences.
COMPETENCY: R 601-606 (P. 1-6)
General: Is Wit competent to testify at all? Not-can’t even give name.
Special: Is Wit competent to testify on a certain subject (i.e.-does he have personal knowledge?)
Fed. R 601: Everyone is competent to testify EXCEPT as provided for by rules (602-606).
- In a civil case where state law controls, Fed Ct looks to state law regarding competency.
- Therefore, Diversity Case, Judge looks to MRE 601-606. 602-606 are the same.
MR 601: All Wit are competent EXCEPT:
- Spouses of parties. П or D’s spouse may not testify w/out consent of both parties.
o NOTE, this isn’t the spousal privilege. In criminal suit, S Ct has said that the spouse of the defendant may declare the privilege, but defendant can’t invoke it.
- 3 Exceptions:
o Party may introduce spouse even if spouse doesn’t consent. (Seems crazy to do)
o Hubby may be Wit against wife if it is a controversy between them. (broad).
§ Crim. Pros-if wife is “mad” at hubby, she can testify. If not, both consent.
o Spouse may be compelled to testify against other in crim pros for:
§ Crime against child, child neglect, desertion, or abandonment.
R 602: Personal Knowledge: Wit must “actually perceive w/ his senses” to testify. (Special).
R 603: Every Wit must swear/affirm testimony or is incompetent. Wake conscience; penalize.
R 604: Interpreter-Can’t speak English, doesn’t make you incompetent.
R 605: Judge can’t testify in case he’s presiding over.
R 606(a): Juror can’t testify in case where he’s a juror. (never happen b/c voir dire).
(b): Inquiring into validity of the verdict: Juror can’t give testimony/sworn affidavit to cast doubt on verdict (i.e.-jury talked about improper things-D’s $/residency).
EXCEPTIONS: 1) Can testify to tell of improper conduct (bribes/threats); 2) Extraneous prejudicial information was brought to the jury’s attention (i.e.-going to see wreck scene).
Children: Not automatically competent. Judge Qs in front of jury. Usually allowed & up to jury.
Allowed if: 1) child can perceive/remember facts, 2) answer intelligently, 3) comprehend truth
L Testifying in case: No RofE against it; therefore, allowed. BUT, there may be ethical penalties.
Old C/L stuff that is dead:
1) Being religious is no longer req’d
2) No rule against felons testifying (you can use the fact that Wit previously perjured himself for impeachment purposes.) Previous perjury won’t make you incompetent.
3) Dead man statutes no longer apply. (Person claiming against an estate couldn’t testify).
Ch. 2: DIRECT EXAMINATION (P. 6-7) R. 611, 12, 14
R 611(a): Ct shall exercise reasonable control over mode/order of testimony.
- Narrative exam: “What happened on May 13, 2004?” *Some judges won’t allow it.
o This allows the witness to “give a speech.” Great (more interesting) if witness is a smart, good speaker. Problems-may blurt out harmful stuff on accident; leave out.
o Opposing may object. “Objection, this calls for a narrative response.” (know J).
- Specific exam: Walk Wit through, Q by Q. Ct may force you to do this, or you may want to be very careful about what the Wit says. This will never be objected too.
(c): Leading Qs: Q that suggests to the Wit the answer that the L wants to get.
- There are BIG differences of opinion as to what is leading.
o Some think any Q that has mentions the subject matter of what you’re look for (i.e.-Was there a stop sign?) Therefore, know J’s opinion b/f trial.
o To avoid asking a leading Q, start with®What, Where, Why, When, & How.
- Rule: Nature of Witness’s relationship with attorney is the touchstone.
o If Wit is friendly with the attorney, L can’t ask leading Qs. Wit agree to help L.
o Direct: Therefore, you usually can’t ask leading on direct/re-direct.
§ Can ask leading if you are calling someone aligned with the adverse party. (i.e.-adverse/hostile witness. Someone who hasn’t been willing to help you®just use leading to get ONLY what you need and get out).
· Adverse-opposing, opposing’s e/ee, etc. (presumed unfriendly)
§ Give Ct notice. “Your honor, we would like to call X as an adverse Wit.”
· Opposing party must object at that time. Up to J’s Discretion. You may not want to call him if you can’t use leading Qs.
o Cross: Usually can ask leading Qs on cross. Presumed to have a bad r’ship. You don’t have to worry about the Wit trying to help.
- Exceptions (When you can ask leading Qs)-preliminary Qs (name, etc)
o Adverse/hostile witness: Supra.
o Development of Testimony: Leading allowed on direct to develop testimony.
§ Children: “And then he hit you?” Leading may be the only way to get testimony. (Up to the Ct).
· Reason: Personal knowledge is important. We would like it w/ non-suggestive Qs, but if not possible®leading OK.
§ Elderly: Same.
§ Refreshing memory of a witness. Ask Judge
o Laying a foundation for physical evidence (photos): “Is this a fair and accurate representation of real life?” Uses exact words req’d to be admissible®still OK.
Argumentative & Misleading Questions:
- Misleading: Q requires the Wit to assume something that he has not answered.
o I.e.-“How long has the rd been open to the public?” When Wit hasn’t said it was ever open to the public.
- Argumentative: Instead of trying to get new evidence, L challenges what Wit said earlier.
o Usually comes up on cross. “Do you really expect people to believe that?”
R 614: Judge Calling: Rare, but the Judge can call and question witnesses.
Refreshing Memory of Witness: Often, a Wit may simply forget something. He can’t testify if he can’t remember.
- The law usually permits you to refresh the Wit (no “hard line” against it). HOW?
1) Leading Qs (ask the Judge if you may develop testimony).
2) Show the Wit something to refresh memory.
- Inadmissible refresher: Judge will allow you to use an object (i.e.-photo) to refresh the Wit. Memory even if it object is inadmissible. (Livingston).
- You can’t ask, “What does the report say?” Ask, “Does this help you recollect what happened?” If yes®testify. If no®Wit is done (can’t answer-not in evi).
3) Wit. May bring writings/files to the stand. (i.e.-police report, medical files, etc.)
R 612: If something is used during testimony to refresh memory, the opposing side has an absolute right to see it. Opposing can introduce it into evidence. If something is used b/f trial to refresh Wit’s memory, Judge may require giving it to the opposing party (Ct’s discretion).
- Fed: only applies to “writings,” but it is probably as broad as the state rule.
Ch. 6: INTRODUCING AND EXCLUDING EVIDENCE (p. 8-13)
Generally, if an objection to the introduction of evidence is waived if not immediately made.
- Exception: Lack of personal knowledge (R 602). Can bring up later by mtn to strike.
Introducing into Evidence: (4 steps)
1) “Your honor, we would like to have this marked for identification?” (P-1, P-2, etc).
- No grounds for objection. It just puts it into the record. It isn’t in evidence yet.
- Putting it “in the record” is the “offer of proof” for physical evidence.
2) Show the opposing side the object. “Let the record reflect . . .”
3) Show or hand the object to the Wit and then, ask the Qs necessary to “lay a foundation.”
- The document must be authenticated (it is what the L says it is) by the Wit, &
- You must show that the document is relevant.
4) Offer the object into evidence. “We offer P-1 into evi.”
- May be objected to. If allowed, clerk gives it an evidentiary #.
Appealing the Exclusion of Evidence:
R 103: Harmless error rule - To have exclusion reversed, you must show the exclusion “affected the substantial rights of the party.” Harmless if same evidence was correctly supplied by another.
(a)(2): Offer of Proof: To appeal the exclusion of evidence, one must 1) make known the substance of the evidence that was to be offered, OR 2) the substance was apparent (RARE).
*If there is no offer or proof, the App Ct can’t reverse for exclusion of evi. May be harmless.
Practical Example (can’t appeal if no offer of proof®app ct can’t find an error w/out proffer).
- First, after the opposing side’s objection is sustained, say, “We would like to make OoP.”
o The Ct can’t stop you from making an offer of proof.
- Judge excuses the jury. You then should ask, “Would you like me to Q Wit or read it?”
o Questioning is just like direct exam. Reading is just you reading into the record.
- Say you conclude your offer. You may then want to ask the Judge to reconsider. He may.
Objections: 103(a)(1): T Ct errs in admitting evidence, to object you must,
- Timely object (RPL would have objected then), AND
i) If the Wit gets the answer out b/f you object, make “mtn to strike”
ii) Same if the Q doesn’t become objectable until later.
- State the specific grounds for the objection (unless it’s apparent - don’t rely on it).
i) Purpose-help judge & let Atty. know what he did wrong (restate).
ii) “Incompetence” isn’t grounds for obj. Only applies to Wit.
iii) If you objected, but you used incorrect grounds for the objection, even if the testimony should have been excluded, Ct has the right to deny your objection. If obj. sustained, but wrong grounds®OK.
Continuing Objection: If you object to a certain topic and the Judge overrules, you can ask the judge for a continuing objection to that topic so you don’t have to object after each Q.
Plain Error Rule: Even w/out an objection, the S Ct can reverse if egregious error.
Motions in Limine: Mtn made b/f an issue arises at trial. Ask for an early ruling.
Granted when: 1) Clear that the evidence was inadmissible, AND
2) The very mention of the subject will prejudice a party (i.e.-polygraph)
- # 2 is required b/c even if originally inadmissible, the other side “may open the door.”
- If your Mtn is denied (evidence will be allowed) you don’t have to object again at trial.
Depositions: Sworn, recorded, and transcribed interrogation of a Wit by a L out of court.
- 4 people will be there®stenographer, deponent, П atty., D atty.
- Sometimes, the deposition will be read in court. The actual written depo can’t be introduced into evidence. The jury can’t read all the other witness’s testimony; therefore, they shouldn’t be allowed to read the deponent’s (could if in evidence).
- Objections: Usually, all objections except to the form of the question will be preserved.
o Form: leading/misleading; Object in depo. Atty. can rephrase. If you don’t change the Q, the Judge decides at trial if it is misleading, etc.
o Substantive: Don’t have to make these in the depo. Judge decides when reading.
Preliminary Questions of Fact Arising on Objection
R 104(a): If admissibility of evi. Depends on a certain fact being true, the Judge decides the Q.
- EX: Excited utterance exception to hearsay: The evidence will be allowed over the objection only if the speaker was truly excited. Judge decides if truly excited.
- EX: Dying declaration exception to hearsay: Same, judge decides if truly thought dying.
R. 104(b): Relevancy of evidence is conditioned on the truth of some Q of fact.
- Judge decides whether a RPP could conclude that [the condition occurred].
- EX: Sam Foyt must have been in his scope of E/ment for it to be relevant that he was driving the truck that hit the plaintiff. Judge decides
Failure to Object: If you don’t make a proper objection, the evidence is allowed.
- This means, that it can be considered by the jury AND attys. can argue it in closing.
R 103(c): In jury cases, the proceedings shall be conducted to the extent practicable to prevent inadmissible evidence from being suggested to the jury. (I.e.-Sidebar).
Waiver of Objection: § 55 (p. 11). Failing to object is obviously a waiver for that Question.
- Failure to object to previous similar evidence: If you failed to object to a Q, you can still make later objections to inadmissible questions concerning that subject matter; BUT, you will not succeed in having the previous answers stricken from the record/
o I.e.-In Foyt, asking cop about JP hearing may be inadmissible, but P allows 3 questions in, finally he’s had enough and objects to the 4th question.