Mode and Order of Presentation of Evidence

  1. Intro
  • More evidence doesn’t increase fairness. We trust juries because we have rules of evidence
  • FRE promulgated in 1975

How evidence issue arises:

  • Party objects
  • Party anticipates an objection & seeks a ruling
  • Judge is worried about plain error

Motion for acquittal is like motion for JMOL.

Prosecution goes first; so does


–(a) Judge Controls Mode and Order of Proof

•Make Evidence Effective to Find Truth

•Avoid Needless Consumption of Time

•Protect Witnesses from Harassment; Embarrassment

  1. Common Sense Objections – mostly based on R 403
  2. Narrative: Made in response to a Q that is broad, general or indefinite in scope
  3. Nonresponsive- only person questioning can make this objection: Made in response to an A that includes more info than asked for
  4. Assumes fact not in evidence: Made in response to Q’s that assert facts that have not yet been established at trial.
  5. Compound: Made in response to a Q that requires multiple answers.
  6. Ambiguous or confusing: Made in response to a Q that is not reasonably clear and specific.
  7. Asked and answered: Made in response to a Q that asks a repetitive question
  8. Cumulative: Made when several witnesses are called to testify on the same issue or when numerous similar exhibits are introduced.
  9. Misstates the evidence: Made when the interrogator inaccurately describes evidence or draws inferences that are for the jury to make
  10. Argumentative: Usually made in response to rhetorical questions that attempt to assert the interrogator’s meaning or testimony
  11. Badgering the witness: Made when interrogator is attempting to unfairly intimidate the witness
  1. Control by the Court
  2. Purpose and Construction of FR: FR 102: rules construed to secure
  3. Fairness
  4. Elimination of unjustifiable expense and delay
  5. Promotion of growth of the law to the end that truth may be ascertained and proceedings justly determined
  6. Relevant Evidence Can be Excluded: FR 403: although relevant, evidence can be excluded if probative value is substantially outweighed by
  7. Unfair prejudice
  8. Confusion of the issues
  9. Misleading the jury
  10. Considerations of undue delay, waste of time or cumulative evidence
  11. Judge Has Control over Trials: FR 611(a)
  12. To make it effective for ascertainment of truth
  13. Avoid needless consumption of time
  14. Protect witness from harassment or undue embarrassment
  15. Examples of J control
  16. Reeves Judge may impose reasonable time limits on trials, unless act limits that ability. E.g. limiting cross-examination of a particular witness because wouldn’t be helpful
  17. Form of Questions to Witnesses 611(c)
  • No leading on direct because assume lawyer has prepped their witness and better to have jury hear the witness testify than the lawyer
  • leading ok on direct for hostile witness/adverse party
  • Leading on direct ok (questions that suggest the answer) when:
  • necessary to develop the witness’ testimony;
  • preliminary matters not of material importance to case
  • trouble communicating
  • recollection has been exhausted
  • when a party calls a hostile witness, adverse party, witness identified with an adverse party
  • refuses to answer questions, consistently hedges answers, acts surly
  • merely stating that you agree with other side’s case is not enough to be declared a hostile witness (Johnson p.13)
  • Witness identified with an adverse party
  • when employed by Δ
  • somtiems even Δ’s girlfriend

*** court has discretion in allowing leading questions here (Rodriguez)

  1. Borderline leading
  2. Was the man tall? Was his hair dark? When you saw the gun, were you scared?
  3. Not leading: how tall was the man?
  4. Cross: generally may lead except
  5. Friendly witness. McKenna situation. 6th A gives opportunity to use leading ? on cross- not the right.
  6. Trial judges have wide discretion to permit leading
  1. Scope of Cross 611(b):
  • Scope limited because don’t want other side to confuse the issues
  • governed by direct & matters going to credibility, enormous judicial discretion
  • Segal scope is to subject matter and not to specific exhibits, where cross could reach tapes not actually played on direct
  • RE-cross
  • Riggi allowed to re-cross when new matter is brought up on re-direct
  • Other side can call up the hostile witness and ask questions having nothing to do with first direct.
  • Judge can allow to go outside to save time
  • Don’t lead on these questions

Objections and Offers of Proof

  1. Rulings on Evidence: FR 103
  2. For appellate court to find error, evidence must’ve been admitted/excluded that effected a substantial right of a party and
  3. Timely & specific objection/motion to strike OR
  4. If ruling is one excluding evidence substance of the evidence is made known to the ct

 once on record you do not have to renew this motion

  1. Ct may add any further statement with regards to the evidence for the record
  2. Also plain error
  1. Contemporaneous Objection
  2. Remember, if court sustains an objection, make an offer of proof
  3. Motion in limine
  4. Gives judges time to rule, doesn’t interrupt trial, avoid surprise don’t make it too early because judges may ignore?, if made w/sjment, may dispose of case
  5. Pre-trial objections
  6. Luce Trial judge rules can impeach df w/prior crime, so df doesn’t testify, appellate ct rules df cannot appeal trial judge’s decision because never testified.
  7. If pre-trail objection is conditioned upon an event happening during trial that event must happen in order to preserve an appeal
  8. Timely (As soon as possible)
  9. Objections to questions precede answer
  10. Objections to answers prompt and go w/motion to strike
  11. Evans where motion was made next day at the conclusion of the witness interrogation where trial judge was interrogating witness in skeptical tone.
  12. Stricken testimony Mueller says not harmful error for judge to forget to instruct jury to disregard stricken testimony.
  13. How J hear objections
  14. Highly inflammatory args should be heard outside jury presence
  15. Objections are usually in short phrases
  16. Correct & Specific Objection
  17. Cannot raise new grounds for objection on appeal
  18. Appellate court may affirm lower court’s ruling on alternate grounds
  19. However, sometimes must remand for new findings, e.g. if new grounds are hearsay
  20. Plain error doctrine: affected substantial rights of a party, party failed to object. To find it: (from Olano)
  21. Affect outcome of the case
  22. Error
  23. Error must be plain: clear and obvious
  24. permissive rule: plain error doesn’t mandate reversal

? Is this true?

  1. Harmless error doctrine:
  2. Chapman constitutional error cannot be called harmless unless ct is satisfied beyond a reasonable doubt that error did not effect the verdict
  3. variety of tests for harmlessness
  4. Some ct use a lower standard for harmless error in civil than criminal
  5. What courts consider when reviewing error:
  6. cumulative on a point
  7. trial ct gave timely and effective curative instructions
  8. whether erroneously admitted evidence was relied upon by counsel in argument
  9. whether error was discrete or pervasive
  10. whether evidence though improperly admitted for one purpose was properly admitted for another
  11. whether the error was made in lengthy or short trial
  12. Why not rely on plain error: Malpractice. More deference to trial court on appeal. Permissive doctrine – errors must substantially affect fairness, integrity, or public reputation of judicial proceedings
  1. Offer of Proof
  2. Ways offer of proof can be made
  3. By counsel’s proffer
  4. In writing
  5. their own
  6. by a witness
  7. by citation to deposition
  8. In Q&A form

*** Ct retains discretion as to how offers are made***

Need not be explicit. Flexible approach. Where interrupted by J, informed as to what counsel intends to show by the evidence and why it should be admitted.

  1. On Cross
  2. There isn’t the same standard for a cross-examiner since he may/may not know how the witness will be answering.
  1. Judge makings rulings according to 104
  2. All rulings are made under 104(a) or (b)
  3. R 104(a) Admissibility. J is the fact finder – includes (subject to (b)):
  4. Qualification of person to be a witness
  5. Existence of privilege
  6. Admissibility of evidence

● Preponderance of evidence standard is used

● Judge can consider anything in his ruling other than privileged material

* Burden is on party claiming benefit

  1. R 104(b) Conditional relevance (see section below)
  2. 1008: jury decides when issue is
  3. whether an asserted writing ever existed
  4. which writing, etc. is the original
  5. other evidence of contents correctly reflects contents
  6. R 104(c) hearings on admissibility of confessions shall be conducted away from jury. Other hearings may also be conducted in this way as justice so requires or when accused is a witness and so requests

● J can permit witness to testify before deciding whether to strike

  1. R 104(d) when criminal Δ testifies as to preliminary issues that doesn’t open him up to cross on other issues in case. Can only be crossed as to the foundation testimony.
  2. R 104(e) this rule doesn’t limit any evidence relevant to weight and/or credibility.


  1. Status
  2. General Rule of Competency 601
  3. Competent to be a witness unless said otherwise in these rules
  4. In civil actions competency is determined by state law IF state law governs the decision of a claim or defense.
  5. Competency issues decided under R 104(a)
  6. Bedone prior inconsistent statements go to credibility, not competence
  7. What effects Competence?
  8. Atty cannot testify under Professional rules of conduct
  9. Hyson Being on drugs while testifying will effect competence (where witnesses second day of testimony was stricken). However, in another case opposing counsel simply mentioned that witness has taken drugs on the stand and it was left to jury to determine credibility.
  10. State vs. Fed Rules
  11. Dead Man’s statutes: state rules prohibiting an interested party from testifying about communications w/decedent, when testimony is with his interest and against interest of estate of decedent. FR has no Dead Man’s provision (allow testimony in. It’s about credibility, not competence, and this prohibition can prevent true claims).
  12. Competency of Juror as Witness: 606
  13. (a) obv., juror can’t testify at trial
  14. (b) Inquiry into validity of verdict/indictment: may not testify as to deliberations or any mental processes behind the verdict. Can testify to:
  15. extraneous prejudicial info improperly brought to the jury’s attention
  16. whether outside influence
  17. Herrero whether there was review of docs not admitted into evidence
  18. Tanner  SCt held that drug use in jury room was no more of an outside influence than lack of sleep etc so judgment stands. (should have made arg that jurors were committing felonies)
  19. Outside influence e.g.s: reading newspapers, bribes, unauthorized juror experiments (e.g. ballistics experiment on weekend), review of docs not in evidence, bailiff comments
  20. Not outside influence (pg 63):
  21. pressure from other jurors
  22. evidence that jurors ignored instructions (jury deliberations)
  23. impermissible discussion about possibility one party was insured
  24. sleep
  25. inattentive
  26. Lying during voir dire – grounds for mistrial, but courts are very hesitant
  27. Jurors can testify to events, not influence on verdict
  28. Jury reported was the result of a mistake in entering the verdict on a verdict form. E.g. diff #
  29. Can’t ask if jurors were operating under a misunderstanding of instructions
  30. Competency of a Judge as a Witness: 605
  31. Neither J nor clerk can testify (e.g. walked by site)
  32. Children
  33. Capps J determines competency of child to testify
  34. A witness is considered competent unless proven otherwise based on states statutes: ages range from 10-12 (14 was CL).
  35. (Even if incompetent, child’s out-of-court statements may be admitted)
  36. Those previously declared incompetent
  37. About ability, not status. Presumptively capable.
  38. Lightly even when a person deemed “insane” they are OK to testify if the meet the four req
  39. understand oath, ability to perceive, remember and communicate (see a-d below)
  40. Sinclair if a mental patient is called to testify and the testimony is crucial then the court may be found in error if they do not hold a competency hearing.
  41. Foundational Competence
  42. The Oath: 603
  43. Before testifying every witness shall be required to declare that they will testify truthfully under oath or affirmation
  44. Form of Oath
  45. Ferguson no particular form of the oath is required; a state alternative will work (where J prevented witness from testifying b/c wouldn’t take “normal” oath – was overturned)
  46. Children & the oath
  47. Ayers understanding of exact words of oath are not necessary, just general understanding of obligation is enough.
  48. Perception: 602
  49. evidence to prove personal knowledge may, but not need to, consist of witness’ own testimony
  50. J evaluates under R 104(b): only not allowed where no reasonable jury could conclude that witness had personal knowl
  51. Personal knowledge:
  52. generally a witness’ claim of knowledge is sufficient.
  53. Cannot testify to what was in another’s mind
  54. Lemire agent who had knowledge of the materials used to prep the chart had enough personal knowledge to present the chart.


  1. Maylie witness does not have to be 100% certain of facts (where a doctor was not 100% sure he was at the surgery but was pretty sure)
  2. slight opportunity for observation is enough
  1. Recollection
  2. Writing Used to Refresh Memory: 612. If witness uses a writing to refresh his memory for the purposes of testifying either
  3. while testifying; or
  4. before testifying
  5. Adverse party can (no matter what where witness uses it on stand; discretionary if W uses it beforehand)
  6. have access to writing
  7. introduce into evidence the portions of the writing that the witness is relying upon (to show that witness really lacks a present memory)
  8. Privileged document: adverse party still has right to view it so priv may be lost, most ct also consider using this type of doc prior to testimony waives the priv
  9. In criminal case where prosecution chooses not to comply, J must strike testimony or declare a mistrial. J can do whatever in civil trial.
  10. J excises irrelevant passages in camera
  11. Refreshing = preparing
  12. Procedure
  13. Witness appears to have memory problem
  14. Counsel asks if document X would refresh recollection
  15. Show witness doc, reviews silently, ask whether memory is refreshed
  16. If yes, witness testifies
  17. Opposing counsel may introduce doc to show witness is reading, not remembering
  1. Anything can refresh

Is this called present memory recollected?

  1. past recollection recorded
  2. record was made/adopted by witness
  3. Where adopted, may need person who wrote it to testify for foundation.
  4. when she had recollection (matter was fresh in mind)
  5. can presently vouch that record was accurate when made
  6. Hearsay exception 803(5) memo/record, above three factors, can read into evidence but not itseld be receiver as an exhibit unless offered by an adverse party.
  7. Hanson  pre-litigation is not ‘fresh’ in witness’ memory; however, in Senak ct admitted a doc that was 3 years after event.
  8. Must show memory impairment; memory need not be completely gone.

Didn’t assign in reading:

  1. Hypnotism & other methods of recollection
  2. Zayaswitness besides Δ may not offer testimony that is enhanced through hypnosis
  3. 3 approaches to hypnotism
  4. per se admissibility: credibility of witness is up to jury
  5. up to J to determine whether procedural safeguards were applied
  6. per se inadmissibility: SCt said this cannot apply to Δ in Rock
  7. Borwick factors to consider when deciding whether to allow hypnotically-refreshed testimony:
  8. Whether used specifically to refresh recollection or as part of therapy (latter is more reliable)
  9. Whether witness was subj to suggestion
  10. Whether a record of the session was kept
  11. Whether the hypnotist is suff qualified
  12. Whether corroborating evidence exists.
  1. Communication
  2. Interpreters: 604
  3. an interpreter must swear that their translation is true and accurate
  4. also subject to provision of expert
  5. must be able to prove interpretation method
  6. e.g. compare to another speaker of the language
  7. Watson housekeeper as sole translator in world of stroke victim incompetent


  1. Intro
  2. Definition 401:
  3. any tendency to make the existence of
  4. any fact that is of consequence to the determination of the action
  5. more or less probable probable than it would be without the evidence.
  6. It must relate to the issues and shed some light on those issues
  7. Note: common law, material = of consequence to action, relevant = more or less probable
  8. Relevant Evidence Generally Admissible: FR 402
  9. Al relevant evidence is admissible except as otherwise provided by
  10. constitution
  11. act of congress
  12. FR of evidence
  13. by other rules prescribed by the SCt pursuant to statutory authority
  14. Irrelevant evidence is never admissible
  16. Exclusion of relevant evidence: 403
  17. Relevant evidence may be excluded is its probative value is substantially outweighed by the danger of
  18. unfair prejudice
  19. confusion of the issues, misleading the jury
  20. undue delay, waste of time, needless presentation of cumulative evidence
  21. Note: Lowery – state bar rules don’t determine what to exclude, where lower ct excluded government witness because he was offered leniency to testify
  22. although state law may apply in civil cases where state law provides rule of decision
  23. Direct vs. Circumstantial Evidence
  24. Direct  if believed proves a point
  25. E.g. seeing df shoot victim, but from a while a way. Not necessarily better than circumstancial
  26. Circumstantial evidence requires inferences
  27. See Df w/smoking gun standing over victim
  28. Any Tendency
  29. Need not directly prove the fact; just make it more or less probable
  30. If evidence is too far remote in time it may be excluded
  31. Jury can infer from failure to introduce evidence that evidence would be unfavorable
  32. Conditional relevance: 104(b)
  33. Where relevancy of evidence depends upon proving another fact. 2 options:
  34. require proof up front.
  35. admit, if can’t connect later, strike testimony or declare mis-trial
  36. preponderance of evidence standard for fulfilling the cond
  37. E.g. cousin has shotgun. Relevant where evidence exists pointing that df knew cousin and df shot victim
  38. 4 examples:
  39. Fact B needed to make fact A relevant
  40. Personal knowledge 602
  41. Authentication 901
  42. Rule 1008 (see offers of proof section above, jury decides whether K is a forgery, etc.)
  43. Otherwise, judge determines whether evidence is admissible, witness is qualified to testify, a privilege exists etc. (104a)
  44. E.g. of irrelevance: DEA agent speaking about general investigation techniques employed by DEA.
  45. Rule 403 Balancing
  46. source for common sense objections like asked and answered. See above.
  47. Probative value
  48. McQueeney Evidence of prosecutorial misconduct and subornation of perjury probative because show’s weakness of prosecutor’s case.
  49. Blinzer  where party destroyed a doc, admit this where the party had notice of potential c/a and doc’s potential relevance. HOWEVER, harder in crim case (Hinkle)