Evidence Skinny
Spring 2005
I. Competency
A. Federal
Person must have personal knowledge of the matter, supported by oath or affirmation and is competent to testify.
- 601 Competency- Defers to federal judge in diversity, always go with state rules
- 602 Lack of Personal Knowledge- must have personal knowledge perceived with their senses
- 603 Oath- must promise to tell truth so they will answer more carefully and be subject to perjury charges.
- 604 Interpreters- not incompetent b/c can’t speak English
- 605 Judge- presiding judge can NOT testify (must recuse themselves)
- 606(a) Juror as Witness- can NOT testify
- 606(b) [Deals with what goes on with the jurors, not the trial] Juror can NOT testify on motion for rehearing to impeach their own verdict unless: 1) extraneous prejudicial info (accident scene) or 2) whether outside info brought to attention (bribe)
B. MS
- 601- If one spouse is a party, both must consent or the other can’t testify.
- Exceptions: 1) If the case is a conflict between the spouses, then both are deemed competent; 2) Spouses can testify against each other in cases with criminal acts against their children.
C. General Concepts
- Children = Procedure for determining competency of children (for judge voir dire): 1) child has ability to perceive and remember events, 2) child has ability to understand and answer questions, communicate effectively, 3) understands the importance of telling the truth.
- Lawyer = They can testify (because it is not against the FRE), but there are ethical sanctions for this action.
D. 615 “The Rule”
- Witnesses that are going to testify can’t hear the testimony of other witnesses. Can be invoked by either party or judge. Witnesses may collude or conform their testimony to mirror other’s if they hear it.
- Exceptions: 1) parties who are natural persons (actual Δ & Π), 2) corp’s one person to be rep at trial, and 3) shown to be essential to your cause (eg. experts must know facts of case so they can testify, so they have to be there and hear what has been said).
- If violated, witness may be excluded, testimony struck, contempt, but usually exposed to full bore c-x (can suggest that the witness is only parroting what they heard).
- Lawyer, nor anyone else can tell future witnesses have said either, you can prep your witness but not inform them.
E. Form of Questions on Direct
- 611 (a) says ct “shall exercise reasonable control over mode and order of interrogation” Specific v. Narrative
- 611(c) Leading Questions- usually only allowed on c-x. [def: question which suggests the answer person asking wants to get]. (What, when, where, why, how: type questions are usually safe if the answer word is not in the question). **LQ’s are not effective way of developing your case, b/c jurors see through it.
- Exceptions: when necessary to develop testimony, children, hostile witnesses/adverse party or person identified with adverse party, refreshing recollection, or preliminary matters to lay foundation.
- This rule exists because witnesses are very likely to go along with what “their lawyer” wants and leading them can allow or let them say something untrue because they want to side with their lawyer; but on c-x it is adversarial.
- You declare the witness, adversarial or hostile, to tell the court you will be using leading questions. The other side can object to that label of hostile so as to prohibit leading questions.
- BEST WAY: Ask, what is the relationship between the lawyer and the witness, if it is a good relationship you can NOT ask leading questions otherwise you can. Also note the exceptions.
- Misleading/Argumentative: Remember not to assume a fact a witness has not testified to or argue with them.
- 614- Judge may call and examine witnesses but rare because it is prejudicial.
F. 612 Refreshing Recollection
- You may refresh recollection of a witness with a writing/thing even if the “thing” is not admissible into evidence. The other side has absolute right to see what you used, cross-examine about it, or put into evidence. Don’t use if don’t want other side to see.
- You are using the refreshment to allow a witness to then give “their own” testimony, not tell about evidence. The judge must weigh if witness actually remembers, under oath, or else sustain the objection to prevent the testimony.
- Using it as a refresher does not mean it is admissible as evidence so long as the witness does not describe the inadmissible evidence. (This prevents circumventing discovery rules). Refreshing is not admitting evidence.
- Doctors are allowed to consult a patients medical file during their testimony, atty may want to point this out.
- If after refreshing a witness still can’t remember, then they are done testifying.
G. Requirement of Firsthand Knowledge
- Side trying to prove something has burden of showing person testifying has personal knowledge of it. Do this by building foundation
H. Case in Chief
a. You must call all your witnesses while presenting your case in chief, you can’t sneak witnesses in after the defense has tried their case.
b. After the Π completes their case, the or the defense can ask for a “motion” (which clears the court room) and they will ask for JML or a limiting instruction.
II. Procedures for Admitting or Excluding EvidenceRule 103(c)
A. Offer of Proof, i.e. “proffer of evidence”
- If the objection is sustained, you must make an offer of proof to “preserve your objection” for appeal so the appellate court will know what the evidence would have said:
- Procedure: 1) At this time we would like to make an offer of proof (jury leaves) 2) Your Honor, would you like me to continue questioning the witness OR make a statement on record? i.e. Statement = “if this witness were permitted he would say...” 3) This completes our offer of proof.
- After hearing the evidence the judge may change his mind and now allow it in, and reverse their ruling. If the ruling is reversed they bring the jury back in and re-question the witness.
- Appeals Court will NOT even rule on the issue of the objection if no offer of proof is in the record. Failure to do so is negligence for the atty and can open you up for malpractice claims.
B. Procedure for Offering Things into Evidence
- Process: 1) Your Honor, we would like to have this marked for identification. (always do this even if you don’t think it will get in so it will be part of the record; having it marked does NOT mean it is in evidence) 2) Hand to opposing counsel (step 1 & 2 are interchangeable). 3) Lay foundation for admissibility (authentification, relevancy by handing it to the person on witness stand and then question them to lay foundation). 4) Your Honor we now offer this into evidence as…. (clerk will then give “thing” an evidentiary number).
- Reason to do this procedure, it gets the item into record even if its admission is objected to. This creates an offer of proof even though the objection may be sustained. It also gives you opportunity to talk and show things to jury (ring the bell), and make sure you don’t forget to get it identified.
III. Objections
A. Timeliness Requirement
- Must object at a time when a reasonably, prudent, competent lawyer would have made it.
- This is usually when a question calls for an answer that would be inadmissible (often when question is asked).
- If the witness gets an answer out (that should be inadmissible) then “motion to strike.”
B. Specific Grounds
- This helps judge make decision and alerts other side to what is wrong
- SC may says you objected on wrong grounds but there is a ground and its wrong.
- Should not say evidence is “incompetent” b/c it is improper b/c it applies to witnesses, not evidence.
C. Motions in Limine
- Advanced Ruling before trial that evidence is admissible/inadmissible, non-mentionable at trial if successful.
- 2 Part test: 1) the material or evidence in question will be inadmissible at a trial under the rules of evidence; and 2) the mere offer, reference, or statements made during the trial concerning the material will tend to prejudice the jury.
- Make offer of proof it you can’t get the ML.
- Important because the mere mention of this “thing” can prejudice the jury. These are no win examples (subject is inadmissible)
D. Repetition of Objections
- MS 103(a)- Your Honor may we have a continuing objection to this line of questions (also OK in fed ct)
- 103 (c) If you have a question about the admissibility of evidence, you must not do it in open court so jury can hear it, you should approach the bench and discuss out of hearing of jury.
- 103(d) plain error rule- right to judicially notice something gone wrong and atty didn’t object--judge can but don’t expect it.
E. Deposition Objections
- “All other objections except to form of the question are reserved” [Said at opening of deposition]
- Objections to form of questions, easily remedied must be made at time depo taken
- Hearsay- not easy objection doesn’t have to be made at depo time (i.e. substantive objections)
- If person is not able to testify, you do NOT introduce the written deposition b/c it is unfair to give them something written when no one else has it, it allows for undue weight by the jurors to be given to that testimony.
F. 104 Preliminary Questions
- 104(a) - Admissibility generally = judge will decide whether witness is expert, admissibility of evidence, if original been lost, if witness is unavailable (not bound by evidence rules)
a. E.G. excited utterance rule may be allowed even though hearsay because it depends on another fact.
- 104(b)- Relevancy Conditioned on Fact = where relevancy depends on condition of fact, it can come in “out of order” if evidence will connect later (jury decides if reasonable minds differ on issues like scope of employment)
G. Waiver of Objections
- 1) Demand for inspection in writing = Even if evidence is inadmissible, you can have it identified without risk of waiving your objection to its admittance.
- 2) Failure to object to other like evidence (waking up)- D can object to this and if “well taken” the ct will sustain it, but striking the earlier testimony is probably not going to happen if a reasonable lawyer would have seen as non-admissible at time (but don’t have to hear anymore of it)
- 3) Law of the Case- when judge makes a ruling regardless of admissibility that establishes the law of the case on that subject and the other side is permitted and must treat the law of the case and is entitled to and should take to best advantage of client (try to take steam out of something D objected to but judge allowed in--think of in context of motions in limine and in line of testimony objected to) [McGee -- flat tire robbery & 4 prior convictions].
- 4) Offering Like Evidence by the Objector = If you previously object to evidence (and it was sustained) and then try to put the same evidence in, you effectively waive your previous objections.
- 5) Exclusion by Judge in Absence of Objection = Trial judge can exclude evidence on his own motion if it is in the interest of justice.
- However, if the other side is leading (for example) and you don’t want to keep objecting you can let a few slide and then object.
H. Rule 106 --Intro of Part of Writing or Conversation
- When P wants to put in part of a (deposition, even picture or whatever) and it would be misleading to just put in that portion, where necessary for a fair understanding of the writing, the other side may require the party to put other parts in at the same time.
- But we generally do NOT want depositions or reports admitted when the person can testify themselves because it would give undue prominence to that testimony (b/c the jury could take it and read it).
- The rule of completeness says you can’t introduce part of something that does not adequately represent the whole.
I. Fighting Fire with Fire -- Opening the Door
- If one atty starts a line of testimony (whether should have been admissible or not), he may not later object to evidence put on by the opposing atty about the same subject because they have “opened the door.”
- This doesn’t apply to rules of evidence, only subject matter (can’t say P led and I didn’t object)
J. Connecting UpRule 106
- The court will allow evidence to come in out of order when the relevance of a fact will depend upon the existence of some other fact.
- In this situation the court will admit the 2nd fact, evidence to establish first fact will be forthcoming
- The court will allow evidence out of order, providing the att’y will explain what evidence will be shown later.
K. Evidence Admissible for One Purpose, Inadmissible for AnotherRule 403
- Ex: admissible to issue of notice, state of mind, impeachment, etc.
- Eg. Dumpster kills kid case/ evidence told about 20 prior deaths and warning to city about danger.
**Evidence was relevant to notice of danger and knowledge but NOT to danger (b/c hearsay).
** Ct. should have added an instruction telling jury how they had to think about the evidence.
- Court takes middle ground and lets it in but gives limiting instruction to jury if other side asks for it.
- But always remember 403 balancing test.
L. “Plain Error” Rule 103(d)
•If upon appeal, and the side failed to object during trial, the court of appeals can still reverse or rule on the facts based on the merits of the case. This is like an obvious error that affects the substantial rights of the person.
M. Chance to Cure
•If an error can be cured, the att’y should be allowed to fix defects thereby allowing justice.
•Thus, while objecting you must state your grounds, thus telling the other side if they can cure it.
IV. Requirement of Firsthand Knowledge: The Opinion Rule and Expert Testimony
A. 602 Lack of Personal Knowledge
- Witness must testify about something they perceived by their senses and must have had an opportunity to observe and have actually observed the fact (same goes for hearsay).
- Party offering testimony has the burden of laying the foundation of personal knowledge.
- Failure to do so opens you up to motion to strike all or part of the testimony.
B. 701 Opinion Testimony by Lay Witnesses (not qualified as expert)
- (a)- if a lay witness is testifying to opinion, they must have personally perceived it
- (b)-the testimony must be helpful to give clear understanding (so if all opinion does is simply give characterization from what has already testified to this is not new or helpful)
- law would rather have testimony that tells why a witness thinks something rather than just saying “bridge is safe”
- Where witness can not be expected to give testimony in any more concrete terms [it is sometimes too difficult to accurately explain things without having an opinion in there], opinion testimony will be allowed by witness (but still more willing to allowed than used to)
- Where opinion is allowed, attorney may have witness testify to underlying facts
- 701 has been enlarged but the line is not clear b/c fact and opinion are sometimes hard to distinguish
- At CL lay witnesses could always testify to speed, distance, time, soundness of mind, sobriety or drunkenness, and handwriting (lay the foundation for these)
- As long as it is not based on scientific, technical or other specialized knowledge (but can still draw inferences)
- Lay witnesses can NOT express an opinion on the Ultimate Issue
C. 702 Expert Testimony: 2 Categories:
- Expert Fact Testimony- (Things they have personally seen) must show “expertise and knowledge” of subject
- Based on sufficient facts or data
- Typical operations of the field is not opinion
- Based on reliable principles and methods of their discipline.
- Expert Opinion testimony- asking expert to tell jury what he thinks the jury should conclude from evidence they’ve heard [This is based on a “reasonable medical/expert probability”] = requires a hypothetical question.
D. Procedure to Bring in Expert testimony
- 1) Ask questions about background, experience, etc. Then say, “Your Honor, we tender X to the court as an expert in ____”
- MS Standard- Does the witness have enough expertise to testify in front of jury, but must stay within their field of expertise
- Qualifications: Education and Training (contributing to expert status), Professional Associations, Publications, Experience, Previous Testimony as an Expert [opposition usually stipulates so jury won’t hear all of this, but try to get it into the record]
- 2) Once qualified as expert witness, you may ask witness to assume following facts are true:
- facts must have been previously admitted into evidence
- hypos are criticized and parties will differ over what facts should be included in hypo
- 3) Do you have an opinion on the matter of scientific probability (NOT possibility) to the question presented? Would you tell us why?
E. Daubert Opposing Side Examination of Expert Witness[Designed to give Judge more authority as gatekeeper]
- Typically don’t cross examine until after his direct testimony
- But they are permitted to examine prior to testimony to determine whether expert
- If experts, on a day to day basis, take a certain type of evidence into consideration (then inadmissible evidence can still be considered in making their opinion.
- Factors to determine whether a legitimate expert or reliable formula/methodology:
- Whether proposition is testable and has been tested
- Whether proposition has been subject to peer review and publication
- Whether methodology has a known error rate
- Whether there are standards for using the methodology
- Whether methodology is generally accepted
F. 702 Testimony by Experts [Daubert Test included here]
- Necessary when jurors do not know what inferences to draw from testimony bc jurors do not know enough about the subject
- Experts with knowledge are allowed to tell jury what inferences to be drawn from the evidence presented at trial (but not when jury knows just as much as anyone else, i.e. how a reasonable person drives a car)
G. 705 Recitation of Underlying Facts no Longer Required New Changes!
- Expert may testify in terms of opinion or inference and give reasons without discussing the underlying facts or data.
- Dr., have you made an investigation of this accident? Why did you do that? Based upon your investigation do you have an opinion based upon reasonable scientific probability how fast the car was going when the brakes were applied?
- When testifying to underlying facts hypos aren’t necessary **Most lawyers don’t use hypos any longer**
- After giving opinion, attorney may have expert to explain how he arrived at this conclusion
- Facts or data otherwise NOT admissible can come in through their opinion [even though not technically admitted] (e.g. hearsay: witnesses telling them “I saw some kids playing in a barn”)
H. 703 Bases of Opinion Testimony By Experts