Evidence Final Outline

Basics

  • If No One Objects or Anticipates a Ruling, There are No Issues
  • 1 Exception: Judge may raise a question if there is concern about plain error
  • Failure to make objection is plain error, and trial may be so distorted that it will cease to be a fair trial
  • Respecting the Jury
  • Evidence rules do not indicate distrust of the jury
  • We trust juries because we have rules
  • The System Assumes Jurors Do What They Are Instructed to Do
  • However, There are Exceptions (Look for These Later)
  • Old Chief, Shepard, Bruton
  • Bench Trial
  • Judge May Well Hear Inadmissible Evidence in Order to Rule on It
  • Assumption is Judges Are Trained to Disregard Inadmissible Evidence
  • Often Judges Will Not Rule on an Objection in a Bench Trial
  • They Will Hear the Evidence and “Take it Under Advisement”
  • If They Never Reveal How They Ruled, Appellate Courts Assume They Ruled Correctly --- Unless
  • The Decision Depends on Evidence that Must Have Been Admitted and Admission is Error
  • When a Privilege is Invoked, Judge Must Try to Decide Whether Information is Privileged Without First Hearing the Information
  • Some Judges (a Very Few) Have Asked Other Judges to Rule on In Limine Motions to Exclude Evidence
  • Rules 403 and 611 – permits judge to manage
  • Tension b/t what lawyers and judges want – judges worry about time
  • Large case loads, burdened juries – want efficiency
  • Court set time limits – makes parties more efficient
  • 611 (a) – Judge Controls Mode and Order of Proof
  • Make Evidence Effective to Find Truth
  • Avoid Needless Consumption of Time
  • Protect Witnesses from Harassment; Embarrassment
  • No Supreme Court decision in evidence is binding on the states – not constitutional

Scope of the Rules

  • Rule 101: Scope of the Rules
  • US courts
  • Bankruptcy courts
  • US magistrate judges
  • Exceptions under Rule 1101
  • Rule 1101: Applicability of the Rules
  • Civil and criminal
  • Title 11 Bankruptcy
  • (c) Privileges: the rule of privileges applies at all times and all stages of the proceeding
  • (d) Rules Inapplicable:
  • (1) Preliminary Question of Fact
  • (2) Grand Jury proceedings
  • (3) Miscellaneous proceedings (ex. estraditions)
  • Rule 102: Purpose and Construction

Scope of Testimony

  • Direct Examiner Generally Controls the Scope of a Witness’s Testimony
  • Idea: A Party Should Be Able to Present its Theory of the Case in its Case in Chief w/o Undue Distraction into Issues That Party Believes are Unimportant
  • 611 (b) – Scope of cross-examination
  • Subject matter of the direct examination
  • applied to individual witnesses
  • cross must be within the scope of the direct and so forth
  • also allows for matters in regards to impeaching a witness
  • Matters affecting the credibility of the witness
  • Control by the court reasonable control over the interrogation of witnesses and presentation of evidence
  • Purpose= to avoid needless consumption of time and protect witnesses from harassment – but in the end it is the lawyer protecting the witness through objections and speaking up…judge will respond
  • Court may permit inquiry into additional matters
  • If witness not want to come back – may allow more on scope
  • If goes into new material – probably non-leading questions

Common Sense Objections

  • Most Based on Rules 403 or 611, but are not in the rules
  • 1 – Narrative
  • Question is too broad and gives the witness too much leeway
  • Don’t want witness to interject inadmissible things
  • You object to the question, so the stuff never enters the case
  • Striking will never be enough
  • 2 – Non-responsive (for Interrogator)
  • The witness fights the question, doesn’t give an answer
  • Can strike non-responsive answer
  • Non-interrogator can object too – but not good objection b/c interrogator can then ask another question covering that answer
  • 3 – Assumes Fact Not in Evidence
  • Some questions unfair to ask (“stopped beating your spouse?”)
  • 4 – Compound
  • Can produce very ambiguous answer
  • 5 – Ambiguous or Confusing
  • If you can’t understand question, or question could be taken in two different ways – ambiguous answers don’t help
  • 6 – Asked and Answered
  • Don’t want witness to just repeat things
  • 7 – Speculation or conjecture
  • witnesses are supposed to testify to what they know not what they guess or suppose or expect is true
  • 8 – Misstates the Evidence
  • If blatant, the judge will sustain
  • Sometimes what was said is subject to interpretation – tell jury to decide themselves based on memory and consider answer accordingly
  • 9 – Argumentative
  • Lawyer argues with witness instead of seeking information
  • 10 – Badgering the Witness
  • Kind of harassing the witness – lawyer has crossed a line

Rule 611(c) – Leading Questions

  • Leading Questions Suggest Answer to Witness
  • Don’t want the lawyer to testify in place of the witness
  • Direct Examination – Generally Non Leading Questions
  • Exceptions:
  • Necessary to Develop Testimony
  • Hostile Witness
  • Adverse Party
  • Witness Identified with Adverse Party
  • Cross-Examination – Generally May Lead
  • Exception – Friendly Witness
  • Judge has a lot of discretion

Objections and Offers of Proof

Rule 103(a)(1) – Objection

  • Always use this rule if you want to be able to appeal
  • No error, unless
  • Substantial right affected; and
  • Timely objection to question/answer
  • Generally objections to Qs must precede answer
  • If wait for answer, maybe not timely – waived objection
  • Objections to As must be prompt and usually be accompanied by motion to strike
  • Stating specific ground of objection, if not apparent from context
  • Not necessary to cite rule number – except rule 403
  • Incompetent, irrelevant, & immaterial” – is a general objection
  • No better than simply “I object”
  • Questions are not evidence, no need to ask to strike – only strike answers
  • There are continuing objections – to a line of questioning, or a subject
  • Once the court makes a definitive ruling on the record admitting or excluding evidence, either at or before trial, a party need not renew an objection or offer of proof to preserve a claim of error for appeal…but MUST make objection and offer to preserve
  • MUST MAKE YOUR RECORD!...always be aware of the record!

Rule 103 (a)(2) – Offers of proof

  • In case the ruling is one excluding evidence
  • The substance of the evidence was made known to the court by offer; OR
  • Was apparent from the context w/in which Qs were asked
  • Trial judge must know what is excluded
  • Appellate court must be able to evaluate what is excluded
  • Offers of proof
  • Offer can be made by counsel’s proffer – says what would have been proved
  • Offer can be made in writing
  • Offer can be made by citation to deposition
  • Offer can be in Q&A form
  • Cross-examiner not required to make same offer as direct examiner

Rule 103(b) – Record of offer and ruling

  • The court may add any other or further statement which shows the character of the evidence, the form in which it was offered, the objection made, and the ruling thereon. It may direct the making of an offer in Q and A form
  • Court retains control over how objections an offers are made

Rule 103(c) – Hearing of Jury

  • In jury cases, proceedings shall be conducted, to the extent practicable, so as to prevent inadmissible evidence from being suggested to the jury by any means, such as making statement or offers of proof or asking questions
  • “Speaking objections” – frowned upon – this is where you go into a speech/argument instead of a simple stating of the grounds
  • Sidebar conferences are common
  • Offers of proof are outside hearing of the jury too
  • Lawyer whose evidence isn’t going to be let in needs to make a record
  • If you don’t object you waive your objection and right to appeal the issue
  • In Limine objections are very useful
  • Avoid surprise; judges have time to rule; jury trial is not interrupted
  • If made too early, judges will ignore
  • Judges will usually rule only if they think the criminal case will go to trial, or in a civil case if the exclusion of an expert will end the case (summary judgment goes along with the motion usually)

Rule 103(d) – Plain Error

  • Nothing in this rule precludes taking notice of plain errors affecting substantial rights although they were not brought to the attention of the court
  • Supreme court has placed severe limits on plain error
  • Must be error
  • Must be clear or obvious – so obvious, everyone saw it, huge mistake
  • Must affect outcome of case – substantially affects justice

General Objection Info

  • Waiving Objections
  • If can be impeached w/ prior convictions – waives objection if testifies
  • D brings out conviction on direct exam, waives objection to ruling
  • Bring it out first to “take away the sting” and not look like they are hiding things from the jury
  • Don’t know what would have happened; Never suffered any harm
  • Luce v. US: impeachment by prior conviction
  • Wrong objection at trial
  • You need to make the correct objection at trial – or plain error
  • If you lose on an objection, you cannot pursue a different objection on appeal
  • But if you win an objection on the wrong ground, an appellate court can affirm using the correct objection
  • Harmless Error
  • Error must affect fundamental rights
  • Party must have properly preserved issue – full appellate review
  • Chapman v. CA(case in book intro)
  • Constitutional errors are harmless only if court is satisfied beyond a reasonable doubt that error did not affect the verdict
  • Objections can be STACKED!
  • Raise everything that makes sense
  • Preserve it for appeal
  • If not brought up waived, even if it is the correct objection
  • Ct of Appeals can raise on its own but you no longer have the right to it

Preliminary Questions

Rule 104(a) – Questions of Admissibility Generally

  • Preliminary questions concerning the qualification of person to be witness, the existence of a privilege, or admissibility of evidence shall be determined by the court
  • Rule 1101 (c) –(d): Court not bound by rules of evidence except those with respect to privileges
  • Principles
  • Trial judge decides any issue required to be decided by a rule of evidence
  • Trial judge may be a fact finder – and final decision maker
  • The preponderance of evidence standard is used
  • Burden is on party claiming the benefit of any rule
  • Hearing may be required

Rule 104(b) – Conditional Relevance (relevancy conditioned on fact)

  • When the relevancy of evidence depends upon the fulfillment of a condition of fact, the court shall admit it upon, or subject to, the introduction of evidence sufficient to support a finding of the fulfillment of the condition – conditional relevance
  • Principles
  • Judge decides whether evidence is relevant if believed under Rule 104(a)
  • If relevant, the standard under Rule 104(b) and Rule 901(a) [authentication/identification] is: could a reasonable juror believe the evidence is what the proponent claims
  • If so, evidence may be admitted
  • If not, it may not be admitted
  • Judge decides whether jury could believe a witness
  • 901 (authentication), 602 (personal knowledge), 1008 (best evidence rule)
  • Judge screens evidence – jury ultimately decides if relevant and what it purports to be

Rule 104(c) – Hearing of Jury

  • Hearings on admissibility of confessions shall be conducted out of hearing of the jury.
  • Hearings on other preliminary matters shall be so conducted when the interests of justice require, or when an accused is a witness and so requests.
  • Judge may permit witness to testify before ruling whether to strike the testimony

Rule 104(d) – Testimony by Accused

  • The accused does not, by testifying upon a preliminary matter, become subject to cross-examination as to other issues in the case.
  • Only applies in criminal cases
  • Does not waive privilege against self-incrimination in order to lay foundation for evidence; may only be cross-examined as to foundation testimony

Rule 104(e) – Weight and Credibility

  • This rule does not limit the right of a party to introduce before the jury evidence relevant to weight or credibility.
  • Judge determines admissibility
  • If admitted, evidence may be attacked
  • Jury decides weight and credibility

Rule 105: Limited Admissibility

  • Evidence admitted for one purpose but not allowed to be used for another
  • Court can restrict evidence to proper scope and instruct the jury as to such

Rule 614: Calling and Interrogation of Witnesses by the Court

  • (a) Calling by the Court: the court may on its own or at the suggestion of a party call witnesses and all parties are entitled to cross-examine the witnesses
  • (b) Interrogation by the Court: the court may interrogate a witness at any time whether called by the court or a party
  • (c) Objections: to any of the above may be made at the time or at the next available time the jury is not present

Rule 615: Exclusion of Witnesses

  • At the request of a party the court SHALL order witnesses excluded so they cannot hear the testimony of other witnesses
  • Exceptions
  • A party who is not a natural person
  • An officer or employee of a party which is not a natural person designated as its representative by its attorney
  • A person whose presence is shown by a party to be essential to the presentation of the party’s cause
  • A person authorized by statute to be present

Witnesses – Generally

Competency

  • Rule 601 – General Rule of Competency
  • Every person is competent to be a witness except as otherwise provided
  • In civil actions and proceedings, with respect to an element of a claim or defense as to which State law supplies the rule of decision, the competency of a witness shall be determined in accordance with State law.
  • Note – This is one of three places where state law is referenced
  • State law often means Dead Man’s Statutes – testifying about an episode dealing w/ someone who is dead – worried about fraud
  • There is no federal dead man’s statute
  • Judge decides competency issues under Rule 104 (a)
  • Only 3 times where not competent to be a witness (federally)
  • Witness won’t take oath
  • Judge in the case
  • Juror in the case
  • Competency versus Credibility
  • Judge decides competency; jury decides credibility
  • Competency – can person take the stand at all – threshold issue
  • Drug use may temporarily render witness incompetent
  • Drug use at the time of the event IS competent – the credibility (description of the event during which witness was drugged) is at issue and for jury to decide
  • Judge may choose to watch witness, then rule
  • Mental examinations are exception, not rule
  • Rule 605 – Judge as Witness
  • The judge presiding at the trial may not testify in that trial as a witness. No objection need be made in order to preserve the point.
  • Child Witnesses
  • No minimum age under Federal Rules
  • States often have presumptions
  • If child is incompetent, hearsay might be admitted
  • Child probably must understand purpose of an oath – not necessarily all words
  • Judge would rather the child testify
  • Jurors as Witnesses
  • Rule 606(a) – At Trial
  • A member of the jury may not testify as a witness before that jury in the trial of the case in which the juror is sitting
  • If the juror is called so to testify, the opposing party shall be afforded an opportunity to object out of the presence of the jury.
  • Rule 606(b) – After Trial
  • Jurors Cannot Impeach Verdicts Based On Mental Processes
  • Jurors often have doubts – they can’t attack their own verdict
  • Exceptions: Extraneous Prejudicial Info; Outside Influences
  • Shouldn’t be present and may improperly affect juror
  • Newspaper accounts of case, bribe offered to juror, jury experiments, bailiff’s comments to jury
  • Not extraneous – deliberations, ignoring instructions, pressure from other jurors, drugs, alcohol, virus, bad food,lack of sleep
  • Threats to kill? – up in the air
  • Also may testify to mistake in entering the verdict onto the verdict form
  • Juror Lies on Voir Dire May be Explored
  • If lie to get selected, this could result in upsetting of verdict

Rule 603 – The Oath

  • Before testifying, every witness shall be required to declare that the witness will testify truthfully, by oath or affirmation administered in a form calculated to awaken the witness’ conscience and impress the witness’ mind with the duty to do so.
  • No particular form is required
  • Usually good practice to ask witness about reservations before calling to the stand
  • Oath is closely related to competency; inability to satisfy Rule 603’s incompetency
  • If you cannot understand or give oath – then you are not incompetent

Rule 604 – Interpreters

  • An interpreter is subject to the provisions of these rules relating to qualification as an expert and the administration of an oath or affirmation to make a true translation.
  • Interpreter must qualify as an expert; thus, methodology must be reliable
  • Interpreter must take oath to make true translation (604)

Rule 602 – Lack of Personal Knowledge

  • A witness may not testify to a matter unless evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter
  • Evidence to prove personal knowledge may consist of witness’ own testimony
  • Rule is subject to the provisions of rule 703, relating to opinion testimony by expert witnesses – can base opinions based not on personal observance (knowledge) of the incidents
  • Judge evaluates under Rule 104(b) – enough evidence to support a finding by the jury that the witness perceived the facts
  • If the jury COULD believe the witness, then it goes to the jury
  • Generally, a witness’s claim of knowledge is sufficient
  • Witness Need Not Be Absolutely Certain
  • Insufficient, However, to Say “I Imagine”
  • But “what I believe I heard” or “that’s my recollection” is good enough
  • Personal Knowledge May Support a Lay Opinion
  • Ex:One can’t really have personal knowledge that a person is drunk – but all the surrounding circumstances can lead you to that opinion
  • Important to focus on what witness claims to know
  • Inconsistency does not negate personal knowledge – as long as the witness saw or heard something, he has personal knowledge

Refreshing Memory

  • Rule 612 – Writing Used to Refresh Memory
  • If witness uses a writing to refresh memory for purpose of testifying, either:
  • (1) while testifying, OR
  • (2) before testifying, if the court in its discretion determines it is necessary in the interests of justice
  • An adverse party is entitled to have the writing produced at the hearing, to inspect it, to cross-examine the witness thereon, and to introduce in evidence those portions which relate to the testimony of the witness.
  • If it is claimed that the writing contains matters not related to the subject matter of the testimony the court shall examine the writing in camera, excise any portions not so related, and order delivery of the remainder to the party entitled thereto. Any portion withheld over objections shall be preserved and made available to the appellate court in the event of an appeal.
  • Except as provided in criminal proceedings by 18 USC § 3500 (Jencks Act)
  • Rule 106 – Remainder of or Related Writings or Recorded Statements
  • When a document or part of it is introduced, the adverse party can require introduction of any other part or other writing or recorded statement which ought in fairness to be considered contemporaneously with it.
  • Notes
  • Anything can be used to refresh memory
  • Work product and privilege claims might be waived if documents are used
  • Question can be leading if its trying to refresh the witness’ memory
  • Document is not used by refreshing counsel to prove contents; it is used solely to refresh recollection
  • Adversary may offer document to challenge claim of memory refreshed
  • Document is not used by opposing counsel to prove truth of contents, but to show memory claim is false
  • Compared to 803(5) Recorded Recollection
  • Under 612—NOT evidence
  • Under 803—Evidence!

Bakerv. State (Md. 1977) pg 479 Refreshing Recollection