Evidence Outline – Carter – Fall 2011

I. Introduction and Basics: Evidence Law System

  • A. Policy: Why Do We Have Rules of Evidence:
  • (1) Mistrust of Juries
  • Although we rely on juries, a general mistrust exists
  • Evidence law is generally a screening function of the Judge
  • We believe that some evidence may not be weighed accurately by the jury, so judge screens to determine adequacy of evidence and whether a jury could appropriately judge the evidence
  • (2) Ensure Accurate Fact-Finding
  • Many of the rules of evidence help to bolster the accuracy of facts
  • Thus, along with the fear that a jury cannot be trusted, we want the jury to evaluate accurate facts
  • (3) Pragmatism
  • Rules control the amount of evidence, scope of evidence
  • This ensures: quick, accurate, and cost-effective, not overly duplicative
  • These are embodied in FRE 102, infra
  • B. History and the Federal Rules of Evidence General Provisions:
  • General:
  • California was the first state to attempt to codify evidence rules
  • Prior to, evidence rules existed at common law
  • Federal Rules followed, first adopted in 1975
  • Proposed by advisory committee appointed by the Supreme Court
  • Transmitted to Congress pursuant to the Rules Enabling Act
  • Thus, if not amended by Congress They become law after 90 days of inaction
  • Were amended
  • Purpose:
  • Accessibility is the main reason
  • All rules are in a short, concise 63 rule-book
  • FRE 102: Purpose:
  • Rules shall be construed so as to:
  • 1. Create Fair proceeding
  • 2. Eliminate unjustifiable expense and delay
  • 3. Promote development of evidence law
  • 4. In order to ascertain truth and secure justice
  • Note:
  • This is a fall back objection to get rule construed in your favor
  • General Provisions:
  • FRE 101:Scope of Application:
  • 1101(a) Rules apply to those Courts listed:
  • 1. US District Courts
  • 2. US Bankruptcy Courts and Magistrate Judges
  • 3. US Court of Appeals
  • 4. US Court of Federal Claims
  • 5. District Courts of the Territories
  • 1101(b) The Rules apply to:
  • Civil Cases and Proceedings, admiralty and maritime cases
  • Criminal cases and proceedings
  • Contempt proceedings
  • Bankruptcy proceedings
  • 1101 (c): Privilege
  • Privilege rules apply to all stages of a case or proceeding
  • Note:
  • So, although FRE may not always apply, privilege portions do
  • The Super Objection
  • 1101 (d) The FRE do not apply to (except for privilege):
  • 1. 104 Preliminary Questions of Fact
  • 2. Grand Jury
  • 3. Miscellaneous Proceedings listed***
  • C. What Occurs at Trial:
  • 1. The Beginning
  • A. Civil
  • Civil Complaint: Explains what was alleged to have occurred
  • B. Criminal
  • 1. Indictment:
  • Grand Jury gets to, in secret, evaluate evidence presented to it to determine whether enough evidence to indict suspect
  • Not adversarial
  • ∆ does not present evidence
  • 2. Or, Criminal Complaint/Information Statement
  • Explains what alleged to have occurred
  • Preliminary Hearing
  • This hearing follows to determine if probable cause exists
  • Witnesses are called
  • ∆ may utilize evidence (but may not to avoid exposing arguments to π)
  • 2. Pre-Jury Selection Motions:
  • A. Civil
  • Discovery and motion practice occurs
  • B. Criminal
  • Some type of discovery occurs (jurisdictionally dependant)
  • Evidence is collected and cataloged
  • Motions occur
  • 3. Jury Selection
  • Generally:
  • At this point and trial, differences between the civil and criminal systems converge
  • Differences are minor
  • “Voire Dire”
  • Each side gets to question potential jurors, assessing their ability to beneficially decide the case
  • Judge may also question
  • Each Side May Challenge:
  • A. Challenge for Cause
  • Judge must determine if “cause” has been determined
  • EG: prejudiced/related
  • B. Peremptory Challenge
  • Each side is given a limited number of exclusions without cause/for any reason
  • Note:
  • Some courts have held that race cannot be a factor
  • 4. Trial begins:
  • A. Opening Statement
  • Puts together a theme of the case, and explains what the evidence will show and what they will prove
  • B. Presentation of Proof
  • 1. Case in Chief of Each Party Begins
  • A. Plaintiff/Prosecutor Presents Case-In-Chief by calling witnesses
  • Direct Examination:
  • Testimony elicited
  • Demonstrative evidence sponsored, objected to, and admitted/denied
  • ∆ Cross-Examines
  • π Re-Direct
  • B. Defendant Presents its Case in Chief
  • Π Cross-Examines
  • ∆ Re-Direct
  • C. Plaintiff’s Rebuttal
  • ∆ Cross-Examines
  • π Re-Direct on Rebuttal
  • Note:
  • The Scope of Direct Rule applies
  • The party presenting their case-in-chief gets to determine the order, sequence, and subjects they present
  • The party with the burden of proof always begins and ends
  • During Case-In-Chief: Introduction of Evidence:
  • Party presenting the evidence:
  • 1. Introduces it
  • Lays foundation for evidence
  • Sponsoring Witness to admit the evidence
  • Authenticates the Evidence
  • 2. Offer to Admit Evidence as Exhibit
  • 3. Objection to Evidence Occurs
  • Note:
  • If you fail to object to evidence, you waive the right to and do not preserve for appeal
  • 4. Offer of Proof
  • Note:
  • If you fail to make an offer of proof, you waive the right to and do not preserve for appeal
  • 5. Ruling
  • 5. Trial Motions:
  • Parties Motion the Court for judgment
  • Parties may desire to have case taken away from jury
  • Directed Verdict
  • This is rare as it removes from jury
  • Subject to easier reversal on appeal
  • 6. Closing Arguments
  • Order:
  • (1) Plaintiff
  • (2) Defendant
  • (3) Plaintiff’s Rebuttal
  • 7. Jury Instructions:
  • Generally:
  • Parties submit, object to and argue to the instruction
  • Two Special Types:
  • 1. Curative Instruction
  • May occur during trial, after objection is sustained, or at end of trial
  • Instructs the jury to ignore certain evidence
  • 2. Limiting Instruction
  • Instructs the jury on how certain evidence may be considered or applied to one point and not another
  • FRE 105: The Judge may be requested to give a limiting instruction
  • 8. Deliberations, Verdict, Judgment, and Post-Trial Motions
  • Generally
  • Time for appeal begins to run
  • Post Trial Motions:
  • Losing Parties typically move for:
  • Judgment as a Matter of Law/Judgment Notwithstanding the Verdict
  • 9. Appellate Review:
  • Generally:
  • A “Final” judgment must occur before appeal is granted
  • Preservation of Claim of Error:
  • To get Full Review:
  • Parties must have stated the position to the trial court, objecting/making offering of proof
  • D. Making the Record:
  • 1. Generally:
  • The record, recorded by a stenographer or computer, is used to present a case to the judge and jury in the trial court and also a potential appellate court on review
  • The Only Consideration of the Appeals Court
  • It is extremely important, as it is a permanent writing of what is said and done at trial
  • Attorneys should get into the record, as clearly as possible, their case and what occurred at trial then, in preparation for potential appellate review
  • Get Evidence in
  • Show your attempt to get evidence in with (1) Objection or (2) Offer of Proof
  • 2. A Record is Composed of:
  • A. Pleadings
  • B. Filed Documents
  • Motions, briefs, discovery, jury instructions
  • C.Record of Proceedings
  • the written account of what transpires during the trial
  • Note:
  • The most important to appellate review regarding evidence
  • Questions, responses/testimony, objections and rulings by the trial judge
  • Side-Bar discussions
  • D. Physical Exhibits
  • E. Docket Entries
  • A dated, chronological version of everything that happened from beginning to end of the action
  • 3. Issues in Making the Record: What to do and what not to do
  • A. What to Avoid:
  • Repeating Answers of Witnesses
  • Interrupting the Witness
  • Failing to explain numbers mentioned clearly as to what they mean
  • Failing to Explain who a name corresponds to/spelling
  • Which evidence is being referred to
  • Non-verbal references should be explained
  • B. What to Do:
  • Assure that what is in the record is
  • (1) Clear, and
  • (2) Meaningful when evaluated by a potential Court of Appeals
  • Be Aware of the Reporter
  • Remember that someone is typing what occurs
  • Be as clear as needed to ensure the reporter can get what occurs on paper
  • E. The Admission or Exclusion of Evidence:
  • 1. Getting Evidence In:
  • A. Testimony from Direct Examination
  • Generally:
  • When an attorney is questioning a witness, 3 things are done
  • 1. Background Information:
  • Basic Questions that ease the witness, and presents to jury in positive light
  • 2. Foundation of Testimony:
  • Shows witness has personal knowledge of the information (meeting FRE 602)
  • Authenticates Evidence
  • Background to adequately testify to the information
  • EG: at the scene, or expertise as an “expert witness”
  • 3. Substantive Testimony:
  • Testifies as to knowledge of the pertinent facts
  • Form of Questioning-FRE 611:
  • A. Judge Has Control Over the Interrogation of Witnesses/Court- FRE 611(a):
  • Court may exercise reasonable control over mode/order of questioning to
  • 1. Make procedure effective to determine truth
  • 2. Avoid wasting time, and
  • 3. Protect witness from harassment/embarrassment
  • Note:
  • The judge has inherent authority to control court room subject to the lawyers right to represent his client
  • B. Leading Questions on Direct Examination Are RestrictedFRE 611(c):
  • Leading Questions should not be used in direct examination except as necessary to develop witness’s testimony
  • EG: child who is shy, etc… may be able to use leading questions
  • Permitted When:
  • (1) Hostile Witness
  • A party whom you thought would testify to benefit you, but turns on the stand
  • You may ask leading questions
  • (2) Adverse Party
  • The party against whom you are bringing the case
  • (3) Affiliate of Adverse Party
  • If relationship to an adverse party, you may
  • EG: Spouse, mother, brother
  • B. Testimony from Cross-Examination
  • Generally:
  • In this instance, the party cross-examining seeks to control the witness to extract the truth
  • Form of Questioning- FRE 611:
  • A. Leading Questions are Permitted- 611(c)
  • In cross-examination, leading questions are permitted
  • Policy:
  • Narrows the inquiry
  • Invokes the memory to dislodge previous questioning’s track
  • Exposes inaccuracies in memory
  • Focuses attention on important details
  • B. The “Scope of the Direct” Rule- 611(b)
  • General Rule:
  • On subsequent-examination, the questioning is limited to the scope of the matters addressed and explored in the previous examination
  • This limits the ability of the party to interrupt the case-in-chief
  • Thus:
  • Cross-Examination is limited to scope of Direct
  • Re-direct is limited to scope of Cross
  • Re-cross is limited to scope of Re-direct
  • Note:
  • As each subsequent questioning occurs, the issues get narrower and narrower until parties have had enough or judge ends
  • 2 Exceptions—611(b):
  • Limited to Scope of previous examination, unless
  • 1. “Credibility” issues/impeachment are always permitted
  • 2. Judge has discretion to allow inquiry beyond the scope of direct
  • Note:
  • The issue becomes what the “scope” of the previous examination was
  • Characterizing as broader or narrower will lead to how questions may be phrased
  • C. Real and Demonstrative Evidence:
  • Real:
  • Tangible things directly involved in litigation
  • Note:
  • Evidence does not require “production”, but instead, testimony may establish real evidence
  • Demonstrative:
  • Tangible proof that in some way makes a graphic of the point to be proven
  • EG: diagrams, maps, photographs
  • FRE 901 Authentication Requirement:
  • Evidence must be proven to be what the proponent says it is
  • 2. Keeping Evidence Out:
  • A. Motion in Limine:
  • Generally:
  • When a party anticipates that evidence will be objected to, or that evidence will be significantly contested, may wish to obtain a ruling in advance of the matter
  • Motion in Limine is the appropriate tool
  • EG:
  • Motion to Suppress is most common version
  • Daubert hearing
  • Note:
  • If the motion is denied, there is not need to later object to preserve an appeal
  • 103(a)
  • Judge may alter ruling, depending on how trial plays out—Motion ruling is not dispositive
  • B. The Introduction of Evidence, Objection, and Offer of Proof:
  • Generally:
  • FRE 103 defines how to each side must properly preserve claims of error and get evidence in or keep it out
  • Once evidence has been introduced, these follow
  • 1. The Objection:
  • Purpose:
  • 1. Keeps evidence out
  • 2. Preserves right of appeal if Meets 103 Requirements, and admitted
  • Requirements:
  • 103(a)1(A):A party may claim error in a ruling if it affects substantial right and
  • 1. Timely Objects/Motions to Strike
  • Generally:
  • This means that, at the earliest reasonable opportunity, the party objects to the evidence admitted
  • If it occurs after a witnesses’ answer, it becomes a ‘motion to strike’
  • 2. States the Specific Ground (unless apparent)
  • Generally:
  • You must state the reason you are objecting and specifically what you are objecting to
  • Types of Grounds:
  • A. Specific/Substantive:
  • Rest on a particular exclusionary principle in FRE
  • B. Formal Objection:
  • Focuses on the manner of questioning
  • Tactical usage to break cadence, delay, or obstruct momentum
  • Types:
  • 1. Asked and Answered: the question has already been asked and answered and questioner is seeking different response
  • 2. Assumes Facts not in Evidence: information in question should be supported by evidence already admitted
  • 3. Argumentative: Being rude, sarcastic with witness not permitted, court may step in per FRE 611(a)
  • 4. Leading Question: Counsel is telling witness what to answer
  • 5. Misleading: Question may misstate evidence
  • 6. Speculation: If too guess-work of an answer
  • 7. Narrative: If question calls for broad response, and opposing lawyer believes that answer may have objectionable things inside
  • 8. Ambiguous, Uncertain, and Unintelligable: Points out flaw in question that record cannot capture or question is confusing and cannot be understood
  • C. General Objection:
  • EG:
  • “Objection” or “Irrelevant, Incompetent, Immaterial”
  • Useful in that, if objection is obvious, court may understand
  • Or, if attorney believes something is wrong but cannot put his finger on it, this will give him time to think
  • Effect on Appeal:
  • If Overruled: Does not preserve the right to appeal
  • If Sustained:Will preserve right if there are any grounds which support it
  • 2. The Offer of Proof:
  • Purpose:
  • 1. Opportunity to convince judge evidence is admissible following objecting
  • 2. Preserves right to appeal on the matter if excluded
  • Requirements:
  • 103(a)(2): If a ruling excludes evidence, party informs the court of the evidence’s substance with an “offer of proof”
  • To Do:
  • Present evidence, and then be prepared to explain its specific purpose to the trial judge, arguing what would have been said
  • A. By Attorney: Attorney may explain what would have occurred
  • B. By Witness: 103(c): May Question Witness to Offer Proof
  • Offer of proof may be presented in a “question and answer” form
  • This means that, party may have witness on the stand and ask questions which seek to show the purpose of the offer
  • Effect:
  • Questioning witness preserves issue on the record for Court of appeals to see what evidence would have been
  • 103(d): Must Prevent Jury From hearing Inadmissible Evidence:
  • When offering proof, either by attorney, or questioning witness, jury should leave
  • To the extent possible, the Court should conduct a trial so that inadmissible evidence is not shown to jury in any means
  • Therefore:
  • If Q&A of witness, parties may ask jury to leave
  • Lawyer’s Responsibility
  • 3. 103(e), Plain Error, and Preservation for Appeal:
  • Generally:
  • It is required that an objection and/or offer of proof occur to preserve an issue on appeal
  • However, if these do not occur, 103(e) provides for relief
  • 103(e) Plain Error
  • A court may take notice of a plain error affecting a substantial right despite not being properly preserved
  • Note:
  • See discussion, infra, on appeals
  • C. Judicial Mini-Hearings of 104 Preliminary Questions:
  • Generally:
  • The Role of the judge is to provide a screening function for evidence, and to judge the parties’ contentions about evidence
  • Therefore, when evidence is offered, objected to, and offer of proof occurs, the judge must rule on these issues
  • These objections and offers of proof create ad-hoc mini-evidentiary hearings
  • 104(a):
  • The Judge must decide any preliminary question of
  • (1) witness qualification
  • (2) privilege, or
  • (3) whether evidence is admissible
  • Judge is not bound by rules of evidence:
  • Therefore, although a jury can only hear admissible evidence, a judge may consider any and all considerations when ruling on a piece of evidence
  • 104(b) Conditional Relevancy:
  • When judge is considering evidence, and it depends on some fact being fulfilled the Judge may admit it conditionally
  • Evidence is then admitted on, or subject to introduction of evidence that supports the condition precedent
  • 104(c) Preliminary Question must be Conducted Outside of Jury’s Hearing if:
  • 1. Involves admissibility of confession
  • 2. Defendant in criminal case is witness and requests jury not be present
  • 3. Justice so Requires
  • 104(d) Testimony by Criminal Defendant:
  • If a criminal defendant testifies on a preliminary question, he does not become subject to cross-examination
  • EG:
  • If there is an evidentiary issue of privilege, the criminal defendant can testify to show when privilege attached
  • This does not waive 5th amendment
  • 104(e):
  • Even if evidence is admitted by the judge, parties may still argue that credibility of it to the jury
  • F. Witnesses and Rules Dealing with Them:
  • Generally:
  • A large portion of the trial process
  • Special rules govern
  • 1. FRE 601: Witness Competency
  • Every Person is deemed competent to be a witness, unless the rules provide otherwise
  • 2. FRE 602: Personal Knowledge Requirement
  • A witness may testify to a matter only if the witness has personal knowledge about it
  • To prove personal knowledge—witnesses own testimony may occur
  • EG:
  • Laying “Foundation” in testimony is meeting FRE 602
  • 3. FRE 603: Oath or Affirmation to Testify Truthfully:
  • A witness must give an oath or affirmation to testify truthfully before testifying
  • It should be such that it impresses upon the witness this duty
  • 4. FRE 604: Use of an Interpreter:
  • Must be
  • 1. Qualified
  • 2. Give oath or affirmation to be truthful
  • 5. FRE 605: Judges May Not Be Witnesses:
  • Presiding judge may not testify as a witness
  • Party need not object to preserve this
  • 6. FRE 606: Juror May Not Be Witnesses:
  • A Juror may not testify as a witness
  • If called, adverse party must have opportunity to object outside of jury’s presence
  • However, a Juror may testify about:
  • 1. Whether extraneous prejudicial information was used by jury
  • 2. Outside influence was improperly used
  • 3. Mistake made in entering verdict on verdict form
  • G. Appealing from Evidential Error:
  • 1. Requirements of Appeal:
  • 1. Must show there was an Error
  • 2. Show it affected a “substantial right.” (I.E., it was reversible) per FRE 103
  • Affecting a “Substantial Right”
  • In general, there is a need to distinguish between errors that were harmless and those that are reversible
  • If it is reversible, it effected a substantial right
  • Reversible:
  • “Probably did effect judgment/outcome/result and was preserved”
  • Harmless:
  • “Probably didnot effect judgment/outcome/result”
  • Mistake May Be Harmless If:
  • 1. Cumulative Evidence/Overwhelming Evidence: Although yes, there was an erorr admitting/excluding, there was so much other evidence, a jury would have come out the same way or the other evidence supports the judgment
  • 2. Curative Instruction Given: May avoid reversal with a curative instruction
  • 3. Have Adequately Preserved it (Via Objection or Offer of Proof)
  • 2. Plain Error: FRE 103 (e):
  • Even if an evidential error has not been properly reserved, the parties may still seek review under plain error
  • Must be a clearly obvious mistake of admission/exclusion Rare
  • 3. Standard of Review on Appeal:
  • Generally:
  • In evidentiary matters, 104 issues are generally within the broad discretion of the trial judge and rarely overturned
  • Standard:
  • 1. Abuse of Discretion or
  • 2. Clear Error/Clearly Erroneous
  • Basically:
  • Reversal will rarely occur, and appellate courts want to affirm
  • 4. Common Issues Affecting Appeal:
  • 1. Failure to Preserve
  • You must (1) Object or (2) Offer Proof in order to preserve you right to appeal the issue
  • If you do not You waive the right (subject to plain error which is rare)
  • 2. Appellate Courts Find a Ground Typically
  • Even if a judge ruled incorrectly on an objection/offer, if another unmentioned ground exists which supports the judge’s ruling it will be sustained

II. The Authentication Requirement