Evidence Outline Complete

Evidence Outline Complete

Big Ideas

There are 7 “Big Ideas” behind the law of evidence

“We do not want the whole truth”

Privileges—“Notice that the real reason for privileges lies in the secondhand benefits it produces.”
“we think some things are more important than knowing the whole truth”

“We judge the acts—not the person”

Evidence Rule 404: Character is not admissible to prove conduct
“If we naturally tend to accept character evidence, why should we have a rule that excludes it?”

“There are two reasons closely related to each other. First, the judgment of guilt is an awful thing. It is too easy to give evidence of character (or other crimes) too much weight. Second, there is the danger that a judge or jury might use character evidence the wrong way, and convict a defendant, not because he is guilty, but because he is a bad man.”
Another big idea is that “we try to give the defendant in a criminal case some advantages (such as the burden of proof and the admissibility of some kinds of evidence) to help make up for the notion many people have that any defendant is probably guilty.”

“No three-ring circuses”

“First, we limit character evidence to reputation or opinion.”

“Call the real witness”
“The sporting theory of trial”

“While the sporting theory of trial guarantees the right of give and take, it does not demand perfection—just basic fairness.”

“Watch out for the lawyers”
“If the judge wants to hear it, it is admissible”

Introduction to Evidence

“To unify and simplify the federal practice, Congress, through the House and Senate Committees on the Judiciary, promulgated the Federal Rules of Evidence. These new rules were, in substantial part, a codification of the evolved common law of most states.”—1 (supp)
“Congress had delegated the maintenance of this, and all procedural codes, to the Supreme Court, under the Rules Enabling Act of 1934. The Supreme Court shifted the stewardship responsibility in 1958 to an Advisory Committee on the Federal Rules of Evidence of the Rules Committee of the Judicial Conference of the United States.”
“If the Rules Committee approves a change, in whole or in part, it is reported to the full Judicial Conference. Approval of the full judicial Conference must be followed by approval from the Supreme Court (a review that usually is pro forma). From the Supreme Court, the change is sent to Congress. Congress can reject the change (a rare occurrence), explicitly approve it (even more rare), or do nothing (the usual course). Congress’s inaction will be an implicit approval of the change and it will become effective in the month of December following the ‘approval.’”—1 (supp)
“The current Advisory Committee has successfully proposed substantive revisions to only approximately 15 of the nearly 125 distinct common law evidence rules within the Code.”—1 (supp)

The Structure of the Trial and the Presentation of Evidence

Structure of the Trial

Plaintiff’s case in chief

a. “the plaintiff must present sufficient evidence from which a reasonable jury could find that the plaintiff has proven all of the elements of the claim upon which his cause of action is based.”—2

Defendant’s case in chief or case in defense

“the defendant can test whether the plaintiff has satisfied this burden through a motion to the court for a directed verdict.”—2
“The defendant’s case may take several different forms: (1) the defendant may offer evidence to disprove the facts that the plaintiff’s witnesses have attempted to establish; (2) the defendant may present evidence to establish an affirmative defense that would preclude judgment for the plaintiff even if the jury concluded that the plaintiff had proved his case; or (3) the defendant may offer evidence that attacks the credibility of the witnesses upon whom the plaintiff has relied.”—2

Plaintiff’s rebuttal

a. “After the defendant has concluded the presentation of his defense, the plaintiff has the opportunity to respond to any affirmative defense which the defendant might have presented, and to ‘shore-up’ or reinforce his case relative to those issues and facts contested in the defendant’s presentation.”—2

Defendant’s rejoinder

“the defendant has an opportunity to respond to the additional issues raised and the evidence presented in the plaintiff’s rebuttal.”—2

Rule 611—Mode and Order of Interrogation and presentation—(a) Control by court. The court shall exercise reasonable control over the mode and order of interrogation of witnesses and presenting evidence so as to (1) make the interrogation and presentation effective for the ascertainment of truth, (2) avoid needless consumption of time, and (3) protect witnesses from harassment or undue embarrassment.
The Presentation of Testimony

“During direct examination, to the extent permitted by evidentiary rules, the proponent may elicit firsthand information that the witness possesses concerning facts that are related to the claims or defenses that have been raised in the cause of action, as well as facts that relate to the credibility of any witness who has testified.”—3
“This second stage of the presentation of testimony—the testing state—is denoted ‘cross-examination.’”—3
“Most jurisdictions limit the scope of cross-examination to those issues that the proponent raised directly or by implication during the direct examination, even though the witness might have more relevant information on other issues that are involved in the cause of action.”—3
“A number of state jurisdictions impose no such limitation on cross-examination; they permit wide open cross-examination.”—3

Rule 611(b)—Scope of cross-examination—Cross-examination should be limited to the subject matter of the direct examination and matters affecting the credibility of the witness. The court may, in the exercise of discretion, permit inquiry into additional matters as if on direct examination.

“both at common law and under the Federal Rules, the exploration of facts that are relevant to the witness’ credibility is always appropriate on cross-examination because courts consider the proponent’s presentation of the witness to put the witness’ credibility at issue automatically.”—4
“If the opposing party is successful in raising questions as to credibility and reliability, and the witness was not given an opportunity to explain during cross-examination, the proponent may elicit those explanations in the third phase of the witness’ examination, which has been denoted ‘redirect examination.’ The final phase of examination is recross-examination. In this phase the opposing party is given another opportunity to test any new information that the proponent may have brought out during redirect examination.”—4
“At any time … the presiding judge may propound questions to clarify preceding testimony or to elicit new information. This power exists under both the common law and Rule 614 of the Federal Rules of Evidence.”—4

Rules Applicable to the Elicitation of Testimony

Competency of Witnesses

Rule 601—General Rule of Competency—Every person is competent to be a witness except as otherwise provided in these rules. However, 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 in accordance with State law.
Rule 605—Competency of Judge as Witness—The judge presiding at trial may not testify in that trial as a witness. No objection need be made to preserve the point.
Rule 606—Competency of Juror as Witness—(a) At the trial. A member of the jury may not testify as a witness before that jury in the trial of the case in which he is sitting as a juror. If he is called so to testify, the opposing party shall be afforded an opportunity to object out of the presence of the jury. (b) Inquiry into validity of verdict or indictment. Upon an inquiry into the validity of a verdict or indictment, a juror may not testify as to any matter or statement occurring during the course of the jury’s deliberations or to the effect of anything upon his or any other juror’s mind or emotions as influencing him to assent to or dissent from the verdict or indictment or concerning his mental processes in connection therewith, except that a juror may testify on the question whether extraneous prejudicial information was improperly brought to the jury’s attention or whether any outside influence was improperly brought to bear upon any juror. Nor may the juror’s affidavit or evidence of any statement by the juror concerning a matter about which the juror would be precluded from testifying be received for these purposes.

Personal Knowledge

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, but need not, consist of the witness’ own testimony. This rule is subject to the provisions of Rule 703, relating to opinion testimony by expert witnesses.

Focused Questions Calling for Specific Answers

“It is the parties’ responsibility to enforce these rules by objecting to questions that call for inadmissible testimony.”—6

Leading Questions

“Leading questions suggest the answer that the questioner seeks.”—7
“Suggestiveness is a matter of degree and the application of the rule against it requires that the presiding judge exercise his discretion.”--8
“Questions are leading because of their suggestive nature, not because of the brevity of the answers they elicit. The central issue is whether the question propounded was an inquiry through which substantive information is being elicited, or an assertion of fact for which confirmation is sought.”—8
“Closely related to the issue of leading questions is the prohibition against loaded questions. These are questions that assume the truth of unproven facts.”—8
“Courts also prohibit the use of loaded questions because they are too suggestive.”—8
Exceptions to the Leading Question Prohibition

“Courts have recognized a number of exceptions to the leading question prohibition in situations where the consequences of leading questions are not significant and the benefits, in terms of efficiency, are great.”—9
“The most obvious exception to the leading question prohibition, based on reduced risk and efficiency, and possibly an element of need, is cross-examination by a party with whom the witness is not aligned in interest. Another exception is that, during examination by a party with whom the witness is aligned in interest, that party may use leading questions in addressing preliminary matters or undisputed facts.”—9
“The largest number of the exceptions to the leading question rule are grounded in necessity.”—9
“A witness’ status can give rise to a need to use leading questions in two particular instances. First, if the witness has limited abilities to testify because of his age, mental infirmity, or unfamiliarity with the English language, leading questions might be the only effective means of obtaining the information that the witness possesses. Second, at the other end of the spectrum, a witness may qualify as an expert who can provide particularly helpful information and assistance to the jury, but who may lack knowledge of the facts that are relevant to the case.”—9

Rule 611—Mode and Order of Interrogation and Presentation—(c) Leading questions. Leading questions should not be used on the direct examination of a witness except as may be necessary to develop the witness’ testimony. Ordinarily leading questions should be permitted on cross-examination. When a party calls a hostile witness, an adverse party, or witness identified with an adverse party, interrogation may be by leading questions.

Presenting and Excluding Evidence

Qualifying and Offering Evidence

“Before a party can offer any evidence, whether testimonial or tangible, in any of the four stages of trial, that party first must show that the evidence is related to the cause of action.”-10
“For testimonial evidence, whether accounts of fact relating directly or indirectly to the incident in question or to questions of credibility, qualification involves identifying the witness, establishing that his testimony is based on personal knowledge of the facts related, and explaining the origin and context within which the witness perceived those facts.”—10
“Similarly, a proponent must authenticate tangible evidence, whether factually related to the cause of action (real evidence) or offered solely for its illustrative or explanatory purposes (demonstrative evidence), prior to its introduction, by establishing its relationship to the cause of action.”—10
“the proponent first must mark tangible items of evidence for identification.”—10
“If the plaintiff’s exhibits are identified with numbers, the defendant’s exhibits will be identified with letters.”—10
“Prior to the introduction of an item of real evidence, the proponent must first have a sponsoring witness, who has been properly qualified, establish that the item is actually what the proponent purports it to be. This procedure is known as ‘authentication.’”—10
“The process of authenticating real evidence will occasionally involve the necessity of establishing what has been called a chain of custody. This entails tracing the custody of the offered item backwards from the time it is offered at trial to the time of the incident giving rise to the cause of action. Establishing a chain of custody is necessary in two instances: (1) if no single person can identify the item and connect it back to a particular event or person; or (2) if the nature of the item is such that the naked eye cannot detect its alteration and any alteration would significantly affect its relevance.”—11
“A reasonable assurance of authenticity is all that courts require.”—12
“Once a proponent has laid the foundation for the authentication of tangible evidence, he must orally offer the tangible exhibit into the record.”—13
“If the opponent makes no objections, the court will usually accept the offer without question. The judge has the inherent power to exclude the evidence, even in the absence of objection, but rarely exercises it, reserving it for those limited instances in which it is clear that an injustice will result from the introduction of the evidence.”—13

Excluding Inadmissible Evidence

“A court will usually enforce them to exclude evidence only if the opposing party properly objects to the introduction of the evidence.”

Timeliness

“Failure to make a timely objection waives the objection and the finder of fact may use the otherwise inadmissible evidence in the resolution of any issue to which the evidence is logically relevant.”
“With tangible evidence, objections usually are appropriate only after the proponent has called the sponsoring witness, authenticated the exhibit, and formally offered the exhibit into evidence.”—14
“a motion in limine, through which he may obtain a preliminary ruling on admissibility or fairness of use.”—14
“Failure to make a timely objection where required results in a waiver of the error as a ground for appellate review, unless the error constitutes plain error. Plain errors are those that should have been obvious to the trial judge and that had a substantial impact on the trial.”—15

Specificity

“In addition to being timely, objections must be specific…. This specificity requirement has two dimensions: the basis of the objection must be specific … and the proponent must identify the evidence or portions thereof that are allegedly inadmissible.”—15
“appellate review of judicial actions based on unfocused, generalized objections is heavily weighted in the judge’s favor.”—15
“generalized objections that are overruled will not be reversed unless the ground for objection was obvious. Conversely, if a judge sustained such an objection, reversal would not result if there was any ground upon which the trial court could properly have excluded the evidence.”—15
Rule 103—Rulings on Evidence—(a) Effect of erroneous ruling. Error may not be predicated upon a ruling which admits or excludes evidence unless a substantial right of the party is affected, and (1) Objection. In case the ruling is one admitting evidence, a timely objection or motion to strike appears of record, stating the specific ground of objection, if the specific ground was not apparent from the context.…”

Offers of Proof

“A party offers testimonial evidence by asking questions of a witness…. A party offers tangible evidence, on the other hand, by moving for its introduction after a sponsoring witness has authenticated it.”—15
“the law requires that the proponent of evidence, who wishes to seek appellate reversal based on its erroneous exclusion, make an offer of proof at the time the objection is sustained. A proponent can make an offer of proof by an of several procedures through which he places that evidence into the record—into the transcript, if the evidence is testimonial, or into the collection of exhibits, if it is a tangible object—so that its substance will be known to the appellate court upon review.”—16
Rule 103—Rulings on Evidence—(a) Effect of erroneous ruling. Error may not be predicated upon a ruling which admits or excludes evidence unless a substantial right of the party is affected, and … (2) Offer 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 within which the questions were asked. (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 question and answer form. (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 statements or offers of proof or asking questions in the hearing of the jury.
Steps in Presentation of Tangible Evidence

Call sponsoring witness

Establish relationship of evidence to cause of action
Have court reporter mark it for identification
Show item to opposing counsel
Present item to sponsoring witness
Move for admission of item into evidence
Obtain a ruling from the judge
If evidence is admitted, show it to the jury
If evidence is not admitted, make an offer of proof—19

The Division of Responsibility Within a Trial

The Finder of Facts
The Parties

Satisfying Burdens of Proof

aa. Burden of producing evidence