EVIDENCE – SALTZBURG 2003
Mode and Order of Presentation of Evidence
I. Intro
a. Procedural
i. Article I: how to raise evidence issues
ii. Article XI: when evidence rules apply. All Federal proceedings except:
1. ex parte proceedings
2. administrative proceedings
3. other: e.g. sentencing
b. Modes of Proof
i. Article VI: Lay witnesses
ii. Article VII: expert and opinion witnesses
iii. Article VIII: hearsay witnesses
iv. Article IX: authentication of documents
v. Article X: original documents
c. Substitutes for Proof
i. Article II: Judicial Notice
ii. Article III: presumptions
d. Article VI: Relevance
i. Modes of Proof and Substitutes can only be used if relevant: acts as a screen
ii. Objection must be made otherwise is waived
e. Article V: Privileges
i. These trump other rules; even relevance
f. Common Sense Objections – mostly based on R 403 (p.7)
i. Narrative: Made in response to a Q that is broad, general or indefinite in scope
ii. Nonresponsive- only person questioning can make this objection: Made in response to an A that includes more info than asked for
iii. Assumes fact not in evidence: Made in response to Q’s that assert facts that have not yet been established at trial.
iv. Compound: Made in response to a Q that requires multiple answers.
v. Ambiguous or confusing: Made in response to a Q that is not reasonably clear and specific.
vi. Asked and answered: Made in response to a Q that asks a repetitive question
vii. Cumulative: Made when several witnesses are called to testify on the same issue or when numerous similar exhibits are introduced.
viii. Misstates the evidence: Made when the interrogator inaccurately describes evidence or draws inferences that are for the jury to make
ix. Argumentative: Usually made in response to rhetorical questions that attempt to assert the interrogator’s meaning or testimony
x. Badgering the witness: Made when interrogator is attempting to unfairly intimidate the witness
g. Fundamental Principles
i. Party claiming benefit of a rule must show entitlement to it
ii. FR will never make it impossible to prove something that is required by law to establish a claim or defense
II. Control by the Court
a. Purpose and Construction of FR: FR 102: rules construed to secure
i. Fairness
ii. Elimination of unjustifiable expense and delay
iii. Promotion of growth of the law to the end that truth may be ascertained and proceedings justly determined
b. Relevant Evidence Can be Excluded: FR 402: although relevant, evidence can be excluded if probative value is substantially outweighed by
i. Unfair prejudice
ii. Confusion of the issues
iii. Misleading the jury
iv. Considerations of undue delay, waste o time or cumulative evidence
c. Judge Has Control over Trials: FR 611(a): court shall exercise reasonable control over mode and order of witness interrogation and presentation of evid so
i. To make it effective for ascertainment of truth
ii. Avoid needless consumption of time
iii. Protect witness from harassment or undue embarrassment
d. Examples of J control
i. Reeves à Court has power to impose reasonable time limits on civil and criminal trial in the exercise of its reasonable discretion; stops cumulative evidence
ii. Algie à FREs do not allow judicial amendment of statutory legislation (judge can’t modify the time frame specified in the Jenks Act for production of witness statements)
iii. Crane v. Crest Tankers à Limitations of presentation of evidence do not always advance fair trials—can confuse the jury; evidence was unfairly put before jury w/o instructions on how to use it
iv. Fenner v. Dependable Trucking à Ds denied fair trial when judge refused a continuance to permit Ds’ expert to testify when judge had lulled Ds into believing that the problem of their expert’s unavailability would be worked out
v. US v. Russell à judge properly denied continuance when he found the unheard witness to be unimportant
vi. US v. Brown à judge can impose witness-specific restrictions; judge limited cross-examination of gov’t witness to avoid unnecessarily prolonging the exam; defense was able to effectively cross
III. Form of Questions to Witnesses
a. FR 611(c): leading questions should not be used on direct except as necessary to develop testimony or if hostile witness/adverse party.
b. Direct examination
i. Staub à must of Π’s case was introduce by leading questions, court found this improper.
ii. 4 express exceptions for direct—leading questions are ok when
(1) necessary to develop the witness’ testimony;
(2) when a party calls a hostile witness;
(3) when a party calls an adverse party;
(4) when a party calls a witness identified with an adverse party
iii. Develop witness testimony
1. when asking about preliminary matters not relevant to case
2. when witness has trouble communicating
3. witness whose recollection has been exhausted
iv. Hostile witness
1. when witness refuses to answer questions
2. consistently hedging on answer
3. is acting surly
4. merely stating that you agree with other side’s case is not enough to be declared a hostile witness (Johnson p.13)
v. Witness identified with an adverse party
1. when employed by Δ
2. somtiems even Δ’s girlfriend
*** court has discretion in allowing leading questions here (Rodriguez)
c. Cross: generally may lead except
i. Friendly witness. McKenna situation. 6th A gives opportunity to use leading ? on cross- not the right.
IV. Scope of Cross
a. FR 611(b): governed by direct & matters going to credibility, enormous judicial discretion
i. Segal à scope is to subject matter and not to specific exhibits, where cross could reach tapes not actually played on direct
b. RE-cross
i. Riggi à allowed to re-cross when new matter sir bough up on re-direct
Objections and Offers of Proof
I. Rulings on Evidence: FR 103
a. Error may not be predicated upon a ruling which admits or excludes evidence unless a substantial right of the party is effected AND
i. There is a timely and specific objection/motion to strike OR
ii. If ruling is one excluding evidence substance of the evidence is made known to the ct
à once on record you do not have to renew this motion
b. Ct may add any further statement with regards to the evidence for the record
c. In jury cases, proceedings should be conducted so jury doesn’t hear anything about the inadmissible evidence
d. Nothing in this rule prevents taking notice of plain error even though not brought to attn of the ct.
II. Contemporaneous Objection
a. Spriggs à cannot appeal if did not object
b. Procedure: stated object and description of reason (only mention R for 403). Any args held outside of jury. If court sustains objector should make an offer of proof.
c. Pre-trial objections
i. Luce à To raise and preserve improper impeachment Δ must testify. Puts Δ with priors in bad position.
ii. If pre-trail objection is conditioned upon an event happening during trial that event must happen in order to preserve an appeal
iii. A party who introduces evidence at trial cannot appeal the introduction of that evidence.
iv. A party does not have to renew the objection during trial if the J decision was definitive; however, if court changes its ruling or if a party violates its ruling then objection must be made.
d. What is timely?
i. As soon as possible but sometimes a delay is reasonable.
1. Evans à where motion was made next day at the conclusion of the witness interrogation where trial judge was interrogating witness in skeptical tone.
e. Stricken testimony
i. Mueller v. Mueller à It is not harmful error for judge to forget to instruct jury to disregard stricken testimony.
f. How J hear objections
i. Highly inflammatory args should be heard outside jury presence
ii. Objections are usually in short phrases
III. Requirement of Specific Objection
a. Wilson à Δ raised a general objection but did not mention 403 or the gun’s prejudicial effect. Argued only relevance. By not mentioning those issues they were waived on appeal. (app ct had to review under plain error standard)
b. Mennuti à cannot raise new grounds for objection on appeal
c. If objection is overruled appellate court may affirm it on the same grounds or on alternate grounds.
IV. Rationales Behind Timely and Specific objections
a. Owen v. Patton à objections must be made to improper questions or evidence put before the jury; without an objection and proper request for relief, the matter is waived and will only be reviewed under plain error doctrine.
b. Plain error doctrine: allows ct to consider errors affecting substantial rights of a party even if that party failed to make an objection. To find it: (from Olano)
i. There must be an error
ii. The error must be plain (i.e. clear and obvious)
iii. It must effect substantial rights
à the language of this rule is permissive not mandatory; plain error does not mandate reversal
c. Harmless error doctrine: allows app ct to disregard technical errors in proceedings that do not affect a person’s substantial rights.
i. Chapman à constitutional error cannot be called harmless unless ct is satisfied beyond a reasonable doubt that error did not effect the verdict
ii. In unconstitutional errors ct use a variety of different tests, some being stricter than others.
iii. Some ct use a lower standard for harmless error in civil versus criminal cases.
d. What courts consider when reviewing error:
i. whether erroneously admitted/excluded evidence was cumulative on a point
ii. whether trial ct gave timely and effective curative instructions
iii. whether erroneously admitted evidence was relied upon by counsel in argument
iv. whether error was discrete or pervasive
v. whether evidence though improperly admitted for one purpose was properly admitted for another
vi. whether the error was made in lengthy or short trial
V. Offer of Proof
a. US v. Winkle à Δ wanted to testify about a conversation but the ct did not allow it. Δ did not make record of what he was going to testify about so App Ct could not review it.
b. Beech à specifics of the argument must not be put on the record it is sufficient that ct is put on notice of counsel’s concern (where atty was interrupted by opposing counsel and J).
c. Porter-Cooper à a sufficient offer of proof must express precisely the substance of the excluded evidence
d. Andrews à pro se litigant is not excused from making an offer of proof
e. Ways offer of proof can be made
i. By counsel’s proffer
ii. In writing
1. their own
2. by a witness
3. by citation to deposition
iii. In Q&A form
*** Ct retains discretion as to how offers are made***
f. On Cross
i. There isn’t the same standard for a cross-examiner since he may/may not know how the witness will be answering.
VI. Preliminary Evidentiary Questions: FR 104
a. All evidence objections are resolved by the J
b. All rulings are made under 104(a) or (b)
c. R 104(a) These are general questions of admissibility on which J is the fact finder – includes (subject to (b)):
i. Qualification of person to be a witness
ii. Existence of privilege
iii. Admissibility of evidence
● Preponderance of evidence standard is used
● J is not bound by rules of evidence other than priv
● Burden is on party claiming benefit
d. R 104(b) when relevancy depends upon fulfillment of a condition of fact ct shall admit it upon introduction of evidence sufficient to support a finding of that fact
● The standard for the condition is could a reasonable juror believe the evidence is what the proponent claims
i. Applies in 4 situations
1. when fact B is needed to make fact A relevant
2. personal knowledge
3. authentication
4. rule 1008
e. R 104(c) hearings on admissibility of confessions shall be conducted away from jury. Other hearings may also be conducted int his way id justice so requires or when accused is a witness and so requests.
● J can permit witness to testify before deciding whether to strike
f. R 104(d) when Δ testifies in criminal matter 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.
g. R 104(e) this rule doesn’t limit any evidence relevant to weight and/or credibility.
Competency
I. Status
a. General Rule of Competency: FR 601
i. Every person is competent to be a witness unless said otherwise in these rules
ii. In civil actions competency is determined by state law IF state law governs the decision of a claim or defense.
iii. Competency issues decided under R 104(a)
b. Competency v. Credibility
i. J decides competency whereas jury decides credibility
ii. Bedone à prior inconsistent statements so not render witness incompetent rather go to credibility
c. What effects Competence?
i. Atty cannot testify under PR
ii. Hyson à 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.
d. State vs. Fed Rules
i. Sometimes confusing which of the two applies
ii. Dead Man’s statutes: state rules prohibiting the living making false claims against estate of a decedent. They tend to confuse competency and credibility as well as prevent true claims – FR omit a dead man’s provision.
e. Competency of Juror as Witness: FR 606
i. (a) At trial: cannot testify as witness in trial at which s/he is sitting.
ii. (b) Inquiry into validity of verdict or indictment: may not testify as to deliberations or any mental processes behind the verdict except that they may testify to
1. whether extraneous prejudicial info was improperly brought to the jury’s attention
2. whether outside influence was brought to bear upon any juror.
3. Herrero à whether there was review of docs not admitted into evidence