Evidence – Pierce – Fall 2011

Taking Evidence

Before and During Witness Testimony...

Personal knowledge (FRE 602)—must lay a foundation to show that the witness has personal knowledge before testimony.

Thus, opinions or inferences are banned. Must be

Exception (FRE 703)—“expert witnesses” allowed to give opinions/inferences

Lay Opinions (FRE 701)—if not an expert, witness can testify in the form of opinions/inferences if (a) based on the witness’s perception, (b) helpful to a clear understanding of the witness’s testimony, & (c) not based on specialized knowledge.

Examples: (a) hearsay is not based on witnesses perception, (b) rule of preference—no need for witness to say the video is of Δ if jury can tell for themselves, (c) look for ‘specialized knowledge’ from a non-expert

Ultimate Issues (FRE 704)—unlike old rule, witness can say what she thinks the ultimate answer is (what the finder of fact determines), but (b)experts can’t testify w/ opinion as to whether the Δ had the mens rea type element of crime/defense.

Important: 704(b) applies only in CRIMINAL CASES

Example: Can say Δ was mentally ill. Cannot say Δ could not distinguish right from wrong. Usually ends up paraphrasing it.

Oath (FRE 603)—witnesses must take an oath/affirmation to tell the truth. No verbal phrase necessary. Implied authority from this rule is that judge can disqualify a witness if she does not have the capacity to keep the promise to tell the truth.

Competence (FRE 601)—every witness is competent, but if state law applies, state law determines witness’s competency

Important: Take on state substantive laws only in CIVIL CASES

Exception: (FRE 605) Judge nor (FRE 606(a)) jury member can testify in the trial they’re attending

Direct Examination (FRE 611(c))—no leading questions except as necessary.

When impeaching own witness (ok under FRE 607) leading still not allowed

Exception: If one calls an adverse party or hostile witness, leading allowed

  • When opposing counsel then cross-examines adverse party, she must use NO leading questions.

Cross-Examination (FRE 611(b))—limited by subject matter of direct exam and matters affecting credibility of witness. Court has discretion to allow more. FRE 611(c) allows leading questions on cross.

Note: if witness strays from leading question, counsel objects to it as “non-responsive answer”

Judge has plenary control (FRE 611(a)) over order of interrogation of witnesses and evidence presentation.

Objections...

Types:

Content—irrelevant, hearsay, undue prejudice, privilege, improper opinion, inadmissible settlement negotiation

Foundation—lack of authentication of exhibit, qualification for expert, evidence necessary for relevance determination

Form—leading on direct

Sequence

Strategic Objections

Reasons to Object:

  • Preserve specific error as an issue on appeal or make a record demonstrating the trial was unfair.
  • Keep evidence out or get enough evidence out to claim insufficient evidence to support claim.
  • Disrupt a hostile witness, distract the jury, disrupt opposing counsel, take up time.
  • Provide information to a witness on cross or emphasize testimony helpful to one side, object so the jury hears.

Reasons Not to Object:

  • Evidence does not hurt or help one side
  • Evidence opens a door for one side to enter otherwise inadmissible evidence
  • Avoid emphasizing harmful evidence

Waiving/preserving/reviewing error...

Relevant evidence is presumed admissible (FRE 402) unless Constitution or Congress or FRE says otherwise

Objections are waived if not brought up and jury can rely on the information. Must state the grounds unless obvious.

  • Note: If one party opens the door, she cannot object later. She agrees to waiver

Raising evidence issues on appeal (FRE 103(a))—can be done if (1) there was an objection timely raised and (2) if the objection is to an exclusion of evidence, made an offer of proof (a description of evidence and explanation of how it relates to case)

Standard of review—trial judges rarely reversed. Error is not found unless the evidentiary ruling violated a substantial right of a party. Also can be reversed, even if no objection was made, if there was plainerror (FRE 103(d)).

Roles of Judge and Jury...

Judges determine(FRE 104(a))whether (1) witness is qualified, (2) the existence of a privilege, and (3) admissibility of evidence.

Bourjaily v. US (US 1987)—preliminary facts must meet preponderance of evidence standard

If relevancy is conditioned on fact, court can conditionally admit it (“connecting up”) (FRE 104(b))

  • Judge determines if evidence is sufficient for a reasonable juror to find that preliminary condition could have existed

Judge must review admissibility of confessions away from juror. On other matters, she can review away from the jury if (1) justice requires it or (2) the accused is a witness and asks for it. (FRE 104(c))

  • Note: if CRIMINAL Δ testifies on a preliminary matter, she is not subject to cross for other issues as well
  • Judge can consider anything regardless of its admissibility in court to the jury in order to determine if there’s a preponderance of the evidence to allow it in. Q1: what does it mean to not be subject to the rules in 104(a)? Second question, how do privileges play in here?

Limiting instructions (FRE 105)—Judge, upon request, instructs jury when evidence is admissible for one purpose but not another. Some attorneys strategically waive this to avoid drawing attention to a fact at issue.

Opening / Closing Statements to Jury

Opening—statements prefaced by “the evidence will show”

Closing—more flexible, but attorney cannot (1) misstate or talk about things not in evidence, (2) express personal belief, or (3) use race, religion, sex, or ethnicity.

Relevance

Basic Rules of Relevance...

All relevant evidence is admissible (FRE 402)—unless it’s not admissible by the Constitution, Congress, or these rules.

NOTE: Important to draft a broad complaint because theory of lawsuit determines what evidence is admissible/relevant. Example: res ipsa loquitor would not allow П to bring up Δ’s actions because Δ’s actions are to show negligence which is not an element of the claim. Always allege res ipsa loquitor and negligence together.

Relevant evidence is defined as anything that makes an action more or less probable (FRE 401).

  • Immateriality—no bearing on the case
  • Circumstantial evidence—relevant if I trier of factcan reasonably infer something. No additional inferential step.
  • Direct evidence—always relevant
  • Reality hypothesis—sometimes link between evidence/fact at issue is not clear so counsel links the two. If conflicting theories of how the world works, judge allows both in.

Conditional relevance (FRE 104(b))—Courts rely on two concerns in admitting conditionally relevant evidence:

(1) does evidence greatly increase probative value of the item of evidence offered?

(2) is good evidence of the factual condition likely available?

Preponderance of the evidence standard

Prejudicial but relevant evidence—evidence admissible for one purpose will NOT be excluded simply because it is inadmissible for another purpose. This is the point of the limiting instruction

Legal v. Logical Relevance—legally relevant evidence must have a logical relationship to the fact at issue PLUS something more that makes in pertinent. Authentication is a good example of this because it can be relevant but still not be admissible.

Witness credibility—evidence affecting the credibility of reports is relevant

Product Rule is Inadmissible—math that assumes the probability of a number of independent events occurring together. Not admissible because it is speculative and unfairly prejudicial under FRE 403. Cannot prove reliability of each independent variable. Jurors will misunderstand and misestimate relevance. It is an undue consumption of time.

FRE 403 Balancing...

Judge must weigh probative value against detrimental effects—if danger of prejudice substantially outweighs probative value:

Examples: misleading the jury, undue consumption of time, confusion of the issue. Scale is tipped in favor of admission

  • Misestimation—jury will attribute more weight to the evidence than reasonable
  • Reduction of regret—jury won’t feel as bad when they determine the ruling
  • Evidence admissible for one purpose but inadmissible for another—judge can conclude that probative value of evidence on the permissible basis is low and the possibility of it being used for an impermissible basis is high
  • Argue: Too many inferential steps to make factual proposition likely. Each step is less convincing down the chain of inference.

Unfair Prejudice—undue tendency to suggest decision on an improper basis (emotional basis)

  • Exhibits—unfair prejudice if it distorts reality.
  • Argue alternative evidence—if other evidence has the same probative effect but less prejudicial value
  • Argue stipulation—allow exclusion of certain evidence if counsel stipulates & that element is no longer in issue
  • Narrative Relevance v. Stipulation
  • Old Chief v. US (US 1977)—judge may discount the value of the relevance of some evidence offered because of its high potential for prejudice when compared with less risky stipulation (criminal Δ stipulated to prior serious conviction w/out saying what it was).

Narrative relevance—how the story goes

Fleeing from police is always admissible on the theory of guilty conscious correlating with guilt of crime

*Objections under 403 are governed by 104(a) relevance considerations. Answered. Q3: Still not entirely sure what this means

Confusion—worry that the jury will focus on the mini-trial within the trial

  • Risk of misestimation—jury is misled when accuracy is at issue.

Waste of time—undue delay or needless presentation of cumulative evidence

Exhibits

Generally

All real/demonstrative evidence must be authenticated and relevant

Hearsay and opinion rules don’t apply to the exhibits, but may apply to the statements within exhibits

Rules exist because ‘exhibits’ cannot be cross-examined but they may have probative value and make an impact

Real v. Demonstrative Exhibits

Real evidence—objects playing a role in events leading to case (ex: blood, weapons, contracts)

  • Independently probative.

Demonstrative/Illustrative evidence—prepared by parties in anticipation of trial, explaining/clarifying testimony

  • Diagrams, graphs, etc.
  • Probative value depends on credibility of witness identifying it
  • No essentiality requirement—low burden to get it in, if it’s at all helpful to the jury unless countervailing considerations like FRE 403

Objections—distorts the facts, exaggerates an injury, misleading, etc.

Real v. Testimonial Evidence

Real evidence—evidence available directly to the senses, can be seen, heard, tasted, etc.

Testimonial evidence—report by another witness who has experienced such sensory impressions

  • Witness accounts offered for the truth of the matter asserted are testimonial
  • Out-of-court statements offered for something other than truth can be either real or testimonial

Authentication

General requirements (FRE 901(a))—identify the evidence sufficient to support a finding that the matter is what it claims to be. Judge determines whether there is sufficient evidence to support a jury finding of authenticity using 104(b) analysis

Illustrations found in FRE 901(b)—not exhaustive.

Nonexpert opinion on handwriting based on familiarity not gained during litigation

Comparison by trier or expert witness comparison of authenticated specimens

Distinctive characteristics appearance, contents, etc. taken in conjunction with circumstances (ex: company letter)

Voice identification voice identification based on hearing the voice and connecting it w/ speaker. Can become familiar with the voice at any time, including during litigation.

Telephone conversation to prove that a call was made to a particular person, show (A) self-identification by the speaker on the phone or (B) that the call was made to a place of business and business was discussed on the phone

Public records or reports  writings authorized by law and recorded in public office are presumed authorized

Ancient documents/data compilation evidence that the document (A) appears authentic, (b) is located in a likely spot, (c) has been in existence 20 years or more at the time it is offered.

Process or system evidence describing a process or system used to produce an accurate result

Methods provided by statute any method Congress or SCOTUS says satisfies authentication requirement

Authentication by reply doctrine telegrams/communications can be authenticated when replied to

Even if the evidence is authenticated, the information could be subject to hearsay or credibility factors.

Authenticated evidence can still be challenged as to authenticity or the evidentiary weight attributed to it.

Note: Signatures are not automatically authenticated.

Authentication Procedure

Exhibit authentication different from testimony in 3 ways:

Exhibit is incorporated into record as an object (testimony is recorded by court in the record)

Specific showing that matter is what it purports to be

Counsel must move to admit exhibit into evidence and there are 7 stages of admission:

  • Marking with the exhibit number
  • Showing the exhibit to opposing counsel
  • Authenticating exhibit with the witness describing the exhibit and how she knows about it
  • Motion to admit
  • Opportunity to object and voir dire
  • Judge’s ruling on the request
  • Publication to the jury.

Pre-trial admissions—it’s inefficient to authenticate everything during trial, FRCP 16(c)(3) and FRCP 36 provide pre-trial admission of many documents. Stipulations and rulings on the authenticity leave open admissibility, rulings on admissibility foreclose any future objections

Self-Authentication (FRE 902)—these documents are authenticated without extrinsic evidence. List is exclusive. Exhibit must only purport to be one of the listed items. If it is obviously not one, but it purports to be, counsel can attack it later

Domestic public documents under seal

“ ... ” NOT under seal—document signed by a government official if public officer with a seal certified under the seal that the signed had the official capacity to issue the document

Foreign public documents—must be accompanies by final certification of person or an empowered foreign official

Certified copies of public records

Official publications books, pamphlets, or other publications issued by public authority

Newspapers or periodicals

Trade inscriptions and the like affixed in the course of business indicating ownership, control, origin

Acknowledged documents accompanied by certificate of acknowledgement signed by public official/notary

Commercial paper and related documents

Presumption under Acts of Congress any signature, document, or other matter declared by act of Congress is prima facie genuine

Certified domestic records of regularly conducted activitiesIf it’s admissible under hearsay (FRE 803(6)) and accompanied by a written declaration certifying that it was (A) made at or near the time of the occurrence, (B) was kept in the course of regularly conducted activity, and (C) was made by regular practice

  • A party intending to offer record into evidence under this rule must provide WRITTEN NOTICE of intention to all parties and make the record available for inspection

Certified foreign records of regularly conducted activities In a CIVIL case, if admissible under hearsay rules (FRE 803(6)) and accompanied by a written declaration certifying that it was (A) made at or near the time of the occurrence, (B) was kept in the course of regularly conducted activity, and (C) was made by regular practice

  • Same as above, must provide WRITTEN NOTICE to other party and allow for inspection

Chain of Custody additional requirement—not an official requirement under the FRE

Must prove in a CRIMINAL case, that the evidence is the same that was seized from Δ. Not necessary in civil cases

  • Used to deter tampering or mishandling of evidence
  • Unique exhibits don’t need chain of custody b/c it’s one of a kind

Most states and federal courts require chain of custody in addition FRE 902 citing common law

Secondary Evidence of Document Content

Best Evidence Rule—does not exist in FRE.

Original Document Rule (FRE 1002)—to prove a writing, recording, or photo, the original writing is required

Note: Only applies when the document is being offered for the truth of the matter asserted;

  • Original document (FRE 1001(3))—original document or counterpart intended to have same effect as person executing it (data on computer can be printed out but still be original)
  • Duplicates (FRE 1003)—a duplicate (created from same imprint, impression, or matrix [enlargement of a picture is a duplicate] as original) is admissible to the same extent unless (1) authenticity question raise, or (2) it would be unfair to admit duplicate. Duplicates are presumptively admissible though.

Exception: original not needed if it is shown to be unavailable b/c

  • FRE 1004)(1)original lost or destroyed (unless proponent did it in bad faith),
  • (2) original unattainable by judicial process or procedure,
  • (3) original in possession of opponent and won’t hand it over even when on notice, or
  • (4) collateral matter (not closely related to issue in court)
  • FRE 1005 public documents need not be originals
  • Charts about a big book (FRE 1006) can be made up as long as the book is available to other party to go over
  • FRE 1007—content may be proven by testimony without accounting for nonproduction of original
  • FRE 1008—In the end, the Court determines admissibility of evidence and jury decides whether (a) the writing ever existed, (b) another writing is the original, or (c) other evidence correctly reflects the contents.
  • If there is a doubt about whether evidence existed, whether it’s a forgery, etc. the judge will follow FRE 104(b) and admit the writing if there is sufficient evidence to support a jury finding in favor of proponent

Relevant But Inadmissible Evidence

Overview: General Rules...

Usually not admissible

Character—evidence of a person’s character to establish conformity w/ that character trait on a particular occasion.

Other crimes—evidence of a CRIMINAL Δ’s prior crimes is usually inadmissible to show that the Δ committed the crime in question, though it may be introduced for credibility purposes sometimes.

Subsequent remedial measures—not allowed to show (1) negligence, (2) culpable conduct, (3) defect in a product, (4) defect in a design, or (5) need for warning or instruction

Payment or offering to pay medical expenses—inadmissible to show payer’s negligence or that she caused accident

Offers to compromise or plead guilty—evidence of offers or pleas during settlement or plea negotiations are inadmissible

Liability insurance—evidence a party has liability insurance is inadmissible to evaluate that party’s negligence

Usually admissible

Habitevidence—admissible to establish a person acted in accordance with habit on a particular occasion

Subsequent remedial measures—only admissible to show (1) ownership or control, (2) feasibility of precautionary measures, (3) impeachment, or (4) legal responsibility.

Similar events—admissible but scrutinized carefully to see if the events are sufficiently similar to support inference