I. Evidence Is Some Item Used to Prove Or Disprove the Existence of Some Matter of Fact

Evidence Outline

Introduction

I.  Evidence is some item used to prove or disprove the existence of some matter of fact.

II.  Why not let all evidence in?

FRE 102 Purpose and Construction

These rules shall be construed to secure fairness in administration, elimination of unjustifiable expense and delay, and promotion of the growth and development of the law of evidence to the end that the truth may be ascertained and proceedings may be justly determined.

a.  Four reasons: accuracy, efficiency, fairness and extraneous

Rule 103. Rulings on Evidence

(a) Preserving a Claim of Error.A party may claim error in a ruling to admit or exclude evidence only if the error affects a substantial right of the party and:

(1)if the ruling admits evidence, a party, on the record:

(A)timely objects or moves to strike; and

(B)states the specific ground, unless it was apparent from the context; or

(2)if the ruling excludes evidence, a party informs the court of its substance by an offer of proof, unless the substance was apparent from the context. ***

·  “Substantial rights” is a vague term. Different standards are used to determine whether the error was harmless, including a more probably harmless than not test for non-constitutional errors and error was harmless beyond a reasonable doubt for constitutional errors.

·  Further the standard of review is abuse of discretion, which gives deference to the trial court.

·  US v. Walton: “We afford great deference to the trial court’s determination of the admissibility of evidence because of the trial judge’s first hand exposure to the witnesses and the evidence as a whole, and because of the judge’s familiarity with the case and ability to gauge the impact of the evidence in the context of the proceeding.

·  Objections to evidence must be stated clearly.

·  Bandera v. City of Quincy

·  Appeal by City of Quincy from jury verdict. Bandera wished to provide a witness who was sexually harassed by the Quincy Police Department, the same organization that harassed Bandera. The testimony was allowed, including testimony on whether the witness thought Bandera’s claims were true.

·  The objections at trial were clear. The law states that if the basis of the objection is not clear, then the objection is not preserved.

·  Further, the court ruled that there was an error, but there is no showing of a miscarriage of justice, or that it probably infected the outcome of the case.

·  If there was no objection made at trial, the court will review for plain error, which is a difficult standard of review to overcome. The error must be particularly egregious, a miscarriage of justice resulted from the error, or the error deprived the defendant of a fair trial.

·  Further, evidence is heavily discretionary. It is a matter to be decided by the judge.

FRE 104 Preliminary Questions

(a) In general. The court must decide any preliminary question about whether a witness is qualified, a privilege exists, or evidence is admissible. In so deciding, the court is not bound by evidence rules, except those on privilege.

·  The judge may consider any relevant evidence, such as affidavits or other reliable hearsay when considering whether to admit or exclude evidence.

·  Preponderance of evidence standard: meaning there must be a preponderance to admit the evidence

Trial Mechanics

·  Order of proof is usually opening statements, each party’s direct and cross examinations, and closing arguments

·  Pretrial motions

·  Jury selection

·  Trial

·  Opening statements

·  Plaintiff’s case in chief

·  Defendant’s case in chief

·  Plaintiff’s case in rebuttal

·  Defendant’s case in rebuttal

·  Selection of jury instructions

·  Closing arguments

·  Instruction of jury

·  deliberation

·  The federal rules grant the judge broad discretion to conduct the trial in a manner that advances accuracy and protects witnesses from overaggressive lawyering

·  Mode of questioning

·  Leading questions are generally forbidden on direct examination, but allowed on cross examination

·  A leading question is a question phrased in such a way as to suggest the desired answer

·  However, leading questions are allowed when necessary to develop the testimony, for example, with children, when the witness appears hostile or can be presumed to have sympathies with the opposing party or witnesses that are forgetful.

·  Similarly, when corss examination amounts to direct examination, i.e. when one defendant cross examines a friendly witness called by a co defendant, the traditional rule is that cross examination must proceed without leading questions.

Rule 106. Remainder of or Related Writings or Recorded Statements

If a party introduces all or part of a writing or recorded statement, an adverse party may require the introduction, at that time, of any other part--or any other writing or recorded statement--that in fairness ought to be considered at the same time.

·  ***the rule permits parties to introduce clarifying portions of the evidence at the same time the original are introduced. And it limits parties to introducing written and recorded statements.

Rule 611. Mode and Order of Examining Witnesses and Presenting Evidence

(a) Control by the Court; Purposes.The court should exercise reasonable control over the mode and order of examining witnesses and presenting evidence so as to:

(1)make those procedures effective for determining the truth;

(2)avoid wasting time; and

(3)protect witnesses from harassment or undue embarrassment.

(b) Scope of Cross-Examination.Cross-examination should not go beyond the subject matter of the direct examination and matters affecting the witness's credibility. The court may allow inquiry into additional matters as if on direct examination.

(c) Leading Questions.Leading questions should not be used on direct examination except as necessary to develop the witness's testimony. Ordinarily, the court should allow leading questions:

(1)on cross-examination; and

(2)when a party calls a hostile witness, an adverse party, or a witness identified with an adverse party.

·  Stone v. Peacock

·  Traditionally, party can call witnesses in any order they choose

·  Traditionally, witnesses can be cross examined while on the stand about their testimony

·  However, these can be modified at the broad discretion of the court

·  Elgabri v. Lekas

·  FRE 611(c) does not require court to allow party to call adverse witnesses. It only permits party to ask leading questions of hostile witnesses.

·  The plaintiff does not have an unfettered right to call defendants during his case in chief.

·  US v. Wilford

·  The decision whether to allow a party to present evidence in surrebuttal is committed to the sound discretion of the trial court.

·  When the point of completion of a trial has been reached, which was the situation here, the trial judge should be vested with substantial discretionary powers to bring the evidentiary phase to a close, or to put it another way, to curb the natural tendency of vigorous counsel to get in the final word.

·  US v. Carter

·  Although FRE 611(b) limits cross examination to the subject matter of direct examination, it grants the trial court discretion to permit questioning that goes beyond scope of direct examination. It is permissible where the testimony is highly probative.

·  Ellis v. City of Chicago

·  Leading questions should have been allowed because the witnesses were hostile. They had worked with the opposing party for a substantial amount of time. But, there was no prejudicial error.

FRE 615. Excluding Witnesses (not on Miller’s list)

·  At a party’s request, the court must order witnesses excluded so that they cannot hear other witnesses’ testimony. Or the court may do so on its own. But this rule does not authorize excluding:

·  A party who is a natural person;

·  An officer or employee of a party that is not a natural person, after being designated as the party’s representative by its attorney;

·  A person whose presence a party shows to be essential to presenting the party’s claim or defense; or

·  A person authorized by statute to be present.

·  US v. Machor

·  As an extension of the basic rule that a party who is natural person cannot be excluded from the court room, when a party is not a natural person, its designated representative is also exempted from the sequestration.

FRE 614. Court’s calling or examining a witness. (not on Miller’s list)

·  A) calling. The court may call a witness on its own or at a party’s request. Each party is entitled to cross examine the witness.

·  B) examining. The court may examine a witness regardless of who calls the witness.

·  C) objections. A party may object to the court’s calling or examining a witness either at that time or at the next opportunity when the jury is not present.

Relevance

Relevance Generally

·  Relevance asks if the evidence makes facts important to your case more or less probable. In order to assess relevance, you must know what are the issues in the case. Only relevant evidence is admissible. The question is whether an item of evidence, when tested by the processes of legal reasoning, possesses sufficient probative value to justify receiving it in evidence.

·  FRE 401 and 402 separate relevant from irrelevant evidence.

FRE 401. Test For Relevant Evidence

Evidence is relevant if:

a. It has tendency to make a fact more or less probable than it would be without the evidence; and

b. The fact is of consequence in determining the action

·  Advisory Committee Note To FRE 401

·  Of consequence may be ultimate, intermediate or evidentiary; it matters not, so long as it is of consequence in the determination of the action.

FRE 402. General Admissibility of Relevant Evidence

·  Relevant evidence is admissible unless any of the following provides otherwise:

·  The United States Constitution (confrontation clause)

·  A federal statute; (outside statutes)

·  These rules; or (FREs)

·  Other rules prescribed by the Supreme Court. (case law?)

·  Irrelevant evidence is not admissible.

·  Whether an item of evidence is relevant or not depends on its relation to some fact of consequence in the case.

·  To explain how evidence is relevant construct a chain of inference, start with the evidence, determine the fact it would make more or less probable and determine the logical connection between the fact and the ultimate issues in action

·  The longer the chain is the weaker the inference

·  Knapp v. State

·  Evidence: doctor’s testimony that man died of senility and alcoholism

·  Fact: man did not die of assault by victim of charged murder

·  Of consequence because: murder defendant claimed reasonable fear of victim; if man died of disease, defendant had no basis for fear

·  Determining the action: defendant’s killing not justified

·  US v. Dominguez

·  Evidence: evidence that defendant owned gun, asked for help replacing barrel; repairman noticed attempt to remove barrel

·  Fact: defendant owned a gun, tried to replace barrel

·  Of consequence because: defendant had equipment needed to shoot and kill Mitri; if defendant tried to replace gun barrel to conceal crime, defendant must have shot and killed Mitri knowingly

·  Determining the action: defendant shot and killed Mitri

·  State v. Larson

·  Evidence: testimony regarding defendant’s blood alcohol level, scientific consensus regarding level needed to impair driving

·  Fact: defendant had blood alcohol level 3x level that would impair driving ability

·  Of consequence because: alcohol clouds judgment, impairs reactions; riding like driving

·  Determining the action: defendant negligently allowed child to ride horse with him

The standard is undemanding. The evidence must have any tendency to prove, but need to be sufficient on its own to prove it. However, it must be rationally probative.

Probative Value and Prejudice

FRE 403. Excluding relevant evidence for prejudice, confusion, waste of time, or other reasons.

The court may exclude relevant evidence if its probative value is substantially outweighed by a danger of one or more of the following:

·  Unfair prejudice,

·  Confusing the issues,

·  Misleading the jury, or

·  Undue delay, wasting time, or needlessly presenting cumulative evidence

·  Advisory Committee Note to FRE 403

o  Unfair prejudice within its context means an undue tendency to suggest decision on an improper basis, commonly, though not necessarily, an emotional one.

·  Probative value is the contribution to the story, whether the evidence makes the story more or less plausible. It also changes the probability that fact is true or that event happened.

o  Prejudice deals with accuracy and efficiency

·  US v. Noriega

·  Evidence: Noriega’s testimony about reasons US paid him, and to the amounts and timing of the payments.

·  Fact it tends to make more or less probable: it makes more probable the fact that Noriega did important work for US, paid high amounts for its and therefore can account for his wealth.

·  Of Consequence because: Noriega cannot be a drug trafficker because he can account for his wealth.

·  Determining the action: Acquittal of drug charges.

·  Relevant, but inadmissible because: admission of the testimony would have shifted unduly the focus of the trial from allegations of drug trafficking to matters of geopolitical intrigue, i.e. confused issues

·  US v. Flitcraft

·  Evidence: legal materials on which defendant claimed he relied in failing to file income tax returns

·  Fact: defendant knew he should have filed tax returns and failed to do so.

·  Of Consequence because: if defendant believed the materials, he was reasonable in failing to file tax returns.

·  Determining the action: acquittal of tax fraud charges

·  Relevant, but inadmissible because: cumulative evidence because D testified to the documents he relied on and their contents and could have confused the jury.

·  Abernathy v. Superior Hardwoods

·  Evidence at issue: videotape made by sawmill showing forklift unloading logs after the incident

·  Fact: that defendant’s forklifts were loud

·  Of consequence because: anyone unloading logs would be able to hear movement before beginning to unload, thus the plaintiff was contributory negligent.