Evidence
Carter, Fall 2006
OVERVIEW AND TRIAL PRACTICE
I.The Federal Rules of Evidence
A.Like with FRCP, they are permitted pursuant to the Rules Enabling Act.
B.Advisory committee is organized from legal professionals (some judges, academics, practitioners). The advisory committee proposes rules to the Supreme Court for approval. If approved, the new FRE are sent to Congress for approval.
C.General Provisions
1.FRE 101. Scope: Govern proceedings in the courts of the United States and before US bankruptcy judges and magistrate judges, to the extent and with the exceptions stated in Rule 1101.
2.FRE 1101. Applicability of the Rules
a)Includes DC and territories (Guam, Virgin Islands)
b)Apply to civil actions and proceedings AND ALSO criminal cases and proceedings, to contempt proceedings except where the court can act summarily, and Title 11 (bankruptcy).
c)Privilege applies to all stages – super objection like SMJ for the FRCP. If privilege applies, privilege wins. Pre-Clinton, privilege had a lot more power. Has been weakened by the numerous investigations of those years.
d)Rules inapplicable:
(1)Preliminary questions of fact. See Rule 104
(2)Grand jury. Proceedings before a grand jury
(a)Grand jury proceedings are secret. Only one side presents evidence, the prosecutor. NOT adversarial.
(3)Miscellaneous proceedings such as extradition or rendition; preliminary examinations in criminal cases
3.FRE 102. Purpose and Construction: Construed to secure fairness in administration, elimination of unjustified expense and delay, and promotion of growth and development of the law of evidence.
4.FRE 104. Preliminary questions – Some preliminary questions are for the judge (deciding competency), others are for the jury (relevancy of the evidence).
a)Preliminary questions to be determined by the judge, can consider all non privileged, relevant evidence, even if not admissible under FRE.
(1)Most evidence admissibility questions fall to the judge: existence of a privilege, applicability of hearsay exceptions, lack of capacity, qualification of an expert etc.
b)Preliminary questions of conditioned relevance determined by the jury
(1)Judge reviews such questions on a lax std, must only be sufficient evidence that a reasonable jury could find the condition for relevancy exists.
(2)Examples: agency, authenticity of doc, credibility, personal knowledge etc.
c)Jury should be excused during 104(a) determinations if prejudice would result.
d)Testimony during prelim does not waive privilege against self-incrimination. Also no cross-examination.
e)Weight and Credibility–Even where one losses an argument concerning admissibility, the lawyer for the client can ALWAYS argue weight and credibility.
5.FRE 105 – Instructions to the jury regarding limited admissibility.
II.Purpose of Evidence Law
A.Mistrust of lay jury’s ability to engage in factfinding without control.
B.Serve substantive policies relating to the matter being litigated.
C.Serve substantive policies of extrinsic matters (privileges).
D.Ensure accurate factfinding and proper authentication.
E.Control the scope and duration of trials.
III.How Evidence is Admitted or Excluded
A.Admitting evidence
1.FRE 611(a) – Control by the Court. The court shall exercise reasonable control over the presentation of evidence so as to:
(1)make the interrogation and presentation effective for the ascertainment of the truth,
(2)avoid needless consumption of time,
(3)and protect witnesses from harassment or undue embarrassment.
2.Testimony – Direct examination
a)Questions cannot be leading. The witness is the star. FRE 611(c)
3.Testimony – Cross-examination
a)Questions should be leading and prevent the hostile witness from straying. Lawyer is the star.FRE 611(c)
b)Scope-of-direct rule. FRE 611(b). The only real scope restriction in FRE.
(1)Arguments against
(a)Administration of the rule can be difficult and result in bickering and ambiguity.
(b)Impediment to the truth.
(2)Arguments for
(a)Permits the parties to control the presentation of the evidence at trial. Order of proof.
(b)Accused as witness. FRE 104(d)
(c)The voucher principle – no longer followed.
B.Types of evidence
1.Real evidence – Tangible things directly involved in the transactions or events in litigation. Production of such items is generally not required. Must lay the foundation to get such evidence admitted. Authentication usually by stipulation or witness testimony.
2.Demonstrative evidence – Tangible proof that makes graphic the point to be proved. Created for illustrative purposes. Some simple illustrations are not entered into evidence if they are really prosaic and used just to help the jury follow a discussion. But if used as a replacement for the real evidence, it must be introduced first.
3.Writings –Must be introduced at trial. There are specific rules of evidence that set out the ways to authenticate documents.
4.Electronic files.
5.Witnesses (live or by prior statements) a/ka testimony.
C.Keeping evidence out
1.The objection
a)Substantive objections – Based on the Rules of Evidence.
b)Formal objections (most common)
(1)Asked and answered
(2)Assumes facts not in evidence
(3)Argumentative
(4)Compound
(5)Leading the witness
(6)Misleading
(7)Speculation or conjecture
(8)Ambiguous, uncertain, and unintelligible
(9)Nonresponsive to the question
(10)General objection: “incompetent, irrelevant, and immaterial” or less formalistic versions can be used when a lawyer knows something is wrong but his/her wits fail.
c)Objections can be stacked
(1)No particular order necessary, but if a party has several objections to a piece of evidence, should announce them ALL. (Important for TEST! Must list all reasonable objections.)
(2)Example: Hearsay, irrelevant, Best Evidence Rule
2.Motion in Limine – pre-trial (“at the threshold”) determination whether evidence will be admitted or not. Sometimes frowned upon by judges as advisory opinions, especially when they feel that they don’t have enough information to make such a determination.
3.Offer of Proof – a lawyer facing a ruling excluding evidence must make a presentation of why the evidence should be admitted to preserve the objection for appeal.
a)Must determine the PURPOSE OF THE OFFER. Why did the party who’s offering the evidence try to get it in?
4.Judicial mini-hearings
IV.Evidential Errors and Appeals
A.Very rare that a lawsuit or trial goes from beginning to end without evidentiary errors. Three main causes of imperfection:
1.Evidence rules are slippery and complex.
2.Rules often framed as vague standards.
3.Adversary system provides rationale for permitting evidential errors not objected to by one of the parties to stand, even where it may have influenced the result.
B.Harmless vs. reversible error
1.First, there must be an evidence error that affected a “substantial right” – FRE 103. This means that possibly might have affected the outcome of the case.
2.Secondly, there must be a substantial likelihood that the error did have such an effect. Appellate courts reverse only for error which “probably affected” the result.
3.Four categories of classification:
a)Reversible error – the kind of mistake that probably did affect the judgment & appellate took the necessary steps to preserve the objection.
b)Harmless error – the kind of mistake that probably did not affect the outcome of the case.
c)Plain error – egregious error that warranted appellate review and reversal even though appellant did not preserve the objection. Slim hope.
d)Constitutional error – evidence admitted for the prosecution that should have been excluded under the Constitution. Used to require automatic reversal, but now there is a more lenient standard – prosecution must show beyond a reasonable doubt that the error was harmless.
(1)Search and Seizure – 4th Amend.
(2)Privilege against self-incrimination/Miranda – 5th Amend.
(3)Confrontation Clause – 6th Amend.
4.Distinguishing harmless from reversible error(3 doctrines)
a)Cumulative evidence doctrine – so much properly admitted other evidence on the same point that the error in admitting or excluding did not affect the outcome of the case.
b)Curative instruction doctrine – when a trial judge makes an evidence error, he may be able to avoid reversal by means of an instruction to the jury to ignore that evidence. Can also admit evidence for one point that is improper evidence for another as long as limiting instructions are given to the jury. FRE 105 – Limiting Instruction Rule.
(1)Some question over the efficacy of such instructions. Some even believe that they draw more attention and consideration by the jury.
c)Overwhelming evidence doctrine – even serious evidence errors can be disregarded when the properly admitted evidence is so convincing that it nears the standard for a directed verdict.
C.Appellate deference to the trial judge
1.Since may evidence rule are framed in loose terms and are highly dependant on context, appellate courts tend to defer to the trial judge’s judgment since he was present for live testimony. Thus trial judges may:
a)exclude even competent and relevant evidence if it is likely to confuse or prejudice the jury – FRE 403
b)control the manner and sequence of presenting evidence and questioning witnesses – FRE 611.
2.Evidence rulings are prime examples of nonappealable interlocutory orders. But there are a couple of exceptions:
a)Claim of privilege and refusal to answer even after trial court orders the person to do so. Contempt charge will be issued, which will create a final ruling (on the privilege matter) that then can be appealed. Some courts will permit interlocutory review even w/o a formal contempt charge to protect the sanctity of the alleged privilege as long as person is not a party.
b)Suppression motions in criminal cases.
RELEVANCE
I.Definition – FRE 401
A.“Relevant evidence” means any evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable that it would be w/o the evidence.
1.Very LOW standard. Objection based strictly on irrelevance is a very difficult objection to win.
2.The question is whether the evidence influences any material point AT ALL!
B.Relevant evidence is generally admissible, irrelevant evidence is not – FRE 402.
1.Most of the time the economics of litigation work to prevent the admission of such evidence, since it costs time and money and likely did
II.Logical Relevance
A.Two-part common law definition
1.Relevant – tends to establish the point for which it was offered.
2.Material – the point bore on issues in the case.
B.Modern definition – FRE 401 – Includes both concepts into the single definition of “relevance.”
C.Stipulation or admission of some element of the legal case does not render the opposing sides evidence on that point irrelevant, though it might still be prejudicial or duplicative. (Old Chief)
D.Establishing relevance: The evidential hypothesis – an explanation for why the proof is relevant. Both sides often create conflicting evidential hypotheses for key pieces of evidence.
1.Deduction – argument in which the stated premises necessarily lead to a particular conclusion. Very convincing, but rare.
2.Induction – argument where the stated premises do not necessarily lead to a particular conclusion, but they support it. Far more common in litigation, but offers problems of probabilities and possible subgroups.
a)Inductive generalization – drawing an inference from an observed sample population to an unobserved instance.
b)Inductive analogy
c)Inductive inference to cause
d)Inductive explanation or hypothesis
E.Threshold of relevance – FRE 401 requires that the evidence has a “tendency” to prove or disprove a consequential fact. But how much of a tendency?
1.Making a point more probably true than not – too strict as it would exclude small parts of evidence that cumulatively, but not individually, would be sufficient.
2.Suggested inference is more probable than any other – creates a sliding scale problem in which evidence at the start of trial is scrutinized more closely than that appearing later once some evidential groundwork has been set.
3.“Legal relevancy” – requires more than minimal probative value and accumulated legal precedent would make the determination of this plus value more clear. (???).
4.Makes the point to be proved more probable that it was without the evidence – most lenient standard and adopted in FRE 401.
F.Evidence of flight
1.Most courts permit the submission of evidence of flight to demonstrate guilt.
a)Difficulty in determining what IS flight and what is simply a person moving around.
b)Is not sufficient to prove the commission of a particular crime – only goes to evidence of general guilt.
c)But must be used with care since there are other reasons why an innocent person would flee, such as avoiding the embarrassment or expense of trial.
2.Puts defense counsel in a difficult situation. Either put defendant on the stand or attempt to come up with some explanation for the flight.
III.Pragmatic Relevance
A.Prejudice and Confusion. FRE 403
1.Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence. (State v. Chapple–State wanted to enter grisly photograph of the victim, who was shot in the head and set on fire.)
JUDICIAL NOTICE
I.Definition
A.Judicial notice is a process by which the court can recognize that a certain fact exists based upon common knowledge or common sense without the formal offer of evidence. 4 categories of facts that can be admitted via judicial notice:
1.Adjudicative facts – (adJUDicative) facts that would normally be offered to a jury or be proven by admissible evidence if not for the use of judicial notice. Acts as a substitute for the formal procedures of evidence on indisputable issues.
2.Evaluative facts – background information that is necessary for understanding the evidence that is admitted, such as the plain meanings of words in testimony, meanings of gestures, aspects of “human nature” etc.
3.Legislative facts – both legislative history and broad areas of human experience, such as economics, sociology, psychology, that inform a decision by the court about how to rule on a new or changing point of law or how to interpret legislation.
4.Notice of law–the court determining what the controlling law is.
B.Designed to save time. Why waste time and energy admitting facts into evidence through formal procedures if it is well-known by all?
C.Judicial notice of adjudicative facts must be based upon common knowledge or an indisputably valid source and should be used with caution. Judicial notice should NOT be based upon the personal knowledge of the judge. (Virgin Islands v. Gereau)
II.FRE 201 – Judicial Notice
A.Only applies to adjudicative facts.
B.Judicial notice of adjudicative facts can be taken only where the matter is not subject to reasonable dispute because:
1.the fact is generally known within the territorial jurisdiction of the court, (notorious) or
2.it is capable of ready and accurate determination from sources whose validity cannot be reasonably questioned (manifest facts).
C.Court can take judicial notice at its discretion.
D.Judicial notice is mandatory when requested by a party and supported with the necessary information.
E.A party disputing the taking of judicial notice has the right to be heard and challenge it.
F.Judicial notice can be taken at any time during the proceeding.
G.Once judicial notice of a fact is taken, that fact is determined as CONCLUSIVE for a civil jury. For a criminal jury, it may, but is not required to, accept the fact as conclusively determined by judicial notice.
1.Constitutional right to a jury trial is stronger in a criminal case. So in a criminal case, the judge cannot conclusively take away from the jury an adjudicative fact.
AUTHENTICATION
I.Authentication – FRE 901 – The requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims.
A.Lax standard. Doesn’t require much. Only have to make a prima facie case to get evidence admitted. Like summary judgment or directed verdict standard, there needs to be only enough evidence that a reasonable jury could believe it is authentic. After that it is the job of the factfinder to weigh the evidence and determine whether to believe its authenticity. (Johnson)
B.The purpose of the offer is key in determining what type of evidence is required for authentication of another piece of evidence.
II.Methods of Authentication
A.By pleadings or stipulation
B.Evidence of authenticity of documents
1.Admissions
2.Testimony of eyewitness
3.Ancient documents
a)At least 20 years old
b)Found in condition free of suspicion
c)Found in place where such a writing, if authentic, would be kept
4.Reply letter doctrine – letter can be authenticated by the fact that its contents suggest that it is a reply to a previous communication concerning information known only to a few people. (Bagaric)
5.Other uses of circumstantial evidence and contents to authenticate:
a)Possible also to use handwriting or unusual stylistic patterns (ex. “approuch”)
b)Evidence the alleged recipient acted on the contents of a letter is an admission of authenticity.
c)Email authentication most often done via FRP 901(b)(4) (distinguishing characteristics). The header, purported account name, and other visible aspects can be helpful, but it is the IP address that is most unique. Also the “reply doctrine” authenticates the email reply from an authenticated sender’s email.
C.Tape recordings – Courts are more careful when screening voice recordings for admissibility. Oft-cited McKeever case set forth 7 criteria for audio authentication: (1) recording device up to the task, (2) competent operator, (3) recording authentic & correct, (4) changes have not been made in the recording, (5) recording has been preserved in manner shown to the court, (6) speakers are identified, (7) conversation was made voluntary and in good faith. (Biggins – Tape recording of heroin deal.)
1.Transcripts of recordings – since written transcripts are not the best evidence of the conversation some courts will permit transcripts to be presented to the jury only if the parties agreed upon language, or if judge listens to both versions and recording and then chooses the “correct” version.
D.Photographs
1.Must call witness to testify on the basis of personal knowledge that the photograph is a fair and accurate representation of the people or objects portrayed.
2.Doesn’t matter who took the photo.
E.Surveillance camera tape or x-rays