Evidence Law and The System

Question 1

Five overriding purposes for having evidence law:

Answer 1

o Mistrust of juries: They shouldn’t be allowed to hear/see evidence that will prejudice them or cause them to give certain info undue weight
o To serve substantive policies related to the matter being litigated
§ i.e. rules establishing burdens of proof
o To further substantive policies unrelated to the matter in litigation (“extrinsic” substantive policies)
§ i.e. the spousal privilege
o To ensure accurate fact-finding
§ i.e. rules governing the authenticity of documents
o To control the scope and duration of trials
§ i.e. rules allowing a trial judge to exclude evidence simply b/c presenting it would take more time than it is worth and might confuse the jury

Question 2

· The Federal Rules of Evidence are absolutely central to the course and one must understand them. They are applied in federal courts across both criminal and civil trials and generally apply regardless whether federal or state law applies the rule of decision.

Answer 2

o 42 States have adopted the FRE or a very similar code as their rules of evidence

Question 3

· What happens at Trial?

Answer 3

o Jury Selection: The jury pool is selected by the clerk, but then the lawyers get to have an impact through “voir dire”
§ If a juror is related to a party by blood or by business connection or is prejudiced on one or another issue or against one or the other party, s/he should be excluded “for cause.”
§ Each party may challenge any number of jurors for cause that they wish, and the judge must rule on the challenge.
§ Each side of the case also gets a certain number of peremptory challenges. These allow that side to exclude a certain number of jurors for any reason at all, and that reason need not be stated.

Question 4

Cont’d

Answer 4

o Opening Statement: Each side tries to persuade the jury to see the case a certain way and informs the jury of the facts that it plans to establish using evidence.

Question 5

Cont’d

Answer 5

o Presentation of Proof: This is when each side presents its “case-in-chief,” calling witnesses and offering various types of evidence. The “order of proof” is the order is which the presentation of proof is conducted – it goes as follows:
§ Plaintiff (or prosecutor) presents his case-in-chief, then rests
§ Defendant presents his case-in-chief, then rests
§ Plaintiff (or prosecutor) presents his case-in-rebuttal
§ Defendant presents his case-in-rebuttal
§ Each side presents further cases-in-rebuttal if desired
§ The Order of Examination, which takes place during the respective parties cases-in-chief, describes the order in which each side gets to examine a witness – it goes as follows:
· Direct examination by the calling party
· Cross-examination by the adverse party
· Redirect examination by the calling party
· Re-cross by the adverse party
· Further redirect and/or re-cross if desired and necessary

Question 6

Cont’d

Answer 6

o Trial Motions: Motion for Judgment, etc… Rarely granted, often made

Question 7

Cont’d

Answer 7

o Closing Argument: The party bearing the burden of persuasion – usually the plaintiff or prosecutor – has the right to make two closing arguments, one before and one after his adversary.

Question 8

Cont’d

Answer 8

o Instructions: The judge instructs the jury on the law, so it understands what it must decide in order to reach a verdict for either party. Instructions contain substantive principles, and allocate and define the burdens of proof on issues.
		o Deliberations
		o The Verdict
		o Judgment and Post-Trial Motions
		o Appellate Review

Question 9

· MAKING THE RECORD: The official record of a trial actually comprises five different kinds of material;

Answer 9

o The pleadings: The complaint/indictment, the answer, etc.
o Filed Documents: Includes motions and accompanying briefs, discovery documents, jury instructions, and court orders.
o The record of proceedings: The verbatim memorial of what transpires in court as the action is tried – the transcript.
o The exhibits: All exhibits offered by the parties at trial are included in the record, regardless of whether they were actually admitted at trial for consideration by the trier of fact.
o Docket Entries: The court’s own ledger of the proceedings, aka the “docket” or “docket book” which is kept by the court clerk. Contains dated line items entered in chronological order from the beginning to the end of the proceedings.

Question 10

HOW EVIDENCE IS ADMITTED OR EXCLUDED:

Answer 10

o Direct Examination: The majority of time at trial is spent on direct, and a lot of evidence is admitted during it. During direct, you should try to do at least these three things with each witness:
§ Bring out background information. This includes basic facts such as name, occupation, marital status, etc.
§ “Lay the foundation.” Each party must ‘lay the foundation’ for testimony that is to come by asking questions that show that the witness has personal knowledge of the matters to which he will speak
§ Ask substantive questions. These get at the witness’ knowledge of pertinent facts.
§ FORM OF QUESTIONING ON DIRECT: For the most part, direct examination must proceed by non-leading questions. Though there is no specific test for what is or is not a ‘leading question,’ the question should not unnecessarily push the witness toward a particular response.
· See description of what is a leading question @ pg. 19-20

Question 11

Cont’d

Answer 11

o Cross-Examination: Seeks to set limits or bring out inconsistencies in the direct testimony. Differs markedly from direct in that the question is often more important than the answer. Thus, different rules apply.
§ See the description of cross-examination @ pg. 20-21 – “subtle control”
§ Leading questions ARE permitted – in fact they absolutely should be used – on cross. They serve to help the attorney exercise control by limiting the scope of the inquiry and hindering the witness’ ability to stray from the chosen path.
§ SCOPE OF DIRECT RULE: A CRITICAL LIMIT ON CROSS-EXAMINATION IS THE PRINCIPLE THAT CROSS-QUESTIONING IS LIMITED TO MATTERS EXPLORED ON DIRECT. This rule serves to confine the opponent’s ability to interrupt the calling party’s case, and is rooted in the broader principle of protecting each party’s right to control their own case under the adversarial system. The trail judge may permit broader cross in some circumstances.
· The special case of the accused as a witness: The 5th Amendment protects an accused from having to furnish original evidence against himself at trial. However, if a defendant does decide to testify, he cannot raise the 5th Amendment as a shield against reasonable cross-examination on issues that are within the scope of his direct testimony.

Question 12

Cont’d

Answer 12

o “REAL” EVIDENCE: “Real evidence” refers to tangible things directly involved in the transaction or events in litigation. Apart from writings, the law of evidence ordinarily does NOT require production of such items, and their existence and nature may be established by testimonial account. Likely to be admitted unless practical consideration precludes receipt.
§ Here the challenge is laying the foundation. The party seeking to admit real evidence must do what is called “authenticating the evidence,” which is usually taken care of by stipulation or by testimony from a witness having first-hand knowledge.
· See example on pg. 26-27

Question 13

Cont’d

Answer 13

o “DEMONSTRATIVE” EVIDENCE: Tangible proof that in some way makes graphic the point to be proved. Differs from real evidence in that it is created for illustrative purposes and for use at trial, and it play no actual role in the events which gave rise to the lawsuit.
§ Diagrams, photographs, maps, and models are all examples.
§ Such evidence are usually considered relevant and are routinely admitted as long as the proponent can show that they are a “fair and accurate depiction of the matter in question.”
§ See example on Pg. 28

Question 14

Cont’d

Answer 14

o WRITINGS: Writings are one kind of physical evidence that generally MUST be introduced at trial rather than proved by means of testimonial description. Writings are sometimes real evidence since lawsuits often arise out of documents. But they are also often used to provide a means to prove what someone has said about a matter in dispute and are not real evidence under such circumstances. In order to lay the foundation for a writing of the latter type, laying the foundation is a two-fold process:
§ First, the proponent must establish that the writing says what he says it says – or authenticate it
§ Second, he must show that it falls w/n a hearsay exception.
§ See example on Pg. 29

Question 15

· KEEPING EVIDENCE OUT: When a lawyer wants to keep evidence out, he will object to its inclusion. Objections must (1) be timely – meaning they are made at the earliest reasonable opportunity, and (2) include a statement of the underlying reason for the objection, aka the “grounds.”

Answer 15

o Substantive Objections: These rest on particular exclusionary principles in the Rules of Evidence
§ Examples include objections that include the hearsay or Best Evidence doctrines or raise one of the privileges, such as attorney-client or spousal.
§ See Pg. 30-31 for example

Question 16

Cont’d

Answer 16

o Formal Objections: These focus on the manner of questioning and are often used as tactical weapons. These are not enshrined in any particular rules and are overruled or sustained solely based on the judge’s discretion. Some of the most common include:
§ “Asked and Answered”: If a question has already been asked/the information has already been elicited, this objection will be sustained.
§ “Assumes facts not in evidence”: If a questioner imparts important information in his query, that information should already be admitted into evidence. If it is not, this objection will be sustained.
§ “Argumentative”: If the examining attorney is using an argumentative tone or being overly aggressive, this objection will be sustatined.
§ “Compound”: When a question seeks more than one answer or suggests alternative responses this objection will be sustained.
§ “Leading the Witness”: If the questioning attorney asks leading questions on direct, this objection will be sustained.
§ “Misleading”: If a question misstates the evidence, this objection will be sustained.
§ “Speculation or conjecture”: This objection raises the point that witnesses are expected to say only what they know, NOT what they guess, suppose, or hope to be true.
§ “Ambiguous, uncertain, and unintelligible”: A general objection that usually points out a poorly asked question that would not be objectionable but is hard to understand and ought to be rephrased.
§ “Nonresponsive to the Question”: This is an objection to an answer rather than to the question. If a witness’ response goes beyond the scope of the question, this objection may be sustained.

Question 17

Cont’d

Answer 17

o The “Motion in Limine”: Literally “at the threshold,” this device allows a party that either expects evidence he plans to submit to be objectionable or plans to object to certain evidence he expects his adversary to seek to admit to ask for and obtain a ruling on that evidence prior to that evidence coming up at trial.
§ See 34-25

Question 18

· THE OFFER OF PROOF: The counterpart to the objection is the “offer of proof.” A lawyer faced with a ruling excluding evidence MUST make a formal offer of proof, if he wants to preserve the point for later appellate review, which means demonstrating to the trial court what he is prepared to introduce if permitted. An attorney must be ready to present his evidence when the objection is made and must make its substance known to the court.

Answer 18

o The party wishing to exclude evidence bears the initial burden of raising the objection. Once the objection has been made, however, the proponent of admitting the evidence bears the burden of showing that his evidence is admissible.
o See 36-38

Question 19

· CONSEQUENCES OF EVIDENTIAL ERROR: Reviewing courts award relief for evidential errors only when the errors seem to have made a real difference in result. Second, deference is given to the trial judge who was there at the time and decided the issue. Third, it makes sense – given our adversarial system, to hold parties to the decisions/errors they made at trial.

Answer 19

o Appraising Evidential Errors on the Merits: In order for an appellate court to overturn a decision based on evidential error, the error must have affected what FRE 103 calls a “substantial right,” meaning essentially outcome. The usual standard directs appellate courts to reverse only if the error “probably affected” the result. Four kinds of error:

Question 20

(1)§ Reversible Error: Refers to the kind of mistake that probably affected outcome. Also means that the appellant took the necessary steps to preserve the error.
Three Doctrines that Turn “Reversible error” into “Harmless Error”:

Answer 20

o The Cumulative Evidence Doctrine: Supports affirance of a trial court ruling despite errors by the trial court in admitting or excluding evidence. When a trial judge errs in admitting evidence offered against the appellant but still so much other proper evidence exists on the same point that the error is not likely to have changed the outcome, the decision ought to be affirmed. Also, if the trial judge erred in excluding evidence offered by the appellant but still so much other proof was admitted on the same point that the excluded evidence would not likely have changed the juries mind the decision ought to be affirmed.
§ NOTE: This doctrine does NOT justify affirmance merely b/c other evidence was sufficient to sustain the result reached below: The question is ALWAYS whether evidence erroneously admitted probably affected outcome OR whether evidence erroneously excluded probably would have affected outcome.

Question 21

Cont’d

Answer 21

o The Curative Instruction Doctrine: When a judge commits an evidence error, he may be able to avoid reversal by means of an instruction to the jury. This can be either a limiting instruction, instructing the jury not to construe evidence on one point against the defendant in another area, or an instruction to disregard. Such an instruction is often said to “cure” the error – rendering it harmless.

Question 22

Cont’d

Answer 22

o The Overwhelming Evidence Doctrine: If a reviewing court concludes that evidence properly admitted supports the judgment below overwhelmingly, generally it affirms even in the face of errors admitting or excluding evidence that might otherwise be considered serious.

Question 23

(2)§ Harmless Error: Refers to the kind of mistake that probably did not affect the judgment.

Answer 23

(3)§ Plain Error: Refers to the kind of mistake that warrants relief on appeal even though the appellant failed to take the steps usually necessary to preserve the error. Generally, reviewing courts rule that an error was “plain” only if it was in some way obvious and had a serious impact on the outcome.

Question 24

(4)§ Constitutional Error: Applies only in criminal cases, and is most often used to describe an error through which prosecution’s evidence was admitted in violation of either the 4th, 5th, or 6th Amendment.

Answer 24

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