I. Introduction

  • After voir dire and opening statement made, TJ will look to π and ask what says the π?
  • TJ is asking if π is ready to try the lawsuit.
  • Answer should be ready to try the case.
  • IF there is some reason that is not your fault, like a witness has not shown up then that is the time to bring that up.

A. Jury Instructions- jury charges regarding evidence

  • Limiting instruction – evidence is admitted for a particular purpose and should only be considered for that purpose and no other

B. Invoking the Rule–F/MRE 615 Exclusion of a Witness

  • GR: Before testimony begins, persons who will give any testimony must exit the courtroom
  • Exceptions:
  • Witness is a party and natural person OR
  • An officer of party that has been designated its representative, OR
  • A person whose presence is shown to be essential to party’s cause
  • Best example is an expert witness
  • N: Attorney must bring this exception to the court’s attention and get permission
  • R: FRE 615(4) - state statutes cannot authorize a person to be present during another witness’s testimony.
  • N: Witnesses may want to stay after testimony is given, KIM rebuttal witnesses

1. I: What does the TJ do when the rule is violated? Not clear

  • TJ can refuse to let witness testify.
  • OR Let witness testify but then there is no teeth
  • Middle ground: Full bore cross examination; Let jury know that its possible witness has altered testimony
  • BUT IF this is done on purpose, THEN TJ may in fact refuse to let witness to testify.

2. IF a lawyer goes out during a recess and tells a future witness what has been said already. That is not proper and defeats purpose of the rule.

  • What if something came up during cross and was not previously mentioned to the future witness.
  • Its okay to bring up the new subject and ask what their knowledge is. Don’t have to tell what the prior witness said.
  • On cross it is okay to ask if Future witness talked to lawyer about the matter.
  • Ask if lawyer told the witness about the prior testimony
  • Show rule has been violated => sanctions or mistrial

II. Competency: who will the law not permit the πto call as a witness

A. Two types of competency

  • 1. General incompetency – IF person is generally incompetent, and upon proper objection, the law will not permit someone to testify
  • 2. Special incompetency - person is generally competent but person is asked a question and it has not been shown that they have the information or knowledge necessary to respond to it

B. General Rule about Competency FRE 601

GR: Every person is competent as a witness but in diversity state law applies

Exceptions

  • F/MRE 602 – Lack of Personal Knowledge
  • Witness has personal knowledge (specific competency)
  • Witness saw, heard, or sensed event that happened
  • F/MRE 603 – Oath or Affirmation
  • Witness must take oath/affirmation to be competent to testify
  • Subject person to perjury by awaking conscience
  • F/MRE 604 – Interpreters
  • An interpreter, when necessary, qualifies as an interpreter and translates under oath or affirmation
  • F/MRE 605 – TJ as witness
  • TJ may not testify and no objection needed to preserve point
  • N: TJ can ask questions under FRE 614, almost never do b/c it could help a side & give jury clue to how TJ feels about case
  • F/MRE 606 – Juror was a witness
  • Juror may not testify, if juror is called, counsel may object

C. MRE 601 General Competency - Two scenarios

  • (a) Husbands and wives – party-spouse is not competent to testify unless both spouses consent; two exceptions:
  • The lawsuit is a controversy between the two spouses. (“Controversy between them” is loosely defined.)
  • Ex: Divorce case. Both parties can testify on their own behalf.
  • One spouse has committed a criminal act against a child, including neglect or desertion
  • N: Party can waive this IF wife is called by husband to testify
  • (b) A person appointed by court to make an appraisal in an eminent domain case may not testify at trial; his report is inadmissible

D. Problems with Competency

1. Child Witnesses – no rule on this, follow case law

  • R: Sound discretion of TJ to determine competency of child witness
  • T: Determine that child has ability to perceive and remember events, to understand and answer questions intelligently and to comprehend and accept the importance of truthfulness
  • Do this by just talking to child about other matters besides the case
  • Determine whether the child understands the seriousness of the case

2. Competency of Lawyers in own case: Lawyer is not incompetent to testify

  • Ethics rule: lawyer who knows or reasonably expects to have to testify as a witness in the case should not represent a party in the case

3. MRE Repeals Dead man’s statute: if a person is making a claim against estate of deceased person that claimant cannot testify to establish their claim.

4. Criminal Convictions: Formerly persons who had been convicted of a crime are not incompetent to testify.

  • Even a conviction for perjury does not support incompetency

III. Mechanics of Direct Examination

A. Form of Questions on Direct

1. Free Narrative v. Specific Questions – No general rule; TJ’s discretion

  • Lawyer must consider whether seeking a narrative is worth getting an objection
  • IF you ask narratives THEN you may get an objection and get it sustained, so be prepared to ask specific interrogation
  • Risk with Narrative questions: witness may not understand what is relevant or not and what is admissible or not

2. FRE 611(a): The court shall exercise reasonable control over the mode and order of interrogating witnesses and presenting evidence so as to:

  • 1 – Make the interrogation and presentation effective for the ascertainment of the truth
  • 2 – Avoid needless consumption of time AND
  • 3 – Protect witnesses from needless harassment or undue embarrassment

3. Leading Questions – lawyer should learn how to direct w/o them

  • R: Questions should begin with what/where/when/why/how
  • T: Look at the question to see if it is neutrally phrased
  • IF the questions contains the specific type of answer then that may be leading.

a. FRE Rule 611(c) –Rule on Leading question

  • GR: Leading question should not be used in direct examination
  • Except: as may be necessary to develop the witness’ testimony
  • Apparent that witness cannot respond to non-leading ?’s
  • Except: When party calls a hostile witness, an adverse party, or witness identified with adverse party then leading questions used
  • Ex: I call adverse party/witness J. Jones, and by doing so announces to court that DE will be conducted w/leading questions
  • Except: Child witnesses, matters not is dispute, & preliminary stuff

b. Hostile witness: IF a witness is hostile, there has to be some showing of hostility before you can ask for this.

  • Π will have to demonstrate to court that witness is hostile
  • Usually this happens during testimony and then lawyer asks for this

B. TJ may call witnesses to testify – rarely done

  • N: TJ will refrain from commenting on evidence in front of jury

1. TJ’s and Juror asking questions

  • Allowed under TJ’s discretion, jurors follow the written process

2. FRE 614: Calling and Interrogation of Witnesses by Court

  • Court may call a witness and ask questions
  • Any party may conduct a cross examination if TJ does this
  • Objections to the calling of witnesses by the court or to interrogation by it may be made at the time or at the next available opportunity when the jury is not present

C. F/MRE 612 Witnesses Refreshing Memory – to ascertain credible evidence

  • R: Jury can’t know what writing says unless introduced in evidence.

Procedure: Can be writings, photos, etc.

  • Jury cannot see items that have not been admitted into evidence
  • However, anything may be used to refresh a witness’s memory, regardless of whether it is admissible in evidence
  • Witness must affirm that the item has refreshed his present recollection and then testify purportedly from his/her recollection
  • Other side may object, but witness is under oath and is swearing that he now remembers not that he read it off a piece of paper
  • Adverse party is entitled to have the writing produced
  • For inspection and to cross-examine the witness
  • May introduce into evidence those portions which relate to the testimony of the witness
  • R: Right to inspect is absolute when refreshing recollection while on the stand
  • But if not in evidence, witness cannot say what document is and what is says.
  • N: Any portion withheld over objections shall be preserved and made available to the appellate court in the event of an appeal.
  • P: IF you don’t want the other side to see it, then don’t let the witness take it to the stand
  • In discretion of TJ, IF witness used something before going to stand, other side may ask for it, but rule does not work well, other discovery methods for such things
  • S: Witnesses are allowed to bring papers with them to help refresh their memory, that is allowed even if those things are not put into evidence. Allowed to rummage through file b/c they are refreshing there memory

IV. Procedure for Admitting Evidence

A. Procedure for admitting evidence

Presentation of exhibits to introduce as evidence

  • 1. Have object marked for identification by the clerk as an exhibit
  • Say “Your honor we would like to have this thing marked for identification”
  • Ex: marked P-1 for ID
  • N: to make it apart of the record for appeal
  • 2. Proponent submits proposed exhibit to opposing counsel for inspection
  • Opponent has a right to see it and make objection to prevent it from being introduced
  • 3. Hand the object to the witness and Proponent asks witness questions to “lay a foundation” for its introduction as an exhibit
  • Laying a foundation: asking whatever questions necessary to show that thing is authentic and is relevant
  • May have to lay multiple foundations on one piece
  • Authentication, best evidence and hearsay
  • N: Permitted to ask leading questions to lay the foundation
  • 4. Proponent offers the object into evidence
  • After foundation laid, proponent tenders the exhibit to TJ by saying “πoffers this document marked π’s exhibit #2 for identification into evidence as π’s exhibit #2
  • 5. Opponent can object at this time to its receipt into evidence
  • 6. TJ will rule on objection
  • IF accepted THEN a writing will be read to the jury or item will be passed around for inspection by jury
  • N: No rule in FRE or MRE specifies this procedure, this is the way it is done, some lawyers don’t follow step 1 and not have it marked for ID.
  • Offer of Proof - Why do it? If objection is sustained and TJ won’t permit it, then you want it apart of the record. You can get it marked for ID afterwards, but danger is that you may forget

B. Objections

General Objections

  • GR: IF the TJ overrules a general objection, the objecting party may not ordinarily complain of the ruling on appeal by urging a ground not mentioned when the objection was made at trial
  • Exceptions:
  • 1 – Ground for exclusion should have been obvious to TJ and proponent
  • 2 – If the evidence is inadmissible for any purpose, a general objection suffices to secure appellate review of the judge’s overruling the objection
  • 3 – If the omitted ground could not have been obviated, a general objection can secure appellate consideration of an unstated specific objection.
  • Not included in FRE 103(a)(1)
  • Ex of general objection: incompetent, irrelevant, and immaterial
  • IF TJ has any doubt to relevancy he can ask proponent to explain the purpose of the proof
  • Incompetence is improper to use in evidence, it refers only to witnesses

Specific Objections

  • GR: Must be made with definite statement of grounds, indicating the appropriate rules of evidence relied on as reasons for objections
  • Unnecessary to be any more specific, strategy reasons

1. Harmless Error Rule: decisions that do not affect a substantial right

  • F/MRE 103(a) Harmless Error. Effect of Erroneous Ruling
  • Error may not be predicated upon a ruling which admits or excludes evidence unless a substantial right of the party is affected
  • simple errors will not be overturned in all cases
  • F/MRE 103(a)(1) Objection. Timely, Specific, Continuing
  • In case the ruling is one admitting evidence, a timely objection or motion to strike appears of record, stating the specific ground of objection, if the specific ground was not apparent from the context; OR
  • Timely: made as soon as a reasonably competent attorney would have made it
  • Sometimes objectionable material becomes known after witness has testified, reasonably competent lawyer will make a motion to strike the evidence
  • R: Failure to make a timely objection is considered a waiver
  • Specific: Must state the specific grounds
  • Lawyers don’t want to educate the other lawyer to let them cure the error
  • If no ground given the other side should ask that objector provide the grounds
  • Continuing objections: when TJ overrules you and do you have to keep raising same objection
  • MRE: continuing objections may be allowed in TJ’s discretion – just ask TJ if he will allow a continuing objection to be entered in for the line of questioning
  • FRE: deals with motions in limine
  • F/MRE 103(a)(2): Offer of Proof
  • In case the ruling is one excluding evidence, the substance of the evidence was made known to the court by offer or was apparent from the context within which questions were asked
  • N: IF π wants to raise on appeal the sustained objection to witness testimony, appellate court will not hear it unless an offer of proof was made
  • Procedure for putting into the record what the witness would have testified to had he been permitted to testify
  • One way to do it: Witness may now testify and lawyer may ask questions.
  • Another way: Witness is still on stand, and lawyer will just tell the court what he would testify to.
  • Then lawyer says that this concludes the offer of proof

2. F/MRE 103(d) Plain Error Rule:

  • Regardless of other rules given on objections, appellate court’s reserve the right to act when something egregious happens, even though no objection is made
  • Has to be really bad
  • Distinction between the two: difference in degree
  • Harmful – error must be prejudicial to the appellant
  • Plain error – error must have very prejudicial effects, error must create a risk of a miscarriage of substantive justice

3. Motion to Strike: must object as soon as apparent

  • IF witness answers before objection THEN counsel may move to strike the answer for the purpose of interposing an objection to the question: as long as TJ thinks witness jumped the gun and answered too quickly
  • Ground for objection may later surface for the first time – after objection may be stated as soon as the ground appears
  • Move to strike the objectionable evidence and request a curative instruction to the jury to disregard the evidence

4. Deposition Objections: manner/form v substance

  • Manner and Form Objections: to manner and form such as leading must be made during deposition
  • Rationale: if objected to on the spot, proponent could cure the issue
  • Substance objection: hearsay and relevancy can be raised for the first time at trial when deposition is offered at trial

5. Miscellaneous topics regarding objections

  • Speaking Objections
  • N: TJ has a right to preclude speaking objections – where opponent endeavors to make a speech before jury
  • Multiple parts of question/statement that are objectionable
  • GR: Objections should be specific to what parts are inadmissible
  • It is not the TJ’s responsibility to sever the bad parts if some are good
  • Objections when multiple parties are involved
  • When representing multiple parties and evidence is admissible to some but not all – burden is on the opponent to object to particular purpose or party
  • To not object to particular party runs risk of waiver
  • Need to voice the correct objection
  • GR: In an adversary system of litigation, it is the opponent’s responsibility to specifically articulate a justifiable basis for excluding the proponent’s evidence
  • Exception: when the correct objection, had it been made, could have obviated, or admissible evidence could have been substituted, a retrial is appropriate
  • Repetition of Objections
  • I: Must opponent repeat objection after first objection overruled and similarly objectionable evidence is offered?
  • Majority: No, entitled to assume TJ will continue to make same ruling
  • First objection is not waived, and reach extends to all similar evidence vulnerable to same objection
  • Minority: Use running or continuing objections
  • Withdrawal of Evidence
  • IF a party has introduced evidence which is not objected to and which turns out to be favorable to the adversary, it has sometimes been intimated that the offering party may withdraw the evidence as of right.
  • Majority is that it is not a right
  • IF evidence is admitted over adversary’s objection, and the proponent later decides to yield to the objection and asks to withdraw the evidence, the court may revoke its ruling and permit the withdrawal

C. Motion in limine - advance ruling on the admissibility of evidence

  • P: Exclude from trial evidence highly prejudicial to the movant, not to exclude irrelevant evidence
  • T: Motion in limine “should be granted only when the trial court finds two factors are present:
  • (1) the material or evidence in question will be inadmissible at a trial under the rules of evidence; and
  • (2) the mere offer, reference, or statements made during trial concerning the material will tend to prejudice the jury

D. Preliminary questions (Lay Foundation)

  • F/MRE 104(a) Questions of Admissibility
  • GR: Preliminary questions concerning the qualification of a person to be a witness, the existence of a privilege, or the admissibility of evidence shall be determined by the court, subject to the provisions of subdivision (b).
  • TJ not bound by the rules of evidence except those with respect to privileges
  • F/MRE 104(b) Relevancy conditioned on fact, Connecting Up
  • When the relevancy of evidence depends upon the fulfillment of a condition of fact, the court shall admit it upon, or subject to, the introduction of evidence sufficient to support a finding of the fulfillment of the condition.
  • IF offeror fails to meet the condition, the objector may request the jury be instructed to disregard the evidence, however, such request shall not be a prerequisite to motion for mistrial. For purposes of punitive damages, proof of net worth shall not be offered until the close of evidence and the court has determined that issue will be submitted to the jury.
  • If the relevancy of evidence is conditioned on some fact not yet proven, the court will go ahead and let it in; however, the attorney must make a representation/assurance to court that the will "connect up" later; attorney must later make a showing sufficient for a reasonable juror to conclude that the condition subsequent has been fulfilled. In other words, a party can submit evidence “out of turn.”
  • Note: Evidence which comes in without objection is in. It’s not just part of the record; it’s part of the evidence. –> It is extremely important to make timely and specific objection. Possible exception: If a person testifies to something that they are professing to have personal knowledge of, and it later becomes apparent that they didn’t have personal knowledge, then it can be stricken.

E. Waiver of Objection