EVIDENCE
Exam - 4 hours, just like Foyt
1. 3-page hypo followed by 30-40 Qs.
2. Mostly multiple-choice. A few short answers.
Order of Class Topics
A. P’s Case-in-Chief
1. Competency - who can be called to Testify
2. How interrogation must proceed
3. D’s objections
4. Opinion Testimony
5. Hearsay
6. Original Document Rules
B. D’s Cross-Examination
1. Impeachment
2. Privileges
3. Judicial motives
· MS Supreme Court has ruled it alone has the power to make Rules of Evidence. Not the legislature.
· Legislature can pass privilege laws.
Order of Trial: Rule 615 (McCormick § 50)
1. P’s case-in-chief - Direct, Cross, Redirect (P asks further questions), re-cross
a. On direct, P asks W everything he wants to get, can’t wait for re-direct to ask “Million Dollar Q”
2. Motion for Directed Verdict from D following P’s case-in-chief (P gave no proof as to essential element).
a. Case over if appropriate
b. Sometimes judge will reopen P’s case-in-chief
3. D’s Case-in-chief - same process, after, P moves for DV.
4. P’s Rebuttal - may only call Ws to rebut only raised by D.
a. P can’t call new W to “sandbag” D (W should’ve been called in P’s Case-in-Chief).
Rule 615 Invoking the Rule - at the request of a party, W that will/may T cannot listen to T of others (can stay in ct. room after T). Judge or atny may do so.
1. Purpose - danger of 2nd W conforming to T of 1st, don’t want T colored/tailored by other T.
2. 3 Exceptions:
a. Natural person - P and D may stay and hear all T.
b. Corporate party - Company may designates representative to sit in for them, can hear all T.
c. Expert - Someone “Whose presence is shown to be essential to the party’s case.”
i. Must notify judge that expert will use info to help in his T.
ii. Need expert to remain b/c T about to be given so technical, expert needed to interpret
iii. Expert T - expert needs familiarity w/facts, bases opinion on knowing the case
3. Violation Remedies - usually inadvertent
a. Declare Mistrial
i. Atny can’t tell W how others T-ed. Violates rule.
ii. Thin line – b/c ok to prepare W.
b. Throw out T - reversible error
i. Must show actual prejudice
ii. Connivance – intentionally violated rule
c. Opposing allowed ‘full-bore’ cross (very tough) - most common
i. Inadvertent - tell jury W shouldn’t have been there. Ok to raise inferences.
ii. If T/case thrown out for every mistake, never complete cases. App Ct tolerates some error.
4. Actual Prejudice - Means W changed T b/c of other Ws (hard to prove). Does not just mean P’s case was damaged, that’s not enough.
Competency: Rules 601-606 (McCormick - Chapter 7)
· General: W not competent to T at all. Can’t even give name.
· Special: W competent to T only on a certain subject (i.e. does he have PK?)
FRE 601 Everyone is competent to T except as provided for by rules (602-606).
1. Civil case where state law controls, Fed. Ct. looks to state law regarding competency.
2. B/c FRE 601 tells judge to use state law i.e. diversity case - Judge uses MRE 601-06, 602-06 are the same.
MRE 601 all Ws competent except:
1. (a)(1) Spouses of parties - P or D’s spouse may not T w/o consent of both ‘parties’ i.e. spouses. Only applies if one spouse is a party to the suit. Jury can’t be told.
a. Purpose - wrong to force spouse to T against their wishes.
2. (a)(2) Three Exceptions:
a. Party may call spouse even if spouse doesn’t consent.
i. Foyt - Foyt can call wife to T even if she doesn’t want to
b. H may be W against wife if it’s controversy b/t them.
i. Crim. Pros - if wife is “mad” at hubby, she can T. If not, both consent.
c. Crimes against Children - spouse may be compelled to T against other in criminal prosecution for:
i. Crime against child, child neglect, desertion, or abandonment.
ii. No consent necessary from either H or W.
R 602 Personal Knowledge - W must “actually perceive w/his senses” to T.
1. Objecting - don’t timely object = right normally waived. But, PK so important, may object after the fact, and if Judge thinks it’s well taken, T can be stricken i.e. can’t waive requirement of PK for W.
2. Special Incompetency - W may generally be competent, but atny may object, “person lacks competency to answer specific Q” (nurse discussing cancer). Make before W answers specific Q about fact W lacks PK of.
R 603 W must swear/affirm before he Ts, if won’t, incompetent. Awaken conscience; penalize.
R 604 Interpreter - can’t speak English, doesn’t make you incompetent.
R 605 Judge can’t T in case he’s presiding over - jurors keen to know judge’s opinion. Look to him for guidance.
R 606(a) Juror can’t T in case he’s a juror in (never happens b/c Voir Dire).
(b) Inquiring into Validity of Verdict: (deals w/what happens after jury gives V) Juror can’t give T/sworn affidavit about things that happened during deliberation process to cast doubt on V (jury talked about improper things - D’s $/residency).
Exceptions: Can T to. . .
1. Improper conduct (bribes)
2. Extraneous prejudicial information brought to jury’s attention (see wreck scene, individual J gives extra E).
a. How jury interprets instructions from judge, no new trial.
b. Juror’s negative feeling towards D b/c she her friends experienced harm from D, new trial.
Children - not automatically competent. Judge Qs in front of jury. Usually allowed & up to jury. Allowed if:
1) Child can perceive/remember facts,
2) Answer intelligently,
3) Comprehend truth/seriousness
Atny - in trial he’s conducting (calling self to stand), allowed - no R of E against it. But may be ethical penalties . . .
· Unethical to take case where may T. Ethical Rules don’t carry over to R of E, so doesn’t violate R of E.
Direct Examination: Rules 611, 12, 14 (McCormick - Chapter 2)
R 611(a) Ct shall exercise reasonable control over mode/order of T.
1. Narrative exam: “What happened on May 13?” Some judges won’t allow, but no rule against it.
a. Allows W to give a speech. Good idea/more interesting if W smart and well spoken. Problems - may say harmful stuff on accident; leave out good stuff.
b. Objection - “Objection, this calls for a narrative response” (just have to know your judge).
2. Specific exam: Walk W through, Q by Q. Ct may force this, or may choose it to be careful about what W says. This will never be objected too.
Rule 611(c) Leading Qs - Q that suggests to W the answer desired by the examiner. Avoid by beginning examination with - What, Where, Why, When, & How.
1. The real issue is whether W would get the impression that the Q-er desired one answer rather than another.
2. Differences of opinion as to what is leading. Some think any Q that mentions the subject matter of what you’re looking for i.e. was there a stop sign?
3. Rule - Nature of W’s relationship w/atny is the touchstone.
a. W is friendly w/atny, can’t ask leading Qs. Danger W will give answer atny wants, whether he believes/knows it’s true or not.
b. Direct - presumed friendly. Usually can’t ask.
c. Cross - presumed unfriendly, no worry that W will try to help atny.
4. Exceptions - always up to judge’s discretion. Ask, is P entitled to call X and use leading Qs?
a. Preliminary Matters - yes, allowed to obtain W’s name, occupation, etc.
b. Adverse/hostile W - yes, can use leading Qs if W is an adverse or hostile.
i. Adverse - opposing side or someone aligned w/adverse party.
ii. Hostile - on direct, your own W not willing to help you - may use leading Q to get only what’s needed and get out.
iii. Must give Ct notice - “Your honor, we’d like to call X as an adverse W.”
1. Opposing party must object at that time.
2. May not want to call if can’t use leading Qs.
iv. Bad Impression - good atnys do not use leading Qs on direct. Jury sees atny is actually giving T, W is just a backboard.
c. Development of T - yes, allowed if W doesn’t communicate well or needs to be led.
i. Children/Elderly - “And then he hit you?” May be only way to get T.
ii. Policy - prefer non-suggestive Qs, but if not possible, leading ok.
d. R 612 Refreshing Recollection - allowed b/c W can’t T to something he can’t remember. Process:
i. Ask Judge if you may develop T w/leading Qs.
ii. Show W doc
iii. Cannot ask, “What does report say?” Ask, “Does this help you recollect what happened?”
1. If yes - W may T.
2. If no - W cannot T about the specific matter (may about other things).
iv. W may bring writings/files to stand to refresh own memory (police report, medical files)
v. Remember - W’s Testimony is the E, not the document.
e. General Rule - improper for jury to see doc/photo until formally entered in E. But, regardless of proper entry, still usable to refresh memory.
i. Not showing jury E, telling jury what W remembers.
ii. Doc not in E at that point, so jury not allowed to see it yet.
iii. Allowed to use anything to refresh recollection (including leading Q)
f. Opposing’s Right to View Doc:
i. Used during T - absolute right to see it, may introduce into E.
ii. Used prior to trial - ct’s discretion, may require giving to opposing.
g. FRE 612 - only applies to “writings,” but it is probably as broad as state rule.
h. Conflict - doc consulted to refresh memory may be privileged. Clear trend - R612 overrides all privilege claims, at least when W consults writing pretrial to freshen memory.
Argumentative & Misleading Q
1. Misleading - Q requires W to assume something that he has not answered.
a. “How long has the Rd. been open to the public?” Before W has said it was ever open to the public.
2. Argumentative - instead of trying to get new E, atny challenges what W said earlier. Badgers the W.
a. Usually comes up on cross, “Do you really expect people to believe that?”
b. Atny will be able to argue like this to the jury in his closing stmt.
R 614 Judge Calling W - Rare, but Judge can call and Q W (both Ws atny has called and those he hasn’t).
Introducing and Excluding Evidence: Rules 103-04 (McCormick - Chapter 6)
R 103(c) - proceedings shall be conducted to extent practicable to prevent inadmissible E from reaching the jury.
· Generally - objection to E is waived if not immediately made.
· Exception - 602 lack of PK may be brought up later by motion to strike.
· Two Ways to Enter E - Testimony & “Things” (bloody shirt, records, weapon, etc)
Introducing “Things” into E - WEEMS SAYS MEMORIZE!
1) “Your honor, we would like to have this marked for identification as ____.” (P-1, P-2, etc).
a. Marks the thing for identification/gives it a number. But, not in E yet!
i. No grounds for opposing to object to this.
b. This 1st request puts object into the record, which is the offer of proof for physical E.
2) Show opposing the object for their inspection, and say “Let the record reflect . . .”
3) Show/hand object to W, then, ask Qs necessary to “lay foundation for its admissibility into E.” Qs must…
a. Authenticate the doc by the W - it is what atny says it is, and…
b. Show that the object is relevant.
***Step 3 is the only step that may cause problems.***
4) Lastly, offer the object into E by saying “We offer P-1 into E.”
a. May be objected to. If allowed, clerk gives it an evidentiary #.
Introducing T in E - admissibility of T is decided by judge’s sustaining/overruling objections to Q.
103(a)(1) Objections - if ct errs in admitting E, objection must . . .
1. Be Timely, AND
a. Timely = made at time RP Atny would’ve made it. If not, it’s waived.
b. If W gives answers b/f objection, make motion to strike & instruction “jury to disregard answer”
c. Use same motion to strike if Q doesn’t become objectionable until later
i. I.e. 1st believed W relied on PK for T, later learned he actually received from hearsay.
2. State the specific grounds for the objection - i.e. specific MRE relied on.
a. Helps judge, lets opposing know he was wrong (allows him to restate to cure).
b. Incompetence isn’t grounds for objection, only applies to W.
3. Plain Error Rule - even w/o an objection, Supreme Ct. can reverse if egregious error.
4. Harmless Error - to reverse exclusion, must show it “affected the substantial rights of the party.” Error will be deemed harmless if the same E was correctly supplied by another W or source.
5. Proper objection, Improper grounds . . .