Evidence
2004-2005
Introduction
A)Evidence-set of rules used to be able to prove things at trial. What is admissible and inadmissible. The codification of evidence law is mostly tested in appellate review.
II) Fed R Evid. 103-Rules on Evidence
(a) 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, and
(1) Objection. 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
(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.
Once the court makes a definitive ruling on the record admitting or excluding evidence, either at or before trial, a party need not renew an objection or offer of proof to preserve a claim of error for appeal.
(b) Record of offer and ruling. The court may add any other or further statement which shows the character of the evidence, the form in which it was offered, the objection made, and the ruling thereon. It may direct the making of an offer in question and answer form.
(c) Hearing of jury. In jury cases, proceedings shall be conducted, to the extent practicable, so as to prevent inadmissible evidence from being suggested to the jury by any means, such as making statements or offers of proof or asking questions in the hearing of the jury.
(d) Plain error. Nothing in this rule precludes taking notice of plain errors affecting substantial rights although they were not brought to the attention of the court.
A)Successful appeal of evidentiary error is a 3 step process:
1)The party must preserve the issue for appeal. This means obtaining a clear ruling from the trial ct & making certain that the record is sufficiently complete to allow for effective review.
2)The party must persuade the appellate ct that the trial ct committed an error in the admission or exclusion of evidence.
3)The party must convince the ct that the error affected a substantial right of that party (the error must be prejudicial).
i)Preservation of Error: Ap ct will not review an aggrieved party’s claim of error unless they properly preserved (made the record) of that error. 103(a)(1) must make a timely objection w/specific grounds for objection.
- If the parties claim is that evidence was erroneously admitted the party must have made a timely objection on eth record and stated specific grounds for the objection unless the grounds are apparent from the context.
- If party claims the ct erroneously excluded evidence the party must have made an offer of proof. This can include many forms but the goal is always to place clear indication on the record of what substance of the excluded evidence would have been. If the substance of the excluded evidence is apparent from the context, however, this requirement does not apply.
ii)Affect a Substantial Right: 103(a)Each case is reviewed on its own facts. If it effects the verdict than it will be reversed. Thus if evidence was excluded was because of hearsay but a hearsay exception applied it might have a substantial right of the offering party if the evidence went to a crucial disputed area. It error though it purely technical in nature that likely did not affect the jury’s deliberations or the outcome of the case, the ct will deem the error “harmless.”
iii)Rationale for preserving the claim: Process of making the record gives the trial ct a full opportunity to assess its own ruling. Additionally, unless the record clearly reflects the nature of the evidence involved and the evidentiary issue, the Ap ct has no effective way to determine whether the trial ct in fact committed error, and whether that error was sufficiently serious to require reversal.
iv)Plain Error Exception:103(d) If the ct committed plain error an Ap Ct will review the issue even if the party did not make a timely objection or otherwise make a record for appeal. Plain-if it so obvious that a formal objection should not be necessary to alert the trial ct to the problem. A Ap ct will review the matter and reverse if it finds that the error affected a substantial right of the D.
v)Ap Review: Ap ct often say that they review the alleged evidentiary errors under an abuse of discretion standard. Trial cts make most evid findings on the fly w/little time for reflection. Because of this Ap ct should not be overly aggressive in seeking out error in the trial ct ruling.
- Two forms of evidence: 1) flexible-ex FRE 403 or 2) fixed. Flexible rules give the trial ct flexibility because the trial ct is in a better position to evaluate certain matters than the Ap Ct. For flexible rules the Ap CT will apply abuse of discretion standard. Fixed rules make it so evidence is either admissible or inadmissible and these are rules of law. Trial ct is in no better position than the AP ct to evaluate fixed rules, so deference to trial ct is not needed. De novo review is a more appropriate standard for these fixed rules.
SOURCES OF EVIDENCE AND THE NATURE OF PROOF
Introduction: Evidence comes from two sources: 1) witnesses-natural persons that testify in ct; 2) writing and tangible things-real evidence. Vast majority of cases, evidence is used to prove a fact.
A)Witnesses: The requirement of Competency, Personal Knowledge, and Oath of Affirmation:
Rule 601 General Rule of Competency
Every person is competent to be a witness except as otherwise provided in these rules. However, in civil actions and proceedings, with respect to an element of a claim or defense as to which State law supplies the rule of decision, the competency of a witness shall be determined in accordance with State Law. (Last part is the Errie Doctrine-basically if in fed ct on civil suit based on diversity).
a)Addresses the question of when will a given person be permitted to testify as a W. Thus focus is on the W not what the W will say.
b)Rule 601 establishes that except otherwise in the RFE every person is competent to be a W. It abolished a lot of laws that disqualified W’s.
c)Competency to be a W does NOT equate to credibility. Most of the old reasons why a W was not competent can now be attacked by credibility. For ex at CL person was generally not competent if the ct found he possessed the capacity to perceive, recollect, and communicate accurately and unless the ct found he understood the obligation to testify truthfully. Rule 601 does not contain any of this language but a W can be attacked credibility if any of these things apply to the W.
ii) Exception:
a)Provision that state law sometimes controls the competency of a W testifying in fed ct. Some states recognize the old CL exceptions so if in these cases state law controls the W would not be competent. State law proviso in Rule 601 requires the application of state competency law when 3 conditions are satisfied:
1)the issue arises in a civil action or proceeding;
2)it concerns an element of a claim or defense; and
3)the claim or defense is one as to which state law supplies the applicable substantive rule. Erie Doctrine.
b)Dead Man Act- state law- incompetent when a party-W proposing to testify as to a conversation or other transaction w/ a dead person when the testimony is offered against the dead person’s estate. This law protects estates from fraudulent claims by prohibiting a claimant from putting words in the mouth of someone who cannot deny or respond.
Rules 605 & 606-Competency of Judges as Witnesses
a)Rule 605 and 606 are exceptions to 601
b)605- The judge presiding at the trial may not testify in that trial as a witness objection need be make in order to preserve the point. (Would also be a good example of plain error.)
1)Disqualifies a judge as a W in a trial over which he presides because a judge may seem so credible to a jury that her testimony is problematic. The testimony may have more influence than it should. Furthermore, may make it so attorney is reluctant to cross examine the judge. Prevents a judge from properly functioning as a judge-may not be able to be an impartial arbiter of the facts. Once a judge disqualifies himself from presiding over a case they than are free to be a W.
c)606(a)- At the trial. A member of the jury may not testify as a witness before that jury in the trial of the case in which the juror is sitting. If the juror is called to so testify, then the opposing party can object out of the presence of the jury.
b)For similar reasons disqualifies a juror from testifying as a W. If a juror has personal knowledge of the facts they cannot be an impartial finder of eth facts.
d)No rule makes an attorney incompetent to testify in a proceeding in which they also are the lawyer for a party. But rules of professional ethics prohibit an attorney from accepting employment in most cases in which it is obvious at the outset that they will be called as a W. Also most ct s will use 403 and 611 to prohibit an attorney from taking the stand.
Competency of Juror as Witness
606 (b) Inquiry into validity of verdict or indictment. Upon inquiry into the validity of a verdict or indictment, a juror may not testify as to any matter or statement occurring during the course of the jury’s deliberation or to the effect of anything upon that or any juror’s mind or emotions as influencing the juror to assent to or dissent from the verdict or indictment or concerning the juror’s mental processes in connection therein, except that a juror may testify on the question whether extraneous prejudicial information was improperly brought to the jury’s attention or whether any outside influence was improperly brought to bear upon any juror. Nor may a juror’s affidavit or evidence of any statement by the juror concerning a matter about which the juror would be precluded from testifying be received for these purposes.
a)An inquiry into the validity of a verdict or indictment: For ex- applies in a hearing on a motion for new trail based on a claim that a verdict reached by jury was invalid. Juror is incompetent to testify in that hearing as to what happened during deliberations or what mental processes and emotions played a role in their decision.
b)Situation where a juror is not being impartial. This rule is about can you get a new trial based on testimony by a juror based on internal workings of the jury. The reason why the rule is there is based on the principals: 1) finality of decisions; 2) Jurors have to feel that they are free to express opinions-notion that something is magical about the jury.
c)Juror may though testify concerning the presence of extraneous prejudicial information and outside influence.
d)Outside influence: Threats, offer of award, bringing something into jury room that can be considered outside evidence, getting media information.
e)Two reasons for the rule: 1) Allows for finality; 2) insulation of jurors from the harassment of losing counsel.
f)Tanner: Jury drank and did drugs during trial and convicted the D of fraud. Ct stated that jury system would not survive if our goal was to perfect it and allegations of jury misconduct resulted in serious disruption of the principle of finality. Moreover full and frank discussions in the jury room and the community’s trust in the system would be undermined by post verdict scrutiny of a verdict. D argued that the drugs and drinks were outside influences but ct rejects this by stating that theses substances are no more of an outside influence than a virus, poorly prepared food, or lack of sleep. The jurors were observed by counsel and the ct during the trial. They are allowed to report inappropriate behavior prior to eh verdict but didn’t. A party may also seek to impeach a verdict after the trial by presenting nonjuror evidence of misconduct.
B)The Competency of a W Whose Recollection Has been refreshed through Hypnosis.
a)Theories: 1) hyp can restore memory. Forgetting is just an inability to retrieve or play back information and hyp becomes a method to eliminate the retrieval problem. 2) some studies suggest that hyp might not be an effective way to retrieve memory.
b)In criminal investigations hyp has raised complex evid questions. The issue is usually the competency of the person undergoing hyp when that same individual is later called to testify in the case. There is scientific proof that the reliability of the W’s testimony may be significantly undermined as a result of hyp. They suggest that reliability may be diminished by effects of suggestion confabulation, and over confidence.
c)Suggestion: All theories agree that hyp is a process of suggestion. Suggestions made to a W under hyp concerning the existence of alleged facts or events will tend to convince the W as to the reliability of these suggested facts or events. Hyp can implant suggestions unintentionally through unconscious verbal or nonverbal cues communicated to the W. As a result not event the hypnotist whose unintended suggestions inspired the testimony can distinguish real from implanted recollection.
d)Confabulation: A subject under hyp usually has a desire to please the hypnotist. As a result she might fill in gaps in her actual memory concerning events that she actually cannot remember. After hyp has ended the subject often can not distinguish b/t real memory or the gap filling false memory that occurs during the hyp. This often occurs when hyp is done by the police in a criminal investigation.
e)“Recollection” & Over Confidence: Typically a subject will come out of hyp believing that her recollections are accurate. New facts discovered under hyp are readily believed despite not recollection of these facts prior to hyp. This often leads to a W becoming over confident when they retell the story that was first told under hyp.
f)Four Approaches Adopted by the Cts:
1)W is Per se Competent: hyp to refresh memory does not render the W incompetent. Reliability problem are handled in the same was as reliability problems presented by more conventional modes of refreshing memory of a W: The jury is asked to evaluate credibility in light of the effects of hyp as demonstrated by cross-examination of the W, expert testimony, and instructions for the ct.
2)W is Per se Incompetent: W is incompetent to testify to any subject discussed during hyp. Based on the assumption that we cannot trust jurors to accurately weigh the credibility of such a W because hyp undermines the effectiveness of cross-examination. Some cts have adopted a modified rule like this were the W is incomp to testify except to those matters W recalled prior to the hyp.
3)W is Competent if Safeguards are Employed: Safeguards vary jdx to jdx. Common requirements include: a) a psychiatrist or psychologist experienced in hyp and not regularly employed by the police must conduct the hyp; b) the session is recorded; c) before the hyp a detailed record of the W memory is created; d) only a hypnotist and the subject are present during the session.
4)W is Competent if, on balance, circumstances suggest reliability- Look at all the facts having a bearing on the reliability of the W’s post-hypnosis recollection. Ct balances the risk of unreliable testimony against the value of the testimony if reliable.
e)Shilrely (Ca)- D found guilty of sexual assault. The V was hyp on the eve of the trial to fill in gaps because she was drinking the night in question. Ca Sct stated that the testimony of the V should not be admitted in the cts of Ca. Two situations occur when hyp testimony is tryingto be let in: 1) efforts on the D to introduce for the truth of the matter asserted, exculpatory statements made while under hyp; 2) efforts by the prosecution to introduce incriminating testimony of a W whose memory has asserted by been refreshed by hyp. Statements made during hyp may not be introduced to prove the truth because the reliability of the statements are questionable. In Ca hyp may not be used to refresh memory even w/safeguards. Due to scientific data indicating that it in not acceptable to use hyp to refresh memory, any testimony by a W who has undergone hyp for the purpose of refreshing memory of events in issue is inadmissible as to all matters relating those events from the tome of the hyp forward. Police may still use hyp for investigation but no testimony based on the hyp.
f)Cal. Evid. Code §795 – The testimony of a witness is not inadmissible in a criminal proceeding by reason of the fact that the witness has previously undergone hypnosis for the purpose of recalling events which are the subject of the witness’s testimony if all of the following conditions are met:
- The testimony is limited to what the witness knew before
- It was preserved in a writing
- The hypnosis was properly conducted
- Written record was made prior to hypnosis documenting the subject’s description, etc.
- Subject consented to the hypnosis
- Hypnosis session was videotape recorded
- Performed by a licensed medical doctor, phychologist, etc.
C)Const Rights may trump reliability concerns re: Hyp
Rock-– D was charged with shooting her husband. During her hypnosis, she remembered exculpatory details which indicated that she did not have her hand on the trigger and that it only went off when her husband hit her arm. The state said that she could only testify to what she recalled before she was hypnotized. As a result, she was precluded from testifying to the additional facts she remembered. The court said that the D has the right to give her own testimony despite the State rule because of the Constitution.