EVIDENCE – SALTZBURG 2003

Mode and Order of Presentation of Evidence

  1. Intro
  2. Procedural
  3. Article I: how to raise evidence issues
  4. Article XI: when evidence rules apply. All Federal proceedings except:
  5. ex parte proceedings
  6. administrative proceedings
  7. other: e.g. sentencing
  8. Modes of Proof
  9. Article VI: Lay witnesses
  10. Article VII: expert and opinion witnesses
  11. Article VIII: hearsay witnesses
  12. Article IX: authentication of documents
  13. Article X: original documents
  14. Substitutes for Proof
  15. Article II: Judicial Notice
  16. Article III: presumptions
  17. Article VI: Relevance
  18. Modes of Proof and Substitutes can only be used if relevant: acts as a screen
  19. Objection must be made otherwise is waived
  20. Article V: Privileges
  21. These trump other rules; even relevance
  22. Common Sense Objections – mostly based on R 403 (p.7)
  23. Narrative: Made in response to a Q that is broad, general or indefinite in scope
  24. Nonresponsive- only person questioning can make this objection: Made in response to an A that includes more info than asked for
  25. Assumes fact not in evidence: Made in response to Q’s that assert facts that have not yet been established at trial.
  26. Compound: Made in response to a Q that requires multiple answers.
  27. Ambiguous or confusing: Made in response to a Q that is not reasonably clear and specific.
  28. Asked and answered: Made in response to a Q that asks a repetitive question
  29. Cumulative: Made when several witnesses are called to testify on the same issue or when numerous similar exhibits are introduced.
  30. Misstates the evidence: Made when the interrogator inaccurately describes evidence or draws inferences that are for the jury to make
  31. Argumentative: Usually made in response to rhetorical questions that attempt to assert the interrogator’s meaning or testimony
  32. Badgering the witness: Made when interrogator is attempting to unfairly intimidate the witness
  33. Fundamental Principles
  34. Party claiming benefit of a rule must show entitlement to it
  35. FR will never make it impossible to prove something that is required by law to establish a claim or defense
  1. Control by the Court
  2. Purpose and Construction of FR: FR 102: rules construed to secure
  3. Fairness
  4. Elimination of unjustifiable expense and delay
  5. Promotion of growth of the law to the end that truth may be ascertained and proceedings justly determined
  6. Relevant Evidence Can be Excluded: FR 402: although relevant, evidence can be excluded if probative value is substantially outweighed by
  7. Unfair prejudice
  8. Confusion of the issues
  9. Misleading the jury
  10. Considerations of undue delay, waste o time or cumulative evidence
  11. Judge Has Control over Trials: FR 611(a): court shall exercise reasonable control over mode and order of witness interrogation and presentation of evid so
  12. To make it effective for ascertainment of truth
  13. Avoid needless consumption of time
  14. Protect witness from harassment or undue embarrassment
  15. Examples of J control
  16. Reeves Court has power to impose reasonable time limits on civil and criminal trial in the exercise of its reasonable discretion; stops cumulative evidence
  17. Algie FREs do not allow judicial amendment of statutory legislation (judge can’t modify the time frame specified in the Jenks Act for production of witness statements)
  18. Crane v. Crest Tankers Limitations of presentation of evidence do not always advance fair trials—can confuse the jury; evidence was unfairly put before jury w/o instructions on how to use it
  19. Fenner v. Dependable Truckings denied fair trial when judge refused a continuance to permit s’ expert to testify when judge had lulled s into believing that the problem of their expert’s unavailability would be worked out
  20. US v. Russell judge properly denied continuance when he found the unheard witness to be unimportant
  21. US v. Brown judge can impose witness-specific restrictions; judge limited cross-examination of gov’t witness to avoid unnecessarily prolonging the exam; defense was able to effectively cross
  22. Form of Questions to Witnesses
  23. FR 611(c): leading questions should not be used on direct except as necessary to develop testimony or if hostile witness/adverse party.
  24. Direct examination
  25. Staub  must of Π’s case was introduce by leading questions, court found this improper.
  26. 4 express exceptions for direct—leading questions are ok when

(1) necessary to develop the witness’ testimony;

(2) when a party calls a hostile witness;

(3) when a party calls an adverse party;

(4) when a party calls a witness identified with an adverse party

  1. Develop witness testimony
  2. when asking about preliminary matters not relevant to case
  3. when witness has trouble communicating
  4. witness whose recollection has been exhausted
  5. Hostile witness
  6. when witness refuses to answer questions
  7. consistently hedging on answer
  8. is acting surly
  9. merely stating that you agree with other side’s case is not enough to be declared a hostile witness (Johnson p.13)
  10. Witness identified with an adverse party
  11. when employed by Δ
  12. somtiems even Δ’s girlfriend

*** court has discretion in allowing leading questions here (Rodriguez)

  1. Cross: generally may lead except
  2. Friendly witness. McKenna situation. 6th A gives opportunity to use leading ? on cross- not the right.
  1. Scope of Cross
  2. FR 611(b): governed by direct & matters going to credibility, enormous judicial discretion
  3. Segal scope is to subject matter and not to specific exhibits, where cross could reach tapes not actually played on direct
  4. RE-cross
  5. Riggi allowed to re-cross when new matter sir bough up on re-direct

Objections and Offers of Proof

  1. Rulings on Evidence: FR 103
  2. Error may not be predicated upon a ruling which admits or excludes evidence unless a substantial right of the party is effected AND
  3. There is a timely and specific objection/motion to strike OR
  4. If ruling is one excluding evidence substance of the evidence is made known to the ct

 once on record you do not have to renew this motion

  1. Ct may add any further statement with regards to the evidence for the record
  2. In jury cases, proceedings should be conducted so jury doesn’t hear anything about the inadmissible evidence
  3. Nothing in this rule prevents taking notice of plain error even though not brought to attn of the ct.
  1. Contemporaneous Objection
  2. Spriggs cannot appeal if did not object
  3. Procedure: stated object and description of reason (only mention R for 403). Any args held outside of jury. If court sustains objector should make an offer of proof.
  4. Pre-trial objections
  5. Luce To raise and preserve improper impeachment Δ must testify. Puts Δ with priors in bad position.
  6. If pre-trail objection is conditioned upon an event happening during trial that event must happen in order to preserve an appeal
  7. A party who introduces evidence at trial cannot appeal the introduction of that evidence.
  8. A party does not have to renew the objection during trial if the J decision was definitive; however, if court changes its ruling or if a party violates its ruling then objection must be made.
  9. What is timely?
  10. As soon as possible but sometimes a delay is reasonable.
  11. Evans where motion was made next day at the conclusion of the witness interrogation where trial judge was interrogating witness in skeptical tone.
  12. Stricken testimony
  13. Mueller v. Mueller It is not harmful error for judge to forget to instruct jury to disregard stricken testimony.
  14. How J hear objections
  15. Highly inflammatory args should be heard outside jury presence
  16. Objections are usually in short phrases
  17. Requirement of Specific Objection
  18. Wilson Δ raised a general objection but did not mention 403 or the gun’s prejudicial effect. Argued only relevance. By not mentioning those issues they were waived on appeal. (app ct had to review under plain error standard)
  19. Mennuti cannot raise new grounds for objection on appeal
  20. If objection is overruled appellate court may affirm it on the same grounds or on alternate grounds.
  21. Rationales Behind Timely and Specific objections
  22. Owen v. Patton objections must be made to improper questions or evidence put before the jury; without an objection and proper request for relief, the matter is waived and will only be reviewed under plain error doctrine.
  23. Plain error doctrine: allows ct to consider errors affecting substantial rights of a party even if that party failed to make an objection. To find it: (from Olano)
  24. There must be an error
  25. The error must be plain (i.e. clear and obvious)
  26. It must effect substantial rights

 the language of this rule is permissive not mandatory; plain error does not mandate reversal

  1. Harmless error doctrine: allows app ct to disregard technical errors in proceedings that do not affect a person’s substantial rights.
  2. Chapman constitutional error cannot be called harmless unless ct is satisfied beyond a reasonable doubt that error did not effect the verdict
  3. In unconstitutional errors ct use a variety of different tests, some being stricter than others.
  4. Some ct use a lower standard for harmless error in civil versus criminal cases.
  5. What courts consider when reviewing error:
  6. whether erroneously admitted/excluded evidence was cumulative on a point
  7. whether trial ct gave timely and effective curative instructions
  8. whether erroneously admitted evidence was relied upon by counsel in argument
  9. whether error was discrete or pervasive
  10. whether evidence though improperly admitted for one purpose was properly admitted for another
  11. whether the error was made in lengthy or short trial
  1. Offer of Proof
  2. US v. Winkle Δ wanted to testify about a conversation but the ct did not allow it. Δ did not make record of what he was going to testify about so App Ct could not review it.
  3. Beech specifics of the argument must not be put on the record it is sufficient that ct is put on notice of counsel’s concern (where atty was interrupted by opposing counsel and J).
  4. Porter-Cooper  a sufficient offer of proof must express precisely the substance of the excluded evidence
  5. Andrews pro se litigant is not excused from making an offer of proof
  6. Ways offer of proof can be made
  7. By counsel’s proffer
  8. In writing
  9. their own
  10. by a witness
  11. by citation to deposition
  12. In Q&A form

*** Ct retains discretion as to how offers are made***

  1. On Cross
  2. There isn’t the same standard for a cross-examiner since he may/may not know how the witness will be answering.
  1. Preliminary Evidentiary Questions: FR 104
  2. All evidence objections are resolved by the J
  3. All rulings are made under 104(a) or (b)
  4. R 104(a) These are general questions of admissibility on which J is the fact finder – includes (subject to (b)):
  5. Qualification of person to be a witness
  6. Existence of privilege
  7. Admissibility of evidence

● Preponderance of evidence standard is used

● J is not bound by rules of evidence other than priv

● Burden is on party claiming benefit

  1. R 104(b) when relevancy depends upon fulfillment of a condition of fact ct shall admit it upon introduction of evidence sufficient to support a finding of that fact

● The standard for the condition is could a reasonable juror believe the evidence is what the proponent claims

  1. Applies in 4 situations
  2. when fact B is needed to make fact A relevant
  3. personal knowledge
  4. authentication
  5. rule 1008
  1. R 104(c) hearings on admissibility of confessions shall be conducted away from jury. Other hearings may also be conducted int his way id justice so requires or when accused is a witness and so requests.

● J can permit witness to testify before deciding whether to strike

  1. R 104(d) when Δ testifies in criminal matter as to preliminary issues that doesn’t open him up to cross on other issues in case. Can only be crossed as to the foundation testimony.
  2. R 104(e) this rule doesn’t limit any evidence relevant to weight and/or credibility.

Competency

  1. Status
  2. General Rule of Competency: FR 601
  3. Every person is competent to be a witness unless said otherwise in these rules
  4. In civil actions competency is determined by state law IF state law governs the decision of a claim or defense.
  5. Competency issues decided under R 104(a)
  6. Competency v. Credibility
  7. J decides competency whereas jury decides credibility
  8. Bedone prior inconsistent statements so not render witness incompetent rather go to credibility
  9. What effects Competence?
  10. Atty cannot testify under PR
  11. Hyson Being on drugs while testifying will effect competence (where witnesses second day of testimony was stricken). However, in another case opposing counsel simply mentioned that witness has taken drugs on the stand and it was left to jury to determine credibility.
  12. State vs. Fed Rules
  13. Sometimes confusing which of the two applies
  14. Dead Man’s statutes: state rules prohibiting the living making false claims against estate of a decedent. They tend to confuse competency and credibility as well as prevent true claims – FR omit a dead man’s provision.
  15. Competency of Juror as Witness: FR 606
  16. (a) At trial: cannot testify as witness in trial at which s/he is sitting.
  17. (b) Inquiry into validity of verdict or indictment: may not testify as to deliberations or any mental processes behind the verdict except that they may testify to
  18. whether extraneous prejudicial info was improperly brought to the jury’s attention
  19. whether outside influence was brought to bear upon any juror.
  20. Herrero whether there was review of docs not admitted into evidence
  21. Attacking the judgment
  22. Tanner  SCt held that drug use in jury room was no more of an outside influence than lack of sleep etc so judgment stands. (should have made arg that jurors were committing felonies)
  23. What is an outside influence?
  24. reading newspapers
  25. bribes
  26. unauthorized juror experiments (e.g. ballistics experiment on weekend)
  27. review of docs not in evidence
  28. bailiff comments
  29. What is not an outside influence?
  30. pressure from other jurors is not external, but is internal influence
  31. evidence that jurors ignored instructions
  32. impermissible discussion about one party’s insurance
  33. sleep
  34. inattentive
  35. Lying during voir dire
  36. if it is found that a juror had bias chances are that he lied during voir dire. In that case an atty will attempt to get a mistrial based on the juror’s lying during voir dire. Court are hesitant to look into lying during voir dire.
  37. To what can a juror testify?
  38. strictly to the events and not the influence they had on the verdict
  39. Competency of a Judge as a Witness: FR 605
  40. J may not testify as a witness
  41. Kennedy Applies to judges clerks
  42. Children
  43. Capps J determines competency of child to testify
  44. A witness is considered competent unless proven otherwise based on states statutes: ages range from 10-14 (14 was CL).
  45. Even if incompetent the child’s out-of-court statements may be admitted under an exception to the hearsay rule.
  46. Those previously declared incompetent
  47. Phibbs witnesses who are previously declare incompetent may testify b/c FR strongly disfavor banning someone from testifying
  48. There is a presumption of capacity which is difficult to overcome & it is up to J whether to let someone testify.
  49. Two cases were held no error where the ct refused to order a psych exam and let the witness testify
  50. Lightly even when a person deemed “insane” they are OK to testify if the meet the four req
  51. Sinclair if a mental patient is called to testify and the testimony is crucial then the court may be found in error if they do not hold a competency hearing.
  52. Foundational Competence

● a-d represent the fours prerequisites necessary for a witness to testify

  1. The Oath: FR 603
  2. Before testifying every witness shall be required to declare that they will testify truthfully under oath or affirmation
  3. Form of Oath
  4. Ferguson no particular form of the oath is required; a state alternative will work (where J prevented witness from testifying b/c wouldn’t take “normal” oath – was overturned)
  5. Inability to satisfy R 603 =s incompetence
  6. A witness who refuses to testify where his testimony is needed may be help in contempt for failing to do so.
  7. Children & the oath
  8. Ayers understanding of exact words of oath are not necessary, just general understanding of obligation is enough.
  9. Perception: FR 602
  10. Witness may not testify to something unless evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter.
  11. evidence to prove personal knowledge may, but not need to, consist of witness’ own testimony
  12. J evaluates under R 104(b): only not allowed where no reasonable jury could conclude that witness had personal knowl
  13. When is there personal knowledge?
  14. Davis generally a witness’ claim of knowledge is sufficient. (here PO testified to when guns were in their possession but he wasn’t there on actually release. Good Δ lawyer would have questioned him as to whether he was there).
  15. O’Brian cannot testify to what was in another’s mind
  16. Lemire agent who had knowledge of the materials used to prep the chart had enough personal knowledge to present the chart.
  17. Maylie witness does not have to be 100% certain of facts (where a doctor was not 100% sure he was at the surgery but was pretty sure)
  18. What is the extent of personal knowledge?
  19. Gladden where there is an opportunity for observation, even though slight, a witness should be permitted to testify.
  20. Bouchard does not preclude testimony about hearsay statements
  21. Recollection
  22. Writing Used to Refresh Memory: FR 612. If witness uses a writing to refresh his memory for the purposes of testifying either
  23. while testifying; or
  24. before testifying, if the court in its discretion determines it is necessary in the interests of justice, an adverse party is entitled to have the writing produced at the hearing, to inspect it, to cross-examine the witness thereon, and to introduce in evidence those portions which relate to the testimony of the witness. If it is claimed that the writing contains matters not related to the subject matter of the testimony the court shall examine the writing in camera, excise any portions not so related, and order delivery of the remainder to the party entitled thereto. Any portion withheld over objections shall be preserved and made available to the appellate court in the event of an appeal. If a writing is not produced or delivered pursuant to order under this rule, the court shall make any order justice requires, except that in criminal cases when the prosecution elects not to comply, the order shall be one striking the testimony or, if the court in its discretion determines that the interests of justice so require, declaring a mistrial.
  25. Adverse party can
  26. have access to writing
  27. introduce into evidence the portions of the writing that the witness is relying upon (to show that witness really lacks a present memory)
  28. the above rights are only absolute if the witness uses it while on the stand, if uses it before taking the stand it is at the court’s discretion.
  29. Privileged document:: adverse party still has right to view it so priv may be lost, most ct also consider using this type of doc prior to testimony waives the priv
  30. Baker any document can be used to refresh witness’ present memory because it is not being introduced for its contents. Doc doesn’t even have to be in writing
  31. more rigorous standards for past recollection recorded—must show that the record was made or adopted by the witness when the witness had recollection and that the witness can presently vouch for the fact that the record was accurate when made
  32. Past recollection Recorded: R 803(5) a hearsay exception: a memorandum oor record concerning a matter about which a wintess once had knowledge but now has insufficient recollection to enable him to testify fully and accurately, shown to have been made or adopted by the witness when the mattter was freash in the witness’ memory and to refl,ect that knowledge correctly. If admittes, the memo or record may be read into evidence but may not itseld be receiver as an exhibit unless offered by an adverse party.
  33. Williamsonce you can show that in-court testimony would be incomplete b/c of insufficient recollection a past recollection recorded may be admitted. Must be shown that was made or adopted by the witness when matter was fresh in their mind.
  34. Hanson  pre-litigation is not ‘fresh’ in witness’ memory; however, in Senak ct admitted a doc that was 3 years after event.
  35. Must show memory impairment b4 introduction but must not be completely gone.
  36. Schoenboan cannot admit if witness did not adopt it at time of making (where witness refused to sign doc) however, signing not req.
  37. Where another person wrote st but witness adopted it, the other person maybe needed for foundation.
  38. Hypnotism & other methods of recollection
  39. Zayaswitness besides Δ may not offer testimony that is enhanced through hypnosis
  40. 3 approaches to hypnotism
  41. per se admissibility: credibility of witness is up to jury
  42. up to J to determine whether procedural safeguards were applied
  43. per se inadmissibility: SCt said this cannot apply to Δ in Rock
  44. Borwick factors to consider when deciding whether to allow hypnotically-refreshed testimony:
  45. Whether used specifically to refresh recollection or as part of therapy (latter is more reliable”)
  46. Whether witness was subj to suggestion
  47. Whether a record of the session was kept
  48. Whether the hypnotist is suff qualified
  49. Whether corroborating evidence exists.
  50. Communication
  51. Interpreters: FR 604
  52. an interpreter must swear that their translation is true and accurate
  53. also subject to provision of expert
  54. must be able to prove interpretation method
  55. Watson  where coma victim’s nods etc were not subject to any sort of testing as to whether true translation, translator was not allowed to testify

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