1. Taking Evidence
  2. Relevance
  3. Exhibits
  4. Relevant but Inadmissible
  5. Character and Credibility
  6. Hearsay
  7. Privileges
  8. Expert Testimony

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TAKING EVIDENCE

  1. Preconditions to Testimony
  2. Interrogation
  3. Objections

  1. Preconditions to Testimony

Personal Knowledge and the Lay Opinion Rule

Rule 701. Opinion Testimony by Lay Witnesses

If the witness is not testifying as an expert, the witness’ testimony in the form of opinions or inferences is limited to those opinions or inferences which are

(a)rationally based on the perception of the witness, and

(b)helpful to a clear understanding of the witness’ testimony or the determination of a fact in issue, and

(c)not based on scientific, technical, or other specialized knowledge within the scope of Rule 702.

RULES

  • 701(a) — Witness can only testify to what she saw, heard, or otherwise perceived R

The statement “Virginia told me her car broke down” is not objectionable on the basis that witness heard her say that but didn’t actually see it break down. Because she’s testifying to what Virginia said.

  • 701(b) — rule of preference

if a more precise sensory data is available and easy to convey use it.

if jury can make same determination as the witness then objectionable

X’d — not helpful to determine a fact in issue — where video of a robber are available, ∆’s appearance has not changed since that time, and the π wants to bring in a witness to identify her as the person in the video. Jury can make own determination

  • COUNTER – if video, she has certain walk or other characteristics that witness could identify. prob III-15
  • 701(c) — no expert opinion in layman’s clothing

Look for “specialized knowledge” that is trying to come in

Rule 704. Opinion on Ultimate Issue

(a)Except as provided in subdivision (b), testimony in the form of an opinion or inference otherwise admissible is not objectionable because it embraces an ultimate issue to be decided by the trier of fact.

(b)No expert witness testifying with respect to the mental state or condition of a defendant in a criminal case may state an opinion or inference as to whether the defendant did or did not have the mental state or condition constituting an element of the crime charged or of a defense thereto. Such ultimate issues are matters for the trier of fact alone.

RULES

  • 704(a) — ok to offer an opinion or inference even if it embraces an ultimate issue to be decided by the trier of fact
  • UNLESS (704(b)) — It is expert testimony on the mental state of a criminal ∆at time of offense — no expert witness testifying to mental state of ∆ in criminal case may state an opinion or inference as to whether the ∆ did or did not have the mental state or condition causing an element of the crime charged or of a defense there to. Such ultimate issue is for trier of fact alone.

Significance — this makes it somewhat more difficult for a ∆ to assert an insanity defense.

Expert probably can still give medical diagnosis

Psychiatrist probably unable to say he “was unable to appreciate the wrongfulness of his conduct due to his mental disease....”

Oath

Rule 603. Oath or Affirmation

Before testifying, every witness shall be required to declare that the witness will testify truthfully, by oath or affirmation administered in a form calculated to awaken the witness’ conscience and impress the witness’ mind with the duty to do so.

Witness must declare that he will testify truthfully — no special verbal formula

Judge wants to be able to prosecute witness for lying

Judge can also disqualify witness if he thinks that he does not have the capacity to keep his promise to tell the truth (implied authority from rule)

  1. Interrogation

Direct Examination

Rule 611. Mode and Order of Interrogation and Presentation

(c)Leading questions. — Leading questions should not be used on the direct examination of a witness except as may be necessary to develop the witness’ testimony. Ordinarily leading questions should be permitted on cross-examination. When a party calls a hostile witness, an adverse party, or a witness identified with an adverse party, interrogation may be by leading questions.

Generally — No leading questions on direct examination. — leading is one that suggests to the witness the answer desired.

Ask — Would it suggest to a reasonable person in the witness’ position the answer desired by the questioner?

These questions always can be rephrased.

Generally questions that are leading:

  • “Didn’t” questions — “didn’t you...”
  • “Yes or No” questions — often leading but not always.

Not leading — “was the water hot”

  • Specific Questions — generally more leading

Leading — “Did ∆ point the gun at you”

Leading — any question bringing witness attention to the fact that he used a gun

Not leading — “What, if anything, did ∆ say to you”

Not leading — “What, if any, gestures did the ∆ make?”

  • EXCEPTION — Adverse Party(e.g. opposing party) — b/c it’s deemed unfriendly to the examiner leading questions are allowed
  • NOTE — on cross exam NO leading questions
  • EXCEPTION — Witness Identified With An Adverse Party
  • Witness biased in favor of an opposing party or otherwise identified with that party.
  • Employee, Relative — examples
  • NOTE — on cross exam, probably no leading questions
  • EXCEPTION — Hostile Witness — the witness’ demeanor on the witness stand may similarly make it clear that he is “hostile” to the examiner.[1]

Look For — evasive stories, changing story

Look For — acting trunculent

Look For — giving evidence that damages the direct examiner’s case

hostile — witness may claim he can’t remember the transaction in question, under circumstances that lead court to believe witness is being deliberately uncooperative rather than hostily forgetful.

  • EXCEPTION — Preliminary Matters — May be used to develop preliminary matters, matters not really in dispute

preliminary — neither side disputes that W was the teller when robbery took place, the question “Were you on duty at the bank on X afternoon?”

  • EXCEPTION — Forgetful Witness — If the witness is forgetful, leading questions may sometimes be used to refresh his memory, by drawing his attention to the specific transaction. Judge needs to be convinced that their effect is not to put the questioner’s words into the witness’ mouth.
  • EXCEPTION — Less Competent Witness — to help witness who has some kind of handicap making it difficult for him to respond to non-leading questions. This will be allowed even if the handicap makes the witness more suggestible and thus will adopt words of question.

young, trouble speaking English, unintelligent, very timid

OBJ — Asked and Answered — direct examiner asks the question twice. usually to try to get a better answer.

Note — on cross examination this is not a valid objection if you re objecting to the fact that it was asked and answered on direct. A cross examiner is entitled to try to get the witness to change his mind.

asked & answered — “how many shots did you hear?” “5” “I’m sorry. How many shots?” “Oh that’s right, 6”

Rationale — friendly witnesses will typically want to give friendly testimony and are likely to adopt the words/arguments that the examiner wants them to make

Cross Examination

Rule 611. Mode and Order of Interrogation and Presentation

(b)Scope of cross-examination. — Cross-examination should be limited to the subject matter of the direct examination and matters affecting the credibility of the witness. The court may, in the exercise of discretion, permit inquiry into additional matters as if on direct examination.

(c)Leading questions. — Leading questions should not be used on the direct examination of a witness except as may be necessary to develop the witness’ testimony. Ordinarily leading questions should be permitted on cross-examination. When a party calls a hostile witness, an adverse party, or a witness identified with an adverse party, interrogation may be by leading questions.

611(c) — ordinarily Leading Questions Are Allowed

  • EXCEPTION — if the witness is biased in favor of the cross-examiner — trial judge has discretion to prevent leading questions.

no leading questions allowed — ∆ atty will not be able to use leading questions against ∆ on cross (if π called ∆ to testify).

611(b) — Scope — cross is limited to :

  • Scope — Matters testified on the direct examination

Scope = same transaction, conversation, or statement. You open the door to the rest of the statement, etc...

Outside of Scope — witness asked to testify about 2 issues on direct: if W was on company business, and whether W can identify an accident report he made to police. On cross, ∆ elicits entire version of the accident none of which was touched on the direct by P.

Inside Scope — π asks on direct: “What did the ∆ say to you.” On cross, ∆ can ask: “what did you say in return?”

  • Credibility — matters relevant to the witness credibility are admitted
  • Judge Discretion — judge can always permit inquiry into additional matters

Rationale — witness generally not friendly so little danger that the witness will adopt the questioner’s suggested answers as his own.

Credibility

Rule 607. Who May Impeach

The credibility of a witness may be attacked by any party, including the party calling the witness.

III. Objections

Generally

Evidence is presumed admissible (402)

Parties control the case — they frame the issues and present the evidence.

Objections can be waived — in absence of an objection the evidence can usually be fully relied upon by the jury

Trial judge is rarely reversed — judges usually have wide discretion its hard to err in first place.

Avoiding a waiver of objections is a process

Rule 402. Relevant Evidence Generally Admissible; Irrelevant Evidence Inadmissible

All relevant evidence is admissible, except as otherwise provided by the Constitution of the United States, by Act of Congress, by these rules, or by other rules prescribed by the Supreme Court pursuant to statutory authority. Evidence which is not relevant is not admissible.

Evidence is presumed admissible; all relevant evidence is admissible

Avoiding a Waiver

Rule 103. Rulings 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.

Timely — timely object with specific ground of objection

  • generally before witness answers if the reason for obj is clear by the question

Specific Ground for Objection — state specific ground for objection UNLESS the ground is apparent from the context

  • On appeal — theappellate court will only overturn if the correct objection was made even if there was a different specific ground which merited exclusion
  • You must appeal every time a witness asks an objectionable question unless the judge allows you to make a continuing objection to a category of questions

Offer of Proof — (1) a description of the evidence being proposed; and (2) an explanation of how that evidence relates to the case.

  • it must show the substance of evidence enough so that an appellate court will be able to base ruling on

Harmless Error — “substantial right of the party must be effected.” — the error must have a substantial influence on the outcome of the trial. 103(a).

  • EXCEPTION — Plain Error — an appellate court can decide to excuse non-compliance with these rules and still consider a claim if it thinks an injustice has been done. 103(d)

Plain Error — if no one objects, judge could still rule if substantial rights are being effected. 103(d)

  • ex. – 2 parties agree not to object to each other’s evidence and it really screws one person.

Role of Judge and Jury

Rule 104. Preliminary Questions

(a)Questions of admissibility generally. — 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). In making its determination it is not bound by the rules of evidence except those with respect to privileges.

(b)Relevancy conditioned on fact. — 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.

(c)Hearing of jury. — Hearings on the admissibility of confessions shall in all cases be conducted out of the hearing of the jury. Hearings on other preliminary matters shall be so conducted when the interests of justice require, or when an accused is a witness and so requests.

(d)Testimony by accused. — The accused does not, by testifying upon a preliminary matter, become subject to cross-examination as to other issues in the case.

(e)Weight and credibility. -- This rule does not limit the right ofa party to introduce before the jury evidence relevant to weight or credibility.

104(a) — the judge determines allquestions of inadmissibility

104(b) — conditionally relevant evidence may be admitted either after (upon) or before (subject to) the introduction of sufficient evidence

  • OBJ — the objection here is that it is not relevant.

The judge has discretion to hear facts relating to admissibility in front of or away from the jury. (whether it should be admitted or not)

  • EXCEPTION — if admissibility of a confession is in issue it shall be conducted outside of the hearing of a jury 104(c)
  • EXCEPTION — if a criminal ∆ intends to testify on whether the evidence can come in he has discretion

BOP falls on whoever wants the evidence to come in

  • Privileges — if claiming a privilege then BOP to prove that

104(e) — party’s can always attack the weight and credibility of evidence

Cautionary Instructions and Limited Admissibility

Rule 105. Limited Admissibility

When evidence which is admissible as to one party or for one purpose but not admissible as to another party or for another purpose is admitted, the court, upon request, shall restrict the evidence to its proper scope and instruct the jury accordingly.

Judge can tell the jury (upon request) that facts are only able to be considered for a certain purpose

Limiting Instructions OK – where judge instructs jury that it’s normal to change your hair color b/c it comes out in evidence that ∆ changed hair color since crime. Ok, b/c he is attempting to reduce unfair bias.

  • Note – ∆ may not want this b/c draws attn to fact that she did change color and this might seem sketchy

In Limine Objections — objection in advance outside presence of jury

Approach to Objections

  1. Ask – does it hurt my case?
  2. Is it important?
  3. Is there some way I might be able to keep it out?
  4. Is the possibility of excluding worth the costs of objecting before the jury

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RELEVANCE

Rule 401. Definition of “Relevant Evidence”

“Relevant evidence” means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.

Rule 402. Relevant Evidence Generally Admissible; Irrelevant Evidence Inadmissible

All relevant evidence is admissible, except as otherwise provided by the Constitution of the United States, by Act of Congress, by these rules, or by other rules prescribed by the Supreme Court pursuant to statutory authority. Evidence which is not relevant is not admissible.

Rule 403. Exclusion of Relevant Evidence on Grounds of Prejudice, Confusion, or Waste of Time

Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.

Generally

All relevant evidence is presumed admissible. R402

Relevant — to be relevant the evidence must have a: R401

  1. Probative Relationship — there must be a probative relationship b/t the piece of evidence and the factual proposition to which the evidence is addressed.

Ask — does the evidence make the factual proposition more (or less) likely than it would be without the evidence?

Ask — what are you trying to prove, and does this evidence make that more or less likely

Res Ipsa Loquitor — (1) cause; (2) injury

  1. Materiality — it must be of consequence to the determination of the action

Ask — Is the underlying fact that you are trying to prove relevant to some sort of claim or defense?

Analysis:

  1. What fact are you trying to prove?
  2. Does this evidence (testimony, physical, etc...) make it more (or less) likely that the fact is true?
  3. Does the fact relate to some sort of claim or defense?

EXAM: Answer Questions — (1) State completely what you as π or ∆ are trying to prove in this case (all the elements of the crime). (2) Then state what fact you are trying to prove, how the evidencemakes it more likely that it’s true (do a chain of inferences). (3) how it relates to what you are trying to prove in the case.

“As π I am trying to prove that my client was injured, the bottle caused the injury, and that ∆ (bottling company) was in control of the bottle. The testimony regarding pressing the Kola button makes it more likely that Kola came out of the machine. This makes it more likely that the Kola bottle was what exploded (assuming explosion). This makes it more likely that the Kola bottle caused her injury. This is relevant to the element of my claim that the bottle in question caused the injury.”

Claims

-X caused the injury

-There are damages (and how much)

-Contributory Negligence — (1) π’s actions; (2) π’s skills/abilities

-Negligence — (1) Duty, (2) Negligence (breach of duty, insufficient care), (3) actual damage, (4) causation — “but for” cause & legal cause.