Evidence Skinny

Spring 2005

I. Competency

A. Federal

  • 601 Competency - Every person is competent to testify, except as modified in 602, 603, 604, 605, and 606. Defers to federal judge in diversity, always go with state rules.
  • 602 Lack of Personal Knowledge- Witnesses must have personal knowledge perceived with their senses to testify about a fact or an event.
  • 603 Oath- Must promise to tell truth so they will answer more carefully and be subject to perjury. “Awakens the consciousness.”
  • 604 Interpreters- You don’t have to be able to speak English to testify.
  • 605 Judge- Presiding judge can’t testify.
  • 606(a) - Juror as Witness- can’t testify.
  • 606(b)- Juror can’t testify on motion for rehearing to impeach his own verdict unless: 1) extraneous prejudicial information (newspaper)was introduced or 2) whether outside information brought to attention (bribe).

B. MS

  • 601(a) - If one spouse is a party, can’t get on witness stand unless other consents. Three exceptions: 1) husbands and wives may be introduced by each other in all cases, civil and criminal, 2) husbands and wives shall be competent witnesses in their own behalf, as against each other (divorce proceedings and inter-spousal tort proceedings), and 3) where a spouse is defendant in a criminal prosecution and accused of crimes against children, the other spouse is competent to testify.
  • 601(b) - Appraisers in eminent domain cases are not allowed to be a witness in the proceedings to determine the appropriateness of the government’s offer.

C. General Concepts

  • Any child can testify, after the judge determines that the: 1) child has ability to perceive and remember events, 2) child has ability to understand and answer questions, communicates effectively, and 3) understands the importance of telling the truth.
  • Technically, the Rules of Evidence don’t prohibit a lawyer from testifying, but it may be an ethical violation.

D. 615 “The Rule”

  • Witnesses that are going to testify can’t hear the testimony of other witnesses. Can be invoked by either party or judge. Exceptions: 1) parties who are natural persons, 2) corporation’s one person to be representative at trial, and 3) shown to be essential to your cause (usually an expert who is permitted to remain in the room to help the lawyer untangle complicated testimony), 4) the Federal Rules allow for a person authorized by statute to be present. If violated, witness may be excluded (usually only done if it looks like the rule was willfully violated), but usually just results in the granting of a “full-bore” cross.

E. Form of Questions on Direct

  • 611(a)- A court exercises “reasonable control” over the mode of interrogating and presenting evidence.
  • Specific.
  • Narrative. The other side may object to narrative questions, but the judge has the discretion under 611(a) to allow such questions.
  • 611(c) - Leading Questions- only on cross. Exceptions: When necessary to develop testimony, when dealing with hostile witnesses, adverse party, or person identified with adverse party, refreshing recollection, or preliminary matters to lay foundation. They are also allowed when it is necessary to suggest a topic or subject (as opposed to suggesting an answer) or when dealing with children or adult witnesses who are ignorant, timid, weak-minded or deficient in the English language.
  • Remember not to assume a fact a witness has not testified to.
  • 614- Judges may call and examine witnesses, but this is rarely done.

F. 612- Refreshing Recollection

  • You may refresh recollection of a witness with a writing, thing even if the thing is not admissible into evidence. The other side has absolute write to see what you used, cross-examine about it, or put into evidence. Don’t use if don’t want other side to see.

E. Requirement of Firsthand Knowledge

  • Side trying to prove something has burden of showing person testifying has personal knowledge of it. Do this by building foundation.

II. Procedure for Admitting or Excluding Evidence

A. 103(a)(2) - Offer of Proof, i.e. “proffer”

  • If your objection is sustained, you must make an offer of proof to preserve your objection for appeal so the appellate court will know what the evidence would have said. Procedure: 1) “At this time we would like to make an offer of proof” (jury leaves). 2) “Your Honor, would you like me to continue questioning the witness or make a statement on record?” 3) “This completes our offer of proof.”

B. Procedure for Offering Things into Evidence

  • 1) “Your Honor, we would like to have this marked for identification” (always do this even if you don’t think it will get in so it will be part of the record). 2) Hand to opposing counsel. 3) Lay foundation for admissibility (two-prong requirement: authenticate and demonstrate that it is a “fair and accurate representation.”) 4) “Your Honor, we now offer this into evidence as…”

III. Objections

A. 103(a)(1) - Timeliness Requirement

  • Made at a time when a reasonably prudent competent lawyer would have made it.

B. 103(a)(1) - Specific Grounds

  • This helps judge make decision and alerts other side to what is wrong.
  • SC a party may not argue that an instruction was erroneous for a reason other than the reason assigned on objection to the instruction at trial.

C. Motions in Limine

  • Ruling before trial that evidence is admissible/inadmissible, not mentionable at trial if successful.
  • Two-prong test: 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 the trial concerning the material will tend to prejudice the jury.
  • 103(a)(2) - Once the court makes a definite ruling on the record, a party need not renew an objection or offer of proof to preserve a claim of error for appeal.
  • Make offer of proof it you don’t win the MiL.

D. Repetition of Objections

  • MS 103(a)- “Your Honor, may we have a continuing objection to this line of questions?” (This is correct in federal and state court.)
  • 103(d)- Plain Error Rule- appellate courts have the right to judicially notice something gone wrong if attorney didn’t object-judge can, but don’t expect it.

E. Deposition Objections

  • Objections to form of questions, easily remedied, must be made at time deposition taken.
  • Hearsay- not easy objection, doesn’t have to be made at deposition time (i.e. substantive objections).

F. 104 Preliminary Questions of Fact

  • 104(a) - The judge will decide whether witness is expert, admissibility of evidence, if original been lost, if witness is unavailable, etc. In other words, where the admissibility of a piece of evidence depends on certain facts being true, the judge decides that (excited utterance).
  • 104(b)- where relevancy depends on condition of fact, it can come in out of order if evidence will connect later (jury decides if reasonable minds differ on issues like scope of employment)

G. Waiver of Objections

  • Failure to object to like evidence - subsequent objections are not waived if they were not originally objected to when the subject was brought up. However, the questions that you didn’t object to will likely remain on the record.
  • Law of the Case- When judge makes a ruling regardless of admissibility that establishes the law of the case on that subject and the other side is permitted to use some evidence, the lawyer must treat that decision as the law of the case and is entitled to and should use it to the best advantage of the client. For instance, try to take the steam out of something defendant objected to but judge allowed in - think in context of MiL and line of testimony objected to. Note, however, that the MS SC has screwed this up sometimes and treated “law of the case” as a waiver.

H. 106 Intro of Part of Writing or Conversation

  • When party wants to put in part of a deposition, report, etc., and it would be misleading to just put in that portion, where necessary for a fair understanding of the writing, the other side may require the party to put other parts in at the same time.

I. Fighting Fire with Fire

  • If one attorney starts a line of testimony (whether should have been admissible or not), he may not later object to evidence put on by the opposing attorney about the same subject because they have “opened the door.” “Rule of completeness.”
  • This doesn’t apply to rules of evidence, only subject matter. (In other words, you can’t say, “Well, the plaintiff led and I didn’t object.”)

J. Connecting Up

  • The court will allow evidence to come in out of order when the relevance of a fact will depend upon the existence of some other fact.
  • In this situation the court will admit the second fact, evidence to establish first fact will be forthcoming.

K. Evidence Admissible for One Purpose, Inadmissible for Another

  • Examples: admissible to issue of notice, state of mind, impeachment, etc.
  • Court may take middle ground (as opposed to wholly excluding or allowing the evidence) and let it in, but give limiting instruction to jury if other side asks for it.
  • But always remember 403 balancing test.

IV. Requirement of Firsthand Knowledge: The Opinion Rule and Expert Testimony

A. 602- Lack of Personal Knowledge

  • Witness must testify about something they perceived by their senses and must have had an opportunity to observe and have actually observed the fact (same goes for hearsay).
  • Party offering testimony has the burden of laying the foundation of personal knowledge.

B. 701- Opinion Testimony by Lay Witnesses(three requirements)

  • (a)- If a lay witness is testifying to opinion, he must have personally perceived it.
  • (b)- The testimony must be helpful to give clear understandingof the witness’ testimony or the determination of a fact in issue. If all the opinion does is simply give characterization from what has already testified to, this is not new or helpful.
  • (c) - The testimony is not based on scientific, technical, or other specialized knowledge. (Inferences are permissible, however.)
  • Law would rather have testimony that leads the witness to conclude rather than conclusion (bridge was safe).
  • Where witness can not be expected to give testimony in any more concrete terms, opinion testimony will be allowed by witness. (The law still prefers the concrete.)
  • Where opinion is allowed, attorney may have witness testify to underlying facts.
  • 701 has been enlarged but the line is not clear because fact and opinion are sometimes hard to distinguish
  • At common law, lay witnesses could always testify to speed, distance, time, soundness of mind, sobriety or drunkenness, and handwriting (lay the foundation for these). 701 broadened out the areas a lay witness could testify to. Rule 602 still applies, however.
  • Lay witnesses can NOT express an opinion on the ultimate issue, despite what Rule 704 says.

C. Expert Testimony: Three potential categories:

  • Expert Fact Testimony- Must show expertise and knowledge of subject. “Occurrence testimony.” A doctor’s testimony about treatments and office visits with a plaintiff would fall under this category.
  • Typical operations of the field are not opinion.
  • Expert Opinion testimony- Asking expert to tell jury what he thinks the jury should conclude from evidence they’ve heard.
  • Einstein saw a car wreck. (This is just lay testimony, however.)

D. Procedure to Bring in Expert testimony

  • 1) Ask questions about background, experience, education, etc. Then say, “Your Honor, we tender X to the court as an expert in ____”
  • MS Standard- Does the witness have enough expertise to testify in front of jury, but must stay within their field of expertise.
  • Qualifications: Education and Training (contributing to expert status), Professional Associations, Publications, Experience, Previous Testimony as an Expert.
  • 2) Once labeled anexpert, may ask witness to assume following facts are true
  • Facts must have been previously admitted into evidence.
  • Hypotheticals are frequently criticized and parties will differ over what facts should be included in hypothetical.
  • 3) Do you have an opinion on the matter of scientific probability (NOT possibility) to the question presented? Would you tell us why?
  • Or 4) “Do you have an opinion based upon a reasonable medical probability as to what kind of medical care or treatment Mr. Foyt is going to need in the future?” That is a magic-words hypothetical occurrence question.

E. Daubert Opposing Side Examination of Expert Witness.

  • Typically don’t cross examine until after his direct testimony.
  • But they are permitted to examine prior to testimony to determine whether expert.
  • Factors to determine whether a legitimate expert or reliable formula/methodology:
  • Whether proposition is testable and has been tested
  • Whether proposition has been subject to peer review and publication
  • Whether methodology has a known error rate
  • Whether there are standards for using the methodology
  • Whether methodology is generally accepted

F. 702 Testimony by Experts

  • Necessary when jurors do not know what inferences to draw from testimony because jurors do not know enough about the subject.
  • Three components: “sufficient facts or data,” “reliable principles and methods,” and “applied them in a reasonable manner.”
  • Experts with knowledge are allowed to tell jury what inferences to be drawn from the evidence presented at trial (but not when a jury knows just as much as anyone else, i.e. how a reasonable person drives a car).

G. 705- Recitation of Underlying Facts no Longer Required

  • Expert may testify in terms of opinion or inference and give reasons without discussing the underlying facts or data.
  • Dr., have you made an investigation of this accident? Why did you do that? Based upon your investigation do you have an opinion based upon reasonable scientific probability how fast the car was going when the brakes were applied?
  • When testifying to underlying facts, hypotheticals are no longer necessary, thanks to Rule 705.
  • After giving opinion, attorney may expert to explain how he arrived at this conclusion.
  • Facts or data otherwise inadmissible are not going to come in (witnesses telling them “I saw some kids playing in a barn”). See 703.

H. 703- Bases of Opinion Testimony By Experts

  • Now you don’t have to use a hypothetical question, and the facts that the expert bases his opinion on don’t have to be in evidence, provided that they are the type of things that an expert in that field ordinarily relies upon in practice.
  • Can expert testify to hearsay statements? Yes, but only if they can convince the court that this is the kind of thing people in this field rely upon in making their decisions.
  • Hypothetical: expert testifying to the disabilities of a ∏ may have sent the ∏ to a specialist who prepared a report for the testifying expert. To admit the specialists report into evidence, the ∏ would have to call the specialist to stand or otherwise it would be hearsay. Under this new rule the expert’s opinion could be based on specialist’s report if it is determined that this was the type of information relied upon by experts in the field in forming these opinions or inferences.
  • Due to this, the Federal Rules have added “unless court determines probative value substantively outweighs prejudicial effect.” (MS hasn’t.)

I. Opinion on the Ultimate Issue

  • Expert may make, but sometimes it is a matter of terminology.
  • Lay witness can not.

V. Relevance

A. 402- Relevant Evidence Admissable, Irrelevant Evidence Inadmissible

  • 1) Is this fact relevant to the issues of the case (determined from pleadings, discovery, pretrial conference)? 401 - “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.”
  • 2) Percentage Test -Tendency Test: Ask a reasonable juror what percent probability he would give to an issue. Then ask whether or not the percentage would go up or down with knowledge of an additional fact.
  • If it does not applying this, then the end of inquiry
  • If it does and is relevant, it will come in unless something in Constitution or the Rules of Evidence prohibits it under two categories:
  • 1) 403- General Rule of Exclusion of Relevant Evidence
  • 2) Specific rules (like hearsay)

B. 403- General Rule of Exclusion of Relevant Evidence

  • Called the filter through which all evidence must pass.
  • Most important: Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice.
  • Unfair prejudice means there is a danger the jury will use the evidence in a way which the law of evidence says you can’t.
  • Substantially outweigh means not just to tip the scales but substantially tip the scales.
  • Other ways evidence could be misused: confusion of the issues, misleading the jury, undue delay, waste of time, needless presentation of the evidence
  • Common thread- They don’t say evidence to prove a certain thing is never admissible, just not admissible to prove a certain thing

C. 407- Subsequent Remedial Measures (Specific Rule of Exclusion)

  • After an event, if measures are taken which if taken previously would have made the event less likely to occur, evidence of it is not admissible to prove negligence, culpable conduct, or product liability.
  • However it is NOT excluded when offered to prove (if controverted): ownership, control, feasibility of precautionary measures or impeachment. (This is not an exclusive list.)
  • Don’t forget to make a 403 argument.

D. 408- Compromise and Offers of Compromise (Specific Rule of Exclusion)

  • Monetary offer or demand, as well as anything said during negotiations is inadmissible to prove liability or invalidity of the claim.
  • However, it does not exclude proving for other purposes such as bias.

E. 409- Payment of Medical and Similar Expenses

  • Evidence of a party offering to pay expenses is not admissible to prove liability.
  • Caveat: 409 doesn’t protect other statements ∆ might make like, “It was our fault.”

F. 410- Inadmissibility of Pleas, Plea Discussions and Related Statements

  • Criminal equivalent of 408 (settlements, plea bargains).
  • Guilty pleas that are not withdrawn are not protected.

G. 411- Liability Insurance

  • Evidence of whether a person was insured or not is inadmissible, and if mentioned (purposefully), it may be grounds for a mistrial.
  • However it is NOT excluded to indicate other things such as bias, proof of agency, ownership, or control. Don’t forget to object under 403, though.

VI. Character Evidence

A. Character Evidence Definition

  • Evidence to prove that a person has or does not have a certain character trait or a propensity to do or not do a particular sort of thing.
  • Applies to persons, businesses and corporations.

B. 404- Character Evid. Not Admissible to Prove Conduct; Exceptions; Other Crimes