Legal Three

Federal Rules of Evidence – Intro to Evidence

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esquire
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Federal Rules of Evidence Law School Supplements

<h3>Federal Rules of Evidence Law School Supplements</h3>

<ul>
<li><a href=”http://www.amazon.com/gp/product/0735507473/ref=as_li_tf_tl?ie=UTF8&tag=legthr-20&linkCode=as2&camp=1789&creative=9325&creativeASIN=0735507473″>Evidence Under the Rules, Seventh Edition (Aspen Casebook Series)</a><img src=”http://www.assoc-amazon.com/e/ir?t=collegebook-20&l=as2&o=1&a=0735507473″ width=”1″ height=”1″ border=”0″ alt=”” style=”border:none !important; margin:0px !important;” /></li>

<li><a href=”http://www.amazon.com/gp/product/0735508739/ref=as_li_tf_tl?ie=UTF8&tag=legthr-20&linkCode=as2&camp=1789&creative=9325&creativeASIN=0735508739″>Casenotes Legal Briefs: Evidence, Keyed to Mueller & Kirkpatrick, 7th Edition</a><img src=”http://www.assoc-amazon.com/e/ir?t=collegebook-20&l=as2&o=1&a=0735508739″ width=”1″ height=”1″ border=”0″ alt=”” style=”border:none !important; margin:0px !important;” /></li>

<li><a href=”http://www.amazon.com/gp/product/0735590427/ref=as_li_tf_tl?ie=UTF8&tag=legthr-20&linkCode=as2&camp=1789&creative=9325&creativeASIN=0735590427″>Emanuel Law Outlines: Evidence (The Emanuel Law Outlines)</a><img src=”http://www.assoc-amazon.com/e/ir?t=collegebook-20&l=as2&o=1&a=0735590427″ width=”1″ height=”1″ border=”0″ alt=”” style=”border:none !important; margin:0px !important;” /></li>

<li><a href=”http://www.amazon.com/gp/product/0735598045/ref=as_li_tf_tl?ie=UTF8&tag=legthr-20&linkCode=as2&camp=1789&creative=9325&creativeASIN=0735598045″>Law in a Flash: Evidence 2011</a><img src=”http://www.assoc-amazon.com/e/ir?t=collegebook-20&l=as2&o=1&a=0735598045″ width=”1″ height=”1″ border=”0″ alt=”” style=”border:none !important; margin:0px !important;” /></li>

<li><a href=”http://www.amazon.com/gp/product/1454802480/ref=as_li_tf_tl?ie=UTF8&tag=legthr-20&linkCode=as2&camp=1789&creative=9325&creativeASIN=1454802480″>Evidence: Examples & Explanations, Eighth Edition</a><img src=”http://www.assoc-amazon.com/e/ir?t=collegebook-20&l=as2&o=1&a=1454802480″ width=”1″ height=”1″ border=”0″ alt=”” style=”border:none !important; margin:0px !important;” /></li>
</ul>

Chapter 1: Evidence Law and the System

 

  1. Why Rules of Evidence:
    1. Why Evidence Law at all?
      • Lay Jury = amateur factfinder
      • 5 reasons for Evidence Law:
        1. Mistrust of juries
        2. To serve substantive policies relating to the matter being litigated to set burdens of persuasion
          • Ex. Plaintiff has a better chance if he only needs to prove his case by a “preponderance” (lowest standard of proof known to the law) as opposed to “clear and convincing” evidence
        3. To further substantive policies unrelated to the matter in litigation—what we may call extrinsic substantive policies
          • Ex. Protection of marriage
        4. To ensure accurate factfinding
        5. To control the scope and duration of trials, because they must run their course within reasonable dispatch
    2. Why Rules Rather Than Common Law?
      • Accessibility is the main reason advanced by framers of the Federal Rules of Evidence
      • Pre-Rules Evidence Law : common law tradition was followed
      • Federal Rules of Evidence:
        1. Created by Advisory Committee that comprised practitioners, judges, and law professors appointed by the US Supreme Court
        2. Congress then made changes they deleted the privilege rules
  2. What Happens at Trial:
    1. Jury Selectionn:
      • Voir Dire: court and counsel try to find our whether any members of the panel should not serve in the case at hand
      • People can be excluded for age, bias, prejudiced because of work/income connection to members of trial
      • Each party has a fixed number of peremptory challenges which entitles him to exclude potential jurors for any reason at all
    2. Opening Statement:
      • Overview and traditionally the party bearing the burden of persuasion (usually P in civil litigation and prosecutor in criminal) has the right to make the 1st opening statement
    3. Presentation of Proof:
      • The order of proof:
        1. Plaintiff (or prosecutor) presents his case-in-chief, then rests;
        2. Defendant presents his case-in-chief, then rests;
        3. Plaintiff (or prosecutor) presents his case-in-rebuttal;
        4. Defendant presents his case-in-rebuttal (sometimes called his “case-in-rejoinder”)
        5. Each side presents further cases-in-rebuttal (again sometimes called cases-in-rejoinder)
      • Order of Examination:
        1. Direct examination by the calling party
        2. Cross-examination by the adverse party
        3. Redirect examination by the calling party
        4. Re-cross by the adverse party
        5. Further redirect and recross as may be necessary
    4. Trial Motion
      • Motion for judgment:
        1. Judge assumes that jury (if given the case) will believe witnesses for the party opposing the motion, which means that the judge does not determine credibility issues (or resolves them in favor of the party opposing the motion)
        2. Typically such motions are denied
    5. Closing motions:
      • Party bearing the burden of persuasion has the right to make two closing arguments, one before and one after the adversary
    6. Instructions:
      • Explain substantive principles and allocate and define the burdens of proof on the issues
      • Curative Instructions: Judge may also instruct jury to admonish certain portions of testimony
      • “Limiting Instructions”: instructions that advise the jury to consider certain proof only on one point and not others or against one party and not others
      • Some instructions seeks to convey to juries the effect of presumptions and certain formal inferences
    7. Deliberations
    8. The Verdict
    9. Judgment and Post Trial Motions:
      • After verdict is announced, the court enters judgment
      • In civil cases, generally the prevailing party prepares the judgment for the court’s signature
      • In criminal cases in which the jury returns a verdict of not guilty, a judgment of acquittal is signed by the judge and entered by the clerk
      • JNOV (now called judgment as a matter of law) motion
    10. Appellate Review:
      • Finality principle: appellate review may be had only at the end of the case, when the trial court has entered a final judgment
      • There are notable exceptions (class certification, etc)
      • Even when judgment has been entered, a party may obtain full appellate review only if it has preserved its claim of error by stating its position promptly and clearly at trial
  3. Making the Record:
    1. What is the Record and How Is It Made?
      • The official record of trial comprises of 5 different kinds of material:
        1. The pleadings
        2. Filed documents: motions accompany briefs, documents seeking and providing discovery, jury instructions, and court orders
        3. The record of proceedings
        4. The exhibits
        5. Docket entries
    2. Beware of Pitfalls—What Not to Do:
      • Echoing
      • Overlapping
      • Numbers, Names and Big Words
      • Exhibits
      • Pantomime, Nonverbal Cue, Gesture, Internal Reference
      • Going “off the record”
      • The sidebar conference
    3. Taking Care—What to Do
      • As the forgoing discussion suggests by negative inference, two important contributions that the trial lawyer makes in preparing a useful record of the proceedings are
        1. (1) to ensure that utterances important to his cause, whether his own or those of witnesses or the judge are spoken clearly enough to be understood and put down by the reporter
        2. (2) to ensure that those utterances have meaning when they appear in printed form in the transcript
  4. How Evidence is Admitted or Excluded:
    1. Getting Evidence In: Foundation and Offer
      • Testimonial Proof—Direct Examination:
        1. Lay the Fondation:
          • Ask questions that show that the witness has personal knowledge of the matters to which he will speak
          • Then lawyer asks substantive questions getting at witnesses knowledge of pertinent facts must generally be done with nonleading questions
          • Leading Questions: bad because they:
            • Invoke in the witness a false memory of events
            • Induce him to lessen efforts to relate what he actually remembers and acquiesce instead in the examiner’s suggested version
            • Distract him from important detail b directing his attention only to selected aspects of the story
      • Testimonial Proof—Cross Examination:
        1. Leading the witness: acceptable on cross examination b/c:
          • 1) May Invoke the conscience of the witness and awaken his memory sufficiently to dislodge him from his previous version of events in favor of what he himself considers a more complete or accurate version
          • 2) Expose limits or inaccuracies in his memory
          • 3) Focus his attention on important details
        2. Scope of Direct Rule: traditional rule is that cross-questioning is limited to matters explored on direct
      • PROBLEM 1-A: HOW DID IT HAPPEN?
        1. Now Mr. Dreeves, you and Ms. Barton are seeing each other socially, isn’t that right?
          • Cross examination should be limited to the subject matter of the direct but that the judge may permit inquiry into additional matters
          • Probably outside the scope, but the judge may permit it if it goes to the witness’ credibility reason to lie this one would go to credibility
          • Leading question possibly
        2. Isn’t it true, Mr. Deeves that at the time of the accident Ms. Barton here had turned clear around in her seat and was looking out the back window of the car?
          • This seems relevant in scope because it deals with a possible cause of the accident and attempts to shift blame from Felson to Barton
          • If Barton was negligent or partially liable that matters
          • Barton will argue he wasn’t asked this and Felson will say the judge should permit this broader questioning
        3. Tell me Mr. Deeves, you and Ms. Barton here had just finished lunch at Sebastian’s where she drank three glasses of wine just before the accident, isn’t that true?
          • Improper because it doesn’t go to credibility of witness on witness stand
      • Real Evidence:
        1. “Real Evidence”:
          • refers to tangible things directly involved in the transaction or events in litigation (i.e. the defective steering assembly involved in the accident)
          • can be established by testimonial account
      • Demonstrative Evidence:
        1. “Demonstrative Evidence”:
          • tangible proof that in some way makes graphic the point to be proved
      • Writings:
        1. “Writings”:
          • one kind of physical evidence that generall must be introduced at trial rather than proved by means of testimonial descriptions
          • often writings = real evidence
    2. Keeping Evidence Out:
      • The Objection:
        1. Reasons for Objections and Limitations:
          • Fairness
          • Helps court who can’t always guide or take sides
          • Objections must be timely
          • The objection should include a statement of the underlying reason (grounds)
        2. Specific v. General Objections:
          • Specific May be for want of better terms, either substantive or formal in nature
          • General alliterative phrase “irrelevant, incimpetent, and immaterial”
        3. Grounds: “Substantive” or “Formal”
          • Substantive Objections:
            • Rest on particular exclusionary principles in the Rules of Evidence
        4. Formal Objections:
          • Focus on the manner of questioning and they are standard equipment for trial lawyers
          • Often tactical weapons used to obstruct, delay or break the cadence of the opposition
          • Common Formal Objections:
            • 1) Asked and Answered
            • 2) Assumes Facts Not In Evidence
            • 3) Argumentative
            • 4) Compound:
              1. sometimes a question seeks more than one answer or suggests alternative responses, while being framed in a way that invites a yes or no response
            • 5) Leading the Witness
            • 6) Misleading
            • 7) Speculation or Conjecture
            • 8) Ambiguous, uncertain and unintelligible
            • 9) Nonresponsive to the Question
      • The Motion in Limine:
        1. Provides a chance for both parties to brief an important evidence issue and present more elaborate argument than is possible during trial
        2. Occurs when one party anticipates evidence being admitted that the other side will have a serious objection to
        3. Judges hesitant to give
    3. The Offer of Proof:
      • A lawyer faced with a ruling excluding evidence must make a formal offer of proof, if he wants to preserve the point for later appellate review, which means demonstrating to the trial court exactly what is prepared to introduce if permitted
    4. Judicial MiniHearings
      • Rule 104 describes the functions of judge and jury in deciding evidence questions
        1. Rule 104(a) says the judge determines “preliminary questions” – witness competency, privilege, and admissibility of evidence”
        2. Rule 104(b) says it is different when relevancy turns on fulfillment of a condition of fact
          • The jury decides whether the condition is satisfied (fulfilled) and evidence that is conditionally relevant is admitted upon or subject to the introduction of sufficient other evidence to support a finding by the jury that the condition is satisfied
  5. Consequences of Evidential Error:
    1. General Notes:
      • 3 Main Causes of Imperfection:
        1. Some rules are slippery or complex
        2. Some evidence rules are framed as vague standards and close appellate scrutiny would make little sense
        3. Ours is an adversary system, which places the lion’s share of responsibility for the conduct of trial on the litigants themselves
    2. Appraising Such Error on the Merits:
      • Errors that matter and errors that don’t – 2 points of distinction
        1. The evidence of error must have affected what Rule 103 calls a substantive right meaning essentially outcome
        2. We need some standard to deal wit uncertain situations b/c reviewing courts often cannot tell for sure that even the most egregious error actually affected the result
          • Usual standard is probably affected
      • Kinds of Error:
        1. Reversible Error:
          • Refers to the kind of mistake that probably did affect the judgment
        2. Harmless Error:
          • Refers to the kind of mistake that probably did NOT affect the judgment
        3. Plain Error:
          • The kind of mistake that warrants relief on appeal in the estimation of the reviewing court, even though appellant failed to take the steps usually necessary to preserve its rights
        4. Constitutional Error:
          • Usually means a mistake in admitting evidence for the prosecution that should have been excluded under the Constitution
      • 3 Doctrines (that turn reversible into harmless):
        1. Cumulative Evidence Doctrine:
          • Supports affirmance despite errors by the trial court both in admitting and in excluding
          • “While the trial judge did err in admitting evidence offered against the appellant, still so much other proper evidence supported on the same point that the jury would likely have found against her even if the judge had correctly excluded the evidence in question.”
        2. “Curative Instruction Doctrine:
          • When a judge commits an evidence error, he may be able to avoid reversal by means of an instruction to the jury instructions to disregard
        3. “Overwhelming Evidence” Doctrine:
          • If a reviewing court concludes that evidence properly admitted supports the judgment below overwhelmingly, generally it affirms
    3. Appellate Deference: The Discretion of the Trial Judge:
      • Trial judge has broad discretion (FRE 403 and FRE 611)
    4. Procedural Pitfalls and Adversarial Gambits:
      • 3 Kinds of Behavior from Appellant (that prevent court from considering whether evidence was wrongly admitted):
        1. Failing to Object or Offer Proof
        2. Inviting Error:
          • Lawyers sometimes put questions that produce otherwise excludable answers
          • Assuming that the witness fairly replies to the question asked, the questioner is said to have invited any error that would otherwise arise in allowing the answer
        3. Opening the Door:
          • A Party testifying on direct examination by his own counsel makes an ill-advised and overbroad assertion that he has a blemish free past then opposing side can cross on this
    5. PROBLEM 1-B: He Didn’t Object:
      • Carl Dreeves joins with Abby Barton as the 2nd plaintiff in the suit against Eric Felsen. The Defense offers testimony by police officer Hill, based on measurements of skid marks at the scene, that Barton’s Fiat was traveling at a speed of about 50 mph just before entering the intersection. Counsel for Barton objects that the officer Hill is not qualified as an expert in accident reconstruction and that estimates of speed based on skid marks involve sheer speculation and are not helpful to the jury.
      • The court overrules the objection, the jury returns a verdict for Felsen, the court enters judgment that Barton and Dreeves take nothing and that their claims be dismissed with prejudice. Dreeves appeals and Felsen argues that the appeal should be dismissed b/c his failure to object below.
      • ANSWER: the court of appeal would have to determine whether the error was reversible (probably affecting the judgment) or harmless. If the police officers testimony was among other (eye witnesses, experts, etc) evidence showing that Barton was going 50 mph then it probably did not affect the outcome of the trial. This approach is known as the cumulative evidence doctrine.
        1. Or if there was overwhelming evidence to support Barton’s speeding the court could apply that and the objection would
        2. The objection was specific (lay not qualified to testify as an expert) and timely
        3. Yes it should prevail
  6. Obtaining Review of Evidence Points:
    1. Appeal from Judgment:
      • Evidence rulings are for the most part, an example of the nonappealable interlocutory order
    2. Interlocutory Appeal:
      • 2 instances where interlocutory appeal is allowed:
        1. Privilege Rulings:
          • Under one approach the threshold question is whether the person from whom info was sought has been held in contempt if not, not review may be had
          • Under another approach the treshold question is whether the nondisclosing person is a party to the action if he is a party, he may obtain review of the privilege ruling only by suffering an adverse judgment on the merits of the case, then raising the privilege issue on appeal from the judgment
        2. Supression Motions:
          • In criminal cases in federal court, the applicable statute paves the way for government appeals “from a decision or order…suppressing or excluding evidence…not made after D has been put in jeopardy and before the verdict or finding on an indictment or information” if the U.S. Attorney certifies that the appeal has not been taken for purpose of delay and that the evidence is a substantial proof of a fact material in the proceeding

 

Class Notes:

  • Preparation and being a story teller are the most important qualities as a trial lawyer
  • Trial:
    • Plaintiff Expert testimony as to the standard of care
      • Breach of the standard of care
    • Defendant affirmative defenses (statute of limitations)
    • Evidence provides information for the record failure to get info added into the record can be the death of your case
    • Forms of Proof:
      • Documents, Witness, Physical evidence, anything presented to the eyes, ears and nose of the jury
  • Federal Rules of Evidence:
    • Product of detailed study
    • Used in both civil and criminal cases (federal)
    • How does a proposed evidence rule become law Congress authorized the federal judiciary to proscribe the rules
      • Important to know that there is a multi-stage process for a new rule to come into existence takes years and continuous study
      • Ultimately the rules find themselves at US Supreme Court if they approve they submit it to Congress in May 1 of the year it’s supposed to be submitted
      • Congress can either do nothing (and it becomes law) or they can change it however they want
        • Politics are therefore involved in the rulemaking
    • Major revision on the way to the FRE
  • Federal Rules of Evidence:
    • General provisions (Rules 101-106)
    • Judicial Notice (Rule 201)
    • Presumptions in Civil Actions and Proceedings (Rules 301-302)
    • Opinions and Expert Testimony (Rules 701-706)
    • Hearsay (Rules 801-807)
  • Something doesn’t have to be admissible, but it must be reasonably calculated to lead to discoverable material
  • Rule 56(e):
    • You must have otherwise admissible form
    • When a motion for summary judg. Is made and properly supported the opposing party may not rely on admissions or denials made in its pleadings affidavits must set out specific facts showing genuine issue for trial
    • If opposing party does not so respond then Sum Judg should be entered against that party
  • Differences Between CA Evidence Code and FRE:
    • FRE do not set forth detailed privilege rules, unlike the CA evidence code
    • CA evidence code is important to discuss because it’s on the bar
  • Basic Ideas/Intro Reading:
    • Read advisory committee notes are not the rule, but are often looked to by courts in determining the meaning of the rule
  • Scope of the Rules (Rule 101):
    • These rules govern proceedings in the courts…
    • Rule 1101 also covers this
    • The rules are broadly applicable
    • The rules apply in both civil and criminal cases
    • Federal court do federal rules of evidence always govern? (False) state law drives the rule of decision
      • There are certain things for which the federal court would look to state courts for law
      • Federal court will look to state court in the area of presumptions, privileges and it might matter
      • Rule 1101© Rule of privilege
      • Rule 1101(d) Preliminary question of fact:
        • 1) the determination of questions of fact preliminary to admissibility of evidence when the issue is to be determined by the court under rule 104
        • 2) Grand jury
        • 3) Miscellaneous proceedings
    • Should the judge follow the federal rules of evidence even though she’s the factfinder? Yes, but they do bend the rules
      • The judge does have to follow the rules even if she’s the factfinder, but in practice they are bent
      • CA rule is very similar to the FRE
  • Underlying Rational for Rules:
    • 1) Regulate the evidence submitted to a jury (mistrust of juries)
      • sometimes we don’t trust jurors with all “relevant” evidence
      • sometimes evidence is relevant but not admissible
    • 2) Provide a mechanism to favor/disfavor certain claims or parties
      • burden of persuasion in civil fraud case is clear and convincing (and must be plead by particularity) because it’s easy to plead fraud and there needs to be that element of intent
      • by tinkering with burden of persuasion we’re disfavoring fraud claims
      • Criminal justice system favors letting guilty people go by setting the standard at beyond a reasonable doubt
    • 3) Provide a mechanism for accurate fact-finding
      • Authentication rules (not just any document can be admitted)
    • 4) Provide a mechanism to encourage important policies unrelated to the present litigation
      • Some rules are meant to encourage action without letting the other side then hold it against that party
    • 5) Provide a mechanism for the protection of private relationships
      • Couples don’t have to testify against each other
    • 6) Provide a mechanism to limit the scope and duration of trials
      • all nonrelevant evidence is excluded at trial
    • 7) Allow for due process at the trial
    • THEREFORE ALL RELEVANT EVIDENCE IS NOT ADMISSIBLE AT TRIAL
  • Jury:
    • Talk to them through witnesses
  • Objections to Closing Argument:
    • Addressing jurors by name
    • Inflamatory arguments
    • Misstating law or facts
    • Unduly emotional argument
    • Urging emotional argument
    • Urging matters outside of the trial
    • Mentioning the wealth of poverty of the parties

 

General Notes:

  • Litigation Process:
    • Complaint and Answer
    • Pretrial Discovery
    • Pre-Trial Motions
    • Motions in Limine: Motion to discuss evidence that you think the other side is going to attempt to bring in at trial you file a Motion in Limine to discuss this ahead of time (to keep certain things away from people of the jury)
    • Jury Selection (voir dire)
    • Plaintiff’s Opening Statement
      • They go first because they have the burden of persuasion
      • The party who carries the burden sits closest to the jury
    • Defendant’s Opening Statement
    • Case-in-Chief of Plaintiff
    • Motions at the Close of the Plaintiff’s case
      • Motion for directed verdict
    • Case-in-Chief of Defendant
    • Rebuttal Evidence
    • P’s Closing Argument
    • D’s Closing Argument
    • P’s Rebuttal Argument
    • Arguments Regarding Jury Instructions
      • DO NOT IGNORE jury instructions when you get to closing argument
      • Jury will have instructions (sometimes they’re complicated) and so in a non-condescending way help them to get to the answer that you want
      • You cannot and should not ignore those instructions in your closing argument
    • Jury Instructions
    • Jury Deliberation
    • Verdict and Entry of Judgment
    • Post-Trial Motions
    • Appellate Review
  • Objections:
    • Addressing juror by name
    • Vague and ambiguous
    • Assumes facts not in evidence
    • Argumentative
    • Asked and answered
      • Can’t continuously ask a question that has been answered
    • Calls for a narrative
      • Question doesn’t have for specific enough answer and invites story telling from the witness
    • Unresponsive
    • Speculative
    • Compound Question
    • Sustained = well formed objection
    • Overruled = objection is without merit
  • Example Objections to Opening Statement:
    • Addressing jurors by name
    • Arguments of the facts or law
    • Arguing the credibility of anticipated witnesses
    • Referring to evidence which has been excluded by motion in limine
    • Inflamatory Argument
    • Misstating law or facts
    • Unduly emotional argument
    • Urging matters outside of the trial record
    • Mentioning the wealth or poverty…
  • Objections—Rules to Live by:
    • Act promptly
    • Know your judge
    • Always be courteous
    • Reserve objections for important matters
    • Be specific
    • If more than one objection is present, name them all
    • Request court to make appropriate instructions on evidence
    • Decide whether you want to be heard at side bar
    • When appropriate, use the opportunity during your opponent’s direct examination to voir dire the witness for the purpose of an objection
    • Know the rules of evidence and be comfortable utilizing them
  • Objection and Appeal:
    • We want a rule that says that without a timely objection/offer of proof the appeal issue is not preserved (To preserve justice and finality of judgments and discourage people from sitting on their hands)
    • We are not entitled to fair trial in every aspect we are entitled to appeal, but that doesn’t mean that any error is grounds for a new trial
    • The error must be reversible
    • “Rulings on evidence cannot be assigned as error unless
      • 1) a substantial right is effected and
      • 2) the nature of the error was called to the attention of the judge, so as to alert him to the proper…
    • Successful Appeal:
      • A timely or proper objection or offer of proof must have been made
      • Appellant must establish that the trial court’s evidentiary ruling was in error
      • The appellate court must be persuaded that the effort effected a substantial right of the appellant (i.e. was a harmful error as opposed to a harmless error. This is known as reversible error or prejudicial error)
      • Offer of Proof: shows and puts into record what that witness would have said had he/she been allowed to testify
      • General objection or specific objection on other grounds isn’t sufficient for an appeal brought for other reasons
  • 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…
    • 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.
  • Advisory Committee:
    • “The amendment imposes the obligation on counsel to clarify whether an in limine or other evidentiary ruling is definitive when there is doubt on that point.”
      • This is VERY VERY tricky
      • Better make sure a ruling is a definitive ruling
  • Trial Court Discretion:
    • TC has discretion to exclude things
  • Plain Error:
    • When error is so egregious and outrageous that the court of appeals will change ruling even though no timely objection
    • More likely they’ll find plain error when there was lack of timely objection but less likely when not timely offer of proof (with offer of proof and no objection, the appeals court can see what the evidence was and what the error was more easily)
  • Rule 103:
    • (d) Nothing in this rule precludes taking notice of plain errors affecting substantial rights although they werenot brought to the attention of the court
    • UNDER CA evidence code there is no plain error rule
      • Even though there might be error it’s got to be
        • A) appears objection or motion to provide evidence to make clear specific ground of objection or motion and there was an error
        • B) court is of opinion that the error resulting in miscarriage of justice
      • 354 deals with exclusion of evidence:
        • Evidence code says
        • It’s got to be error, result in miscarriage of justice and have one of the following 3 things:
          • 1)
          • 2)
          • 3) evidence was sought by questions asked by questions during cross or re-cross examination
  • Rule 104:
    • (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 b the rules of evidence except those with respect to privileges.
  • Limited Admissibility:
    • Evidence which is admissible as to one party or for one purpose but not admissible as to another party or for another purpose
    • Party seeking admission of evidence can be required
  • Rule 105: Limited Admissibility
    • When evidence which is admissible as to one party or for one purpose but 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.
      • Doesn’t mandate that corrective instruction be given as soon as evidence comes in it can come in during instructions phase instead or during both
      • Advis. Committee tells us that there is close relationship between this Rule 105 and Ruel 403 which requires exclusion when probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury.
      • The present Rule recognizes the practice of admitting evidence for a limited purpose and instructing…
    • Alternative to Limiting Instructions:
      • Exclusion
      • Redaction
      • Separate Trials
  • Rule of Completeness:
    • Rule 106: allows an adverse party to require the introduction at the time…
    • The rule is based on 2 considerations
      • 1) the first is misleading impression created by taking matters out of context
      • 2) The second is the inadequacy of repair work when delayed to a point later in the trial
    • Note: you shouldn’t read something out of context because you’ll look silly to the jury
      • This rule doesn’t cover oral statements that aren’t recorded but courts will often extend the rule to oral testimony as well by virtue of 611(a)
  • CA evidence code is broader and takes into consideration oral conversation

Types of Evidence:

  • Real Evidence:
    • Refers to the tangible things directly involved in the transactions or
    • Direct v. Circumstantial
      • Direct = evidence which, if accepted to be true, establishes the point
      • Circumstantial = facts which if proved, may provide a basis for an inference that other facts are true
        • Permissible factual inferences
    • Original v. prepared
      • Original = evidence which exists as part of the event
      • Prepared = evidence prepared for use in the present case (i.e. demonstrative evidence)
    • To get any evidence into record, you must lay necessary foundation

Order of Witness Examination:

  • Court has a lot of discretion over mode and order of interrogating witnesses and presenting evidence

Cross Examination:

  • Limited scope of cross examination to what was addressed in initial examination BUT you can also ask questions as to their credibility
  • Rule 611 says limitation isn’t just scope of direct but it is scope of direct plus credibility of this witness
  • 611(b): 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
    • Various reasons for this:
      • 1) party vounces for his own witness but only to the extent of matters elicited on direct
      • 2) maintain orderly presentation of case

 

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