You don't need to know this page to beat your speeding ticket. It is here for those that want to dig deep, rattle their brains and like to hit their thumb with a hammer. when things get to deep for you, better yet! - less painful.

EVIDENCE OUTLINE (some applicable to beating a speeding ticket - The rest - TORTURE)

INTRODUCTION

D. Inquisitorial System: Trier of fact is more involved in the gathering of evidence

F. We may not reach the ultimate truth, but we want the trier of fact to look at all evidence, rationally weigh the evidence and impartially reach a conclusion that is satisfactory and rational.

LOGICAL RELEVANCY

3. Test is whether the fact to be proved is more likely with this evidence- if it is, then it will be admitted

II. Rule: Our system is based upon a search for a rational solution to legal disputes, therefore, an

effort is made to present to the trier of fact only those things which have a logical bearing upon the dispute. Only “relevant” evidence is admissible.

“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.

B. Evidence offered to prove an issue in a case but which in fact does not tend to establish that issue is irrelevant

C. Rule 401 includes materiality in its definition by requiring the evidence to pertain to a fact “that is of consequence to the determination of the action”

1. Evidence that does not depend on any inference for its relevancy other than the

2. Testimony of a witness that he saw the accused do the very act in question is

B. Circumstantial

1. Evidence that depends for its relevancy not only upon the credibility of the witness but also upon an inference to be drawn from the evidence

2. In some cases this may be stronger than direct evidence (dog prints v. didn’t see the dog)

3. Problems of logical relevancy occur only with circumstantial relevance

4. It must make the material fact with regard to which it is introduced more probable or less probable than without the evidence

V. You are always worried about giving a piece of evidence more weight than it deserves

VI. If a major premise is stronger and the possibility of prejudice is less, then it will usually be found relevant.

VII. Exclusion of Relevant Evidence : Rule 403 -- although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of issues, or misleading the jury….

A. “Substantially outweighed” --Heavy burden on counsel opposing the admissiblity to prove it should be excluded

B. For Direct Evidence you do NOT have to test the relevancy – no 401/403 balancing

C. For Circumstantial evidence you must do the 401/403 balancing

D. Key Concept: as the probative value goes up the danger of prejudice goes down

VIII. Conditional Relevancy

A. Rule 104(b): 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

B. Example: in a homicide case involving murder by stabbing, a knife found in the accused’s possession may be admitted into evidence provided evidence connection the knife with the crime is also introduced

C. Bloody glove- if by itself it is not relevant, but if it can be connected to the defendant later, then it can be admitted on condition of later introduction of evidence tying the two together

IX. Financial Worth: Poor v. Rich

A. Generally, financial worth is not admissible; there must be another reason for the introduction of the evidence

1. Too prejudicial

2. Logical relevance is weak

3. Probability of misuse by jury is high

4. If logical relevance is weak and possibility of prejudice/misuse is high, then you exclude

B. Principles:

1. Wealth:

(a) If the only end is showing D is wealthy – NOT admissible;

(b) If the issue is punitive damages—IS admissible

1. Punitive damages only awarded where it will hurt- have to look at net worth

2. Often wealth will be allowed in when punitives are involved

2. Poverty:

(a) to prove person is generally poor therefore more likely to commit a crime ---NOT admissible

(b) to prove a specific reason or circumstance—IS admissible

B. Poverty : Plumb poverty relevant b/c P had extended credit to D based on his belief that D was an agent ; people don’t extend money to deadbeat

1. Strong premise

2. High relevance

3. Low possibility of prejudice

VIII. Insurance

A. Ability to pay usually has nothing to do with the case

B. Rule 411 standardizes this idea

C. Rule 411: Liability Insurance

Evidence that a person was or was not insured against liability is not admissible upon the issue whether the person acted negligently or otherwise wrongfully. This rule does not require the exclusion of evidence of insurance against liability when offered for another purpose, such as proof of agency, ownership, or control, or bias or prejudice of a witness.

1. See Problem 7-3

D. Under Common Law (without 411)

1. Ability to pay not a fact of the case

2. Premise that lack of insurance makes you negligent is pretty weak

3. Prejudice is high

E. The fact that you are insured does not have much probative value

F. The probability of misuse by the trier of fact is great

G. When it is offered as evidence of something else it may have more value (ex. if you have insurance on an automobile, it may be used to show that you own an automobile)

H. Reed v. G.M.

1. There was a defense of ability-to-pay

2. Court said that the inability to pay was not material

3. The fact of insurance does not have independent legal significance

4. Insurance or lack of insurance not admissible to show ability to pay or to show negligence

IX. Formalized Applications of the Relevancy Concept

A. PRIOR INCIDENTS

1. Rule: proof of similar accidents will be admitted if sufficiently probative of issues in dispute

(a) The greater the similiarity of instances the more probative the evidence of the past incident and the less danger of unfair prejudice

(b) Any difference may go to the weight of the evidence and its admissibility

(d) You can use Rules 401-403 to make these conclusions or use Rule 404(b) (this is usually used for criminal prosecutions)

2. Collateral Issues: Diamond Rubber v. Harryman:

a. Plaintiff trips and falls on “goose-neck”

b. Plaintiff seeks to introduce that other people have tripped on the goose-neck

c. Allowing proof of other instances may prejudice the jury

d. Allowing past tripping incidents in would not aid in determining whether or nor the obstruction was dangerous

e. The ct concerned that jury could get wrapped up in consideration of these other collateral issues

3. Dangerous Situation: evidence of other accidents may be admittted to show that the situation as of the time of the accident in question was dangerous

· City of Bloomington v. Legg

1. Ct allowed evidence of past use and injury regarding horse spout b/c it was relevant to show both dangerous condition ;

2. Key: Strict requirement of substantial similarity of conditions : the machine has to be in the same condition as it was at the time of previous injuries

3. Ct is not as concerned about collateral issues b/c there is a greater similarity b/c past accidents

4. Knowledge/Notice: evidence of other accidents may be admissible to prove that the D knew or should have known of the danger

· City of Bloomington v. Legg – the evidence of past use and injury also relevant to show notice

· Similarity requirement may be relaxed when what is sought to be shown is notice that D had that there was a problem

(d) Rebutting claim of impossibility : when D has asserted that the injury sued for could not have been caused by D’s conduct as alleged, P may rebut by showing other similar occurrences

5. CanNOT prove a propensity of negligence through prior accidents- it is too broad and general

6. Procedure

(a) Often there is a voir dire a hearing outside of the jury’s presence to determine the relevance of the evidence

(b) Motion in limine -- D asks judge for pre-liminary ruling on the evidence and asks to find the evidence admissible.

· 3 Possible Rulings:

1. Admissible

2. Inadmissible

3. Judge refuses to rule and requires counsel to bring it up at trial then judge will rule on it

· Unclear whether counsel has to renew the motion as trial; new rules draft~ No, if judge gave clear ruling earlier.

B. Absence of Other Accidents (Safety History)

1. Rule: although courts generally have been more reluctant to intro. evidence of the absence of other accidents or injuries b/c of reduced probative value, the modern trend is to admit this evidence if sufficiently probative of questions such as the absence of the dangerous situation or the absence of notice

2. Modern view: Jones v. Pak-Mor

1. They want to admit evidence of an absence of prior accidents

2. The fear was that this evidence may not be too strong

3. The defendant may not know of the other accident

4. You must look at each case individually

5. There must be a mechanism of getting reports of injury; (ie) product safety people tracking or gov’t supervision so injuries would be known if they happen.

XIII. Prior Sales as Evidence of Value of Property

A. Real Property- General Rule: most cts will admit evidence of the sales of other real property to show value of disputed property provided that the sales of other tracts were sufficienty near in time and location and that tracts were sufficiently alike in character, situation, usability , and improvement to make them relatively comparable in value.

1. Redfield v. Iowa State Highway Commission

a. Ordinarily the value of property is established through expert testimony

b. In cross-examination the expert could be asked about other property

c. Some courts don’t allow this because each piece of property is different- this is really nonsense

d. The experts look at prior sales to make their determination

e. Someone must testify that other sales were similar

f. If the property is not similar it will not come in

g. It is the same type of test used for prior accidents

h. The key is some evidence of similarity- the amount of similarity needed is determined by the trial judge in looking at relevancy.

B. Fungible Property—General Rule: evidence of sale of other relatively, fungible personal property is generally admissible on the question of value of like disputed property; evidences similarity not necessary here

C. Unique Personal Property – General Rule: unique items like works of art or antiques would be treated like real property and evidence of other sales would be admissible only in the presence of a showing of substantial similarity.

XIV. Experimental Evidence

A. Rule: evidence of experiments conducted outside of ct will be admissible in the discretion of the trial judge, subject to the riles governing expertt testimony and scientific evidence

B. Similarity of Conditions:

General Rule: w/ regard to most experiments, the trial judge will ordinarily require that there have been a high degree of similarity b/t the conditions of the experiment and the conditions of the incident involved in the trial

a. Carpenter v. Kurn-

· experiment designed to show negligence of train conductor was admissible even though one of conditions was different (instead of travelling 35-40 mph from a train so vision would be shaky, experiment conducted by standing on the tracks)

· Theory under which evidence came in – ct let the questions of lack of similarity go to the weight of the evidence

· Other cts will require strict similarity

· This was a close case on the issue of knowledge of train conductor

When similarity not critical : when experiment does not depend for its persuasiveness upon the similarity of conditions (ie) an experiment is offered to rebut a claim that a result could not occur under any circumstance
General Traits or Capacity: the requirement of similarity of conditions is likely to be relaxed where the purpose of an experiment was only to show a general trait or capacity of a material, particularly when the experiment was conducted for the purposes independent of litigation

a. Foster v. Agri-Chem – ct held experiments not done for trial are admissible as long as they are similar b/c (1) free from taint of interest or bias (2) w/in trial ct discretion to determine if conditions sufficiently similar

C. Contemporary Experiments:

lawyers can create a complete computer simulation instead of a live experiment (last 10yrs);
the key is to get an expert to attest to the accuracy of the computer simulation

*** KEY: for prior accidents, absence of prior accidents, value, and experiments is `SIMILARITY b/t condition/event and current condition/event; the trial judge must decide whether the jury is going to use it appropriately or overuse it—too many collateral issues, efficiency, farirness???

EVIDENCE OF CHARACTER AND HABIT

I. General Rule : Rule 404(a) Evidence of a person’s character or a trait of character is NOT admissible for the purpose of proving action in conformity therewith on a particular occasion

A. Rule 404 is a specific application of 401/403

B. In a civil trial, you may NOT enter evidence of character to show that the D did a certain act or has propensity to do the act

1. Policy rationale

a. probative value relatively weak –people do not always act in conformity w/ character

b. Danger of prejudice is great

c. Gets Ct into collateral issues

C. It does not preclude use of character for some other purpose provided that:

1. It is relevant to that purpose

2. That purpose is at issue in the case

D. Animials not subject to 404 :

1. Rumbaugh

a. With dogs you don’t get into the whole question of character

b. There is an instinctive nature of animals

c. You are not blaming the dog in a moral sense

d. Less chance of prejudice

II. 404 (a) (1)-(3) Exceptions -- (All exceptions deal w/ Criminal Cases):

A. 404(a)(1)The accused in a criminal trial may offer evidence of a pertinent trait of his or her character and the prosecution may rebut that proof

B. 404(a)(2) Evidence of a pertinent character trait of the victim of the crime may be offered by an accused in a criminal case and the prosecution may rebut this proof

1. Rape Shield Laws are an exception: Rule 412

2. Rule 412 permits the use of only two kinds of evidence of sexual behavior by the victim (Court must still weigh probative value against undue prejudice)

a. Behavior with other person which would explain signs of rape

b. Behavior with the accused which would tend to prove consent

C. 404(a)(2) The prosecution may offer evidence of a character trait of peacefulness of the victim of a homicide to rebut any evidence that the victim was the first aggressor

D. Problem 8-17 Self Defense

1. Prosecution cannot inject character trait first

2. D can only attack character of victim if it supports D’s case (ie) victim is a violent person or a reputation of violence

3. D canNOT enter in specific acts of violence as evidence

· Caveat: specific acts may not be introduced for propensity but may go towards D’s state of mind and knowledge of victims previous acts which goes to reasonableness of D’s acts

4. If D attacks victims character, prosecution can rebut w/ victim’s peacefulness—404(a)(2)

5. If D attacks victim’s character, prosecution can bolster character of the victim but can NOT enter evidence of D character.

III. Putting Character into Issue

A. In a criminal trial a defendant may elect to put his/her conduct “in issue”

B. The defendant has elected to show circumstantially that because he has good character

traits it is less likely that he committed the crime

E. Once the defendant introduces the evidence, then the prosecution can rebut it

1. Sometimes D will get on the stand to testify and will embellish to the point that it injects character into the case—Renneberg

E. When this type of evidence is brought in we are only talking about opinion or

reputation- you can NOT bring in specific good acts

E. Once a defendant testifies as a witness there are certain questions you can ask in order

to look at credibility of the defendant/witness

F. You can test the knowledge of a witness by bringing up certain acts into evidence; this

can be done in cross-examination

G. The court may say that even though it is an appropriate topic, it is too remote to be important

H. As a lawyer you want to be very careful when injecting a defendant’s character into a case- only do it if he is
squeaky clean

I. You could try to get a pre-trial order to exclude a prior bad act-this would be a motion in limine

J. When you ask for a motion in limine the trial judge may:

1. Grant it

2. Deny it

3. Do nothing- wait until trial

A. If the judge waits until trials then you can either:

1. Phrase questions carefully

2. Keep character witness off the stand

3. Anticipate cross-exam: Take the sting out of the cross-examination by bringing up the bad things yourself.

IV. Methods of Proving Character : When Character is NOT in Issue:

A. Traditional Rule: When character evidence is admissible but character is not in issue in the case (ex. evidence of good character offered by the accused as circumstantial evidence that he or she did not commit the crime) the traditional rule provided and some jurisdictions still hold that the only way in which character can be proved is by evidence of reputation

B. Federal Rule: Under Rule 405(a) and in some states, the proof may be made by testimony, either of reputation or in the form of an opinion

C. Under Federal Rule 405(a), and in the majority of the states, inquiry is permitted on cross-examination of character witnesses with regard to relevant specific instances of conduct. In states limiting proof to that of reputation, question son cross-examination must usually be phrased in terms of whether the witness “has heard” of a specific instance of conduct

1. If opinion – the cross exam is did you know?

2. If reputation – the cross exam is have you heard?

D. Evidence must still go through the 401/403 balancing

E. Character Witnesses - Problems 8-15, 8-16

1. Structure of Direct Exam

a. who the witness is

b. how/what manner the witness knows D or knows his reputation

F. Expert testimony on character is admissible under 404 and 405 (subject to 403 limitations)

G. Testimony by minister on character is admissible under 404 and 405 (subject to 403 limitations)

V. When Character is Not An Issue: Evidence of other Crimes, Wrongs, or Acts

A. 404(b) – Other crimes, wrongs, or acts not admissible to prove character of a person but are admissible to show

1. proof of motive

2. opportunity

3. intent

4. preparation

5. plan

6. knowledge

7. identity

8. absence of mistake or accident

9. Includes modus operandi (M.O.)

B. This rule is inclusionary; evidence does NOT have to meet the exact categories listed but just canNOT go to show a propensity

C. In ruling on the admissibility of evidence of prior acts, the ct will weigh the strength of the evidence of the prior acts and its relevancy to the issue against the possibility that the jury will be unfairly prejudiced (401/403 analysis)

D. The prosecutor must use his/her imagination to get evidence in

E. Issues to look at for 404(b):

1. How much proof of prior acts do you need

a. Not beyond reasonable doubt

b. Some cts require clear and convincing evidence

c. Some require a preponderance of evidence

2. Once you get it in do you weigh it

F. Huddleston

1. All that you need is some evidence from which a jury could make an inference

2. It doesn’t have to be a conviction; you don’t need a preponderance of the evidence

3. The court looks at Rule 104(b): Relevancy conditioned on fact- there must be some fact fulfilled

4. The court is probably right as a matter of law, but whether it is right as a matter of policy is another question

5. 104(b) is a simple relevancy determination

6. Many states have refused to follow 104(b) determinations, instead they follow 104(a) determinations

7. So long as there is some sufficient evidence it will come in

8. Committee refused to revise Huddleston because the Supreme Court had ruled

9. Huddleston is still the law in Federal Courts

10. Under Huddleston can get past crimes in generally if they rise to a pattern of conduct :

· Must have enough proof, indication that D involved in past crime in order to get it in under 404(b)

· Cts will take instances together that form a pattern and admit them all.

F. To introduce 404(b) evidence, prosecution must give notice to D by pre-trial notice

G. Problem 8-11 Prior act evidence – Attempt to falsify motel registration

1. Admissible under 404(b) to show absence of mistake/innocence as to the registration card

H. S.Ct has held that it is constitutional and not double jeopardy to introduce evidence of past crime that D was tried and acquitted for; some cts have found this kind of evidence inadmissible under 403

I. Prior Sex Crimes

1. Admissible under 404(b) specific purpose

2. Sex crimes are treated differently

3. Some courts allow any evidence of past sex crimes to come in in a sex crimes case- this is an exception to Rule 404(a)

4. Rules 413-415 deals with sexual assault- these rules were proposed by Congress

· allow prior sexual misconduct in for propensity

5. There are very few cases for sex crimes in Federal Courts- only Indian reservations

6. Problem 8-14 --it’s a classic M.O. case -- the incidents tied together shows credit cards and attacks were linked

7. Stipulating as to intent

a. Hadley

· Sexual assault

· The state offered evidence of past sexual assault to show intent

· The defendant said that he was not contesting intent

· The court didn’t buy this

· Majority of courts say that intent is an element of the crime that the State has to prove

· A minority of courts have said that defendant can stipulate that whoever did the crime did it with intent, so intent is no longer contested.

V. Proof of Character for impeachment of witness purposes:

A. Character of a witness, including a party who becomes a witness may be

attacked subject to rules of impeachment

B. Such evidence is admissible only for purposes of impeachment and not as

substantive evidence

C. There are different rules that govern introduction of character of a witness

1. You can attack the character of a witness

2. You can attack the bias of a witness

3. In the Simpson trial they are trying to show racial prejudice; they can use some of the tape to show that he was biased toward the defendant.

VI. When Character is an Issue: Character Evidence:

A. Rule 405 (b) Specific Instances of Conduct --If character or a trait of character is itself is an element of a charge, claim, or defense, proof of specific instances of that person’s conduct can come in

B. Principle cases in which character is an essential element

1. Defamation

2. Negligent Entrustment

3. Character of decedent in wrongful death case

a. Goes to show the amount of damage

b. You must show what type of companion the person was

4. Child Custody

C. Character itself can never be the issue in a criminal case so the only time its an issue is in civil cases

D. Guerdon

1. Evidence of past incompetence was admissible

2. It was allowed to show that the employer was on notice

3. The evidence goes to show that the employer was negligent

4. Character was an element of the case

** Note: the result in this case differs from what the result would be under the Fed.

VII. Three Ways of Proving Character:

A. Reputation

B. Opinion

C. Specific Acts

· A&B can be used in all cases

· C can only be used when character is at issue

· In a criminal case when you can give evidence of your own character you can only use ---A&B

VIII. HABIT

A. Definition: while character is a generalized description of one’s disposition, habit describes one’s regular response to a repeated specific situation

1. Examples : carefulness, carelessness

B. Rule 406 -- evidence of habit of person or routine practice of an organization whether corroborated or not and regardless of the presence of eyewitness, is relevant to prove the conduct the person or organization on a particular occasion was in conformity w/ the habit or routine practice

C. Eyewitness Rule

1. The federal rules do NOT distinguish between cases in which there are eyewitnesses and those where there are not

2. At common law, the eyewitness rule was an exception to the character rule

3. Character evidence was allowed if there were no eyewitnesses (McFerrin)- if there was an eyewitness you could not admit evidence of driver’s habits

D. Examples:

1. In a stop sign intersection collision, evidence of D’s 6 citations and 4 accidents

----Probably NOT enough to show habit

2. McFerrin case:

Wife wants to give evidence of husband’s never crossing w/o looking both ways and stopping

a. This is a particularized crossing, particularized behavior, particularized response --- This is a Habit

b. Vs. the husband just being a careful person ---- This would be Character

E. Proof of Habit

1. Opinion testimony

2. Specific Instances sufficient, in the discretion of the judge, to establish the habit

F. Why don’t we use character?

1.. Not very reliable

2. Fear of collateral issues

3. Undue Prejudice

4. Decreased probative value

G. Why do we allow habit?

1. Uniformity is increased; consistency is increased

2. More likely to act in accordance with habits than character traits

3. Habit is a particularized response to a repeated situation

4. How to resolve fuzzy line?- Is it a particularized response to a given set of specific circumstances?

A minster can testify (more like a lay opinion); The real problem arises with the psychologist (expert opinion); it may go to show violence or capacity; it may be an opinion- applies to lay opinion and expert opinion; must still weigh the probative value against the possible prejudice; judge may see a battle of experts rather than a battle of proof; proof from an expert is admissible in every state except N.C.

(A) Not admissible, unless it may came in under 404(b)

(B) It is relevant as to the character of the decedent, because it is a self-defense case (Evens); under 405(a) you can only show it by opinion or reputation not specific acts; could try to use it to show knowledge of the accused that this guy would stab him- Rule 404(b)

(D) Admissible under Rule 404(a)(2)- it goes to show peacefulness The problem is that it goes to propensity; this is the real reason that it is introduced; even if they use it for a different purpose; most courts would admit this; it has two grounds: opportunity and knowledge- it also has a high probative value; it could only be kept out on Rule 403 grounds- these are rarely overturned These come in under Rule 413 or some part of Rule 404(b); the issue is the quantum of proof

You could look at them collectively- Woods; when they are put together it is unlikely that all of these are untrue; this is an application of Rule 104(b)- the acts taken together increase the relevancy.

POLICY CONSIDERATIONS & SPECIAL RULES OF RELEVANCY RULES 407, 408, 410

I. Admissibility of Subsequent or remedial measures

A. Common law reasons not to admit

1. Evidence of subsequent repair not admissible because you want people to feel free to repair without worrying about being sued

2. The policy of encouraging repair is a consideration outside of probative value and prejudice

B. Rule 407 :

1. repairs made subsequent to accident are protected

2. protected b/c relative weakness of evidence vs. the prejudice

3. also policy of encouraging repairs

4. Voluntary recall is w/in the meaning of subsequent repairs

5. Recall after sale but before accident is NOT protected by 407

6. Does NOT include Involuntary Recall b/c the policy does not come into play; there may still be a 403 issue

7. Follows same pattern of Rule 411 (insurance) evidence is NOT admissible to show negligence or wrongdoing but is allowed for other purposes

a. Example: product made by another company; can be used as rebuttal for issue of control

b. Can also admit for impeachment to attack credibility of a witness

c. Most common--for lack of feasibility- not feasible to make a better product

8. Grenada Steel Case

a. Rule 407 applies in strict liability cases

b. A new draft of 407 not yet out that says that strict liability is included

c. The question is whether recall is different than repair

1. This is usually stronger proof of something wrong

2. Recalls occur when:

Liability outweighs 407

REAL AND DEMONSTRATIVE EVIDENCE

I. Definitions:

A. Real Evidence: Objects which actually play a direct role in the transaction in question

B. Demonstrative Evidence: Objects which did not play a role in the transaction in question but rather are introduced for the purpose of making the facts more understandable.

II. Sometimes both real and demonstrative evidence are referred to as demonstrative- most evidence in a court room is demonstrative.

III. Real Evidence

A. Rule: real evidence is admissible only upon a showing that the object offered is the object involved in the controversy and that its condition is substantially unchanged

1. The trial ct has broad discretion w/ regard to the sufficiently of the foundation

B. Readily Identifiable Objects

1. Objects which have characteristics that are readily identifiable and which are relatively unchangeable (ex. revolver with a serial number)

2. The court may admit these simply on the basis of testimony that it is the one in question and is in a substantially unchanged condition.

C. Objects difficult to identify

1. Objects difficult to identify or subject to tampering or contamination (such as narcotic drugs)

2. Judge will require more foundation proof, usually in the form of a “chain of custody” demonstrating that it was improbable that the object was tampered with or mixed with another object or substance

D. These things are often stipulated to

E. Gallagher “cockroach in bride’s soda bottle”

1. In laying foundation for the receipt in evidence of the thing claimed to have caused the injury it is ordinarily sufficient for the witness having knowledge of the object to identify it;

2. To justify admission, counsel must show:

a. that item in the bottle was the substance that it purported to be

b. the substance is in a condition reasonably the same at the trial as it was at the time of the incident (no material change)

3. The rule is not so rigid as to render things sometimes called “unique” inadmissible unless absolute continuity of possession and the absence of tampering are first established.

IV. Demonstrative Evidence :

A. Rule: It is admissible in the discretion of the court if it finds the evidence sufficiently explanatory or illustrative of relevant testimony in the case to be of potential help to the trier of fact

B. Example: A bar fight in which X hits Y with a Bud bottle; here it is not critical to get the actual bottle used in the fight; can use any Bud bottle to demonstrate the kind of bottle used

C. Maps, Models or Charts :

1. Common types of demonstrative evidence

2. Admissible under the discretion of the judge

3. Must be shown to be substantially accurate representation

4. Often the scale is important

5. A diagram not to scale can be authenticated

6. When the scale becomes important you must show that they did it by the scale

7. Anything a witness puts on a diagram must be noted in case there is an appeal

8. Models :

a. Cases are won and lost on the basis of exhibits shown to the jury

c. Computer-generated models are used today

d. So long as your exhibit re-creates things in a way that they are illustrative you are OK

e. You must lay a foundation of how it was done

f. Most states let a jury take the exhibits into the room

g. In NC you must have consent of the parties to do this; sometimes they must come into the court to see the exhibits

h. The judge may withhold exhibits if there is a strong possibility of misuse

i. No way to stop jury from fooling w/ model when its in the jury room so critical question is: should the model be let it.

C. Duplicates :

1. They may be admissible if the generic characteristics of the object are relevant and

2. The testimony must confirm that the duplication of those characteristics are relevant and

3. The testimony must confirm that this is actually a duplicate of those Characteristics

4. Example: Beer bottle of the same kind as found at the scene of an assault may be admissible as illustrative of the type of weapon used in the fight.

D. Photographs, Movies, Videotapes and Sound Recordings:

1. They are admissible simply upon a showing that they accurately depict a scene as viewed by the witness

2. The photographer does not have to be called as long as someone can testify as to the accuracy of the representation

3. Some states admit sound recordings on the same basis: the recording is admissible if someone who heard the conversation testifies that the recording is an accurate transcription

4. Some states require more of a foundation with regard to sound, such as testimony that the recorder was in good working condition and the tape was not altered

5. Photos are the most common type of demonstrative evidence- it illustrates the testimony of the witness

6. A frequently occurring problem is the prejudicial photograph

A. Evansville Case: Boy in the casket

B. Usually the fight is in criminal cases with pictures of the victim- gory photographs

7. For photos you don’t need a chain of custody because the witness testifies that it is an accurate depiction of the scene

8. Semet case

A. Problem was one of relevancy

B. There was no evidence that the ladder in the photograph was the same as the one in the case

E. X-rays and Automatic Cameras :

1. X-Ray are different because they portray a scene that is not actually viewed by anyone

2. Ordinary foundation for photographs is not admissible-sufficient evidence of the process by which the X-ray was taken must be introduced for foundation

3. Automatic Cameras/ Surveillance Tapes--get the same treatment

a. Videotape not used to illustrate someone’s testimony such as an automatic camera raises problems because no one sees the crime

b. This type of evidence is independent evidence

c. It can be used as a silent witness- it speaks for itself

d. You must authenticate the process- how the camera was set-up, etc.

e. You must show a chain of custody

f. Ordinarily these types of evidence are viewed first out of the presence of the jury

F. When to offer demonstrative evidence (there is debate)

1. Usual method

A. First lay a foundation, then offer it

B. Second, witness talk about it/ witness mark it

C. Offer it a second time

2. Some times you will not offer it into evidence

V. Experiments :

A. Rule: Experiments in court are admissible in the discretion of the judge with due consideration for the increased possibility of jury misuse and the potential for delay and confusion that such experiments may engender

B. Re-Enactment Video: The question is whether the experiment is done in a situation that it similar

C. Ensor

1. Court looked at whether the experiment was unduly prejudicial

2. This was an in-court demonstration dealing with lack of capacity of child

3. Problems with these demos

A. Similarity

B. Undue prejudice

C. Must know whether it will work (O.J. and gloves)

VI. In all of these instances, the other side can still challenge the weight of the testimony

VII. Views of the Scene :

A. Rule: Under common law rules and by statute in some states, the trial judge has the discretion to order a view of some place or object relevant to the litigation

B. The judge will consider the relevancy of the view as opposed to the delay disruption caused by a journey out of the courtroom

C. Under the laws of many jurisdictions, the view is not itself evidence but is only to assist the jury in evaluating the evidence

D. Judges do not grant these very readily

E. You usually get views in:

1. Criminal Cases:

a. Two major issues

· Time and burden

· Whether judge can control what goes on

2. Condemnation and eminent domain cases

a. in estimation of property value, the jury views the property and values it higher than the experts did – the jury’s valuation is accepted

F. Sometimes the conditions may have changed- the question then becomes whether they have changed enough to change the relevancy

G. Demonstrations at the viewing are within the court’s discretion

H. An issue is who must be at the viewing

1. General rule is that they can be conducted without the judge or the parties

2. If there is going to be a demonstration the judge would be there

3. In some states the parties have a right to be there as a matter of law

4. Some argued that they had a right to be present at their own trial- constitutionally it is ok if they are not there because a view is not evidence

5. If it is not evidence, then what is it?

a. This has not been cleared up

b. It is better to say that it is a unique kind of evidence

6. A view has some evidentiary value- a jury can use it for example to make an adjustment of a valuation for a condemnation

VII. Problems

A. Problem 10-1

1. How do you deal with a substance that it subject to change?

2. It is usually done by two witnesses- show how it got to the courtroom

a. Witness 1 (Chemist): This is the envelope in which I placed the narcotics- envelope is sealed with name across seal; there is another envelope inside, opened by witness, what condition before then: sealed with signature- what did you do to it? “I analyzed it”

b. Witness 2 (Police Officer): Seized narcotics from suspect; sealed and gave to chemist; account for seal; one police has sealed and signed they can fed. ex., mail, etc.; as long as the seal is unbroken, the chain is unbroken

B. Problem 10-3

1. Crowbars do not change in condition like narcotics

2. The crowbar is lost

3. Must only establish the relevancy of the crowbar

4. Admissible for illustrative purposes

5. The only time you would have a problem with this is if it is prejudicial under Rule 403; it has to be clear that this is not the thing itself

C. Problem 10-5 :

1. Photo of decedent w/ 2 yr old niece

2. Issue: 403 problem misleading the jury

3. May introduce photo to illustrate witness testimony and bring person alive—its up to discretion of trial judge

D. Problem 10-7 :

1. Automatic camera—silent witness

2. Must lay foundation of the process—how video set up, operating properly, film was taken from camera and not tamepered with

E. Problem 10-10

1. Goes to the introduction of models

2. Need testimony it was prepared to scale –that is relevant; so that nothing about the model would mislead

WRITINGS & RELATED MATTERS

I. Stipulation

A. In civil cases, virtually all documents are subjects of stipulation

B. You must know the rules so you know when to stipulate

II. Authentication

A. Rule of No Assumption of Authenticity:

1. The mere appearance of a name or signature on a writing or similar object will not be sufficient by itself to authenticate the writing as being what it purports to be—need a witness to say this is what it purports to be.

2. Greater identification is required in order to guard against fraud or mistaken attribution

3. The written word is given heavy weight, so we must authenticate it

B. Rule 901: The requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in

question is what the proponent claims (TEST: for a writing to be admitted, must have evidence in record from which the jury could find authenticity.)

C. City of Randelman v. Hinsaw: Writing introduced without any identification and read to the jury before petitioner presented oral testimony. Such an admission constituted prejudicial error b/c not properly authenticated. Before any writing will be admitted into evidence, it must be authenticated in some manner (i.e. its genuineness or execution must be proved). Even a competent public record or document must be properly identified, verified, or authenticated by some recognized method before it may be introduced into evidence.

D. Conclusive evidence is not required

E. The sufficiency of evidence is within the discretion of the trial court

F. Once it is admitted, evidence challenging its validity can still be introduced by the other side to argue that it is a fraud

G. The ultimate question of validity is for the jury

H. Authenticity does not equate with admissibility; admissibility deals with whether it meets all of the other rules of evidence

I. Methods by which writings may be authenticated (it may be made by means of

testimony that a matter is what it is claimed to be- these are examples)

NOTE:

· In civil cases, parties will usually stipulate to the authenticity of documents. If deny authenticity, then better have a good reason.

· In criminal cases, will have more need to authenticate documents.

1. Direct Proof

A. Testimony of person preparing or signing the writing See Prob 11-8

B. Testimony of a person who was present and saw writing signed

C. Introduction of an admission of a party-opponent with regard to the

genuineness of a writing

D. Identification of a writing as part of the regular records of a business

Ex: Prob 11-8: P was the only one who say Dirk sign it. Could introduce the fact that P had conversations with Dirk about the letter and course of dealings with Dirk.

Ex2: Prob 11-8: Don’t have Dirk to identify his own signature, but have his secretary. Sec could identify signature and how she knows it is his signature.

2. Proof of Handwriting

A. Nonexpert testimony

1. Persons who have familiarity not acquired for purposes of this litigation with the handwriting in question may testify (Ex. See

secretary example above)

2. See Rule 901(b)(2)

3. Buckingham Corp. v. Ewing Liquors: P was required to prove the execution, existence, and authenticity of the agreement before it was admitted into evidence. IT is the rule that handwriting may be proved by a witness who shows familiarity with it. The familiarity may be gained from having seen the party actually write, or from having been acquainted with the handwriting in the course of business dealings. The extent of the witness’ knowledge goes to the weight to be given that person’s opinion.

B. Experts

1. May be authenticated through expert comparison with specimens that have been authenticated. Other side can produce their own expert, but it does mean that it comes in and is for jury to decide.

2. See Rule 901(b)(3)

C. Comparison by Trier of Fact

1. Proponent can authenticate specimens of the handwriting in question and invite comparison by the trier of fact

2. US v. American Radiator: In order for documents to be admitted, only a prima facie case of the alleged author’s identity must be established. Where documents are admitted for purposes other than handwriting comparison, they may be used by the jury as a standard for handwriting comparison if the handwriting is admitted or proved to be that of the alleged author. It is the trial judge’s duty to determine whether the genuineness of the handwriting on the documents to be used as the standard is sufficiently proven.

· (Part of a document authenticated, but the other part not. Judge can eyeball and see if it looks enough alike and send it to jury to decide. VERY RARE.)

3. Circumstantial Evidence

A. Rule 901(b)(4): Authentication may be made by proof of “appearance, contents, substance, internal patterns, or other distinctive characteristics, taken in conjunction with circumstances”

B. Reply Letter Doctrine

1. If a letter offered in evidence purports to be written by a person to whom an earlier authenticated letter was sent, and the letter offered in evidence either refers to or is responsive to the terms of the first letter, and there has not been an undue amount of time between the two letters, it will generally authenticate the letter

2. Ex: If sent D a letter ordering goods and got back letter specifically referring to letter, then sufficient to authenticate. But, modern times, if have response to telephone call, comes with in Reply Letter Doctrine. Task is authenticate the call. Can be knowledge after the fact with calls, such as voice id-can match voice with info received afterwards.

C. Similar Applications

1. Telegrams and telephone conversations using analogy to reply letter doctrine

2. Sometimes a combination of events will be sufficient to authenticate a letter which refers to an earlier telephone conversation

3. Proof of the contents of the telephone conversation may be enough to authenticate the letter

D. Custody

1. Proof that a public record or a writing required by law to be filed or recorded was found in the public office where such items are regularly kept

2. Similar proof with regards to corporate records may be allowed

E. Ancient Writings

1. Proof that a writing has been in existence for 30 years or more, that it was found in place where,
f authentic, it would likely be, and that it is in condition to create no suspicion concerning
authenticity has been sufficient to authenticate the writing

2. Under Rule 901(b)(8) the age is lowered to 20 years

F. US v. Sutton: Issue: whether four writings were sufficiently authenticated by their interrelated contents, the circumstances under which they were discovered, and a connecting note found on appellant’s person to qualify them for admission into evidence at his trial

Rule:

1) Ordinarily, documentary evidence possesses no self authenticating powers; unaided by an operable presumption, its reliability is not automatically presumed. It is required that its genuineness be shown independently before it is accepted as proof.

2) That the mere contents of a written communication, pruporting to be a particular person’s, are of themselves not sufficient evidence of genuineness.

3) Authorship may be shown by circumstantial evidence, where the contents reveal a knowledge or other trait peculiarly referable to a single person, the contents might suffice alone, or where a document makes reference to facts peculiarly known to him.

4) Test: to determine error in admitting document is whether, if it is uncontradicted, a reasonable mind might (though not necessarily would) fairly conclude favorably to the fact of authorship.

4. Self-Authentication

A. Writings generally held to be self-authenticating

1. Public documents under seal

2. Documents not under seal but which are certified under seal as genuine

3. Foreign public documents certified by a U.S. official

4. Certified copies of public records

5. Official publications

6. Certain types of commercial paper

B. Self- authenticating documents under Rule 902

1. Newspapers and periodicals Also, burden shifts to newspaper to show it was not their newspaper that got it wrong.

2. Trade inscriptions

A. Trade inscriptions (Kegan v. Green Giant Co.: 902(7) will be enough to self authenticate it. If false can of peas, for example, company is in best place to show that. Shifts burden to company).

· Trademarks may present a problem

B. Now with trademarks and inscriptions it is enough to admit

C. If it is fake, the burden is on the manufacturer of the product- they are in a better position to tell

3. Documents acknowledged by a notary or similar official

5. Authentication can be made by agreement of the parties or by use of requests for admission

6. What about unsigned document received in mail? Cts generally have not permitted letter head authentication.

I. Voice Identification

1. Oral Communications must be authenticated

2. Usually use voice authentication through the opinion of some person familiar with the voice

3. Rule 901(b)(5): The voice may be heard firsthand or through electronic transmission

4. You can gain familiarity with the voice in preparation for litigation

J. Telephone Conversations

1. May be authenticated by evidence that the number dialed was the number of the person or business called and
showing that person or business answering was the one called

2. Out-going calls: (SEE PROB 11-8) If you call and they say that this is “so and so” then it is enough to establish that it was them-if it is not them, the company is in the best position to establish that it was not them. May be authenticated by evidence at the number dialed was the number of the person or business called and a showing of circumstances which demonstrate that the person or business answering was the one called.

a. With individuals, self-identification will be enough

b. With a business it is enough that the conversation related to business reasonably transacted over the
phone

3. Incoming calls: Rule 901(b)(5): must be authenticated by voice identification or through other circumstances such as those sufficient for a writing under the reply letter doctrine- Lynes case: He was looking for Speedy and Speedy replied by phone

4. To authenticate there only has to be prima facie evidence

K. Email: Is circumstantial and identification of email by info came in, content of communication, email relationship. Do not have to have a signature to authenticate.

L. 4 Rules for Documents:

1. Must get document authenticated.

2. Is it relevant?

3. Is it an original?

4. Statements in document may be hearsay—Town of 96 v. Southern Railway Co.

III. Contents of Writings (Best Evidence Rule or Documentary Original Rule)

A. Rule: The best evidence rule applies only to writings. Subject to numerous exceptions, when a party seeks to prove the contents of a writing, the original of that writing must be produced or must account for its absence. Why?

a) Inaccuracy of person’s memory of words; concern for accuracy

b) B/c document is so important with jury, we want to guard against fraud.

c) There is a concern that things are copied correctly

d) Written word has an important place in the law

e) You can better protect against forgeries if you have the original Application of Rule: “Document speaks for itself”- show document to witness, authenticate signature, enter into evidence, publish to jury, read document to jury. Can’t have witness talk about document before entered into evidence.

B. General

7. Sometimes there is an original and it has disappeared; at that point are you compelled to introduce a copy or a
handwritten copy before using oral testimony? Answer: NO; Once an original has been destroyed in good faith it
is up to you what to use; there are no degrees of secondary evidence; if they are satestifying about seeing a
duplicate then it becomes the original for evidentiary reasons

E. Originals under the Rule

1. Rule 1001(3): An original of a writing includes not only the writing itself but any counterpart intended to have the same effect by a person executing or issuing it

F. Duplicates

1. Federal Rules 1001(4) and 1003

2. Duplicates are admissible to the same extent as an original unless a genuine question is raised as to the authenticity of the original or unless the circumstances are such as to make it unfair to admit the duplicate in lieu of the original. Duplicates are defined as including carbon copies and various kinds of chemical, mechanical and photographic reproductions

3. Originally, the best evidence rule was used because people made hand- copies; Photocopies don’t
make the same mistakes

4. If there is a genuine issue as to fraud then the photocopy may not be admitted

5. If a photocopy is poorly done, then there may also be a problem

6. Duplicate original: when every copy is intended to be an original (or copies are treated as originals if they fall within statutes such as the Federal Business Records Act.)

7. Examples:

a. In a case in which the issue is the interpretation of a K term, a photocopy, rather than the original, of the K may be introduced under the Fed Rules as if it were an original.

b. In a case in which the issue is whether the original K had been tampered with so as to vary one of its terms, a photocopy could be introduced only if the proponent can provide a sufficient excuse for nonproduction of the original.

G. Tape Recordings

1. You can testify if he knows of the existence of the tape

2. The tape recording is coincidental to what went on

3. Anybody who was present can testify as to what went on

4. If you are not testifying as to what the tape says, then you can testify as to the event

H. Court Reporters Transcript of Trial: Meyers p. 445 Party may testify as to their recollection.

I. Excuses which can be used for nonproduction of original (Rule 1004)

1. You don’t get to 1004 analysis unless you get past Rule 1003

2. Rule 1004 gives the exceptions to the rule

A. Originals lost or destroyed: Rule 1004(1)

1. Destruction must be in good faith

2. Whether it is good or bad faith is a matter of discretion for the judge

3. This discretion is done under Rule 104(a)

4. As a trial judge it is hard to tell- it matters who has the burden of showing good or bad faith.

5. When it is a question of good or bad faith, the party who was in possession of the evidence has the burden of showing that it was good faith

6. If the evidence was at a neutral site, the person trying to admit the evidence will have the burden of showing bad faith

B. Originals not obtainable: Rule 1004(2)

1. Cannot be obtained by any judicial process or procedure

2. Ex. Original in a foreign country

C. Original in possession of opponent: Rule 1004(3)

1. At a time when an original was under the control of a party against whom it was offered, that party was put on notice that

the contents would be a subject of proof at the hearing and he or she does not produce the original at the hearing

2. The notice may be by the pleadings or otherwise

D. Collateral Matters: Rule 1004(4)

1. Writing not closely related to a controlling issue

2. EX: In a case in which the P seeks to show that a telephone call was placed to a number listed for the D in the phone book, the Ct would probably find the phone book to be collateral and not require that it be produced.

E. Public Documents: Rule 1005

1. May be proved by a certified copy

F. Summaries: Rule 1006

1. Voluminous writings may be presented in the form of a summary, so long as the originals are available for inspection

by the opposing party

2. A set of records, photos, etc. may be presented in the form of a chart, summary or calculation

3. The records examined must be originals under Rule 1003

4. EX: In a case involving a corporate dispute, an accountant may testify to or provide a summary of the corporation’s records without introducing the originals.

G. Admissions of Party-Opponent: Rule 1007

1. Contents may be proved by the testimony, deposition, or written admission of the party against whom it is offered

H. Under the Federal Rules, if the production of the original is excused, the party proving contents may prove them as he or she sees fit. No requirement that you introduce a duplicate.

J. Rule 1008: Functions of Judge and Jury

1. When issue depends on the fulfillment of a condition of fact, the question whether the condition has been fulfilled is ordinarily for the court to determine in accordance with Rule 104

2. However, the issue is for the trier of fact to determine when the issue is raised

a) whether the asserted writing ever existed, or

b) whether another writing, recording, or photograph produced at trial is the original, or

c) whether other evidence of contents correctly reflects the contents

3. Selier v. Lucasfilm

A. Selier claims that Lucas stole the idea for a design of the Imperial

The best thing to show is that the person doing the destruction had no knowledge of the case or issue; the court would probably exclude this evidence; you cannot use Rule 1006 because the documents are not covered under 1003, 1004; if the original documents were destroyed in good faith, either the duplicate or oral testimony could be used

11-23

How get around best evidence rule? (Rule 1008) Conflict in documents and both purport to show original document so let both come in and let jury decide who was telling the truth.

TESTIMONIAL EVIDENCE

I. Qualifications of Witnesses

A. Common Law Rule: Witness must feel a duty to tell the truth and must have intelligence enough to make it worthwhile to hear him or her (witness must have the intelligence enough to understand the nature and obligation of the oath.)

EX: In a case involving the sexual abuse of a four-year-old, the Ct will conduct a hearing outside the presence of the jury to determine whether the child is competent to testify. Based upon that hearing, the judge will determine whether the child fees a duty to tell the truth and whether she is sufficiently intelligent and mature to make it worthwhile for the jury to hear her.

B. Federal Rules

1. Rule 601: Every person is competent to be a witness, except that when state law supplies the rule of decision, the competency of a witness is to be

determined in accordance with state law

2. Every person is deemed to be competent

C. The witness needs to be able to communicate- most problems can be dealt with by translation

D. A child who cannot speak, cannot testify

E. Common law rule is still used

F. If they are not competent then there is a problem of undue prejudice

G. You put a witness under oath, to emphasize the importance of the duty

H. Under the Federal Rules (601), you can use a 401 and 403 analysis to look at relevancy and undue prejudice of the testimony

I. Can the court order a psychiatric evaluation of a witness

1. The general ruling is that there is an inherent power of the court to order an evaluation of a witness

2. Court loathe to do this; it is too great of an invasion

3. Any time subject person to an evaluation, must have a GOOD reason.

J. Parties in the case

1. At common law, they were not seen as competent witnesses

2. This has been done away with

3. One vestige of this is that if you have two parties and one dies, the second

party cannot testify (Dead Man’s statute) The estate of the dead person can keep the opposing party from testifying about a transaction with the deceased.

4. This is a basic notion of fairness- the dead person cannot give their side- the

statutes have become enormously complex

5. Limitations: If the opposing party’s own testimony (about a transaction with the deceased) is essential to prove his claim, the estate can defeat that claim by barring the opposing party’s testimony, but only the opposing party (and in some states other interested witnesses) can be prevented from testifying. Any other witness can take the stand and prove the claim.

6. In NC this applied to transactions and occurrences; this made no sense; later it was limited to transactions

7. Dead Man’s statute is now part of Rule 601; there is no federal Dead Man’s Act-varies from state to state.

K. Some states that one spouse is incompetent to testify against the other- there is a trend to eliminate this

II. Sequestration of Witnesses

A. Lawyers are afraid that witnesses will listen to other witnesses and adapt their testimony to that of other witnesses

B. There is the ability to ask the court to sequester witnesses- once you make the motion it is mandatory under the Federal Rules; in state courts it is discretionary

C. If invoked and the witness is present where should not be, then barred from testifying.

D. The exceptions are under Rule 615 (number 3 is not often litigated)

(1) A party who is a natural person

(2) An officer or employee of a party which is not a natural person designated as its representative by its attorney

(3) A person whose presence is shown by a party to be essential to the presentation of the party’s cause

(4) A person authorized by statute to be present (enacted after OK City bombing to let families stay.)

E. In a criminal case, number 3 will often be a police officer

F. If a case has a lot of publicity it is hard to have an effective sequestration

III. Forms of Questions on Direct Examination (General)

A. RULE: The trial judge has the discretion to control the form of direct examination of witnesses in order to facilitate the clear and expeditious presentation of evidence

B. Witnesses may be interrogated on direct examination either by:

1. Succession of questions about specific facts

2. Narrative questions

A. General question asking the witness to relate a sequence of events

B. There is nothing inherently wrong with them

C. They don’t allow for objections- this may be a problem so sometimes prohibited b/c of the danger that the witness will relate incompetent evidence before opposing counsel has an opp to object.

D. You often see these questions for expert witnesses- “Doctor, will you explain that to the jury?”

E. You can jump in and object to a narrative questions- you would have to ask that the testimony be stricken from the record- if it is too

prejudicial you can ask for a mistrial

F. If you ask a question and the objection is sustained you have to let the

judge know what the answer would have been in case there is an appeal- this is an offer of proof- you could do this at side bar; you

could ask the jury to be excluded and then ask the question

C. A narrative question is sometimes prohibited by the trial judge because of the danger that the witness will relate incompetent evidence before opposing counsel has an

opportunity to object

IV. Leading Questions

A. A leading question is one which suggests an answer to the witness

1. The examiner is in essence testifying and you want the witness to testify

2. Many judges don’t care- atty’s use leading questions all of the time

3. It is probably better not to use leading questions because it is good for the jury to hear the witness use her own words

4. The best way to avoid leading questions is to set a scene, figure out who was there and then go chronologically

B. Leading questions should not be asked on direct examination--Rule 611 (c)

C. The rule is discretionary with the judge

D. Almost all questions are leading to some extent

E. The extent to which the rule will be enforced will depend largely upon the degree of the suggestion and the importance of the answer to the trial

Some leading questions are overlooked by counsel if the issues are not contested. (moves trial along) But, when get to a critical point, then will hear objections.

EX: “What happened then?” This is not a leading question, but still could have an objection b/c it is a narrative. Why? If witness has infor that may be inadmissible, then will object to the narrative b/c can’t anticipate when he will testify as to the inadmissible stuff. Judge usually buys this, but is discretionary on part of judge.

Don’t want questions to look coached, so better advocacy is to let the answers come from the witness and not be leading questions.

F. Objections for Leading Ques must be made before the witness answers the question. Once witness has answered, it is too late. Then, you must object to the question and move to strike. If so damaging, then may need to move for a mistrial. The objection and the motion must be made timely.

G. Offering the Proof: RULE 103(a)(2) In case the ruling is one excluding evidence, the substance of the evidence was made known to the ct by offer or was apparent from the context within which questions were asked.

Must make the offer of proof if want to preserve it for appeal. Ways to offer proof:

a. Jury excused and witness testifies as to the excluded evidence (prob: takes a lot of time)

b. Sidebar: conference between lawyer and judge without jury.

c. If witness permitted to answer, then she testifies and that is the offer of proof. Lawyers should insist on the offer of proof.

H. Exceptions

1. Preliminary and Foundational Matters

A. Name and address of witness

B. Undisputed time and place of the incident

C. A question that merely calls the witnesses attention to a topic will be nonleading

D. Foundational: Show witness an exhibit and ask: “Is this a fair and accurate Description of the scene?”

2. Children and others having communication difficulties

A. Children

B. Persons of less than average intelligence

C. Those who don’t speak very much English

3. Memory Exhausted

A. Witness must testify in response to nonleading questions that his/her memory is exhausted

4. Adverse Witness

A. Adverse parties and certain other persons may be called as witnesses and examined by leading questions (Cross-examination)

B. See Rule 611[c]

5. Hostile Witness

A. Witnesses declared by the court to be hostile may be examined by leading questions

B. Trial judge should look at whether the relationship between the witness

and the examining attorney is such that the witness is unlikely to be

susceptible to suggestions made by the examiner

C. It is up to you to establish the hostility of the witness

D. It is a discretionary ruling by the court

E. EX: A neighbor or acquaintance of a party, although not considered to be a witness identified with an adverse party, by reason of hostility or reluctance in answering non-leading questions, may be declared to be hostile.

I. There is a distinction between leading questions and argumentative questions

V. Refreshing Recollection

A. Rule: Examining counsel may show a writing (or other thing) to a witness for the purpose of refreshing the recollection of a witness

B. In most jurisdictions there is no requirement that the writing have been prepared by the witness or that it may be in any way identified with him, so long as, after reviewing it, the witness can testify that he now remembers the matter in question

C. No present recollection

1. The question of whether the witness’ recollection is in fact being refreshed by the writing is within the discretion of the judge

2. Some courts require the witness to first testify that he or she has no present recollection of the matters in the writing

3. Other courts require a statement by the witness that the writing may assist him or her in giving testimony