EVIDENCE NOTES1

Chapter 1: Introduction to Evidence Chapter 2: Function of Judge, Jury, and Attorneys at Trial I. POLICIES UNDERLYING RULES of EVIDENCE: a. Skeptical of jurors’ abilities—determine what evidence is reliable; put aside evidence that is inflammatory…limit what juror’s are permitted to hear b. Promote accuracy—decide based on facts relevant to issue at hand, rather than emotion c. Promote efficiency—not allow 10 witnesses to say the same thing d. Allocate burdens e. Protect substantive legal policies ANATOMY of a TRIAL: a. Jury Selection—rules of evidence do NOT apply b. Opening Statement—rules of evidence do NOT apply c. P’s case in chief—Rules of Evidence apply i. Proceed witness by witness 1. Generally testimonial evidence 2. Every piece of real, physical, or demonstrative evidence MUST have testimony ii. Witness: 1. Direct examination—proponent 2. Cross-examination—opponent 3. Re-direct examination—proponent [limited to what cross examiner got into…guarantees narrowing of question until run out of questions] 4. Re-cross examination—opponent 5. Etc…[re-re-directre-re-cross…] d. D’s case in chief—Rules of Evidence apply…same process [going through all of the witnesses] e. Rebuttal cases—Rules of Evidence apply i. Designed to rebut whatever has happened before…can NOT offer new material [rebut what D has presented] ii. Guarantees will run out of things to fight about f. Closing Argument g. Jury Instructions TYPES of EVIDENCE: a. Testimonial Evidence b. Real Evidence i. E.g.—murder weapon; Pinto in court room because car in crash; fraudulent tax returns ii. Physical or documentary evidence that has a direct connection to the matter at hand c. Demonstrative Evidence i. Charts; graphs; anatomical model ii. Does NOT have direct connection to case itself, but helps to illustrate or explain testimonial or real evidence iii. Assist jury in understanding medial expert’s testimony RULES of EVIDENCE: a. Direct and Circumstantial Evidence: i. Direct Evidence—does NOT require inference [E.g.—witness to bank robbery…teller that sees robber go into bank and rob can testify as to what she saw] ii. Circumstantial Evidence—requires inference 1. E.g.—which kid stole the cookie jar, kid with crumbs on his mouth…inference that kid stole cookie because of inference that crumbs mean he ate the cookie 2. DNA found on murder victim and matches D = if it matches, more likely that D was murderer rather than witnesses testimony [circumstantial evidence is stronger than direct evidence] iii. Problems: 1. To show a letter was received, evidence offered that the letter was properly postmarked, addressed and mailed = Circumstantial…draw inference that all of those factors met, letter MUST have been received II. III. IV. b. c. d. e. 2. Issue of whether it was raining, E testified that say rain falling = Direct…telling what saw as eyewitness 3. Issue of whether it was raining, P testified when people came into office they were wearing raincoats and shaking water from their umbrellas = Circumstantial…STRONG inference that wearing raincoats means it was raining 4. Issue of whether elephant that escaped from circus had crossed A’s backyard, A testified that looked and saw elephant footprints in backyard = Circumstantial…infer elephant walked through back yard and infer that it was elephant that escaped from circus 5. Issue of whether B robbed bank, employee of police department testified that gun dropped at bank by perp was registered in B’s name = Circumstantial…inference that if gun registered in her name, it was her gun and if she had gun likely that she was robber 6. Issue whether L robbed S, bystander testified I saw L rob S = Direct…NO inference needs to be drawn 7. Issue of whether B attended hockey game, S’s statement E told me he saw B walking toward arena where hockey game was played = Circumstantial…NOT conclusive that he intended, but inference that it is more likely that he attended the game Effects of Rulings at Trial: i. If you don’t object to evidence, NOT able to make appeal ii. To make an appeal of ruling at trial… 1. Error caused harm [NOT harmless error] 2. If you have NOT preserved error for appeal [given judge opportunity to rule on objections], can NOT appeal the error UNLESS it is: a. Constitutional error [rare] or b. Plain error [error that is so amazingly bad] iii. RULE: MUST object timely to admission of evidence if judge erroneously and harmfully admits it 1. If want evidence to remain in, MUST make an offer of proof = explain to judge why should NOT keep evidence out [Rules of Efficiency—more efficient to let trial judge make correct ruling in advance] 2. MUST know what is objectionable and how to challenge this Court’s job to screen out ‘bad’ evidence, meaning evidence whose relevance was NOT supported by evidence sufficient to support a finding of fact pursuant to Rule 104(b) i. E.g.—accident and do not know whose fault it was…want to introduce piece of metal which indicates which car was driving in the wrong direction 1. ONLY relevant if metal came from 1 of cars = completely irrelevant if metal has been there for a week 2. Judge makes determination if metal came from 1 of the cars to hear about it 3. Conditional Relevance—judge has to make factual determination if the expert may testify…objection is if the expert can testify, judge makes determination that there is at least enough evidence for a reasonable jury to conclude that the metal came from one of the cars by preponderance of evidence = ONLY then will judge permit expert to testify ii. Large potential for error at trialmust be ready to object and submit offer of proof Judge’s Role—Standard for Review on Appeal i. Standard for Review = Abuse of Discretion—gives judge the widest latitude…discretion to admit or refuse to admit evidence [Appeal of evidentiary rules = abuse of discretion by judge] ii. E.g.—R tried for robbing, in defense R offers to testify that she had fight with manager of store more than 1 year prior to alleged robbery and had not been to store since…prosecution objects claiming evidence is irrelevanttrial judge improperly sustains objection, ruling no mention of fight allowedR convictedappeals conviction claiming exclusion was in error 1. Standard of Review = Abuse of Discretion 2. Relevance—issue is did she rob store…fact that she had not been there for a year [relevant for either side] Attorney’s Role—Preserve the Record i. E.g.—V conducting trial, prosecution offered evidence that D committed adultery and made contributions to animal rights groups…V objects to evidence claiming NOT admissible because incompetent, immaterial, and irrelevantD convicted and appealed 1. Incompetent, immaterial, and irrelevant = general objection and does NOT specifically identify the grounds a. Objection that preserves the record MUST specifically state the grounds that makes the information irrelevant b. In isolation do NOT know if evidence is irrelevant 2. Proper objection = inadmissible character evidence ii. Attorney responsible for preserving the record for appeal by specifically stating why evidence is NOT allowed f. Pre-trial motion in limine—before trial begins, request judge to determine if evidence can come in [rather than waiting until trial] i. Advantage = requires BOTH sides to brief the issue and judge can understand why it may be objectionable] ii. If wait until trial = judge will have to make a quick ruling at trial, room for error because will NOT have all information necessary g. Ohler v. US—prior methamphetamine conviction, wants to testifyrather than risking putting her on the stand, ask the court will this conviction be allowed to impeach her credibility i. Judge made pre-trial ruling that evidence was admissibleif client was to testify in case about possession and importation of marijuana, jury will be allowed to know of this prior conviction 1. D has 2 choices: (1) Keep witness off stand completely—increase likelihood of conviction; (2) Put witness on stand and D brings up evidence [rather than P] 2. Prick the Boil—D’s attorney calling client and asking about prior methamphetamine conviction and get her to explain it ii. Jury convicted heron appeal D raised the issue that the court erroneously admitted the evidence [pre-trial]…based on ruling D called to testify iii. Principle for Appeal—can NOT appeal admission of evidence that you offer, because D offered evidence he waived right of challenging the evidence on appeal 1. RULE: If you cause the error or invite the error, you can’t complain about it 2. Don’t really have a choice = keep witness off the stand or allow the prosecution to bring up the evidence [can’t soften the blow!]