Evidence Book and Class Notes

Chapter 2 Notes: TYPES OF COURTROOM EVIDENCEEvidence Defined.Testimony, writings, material objects or other things presented to the senses that are offered to prove the existence or non existence of a fact presented during the trial. California Evidence Code §140 (West 1995).

It is presented to the triar of fact.Exception (NOT EVIDENCE) –* Questions & statements made by the attorneys and judges. * Exhibits that are identified, and not offered or received into evidence * Objections are not evidence* Anything you see or hear outside of the courtroomParties – individuals or organizations who oppose each other. Victim – the entity to whom the crime was committed against another Six Categories:I. Oral Testimony – given by witnesses speaking from the witness stand A. Three types of Oral Testimonyi. Fact Witness (a.k.a. Eyewitnesses) – Testify about the facts related to lawsuit * must have first-hand knowledgeii. Expert Witness – has specialized knowledge to interpret evidence and explain to jury * No first-hand knowledge of the lawsuit is needed * No first-hand knowledge of the party or witness iii. Character Witnesses

* No first-hand knowledge of the lawsuit is needed * Can give information about the good or bad character of a witness or party * Must have first-hand knowledge of a party or witness * Best Example: A Bloody Knife presented in a stabbing case II. Real Evidence – any physical evidence that a party claims played a direct role I controversy that is authenticated and makes the story more concrete or believable.

III. Documentary Evidence – any type of writing or recording of information prepared by parties, eyewitnesses and some by experts.

IV. Demonstrative Evidence – sometimes physical but, unlike real evidence, is not an object that played a role in the disputed events. B. Parties illustrate concepts or facts to the jury using common types of demonstrative evidence – charts, tables, pictures, maps and graphs C. Is a re-creation or imitation of some aspect of the controversy, which could open it to abuse iv. PROBLEMS W/DEMONSTRATIVE EVIDENCE

* The evidence true nature may be misrepresented of what happened in the presentation of the re-created evidence or interaction reenacted. a. Too dramatic and distracts the jury from the facts v. Look-up case United States v. Wilson, 70 F. App’x 120, 123 (4th Cir. 2003) The defense lawyer wanted use demonstrative evidence to show that what would happen if the prisoner was call that no live person would answer – it was not allowed by judge, who cited that it is irrelevant b/c there was no evidence that the related prisoner ever attempted to make the call.

V. Stipulations – when both parties agree on a fact, they can stipulate that the fact is true for purposes of the litigation D. The parties must agree to its exact languageE. The judge will introduce the evidence to the jury, by reading the stipulation in court F. Problems: irrelevance to controversy

VI. Judicial Notice – A fact is “generally known” or “accurately and readily determined” by consulting an unimpeachable source – See Rule 201. G. It is a fact is indisputably truevi. Example – Boston is in the state of Massachusetts

Photographs and Videos – it can be taken with cell phones, video cameras and cameras. H. It is either real or demonstrative evidence.vii. Real Evidence – when a photo or video depicts the events of a controversy directly * Example: Footage from a bank security camera that captured a robbery on tape or a cell phone are depictions of the actual incident. viii. Demonstrative Evidence – Footage illustrates an aspect of the dispute *

Example: Footage presented of photos taken of crime scene to help jury understand the placement of the victim’s body or a video to show a disabled persons difficulty in performing daily activities Look up United States v. Myers, 972 F.2d 1566 (11th Cir. 1992). 1. Oral Evidence given by arresting officer James sought to be admitted to show defendant Officer Myers was justified in grabbing the prisoner Yanz by the neck to get him to stop screaming, due to being warned by officer James that Yanz was shouting obscenities continuously enroute to station.

Also that upon arrival to station that Yanz appeared drunk, continued to yell obscenities and challenge officers to fights further shows that defendant was justified for grabbing victim by his neck. 2. Oral Evidence offered by Office Fleming sought to be admitted that Yanez cooperated with the officers and that defendant used stun gun and only after that did Yanez start yelling and egging on officer. First had eyewitness evidence further shows Yanez did not provoke the use of stun gun but was defending himself from defendant’s use of stun gun and that such use was unnecessary. 3. Stun Gun

a. Real Evidence introduced Myer’s stun gun because it was used in the actual controversy further shows that this was the stun gun used by defendant. b. Demonstrative Evidence in which Officer Fleming demonstrates how Myers had used the stun gun further shows that Myers used the stun gun to inflict bodily harm to victim.

4. Oral testimony of a Fact Witness – Chief Everett (Supervisor)advised defendant when stun gun was purchased that it was unauthorized to use on prisoners (should not have had gun in first place). He had personal knowledge of the policy and defendant further proves that policy states the use of the stun gun was against the victim’s rights.

5. Oral testimony by an expert testimony –Lt. Welch, 19-yrs exp on force that the bruises on Yanez were from a stun gun. He had 19-yrs exp on force and was familiar with stun gun bruises further prove that the stun gun had enough battery power to hurt victim.

6. Oral testimony by an expert opinion – Officer Baker that there were more effective methods to handle unruly prisoners like Yanez w/out using stun gun that the officers were trained to use. Also that said use of stun gun was overkill. He had personal knowledge of def.’s use of stun gun and police procedure further proves that the stun gun was used in error by officer

7. Oral testimony by victim – he testified of the circumstances of his arrest, his behavior (verbal & physical) and defendants’ use of the stun gun. First-hand knowledge of incident further proves that the use of the stun gun was unreasonable.

Meyers was convicted for a police officer’s use of unreasonable force violation – 18 U.S.C. § 242 (1996), a civil rights statute that punishes individuals who act “under color of any law” to deprive any person of any rights, privileges, or immunities secured or protected by the Constitution.”

Ask if a connection has to be inferred to connect evidence to controversy – Circumstantial/Direct Evidence? No legal distinction does not have any legal effect only used in court by trial lawyers and judges. Both types can support a verdict in both Civil and Criminal Law Cases. No inferences is not the goal, but as few as possible to get jury to connect puzzle to get a favorable decision in the case.

Circumstantial Evidence – is proof of a chain of facts and circumstances indicating the existence of a fact that requires the jury to make an inference connecting the evidence with a disputed fact. Example: A person who testifies that he saw the def. washing blood off his hands shortly after the victim was killed offers circumstantial evidence of the same fact. Inference Connections: (1) The blood came from the victim; (2) the def. got the blood on his hands when he killed the victim, rather than when he tried to aid the victim or perform some other act.

Direct Evidence – is the testimony of a person who asserts or claims to have actual knowledge of a fact, such as an eyewitness that requires no inferential bridge: it directly establishes a contested fact. Example: An eyewitness, who saw the defendant plunge a dagger in victim’s chest, further proves directly that the defendant killed the victim.

See Brandon L. Garrett, Judging Innocence, 108 Colum. I. Rev. 55 (2008).

Chapter 3 – 4 W’s of Federal Evidence

Why – To prevent any and all information the parties believe would be helpful to their case. Also, to balance the weight of evidence, so that people with more money will not be able to convince irrelevant evidence through expensive expert testimony or may compromise important social policies.

1. To protect the jury from misleading information2. To eliminate unnecessary delay and promote efficiency3. To protect a social interest, such as a confidential relationship 4. To ensure that evidence is sufficiency reliable

Who – Congress, Supreme Court and other evidentiary rulings

Where – Rules 101 and 1101 tells where rules apply.

Rule 101 – These rules apply to proceedings in United States Courts. The specific courts and proceedings to which the rules apply , along with expectations, are set out in Rule 1101.

Rule 1101 – Applicability of the Rules

(a) To Courts and Judges. These rules apply to proceedings before all trial and appellant courts, including tax courts – exception Supreme Court and some agencies.

* United States district courts;* United States bankruptcy and magistrate judges;* United States courts of appeals;

* The United States Court of Federal Claims; and* The district courts of Guam, the Virgin Islands, and the Northern Mariana Islands.


Rules 1101

(b) To Cases and Proceedings. These rules apply to: any proceeding that resembles a trial; exception it does not apply to every stage of adjudication only the main event: the trial. Example: in Summary Contempt the judge does not need to present evidence against a witness, who displays contemporous behavior to find the individual in contempt.

* Civil cases and proceedings, including bankruptcy, admiralty and maritime cases; * Criminal cases and proceedings; and* Contempt proceedings, except those in which the court may act summarily

(d) Exceptions. These rules – except for those on privilege – do not apply to the following:

1) The court’s determination, under Rule 104(a), on a preliminary question of fact governing admissibility (Relieves judges the responsibility to apply rules of evidence) 2) Grand-jury proceeding; and (Is this b/c the evidence gathering is more advanced that a the rules do not apply) 3) Miscellaneous proceedings such as; and any that resemble these: a. Extradiction or rendition;

b. Issuing an arrest warrant, criminal summons or search warrant c. A preliminary examination in a criminal case; (the evidence presented is to demonstrate “probable cause of a case prepared for trial” not to prove guilt/innocence.) d. Sentencing;

e. Granting or revoking probation or supervised release; and f. Considering whether to release on bail or otherwise

(c) Rules of Privilege. The privilege apply to all stages of a case or proceeding. (Overriding Rule to invoke privileges guaranteed – such as grand jury)

Example Grand jury investigating securities fraud of George Bluth subpoenas Lucille Bluth, who invokes spousal privilege by using Rule 1101(c).

Ch. 4 Structure of a Trial

1. Pretrial Motions* Motions in limine – “at the threshold” or pre-trial objection used by to exclude an opponent’s piece of evidence or to secure permission to introduce a potentially contested piece of their own evidence. It is a tactical advantage for the trial lawyer. * First. Knowing ahead what evidence will and will not be excluded can help the attorney plan trial strategy. * Second. Since motion is made pre-trial, the attorney may state all reasons for or against the exclusion of evidence as well thought out legal argument, w/out the rushed decision that the judge must make during trial. *

Third. Losing a motion in limine – allows attorney to loose often w/out the jury hearing/knowing it. However if the same loss of exclusion happens during the trial the jury will assume that this was a loss and it was important evidence that deserves special attention.

* Motions to suppress – used in criminal cases to claim that the evidence was legally obtained, * Suppressed evidence does not violate the Federal Rules of Evidence (Does Not Apply). * Opposing attorney wants the Judge to rule in its favor to ensure evidence cannot be used in the main event – the trial. * Summary Judgment – used in civil cases to state there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. Fed.R.Civ.P.56(c) *

Judge uses evidentiary rulings to deal with these motions * Often if the key piece of evidence is inadmissible summary judgment is justified. * Some evidence (documents & other exhibits are required to be objected to before trial begins under Fed.R.Civ.P.26(a)(3).

2. Jury Selection –* Attorneys call this “Process voir dire” that means “to tell the truth” or “give a true verdict.” * An important stage of every jury trial

3. Opening and Closing Statements* opening statements* Before evidence is presented lawyers from each side give an opening statement to the jury. * Good opening statements –* Tell a compelling story* Reflects the evidence that will unfold during trial * Gets jurors on your side from the onset * Each lawyer gives an often uninterrupted themed overview or compelling story of the evidence that they plan to present, explain used to create a map or framework for why the jury should discount evidence presented by its opposition. *

The lawyer who has the burden of proof is the one who gives opening statement first the defendant has the more difficult task of dislodging the framework set by the prosecution/plaintiff attorney. (If we are innocent until proven guilty why is that court rules allow your accuser to say what you did wrong in court then make you defend it as untrue. * Prosecutor in a Criminal Case

* Plaintiff in a Civil Case* Opening statement do not give irrevocable juror support only support the case for the juror to refer throughout the presenting of evidence. * closing statements* Both parties use this time to sum up their case presented to argue and convince jury to ignore the opponents case presented. * The attorneys can use exhibits of visual aids or oral statements but no other witnesses.

See carol tarvis & elliot aronson, mistakes were made (but not by me) why we justify foolish beliefs, bad decisions And hurtful acts (2007).

4. Cases-in-Chief* Prosecutor in a criminal case completes presentation of its case – evidence, documents, demonstrations and witness testimony – Defense may move for judgment of acquittal. Meaning the judge must believe from case presented by the accuser that it will not stand on its own to prove to the jury that the defendant is guilty of crime accused (Jesus Move – Woman you have no accusers of adultery). *

Plaintiff in a civil case completes presentation of its case evidence, documents, demonstrations and witness testimony – Defense may move for a judgment as a matter of law. Meaning the judge must believe from case presented by the accuser will not stand on its own merits (Jesus Move – Woman you have no accusers of adultery). *

5. Rebuttal and Rejoinder* Rebuttal –* Plaintiff/Prosecutor uses this to directly attack the defendants case presented only – no new issue only related evidence. * Defendant uses this to respond only to Plaintiff/Prosecutor Rebuttal only. * Rejoinder –

* Is the act of introducing the new related evidence used to attack the opponent’s case.

6. Jury Instructions* No set time for judge to give instructions, usually giving when relevant. Usually repeated after closing arguments. 7. deliberations* Time given to jury to weigh all evidence presented to forge a verdict. During this time the jury may ask judge for clarifications and further instructions. 8. verdict* The signifies the end of the trial where the judge will enter the verdict and at that time post-verdict motions may be entered, such as an appeal. * Appeals can be filed by all parties in a suit except the prosecutor.

9. non-jury trials operates the same as above minus jury selection, instruction and deliberations.

Class 2| Wednesday5/22| Chapter 5: Raising &Resolving Evidentiary Objections40-54Problem Set 5Chapter 6: Relevance55-68Chapter 7: Prejudice, Confusion, or Waste of Time69-84Chapter 8: Fitting the Rules Together85-87|


Motions in Limine and to Suppress – allows a part to attack – or defend – key pieces of evidence before trial. FYI – It is important to know the rules to defend/challenge a position persuasively to effectively represent your client. Rule 103 – Rulings on Evidence. It outlines the steps taken by attorney to object to evidence during trial so that appellate court may review ruling. (Know your end result to determine steps to get there.) Knowing the end will make it simpler for attorney to challenge and defend a piece of evidence. a. Preserving a Claim of Error

. A party may claim error in a ruling to admit or exclude evidence only 1) Raising objections to challenge opponent’s evidence. i. If the ruling admits evidence, a party, on the record: A. Timely objects or moves to strike; and

1. Make Objection and a Motion To Strike together i. Before the opponent introduces potentially inadmissible item into evidence emerges fully. * Example: The prosecutor calls an incompetent witness, the defense will object to that witness testifying; or the defense asks a witness an irrelevant question, the prosecutor will object to the question. 2. Timely manner

ii. Is to object as soon as the ground for objection is known or reasonably should be known iii. If trial attorney fails to object promptly, an appellate court will not consider the evidentiary challenge iv. Objections should be done timelyafter the proffer of testimony so as to allow the district court an adequate opportunity to correct any error. (It’s a long shot and attorneys don’t push this envelope often.) v.

Example – When a defense lawyer waited to object to admit evidence after the jury was dismissed was considered far too late to make an objection and the judge overruled objection. The appellate court agreed that under the circumstances the defense attorney waited too late to object. The court affirmed the conviction even though the evidence was determined incriminating, because his attorney failed to make a timely objection. B. States the specific ground, unless it was apparent from the context 3.

Gives notice to trial lawyers for the basis for an objection vi. The opponent can try to cure any defect in the evidence and, vii. The judge can more easily rule on admissibility. 4. If trial attorney does not offer specific grounds for an objection, an appellant court will not consider the evidentiary challenge. viii. If the opposing attorney sees multiple grounds for objecting to evidence, then the attorney should raise each of those specifics * If you do not raise all specifics you will not be able to object later in appeal if issue was not raised in trial court.

a. Example: The attorney raised objections to the testimony of arresting officer on two points. In appeal the defense attorney brought up a third point of objection. The appeals court refused to consider that issue further, because the attorney did not raise this point in trial court. Even though he did raise the objection timely and specifically – he did not specifically raise it on this issue. United States v. Gomez-Norena, 908 F.2d 497, 500-01 (9th Cir. 1990). * If the attorney objects to just a part a document or testimony, the attorney must designate the portion of the document or testimony to which they object. If it is the entire document or testimony, the attorney may object to the whole. 5. Example:

The attorney failed to make a specific objection to a cross-examined witness question and objection was denied by the judge. The verdict returned against the defendant. The objection was generic and did not point to a specific reason and thus the appellate court refused to consider any error in the testimony.

Owens v. Patton 925 F.2d 1111, 1114. 6. The attorney will always object plus one (objection – hearsay; beyond the scope) then when recognized by judge, the attorney will cite specific rules and judge authority. 2) Defending Evidence – if the ruling evidence, a party informs the court of substance by an offer of proof, unless the substance was apparent from the context. ii. Is the offer of proof to show judge what the evidence entails. iii.

The opponent fails to make this offer, then he waives any objection on appeal iv. Judges have discretion to determine the form in which attorneys offer of proof. C. Formal offer must be made unless it is apparent from the context, but it is advised that the attorney make at least a brief offer of proof to buttress (rules & judges authority supporting your position) their argument for admissibility and to clarify the record for appeal. b. Maintaining Objections – Not Needing to Renew an Objection or Offer of Proof. Once the court rules definitely on the record – either before or at trial – a party need not renew an objection or offer of proof to preserve a claim of error for appeal.

3) At trial objection, judges rules and allows the trial to continue and preserves any further arguments for appeal 4) Motions in Limine – rules definitively to obtain decisions on key evidentiary issues before finalizing their trial strategies v. When the judge rules on a Motion in Limine, the losing party need not repeat any objection or offer of proof at trial. c. The court may direct that an offer of proof made in question-and-answer form 5) An attorney may demonstrate with the witness the actual questions that would be asked and answered

d. Shielding the Jury – Preventing the jury from Hearing Inadmissible Evidence. To the extent practicable, the court must conduct a jury trial so that inadmissible evidence is not suggested to the jury by any means 6) This keeps jurors from witnessing the debate and risk them being confused or misled by the legal arguments the litigants make to the judge concerning inadmissible evidence. 7) Initial objection is made in front of jurors, but they are usually not privy to extensive explanation needed for judge to rule on objection. vi. Shielding is done two ways

D. The attorneys “approach the bench” preventing the jury from overhearing the discussion; or E. The judge dismisses the jury so attorneys may present a detailed offer of proof. e. Response by judge.

8) She can sustain the objection and exclude all of the evidence 9) She will overrule it and admit all of the evidence10) She will admit some of the challenged evidence, while excluding other portions vii. Written documents, the judge may direct a party to redact (eliminate) portions of the document violating an evidentiary rule and admitting the rest of the document viii. Topics or questions, the judge may direct a party to avoid them in their examination of a witness, to allow witness to testify on other matters. 11) The judge gives a curative instruction that tells jury to disregard evidence sometimes explaining why the evidence is misleading or inappropriate to consider. 12) Rule 105 – Limiting Evidence That Is Not Admissible Against Other Parties or for Other Purposes – If the court admits evidence that is admissible against a a party or for a purpose – but not against another party or another purpose the court, on timely request must restrict the evidence to its proper scope and instruct the jury accordingly. ix. The judge must give clear instruction limiting the circumstances evidence may be used. F. Example: In a defective product case, the plaintiff introduced the evidence of a loose screw in machine. The judge gave the jury instructions that evidence original condition and is only admitted to show its condition at the time of the accident. They should “disregard the loose screw because it had nothing to do with the cause of the explosion.” The appellant judge’s decision and his use of a limiting instruction in this case. Raney v. Honeywell, Inc., 540 F.2d 932, 935-36 (8th Cir.1976). G. Common Use – demonstrative evidence.

7. Example: Case charging defendant with embezzlement along with 8 others who plead guilty. The government prepared a series of charts outlining the charges in the indictment and the evidence supporting each charge. The defendant objected to the use of materials. The trial judge admitted materias and gave jury limiting instruction to explain the charts themselves were not evidence. The court of appeals affirmed this practice noting that there is an established tradition… that permits a summary of evidence to be put before the jury with proper limiting instructions. United States v. Scales, 594 F.2d 558, 561-64 (6th Cir. 1979). H. Notpopular amongst lawyers because it focuses jury on certain inadmissible evidence; the potential harm of highlighting such evidence and the jury misinterpreting the proper use evidence that they would not have noticed previously. f. On Appeal.

13) Judges have a substantial right to discretion to adhere to rules of evidence rulings 14) Rarely reverses a trial court ruling; unlessx. Judges have an abuse of discretion standard to most claims of evidentiary error xi. Only reversible if error is not harmless, “it must be evidence substantially to the cause of verdict I. Rule 103(e) Taking Notice on Plain Error. A court may take notice of a plain error affecting a substantial right, even if the claim of error was not properly preserved. 8. Courts rarely find plain errors, especially in civil lawsuits (if civil lawsuit most likely not a plain error). 9. It must be clear and obvious under current law; affects (a party’s) substantial rights; and… would seriously affect the fairness, integrity or public reputation of judicial proceedings if left uncorrected. Tompkins v. Cyr. 202 F.3d 770, 779 (5th Cir. 2000). United States v. Olano, 507 U.S. 725 (1993). Ch. 6 Relevance. the first hurdle in determining the evidence admissibility. I. Rule 402.

a. general admissibility of relevant evidence; relevant evidence is admissible unless any of the following provides otherwise; * The United States Constitution (has a liberal approach to admissibility) * A federal statute

* These rules; or* Other roles prescribed by the Supreme Court.b. If evidence is relevant, it is admissible unless a specific rule, statute, or constitutional provision bars its admissibility. c. If the evidence fails the relevance test IN RULE 401, the court cannot admit it.

II. RULE 401. TEST FOR RELEVANT EVIDENCE.Evidence is relevant if:d. It has any tendency to make a fact more or less probable then itwould be without the evidence; and * Any tendency – shows leniency embracing evidence that could shift a fact finder’s view of the facts even the smallest degree; from .01 to 100%. * Fact more or less probable – A piece of evidence is relevant as long as it makes some fact of consequence “more or less probable.” 1. Example: The evidence entered to show that Walsh was not drunk even though the results of a blood alcohol test, taken shortly after the accident – show he had an elevated blood alcohol level. The neighbor, a lay witness gave eyewitness testimony that Walsh appeared sober and he walked straight shortly before accident. Although the evidence offered by the neighbor of Walsh is less persuasive it is relevant and has passed the test of pushing the triar of fact closer to finding the fact that he was not drunk more possible and the fact that he was drunk less possible. Thus the judge would allow the evidence as relevant, unless there is a specific rule, statute or constitutional provision that bars this evidence. Walsh v. New London Hosp., 856 F.Supp.22(D.N.H. 1994). e. The fact is of consequence in determining the action. * The fact being proven must be related to the cause of action or the fact must matter to someone who is trying to decide the case to be relevant. * The fact need not be in dispute or even if it addresses a matter that the opponent concedes. 2. Example: Judge Old Chief case – the defendant wished to stipulate that he had a felony, without disclosing the facts of the felony. The prosecution refused, because the facts of the felony could act as evidence that the defendant had committed a similar act previously. It is as the discretion of the opposing party to accept a stipulation not a requirement. * Irrelevant prior misdeeds are inadmissible, as they do go to assisting t triar of fact to rendering a verdict on the current cause of action. 3. Example: When MC Hammer was sued by the group “Legend” for copyright infringement he attempted to introduce evidence that the group “Legend” had done the same practice of sampling previously, and thus had “Unclean Hands.” The group “Legend” objected as this was irrelevant evidence to the current cause of action. The prior misdeed of the group “Legend” having “Unclean Hands” moves the degree to prove “Legend” is more or less probable of copyright infringement. This evidence is of no consequence to show MC Hammer’s acts of copyright infringement is more or less probable. Thus the judge will mostlikely not allow this evidence to be admitted as it does not prove the fact that MC Hammer cause of action of sampling an industry practice that legend is more or less probable of committing is more or less probable. * Evidence that is too far removed from the cause of action are inadmissible as irrelevant evidence. 4. Example: Barios is suing for discrimination in terminating her, but introduces evidence of sexual harassment from 10 years prior to the current cause of action. The judge rules evidence inadmissible due to even if relevant, of the significant time gap of ten years between when the alleged sexual harassment claim occurred, go, in relation to the current cause of action of disability discrimination. EEOC v. Dupont De Nemours & Co., No.Civ. A. 03-1605, 2004 WI, 2347556 (E.D.La.Oct. 18, 2004). * Negative Evidence. Showing what was wrong to prove what is right. Judges often reject this type of evid