Evidence

Module One for Evidence

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Evidence by Mind Map: Evidence

1. Types of Evidence

1.1. 1. Oral Testimony

1.1.1. Fact Witnesses: Fact Witnesses: people who perceive facts and testify about those facts aka eyewitnesses

1.1.2. Expert Witnesses: do not need firsthand account of the incident like fact witnesses

1.1.3. Character Witness: do not offer information about the facts of the lawsuit, but rather offer information about good or bad character of a party or witness

1.1.4. *Key words: Parties, victim: often appear as fact witnesses: give something relevant and are competent; prosecutor is a party that does not appear as a witness; corporations can be parties and employees can be witnesses; the gov cannot be a witness so officials like police officers can appear to testify, so these police officers and officials are not parties.

1.2. 1. Real Evidence

1.2.1. Physical evidence

1.2.1.1. All real evidence must be authenticated: the proponent must offer some proof that the physical evidence is what she claims it to be, can be as simple as a witness saying she found this item on the body

1.3. 2. Documents:

1.3.1. Any writing or recording info, like a contract or a license plate

1.3.1.1. Some writings can be self-authenticating aka there is no need for a witness to confirm their authenticity; a witness almost never may testify about the contents of a doc, as the Rules req the party to admit the doc itself into evidence unless all available copies have been lost or destroyed

1.4. 3. Demonstrative Evidence

1.4.1. Sometimes it is physical, but it is not an object that played a role in the disputed events

1.4.1.1. Parties create demonstrative evidence to illustrate concepts or facts to the jury, like charts, tables, powerpoints, a demonstration in the courtroom (like of how a client has a sever limp now), computer simulations, or even a baggie with sugar to represent the cocaine bag in question

1.4.1.1.1. Note it is only a recreation or imitation, not the real thing which can make it controversial; trial judges monitor this carefully to ensure it will not mislead or distract the jury.

1.5. 4. Stipulations

1.5.1. If both parties agree a fact is true, then the two parties can stipulate that that fact is true for the litigation

1.5.1.1. The judge or proponent of the evidence reads the stipulation of facts to the jury

1.5.1.1.1. Parties normally do this for minor evidence or the authenticity of a doc

1.6. 5. Judicial Notice

1.6.1. The trial judge can take notice of a fact, if it is indisputable that that fact is true, like that Boston is in Massachusetts. The fact must be "generally known" or "accurately and readily determined" by consulting an unimpeachable source This is rule 201.

1.7. Photographs and Videos

1.7.1. Can be real or demonstrative

1.7.1.1. Real evidence: if it depicts the events in controversy directly

1.7.1.1.1. Judges are more cautious about admitting demonstrative evidence than real evidence: the judges use a balancing test.

1.8. Evidence in Action

1.8.1. See United States v. Myers example in book

1.9. Circumstantial Evidence

1.9.1. Any evidence that req a jury to make an inference connecting the evidence with the disputed fact

1.9.1.1. On the other hand, direct evidence req no inference

1.9.1.1.1. Direct v. circumstantial are not diff categories of evidence, but rather different ends of a spectrum bc evidence can be ambiguous

1.9.2. All evidence depends on some inferences. There can be a circumstantial aspect to direct evidence. This distinction has no legal effect.

1.9.2.1. Circumstantial can provide just as much support as direct, and yet a jury can disregard direct evidence

1.9.3. *In practice, vital to focus on the inferences that can be made over whether there is circumstantial or direct proof. Note hidden inferences may need to be worked into your strategy to get the jury there.

2. The Structure of a Trial

2.1. Pretrial Motions

2.1.1. Motions in limine: whether or not info is admissible under Rules of Evidence

2.1.1.1. 3 advantages

2.1.1.1.1. 1. An attorney can plan a trial strategy well with the knowledge of what evidence will be admitted and what will not

2.1.1.1.2. 2. Since the motion occurs prior to the trial, attorneys can create longer arguments and submit written motions

2.1.1.1.3. If an attorney objects to an opponent's evidence and loses, jurors jump to two conclusions:

2.1.2. Summary judgment: no genuine dispute as to any material fact and movant is entitled to judgment as a matter of law.

2.1.2.1. Motion to suppress: evidence was illegally obtained.

2.2. Jury Selection

2.2.1. Voir dire

2.2.2. Jury Interpretation

2.2.2.1. Opening Statements

2.2.2.1.1. Crucial as these will give an overview of each side's argument and the narrative they are telling

2.2.2.1.2. An effective opening statement has two components

2.2.2.1.3. Plaintiff always delivers the first opening statement, as they bear the burden of proof

2.3. The Actual Process

2.3.1. 1. Plaintiff's Case in Chief

2.3.1.1. Includes all evidence/Defendant will move for JMOL

2.3.2. 2. Defendant's Case in Chief

2.3.3. 3. Plaintiff's Case (Rebuttal)

2.3.4. 4. Defendant's Case (Rebuttal)

2.3.5. 5. Further Rebuttal

2.3.6. 6. Closing Statements

2.3.7. 7. Instructions for the Jury

2.3.8. 8. The Deliberation

2.3.9. 9. Verdict Released

3. The Four "Ws" of the Federal Rules of Evidence

3.1. Why do courts follow rules of evidence?

3.2. Who wrote them?

3.2.1. Courts first , then advisory committees

3.3. Where do they apply?

3.3.1. Rule 101: Scope

3.3.1.1. Apply to all proceedings in US courts

3.3.1.1.1. Rule 1101 sets out the specific courts, proceedings, and exceptions

3.4. When do they apply?

3.4.1. Rule 1101b:

3.4.1.1. Civil cases and proceedings, includes bankruptcy, admiralty and maritime cases

3.4.1.2. Criminal cases and proceedings

3.4.1.3. Contempt proceedings (except those in which the court MAY act summarily)

3.4.2. Applies to the trial itself

3.4.3. May hold in summary contempt w/o following the Rules of Evidence.

3.4.3.1. This is when they directly witness contemptuous behavior.

3.4.4. Rule 1101D: Applicability of Rules (The Exceptions)

3.4.4.1. The court's determination (under Rule 104a) on a preliminary question of fact governing admissibility

3.4.4.2. Grand-jury proceedings

3.4.4.3. Miscellaneous proceedings

3.4.4.3.1. Extradition or Rendition

3.4.4.3.2. Issuing an arrest warrant, criminal summons, or search warrant

3.4.4.3.3. A preliminary examination in a criminal case

3.4.4.3.4. Sentencing

3.4.4.3.5. Granting or revoking probation or supervised release; and considering if someone should be released on bail etc.

3.4.5. Rule 1101c: Applicability of Rules (Privilege)

3.4.5.1. Apply to ALL stages of a case/proceeding

3.5. How to Decide When and Where the Federal Rules of Evidence Apply (Based on Diagram Merritt p. 29)

3.5.1. What Court is This?

3.5.1.1. U.S. Court of Appeals, U.S. District Court (including territories, Magistrate hearings, and Bankruptcy cases), or U.S. Court of Federal Claims

3.5.1.1.1. What Kind of a Hearing is it?

3.5.1.2. SCOTUS, a Federal Admin Agency, or a State Court

3.5.1.2.1. Federal Rules DO NOT apply, BUT some have adopted the rules or you should look to them for guidance

4. The Rules Exclude Evidence

4.1. To protect jury from misleading info

4.2. To eliminate unnecessary delay

4.3. To protect a social interest, such as confidential relationship

4.4. To ensure that evidence is sufficiently reliable.

4.5. FRE 105: Limiting evidence that is not admissible against other parties or for other purposes

4.5.1. The court on timely request, MUST restrict the evidence to its proper scope and instruct the jury accordingly

5. Raising and Resolving Evidentiary Objections

5.1. Rule 103: Rulings on Evidence (See Merritt p. 39)

5.1.1. Preserving a Claim of Error: a party MAY claim error in a ruling to admit or exclude evidence ONLY IF the error affects a SUBSTANTIAL right of the party and

5.1.1.1. (1) if the ruling admits evidence, a party, on the record:

5.1.1.1.1. (A) timely objects or moves to strike; and

5.1.1.1.2. (B) states the specific ground, unless it was apparent from the context; or

5.1.1.2. (2) if the ruling excludes evidence, a party informs the court of its substance by an offer of proof, unless the substance was apparent from the context.

5.1.2. Not Needing to Renew an Objection or Offer of Proof

5.1.3. Court’s Statement About the Ruling; Directing an Offer of Proof

5.1.4. Preventing the Jury from Hearing Inadmissible Evidence

5.1.5. Taking Notice of Plain Error

5.2. Four Aspects of Evidentiary Disputes

5.2.1. Raising Objections

5.2.1.1. 1. Objection (before)

5.2.1.2. 2. Motion to strike (after)

5.2.1.3. Timely

5.2.1.4. State a SPECIFIC Ground

5.2.2. Defending Evidence

5.2.2.1. Must offer proof

5.2.3. Maintaining Objections

5.2.3.1. Issue is preserved for appeal, IF timely objected and overruled by a judge

5.2.4. Shielding the Jury (ensuring the only evidence they see is comprehensive and permissable)

6. On Appeal

6.1. Abuse of Discretion Standard

6.1.1. Usually defers to a trial judge

6.2. A party MAY claim error to admit or exclude evidence ONLY IF the error affects asubstantial right of the party

6.2.1. Most are a harmless error

6.2.2. Applies for de novo aka the trial judge incorrectly interprets the evidence rule or applies a wrong standard of review for the trial

7. Putting a Witness on the Stand

7.1. A witness myst be competent

7.1.1. Rule 601, 605, and 606

7.1.2. It is the job of the opposing counsel to point out weakness in the witness' credibility, not the rules

7.1.2.1. The jury then has the ability to assess the credibility

7.1.3. *Note that Rule 602 and 603 necessitate the appreciation of the duty to tell the truth and the minimum capacity to observe, recall, and communicate

7.1.4. Civil cases

7.1.4.1. State law governs a witness' competency

7.1.4.1.1. Acknowledges sometimes competency is interwoven with liability principles

7.1.5. The Judge Exception: Rule 605

7.1.5.1. The presiding judge cannot be a witness as the roles of testifying and presiding are not compatible

7.1.5.2. Also prevents the judge from providing commentary from the bench that can amount to testimony

7.1.5.2.1. Judges cannot report evidence related to experiments they have conducted or visits they made to a site related to the case

7.1.5.2.2. The same policy that applies to the judge, can also apply to judicial clerks

7.1.6. The Juror Rule: Rule 606

7.1.6.1. Rule 606(a) a juror cannot testify in a case before other jurors where they have a decision making role

7.1.6.2. Rule 606 does not bar the witness testimony of a juror to appear at a subsequent trial to testify about something that occurred at a previous trial

7.1.6.3. The court MUST give a party the opportunity to object to the participation of a juror as a witness OUTSIDE the jury's presence

7.1.6.4. Rule 606(b) limits when jurors can offer testimony that would undermine the validity of a verdict they rendered

7.1.7. Lawyers

7.1.7.1. The federal rules do not prevent a lawyer from testifying but the ethics rules discourage it

7.2. A witness must have personal knowledge

7.2.1. Rule 602

7.2.1.1. Speculation is impermissible

7.2.1.2. Remember circumstantial evidence is allowed though

7.2.2. Establishing personal knowledge

7.2.2.1. Must demonstrate personal knowledge

7.2.2.1.1. Rule 602 provides this can be in form of a witness' testimony of a certain place, time, and witnessed certain events

7.2.2.1.2. Sometimes judges add commonly known facts to a witness' testimony to find the witness has sufficient personal knowledge to testify

7.2.3. Experts and personal knowledge

7.2.3.1. Connection between rule 602 and rule 703

7.2.3.1.1. Experts are the exception to the personal knowledge requirement

7.3. A witness must take an oath or affirmation

7.3.1. Rule 603

7.3.1.1. Oath: contains the word "swear" and a reference to God

7.3.1.2. Affirmation: a promise to tell the truth that omits religious references and uses "affirm" *No legal distinction and refusal to take either leads to exclusion of the testimony

7.4. If an interpreter is needed, see the special qualifications in Rule 604

7.4.1. Rule 604

7.4.1.1. Must be qualified

7.4.1.2. Must give an oath or affirmation

7.4.1.3. Must give a truthful translation

8. The Role of the Jury

8.1. Jurors give the judicial process legitimacy and finality Rule 606(b)

8.1.1. Forbids jurors from testifying about most things, said, done, or thought of during a jury deliberation

8.1.1.1. This is forbidden because otherwise lawyers would call jurors to the stand in every case

8.1.2. Exceptions of Rule 606(b)

8.1.2.1. A juror can testify about irrelevant detrimental information given to the jury to consider

8.1.2.2. Jurors were influenced by information outside the courtroom

8.1.2.3. A mistake was made on the verdict form

8.1.3. Note: Rule 606(b) comes into play AFTER the jury reaches a verdict

8.2. SCOTUS has ruled that in a criminal law case, in which the defendant is found guilty, the 6th Amendment overrides Rule 606 (b) when the juror's statement indicates acting out of racial stereotype or hostility/motivation (Peña-Rodriguez)

8.3. In the Courtroom

8.3.1. Extraneous Information and Outside Influences

8.3.1.1. Whether a juror's testimony relates to an internal matter of deliberation (barred) or external influences (permitted)

8.3.1.1.1. Tanner: influence is external only if it comes from outside the jury room

8.3.2. Testimony by Non-Jurors

8.3.2.1. Rule 606(b) only restricts the competence of jurors to offer evidence about their decision making

8.3.3. Mental Processes of Jurors

8.3.3.1. Rule 606(b) precludes a juror from testifying about her thoughts and feelings, including what she would have decided

8.3.3.2. Lloyd: the judge may only ask if the external information created substantial prejudice, not if it affected the juror individually