Basic Evidence and Trial Procedure

1. Basic Evidence and Trial Procedure

2. Opening Statement • Preview the evidence • “The evidence will show” • Introduce theme • Briefly describe the issues, factual contentions

3. Relevance • Rule 401: • “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.

4. Relevance • Rule 402 • All relevant evidence is admissible, EXCEPT as otherwise provided in 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.

5. Relevance • Rule 403 • 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.

6. Foundation • The word “foundation” is applicable in various contexts to describe prerequisites for the admission of evidence. • Generally, to show that evidence is admissible, counsel must first lay a foundation

7. Foundation—Common Examples • Personal Knowledge • A fact witness must have personal knowledge as to any matter to which she testifies. (Rule 602)

8. Foundation—Common Examples • Authenticity • Real exhibits and other physical evidence must be authentic; • Rule 901: the requirement of authentication, or identification, is satisfied by “evidence sufficient to support a finding that the matter in question is what is proponent claims”

9. Foundation—Common Examples • Hearsay Exceptions and Exclusions • Establishing the requirements necessary for applicability of hearsay exceptions

10. Foundation—Common Examples • Privileged Information • Circumstances giving rise to the privilege

11. Hearsay • Out-of-court statement offered to prove the truth of the matter asserted

12. Rule 801. Definitions • Rule 801(a) • A statement is • (1) an oral or written assertion OR • (2) nonverbal conduct of a person if it is intended by the person as an assertion • Rule 801(b) • A “declarant” is a person who makes a statement. • Rule 801(c) • “Hearsay” is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted

13. Hearsay Exceptions • Myriad of Hearsay Exceptions • Roughly 30

14. Common Hearsay Exceptions • Availability of Declarant Irrelevant • Party Opponent Admissions--FRE 801(d)(2) • Prior Inconsistent statements--FRE 801 (d)(1)) • Regularly Kept Records—FRE 803(6),(7) • Present Sense impression--FRE 803(1) • Then-existing mental, emotional, or physical condition--FRE 803(3) • Excited Utterances--FRE 803(2) • Recorded Recollection--FRE 803(5) • Reputation—FRE 803(19), (20), and (21)

15. Common Hearsay Exceptions • Unavailability Required (FRE 804—describes what unavailable means) • Former Testimony--FRE 804((b)(1) • Statement Against Interest—FRE 804(b)(3)

16. Directing Witnesses • Generally, witnesses on direct are friendly and want to be helpful • Basic opportunity to make your case • Emphasize your theme • Select and emphasize favorable points • Refute opposing side’s theory

17. Directing Witnesses • Generally cannot ask leading questions on direct (FRE 611) • A leading question is one that suggests the answer (“The light was green, wasn’t it”?) • Ask “Who,” “What,” “When,” “Where,” “Why,” “How?” questions • How were you dressed? • What were the lighting conditions?

18. Common Objections to Direct • Leading • Calls for narrative • Assumes facts not in evidence • Counsel “testifying” • Asked and answered • Calls for speculation (“If he had provided the material, what would you have done?”)

19. Cross Examining Witnesses • Limited to • Subjects covered during direct • Matters affecting the witness’ credibility • Such as bias or motive to lie • FRE 611 • Should ask leading questions on cross (FRE 611 permits leading questions)

20. Cross Examining Witnesses • Impeachment with prior inconsistent statement (like deposition) • Ask witness about the point (“The light was green, wasn’t it?”); if witness lies . . . • Ask the witness if she recalls giving prior testimony (“You recall giving your deposition, under oath, in my office, don’t you”?) • Read prior statement, citing the page number for opposing counsel. • Ask witness to admit making statement.

21. Cross Examining Witnesses • If witness admits, impeachment complete • If witness denies, show her the statement to get him to agree • If she still denies, ask to have deposition introduced into evidence (authenticity should be stipulated to)

22. Common Objections to Cross-Examination • Outside the scope of direct examination • Argumentative • “Testifying” by counsel • Compound question • Assumes facts not in evidence or misleading—asking a question based on a premise that has not been established • Asked and Answered • Calls for Speculation

23. Moving “Real Exhibits” Into Evidence • Foundation requirement: A showing sufficient to support a finding that the document is what the proponent claims it is (FRE 901(a)) • E.g., “This is the letter that I sent Mary on September 23, 2005”

24. Moving “Real Exhibits” Into Evidence • Mark the Exhibit • Usually pre-marked • Just say for the record: “This document has been marked, for identification purposes, as Plaintiff’s Exhibit 1” • Show to opposing counsel (if he does not have copy already) • Ask permission to approach witness

25. Moving “Real Exhibits” Into Evidence • Ask witness to identify the exhibit • Might say: “Can you tell us what this exhibit is?” • This is where foundation is laid • Offer the exhibit • Might say: I offer the exhibit as Plaintiff’s Exhibit 1” • Court ordinarily asks if there’s an objection • If opposing side does not think that proper foundation was laid, can object before it is admitted and cross-examine the witness on foundation • May want to object for some other reasons—relevance, hearsay, etc.

26. Using Demonstrative Exhibits • Federal rules don’t deal with these (usually admitted if accurate and relevant) • Foundation: the exhibit is a reasonably accurate depiction • Must help the trier of fact understand the relevant facts • Examples: Models, maps, diagrams, charts • Technically not admitted because they are not evidence—used for illustrative purposes

27. Using Demonstrative Exhibits • Mark the exhibit • Show it to opposing counsel • Ask permission to approach witness • Ask witness if exhibit is accurate depiction • Might say: “How does this scene compare to the scene that you observed at Washington & Nelson?” Witness: “It looks like the same.” • Offer the exhibit • “Your honor, I would like to offer this as an accurate illustration of the scene at Washington & Nelson” • Use the exhibit

28. Closing Argument • Argue • Reinforce Theme