“The Rules of Evidence in a Court Trial”

1. “The Rules of Evidence in a Court Trial” Mr. Kitchens February 10, 2005

3. General types of evidence • Direct evidence • Circumstantial evidence • (If it looks like a duck, walks like a duck,…) • Testimonial evidence • Physical evidence

4. Remember: what the attorneys say is NOT evidence... • When this attorney gave her opening statement in the dog-mauling case (Calif. v. Knoller), she got on the floor like a dog • The verdict: 2nd degree murder….

5. Making an objection to the introduction of evidence or a question • Make as soon as possible, before question can be answered • “Your honor, I object. The question [is...] OR • “Objection, your honor. The question calls for.… OR • “Objection, your honor. The answer is ...

6. Leading questions • Suggests an answer • Not allowed on “direct examination” except to establish an unimportant foundation • However, allowed on “cross examination”

7. The First test: Is the information RELEVANT? • Probative vs. prejudicial analysis • Probative: the evidence has the ability to help prove or disprove a point at issue • Ito: NS’s 911 call to police “He’s going to kill me!” was more probative than prejudicial so it was allowed in • Prejudicial: it has an undue tendency to suggest decision on an improper basis • Ito: Photos of bloody victims with throats cut ear to ear was more prejudicial than probative so not allowed in

8. Lack of personal knowledge • Calls for an impermissible opinion and/or speculation on the part of the witness • Permissible opinion: • Impermissible opinion: • Role of an “expert witness”: can give opinion, even if lacking in personal knowledge

9. Lacks a foundation • You cannot testify to something that assumes facts not in evidence • “Objection, your honor. There is a lack of foundation.” • Example:

10. Inadmissible character evidence • “He’s a good guy.” [not allowed] • “He’s got a reputation for being a good guy among the members of the community.”[allowed to be stated] • Evidence of habit or custom generally allowed • OK if to show motive, intent, opportunity

11. Cross Examination • Cross-examination of nanny called 'minefield' for prosecution (The Nanny Case, 1997) • You can LEAD on corss-examination • http://www.cnn.com/US/9710/26/nanny.trial/ • http://www.usdoj.gov/usao/eousa/kidspage/cross.html for sample

12. Hearsay • “Out of court statement, by a non-party to the case, that attempts to prove the truth of the matter asserted.” It is NOT ALLOWED into evidence in court! • What is the underlying theory of the hearsay rule?

13. Exceptions to hearsay rule • party to the case or party-opponent • excited utterance • shows defendant’s mental, emotional or physical condition • declaration against civil or criminal interest • recorded recollections: official records, records made during regular course of business, public records, • unavailable to testify: dying declaration, former testimony • about 15 others

14. Some other common objections • Compound question • Narrative (“Your honor, the question calls for a narrative,” or “Your honor, the witness is narrating.”) • Argumentative question • Asked and answered • Non-responsive answer by witness • Calls for facts not in the record [mock trial only]

15. What to do if the evidence somehow gets spoken & it should not have been heard • “Your honor, we ask that the answer be struck and the jury be told to disregard the answer.” OR “Your honor, we ask that the answer be stricken from the record.” [Motion to strike] • But it is like ink dropped in a glass of milk, then shaken….

16. Privileges: who can not be forced to testify • Attorney-client privilege • Doctor-patient/ psychiatrist-patient privilege • Husband-Wife privilege • exception: spousal and child abuse • Clergy privilege

17. Hypos for class discussion • 1. John is on trial for auto theft. As an alibi, John testifies, “Dana told me that Kern had stolen that car for a joy ride. She never touched it." • 2. Trial for arson. A witness for the defense testifies that the defendant was with her on the night of the fire. The prosecutor asks, "Isn't it true that you used crack cocaine when you were in high school three years ago?” • 3. Ms. Black, an English teacher who knew the defendant, Ryan, since high school, testifies for the prosecution that “Ryan has deep psychological problems.”

18. More hypos for class discussion • 4. On direct examination, the defense attorney asks, "You could hear the noise from the apartment very clearly, couldn't you?” • 5. The witness, a waitress, testifies “The bartender mentioned to me that [the defendant] ordered five shots of whiskey on the night of the crime.” • 6. Police officer Ladviotis testifies that when he entered the victim's apartment, “I saw the defendant trying to climb out a window.” • 7. Lindsay has never seen Ms. Cota with her son. Can Lindsay testify “Ms. Cota is a horrible mother”?

19. Even more hypos • 8. Trial for embezzlement. (Embezzlement is misusing or using inappropriately---perhaps even taking and using for your own---money to which you have been entrusted.) The defense introduces a diploma to show that the defendant graduated from high school. • 9. The prosecutor asks the witness for the defense, with raised voice and tone, "Why are you covering up for David? Isn't it true that you are an obnoxious scum whose opinion no one takes seriously anyway? Right? Answer the question!”

20. Yup, even more hypos... • 10. The prosecution calls a witness to testify that the defendant had shoplifted for years before being arrested for grand theft (felony theft). • 11. Divorce case: The defense attorney attempts to introduce evidence that the plaintiff, who is a contractor, broke a contract with some employees last month. • 12. You go talk to Ms. Streets about life in general. At your parent’s trial for child abuse (you are the victim), Ms. Streets is called to testify as to what you told her.

21. Welcome to the trial Phil's car and Don's car collided in the intersection of Magnolia and Highland Avenues. Phil sued Don for his injuries and for damage to his car. Phil alleged that Don went through the stop sign at Magnolia and Highland. In the jury trial of Phil's suit against Don, Phil called Officer Jones as his witness. The following questions were asked and answers given: Q: Could you please tell us your name. A: Jo Jones. Q: Your business? A: Police Officer.

22. The trial transcript continues Q: You've been assigned to the traffic division of the Piedmont police for sixteen years? A: Yes. Q: Did you go to the intersection of Highland and Magnolia avenues on July 1, 2000? A: Yes. Q: What did you see? A: A red car and a blue car in the intersection. Q: Describe the condition of the cars. A: The front of the blue car was smashed up against the driver's side of the red car.

23. The trial transcript continues... Q: Were there any witnesses to the accident outside of the parties themselves? A: Someone told me that a Mr. Cowherd witnessed the crash and that he could be reached at the branch post office. Q: Were any other persons present? A: Yes, Phil and Don, the drivers of the red car and blue car, respectively. Q: Did you hear them say anything?

24. The trial transcript continues... A: Yes. Don said to Phil, “I'm sorry I blew the stop sign. Let me pay your hospital bills.” Q: Did you observe Phil at that time? A: Yes. He had a concussion, a bloody nose and a cut lip. Q: What did you do next? A: I checked out the cars and made some measurements, using my tape measure. Q: Based on what you heard and what you did, what did you think occurred?

25. Are you hanging on each answer? A: Don ran the stop sign and plowed into Phil. Q: What did you next do at the scene? A: I issued a ticket to Don for failing to obey the stop sign. Q: By the way, did you know what happened to that ticket? A: Yes. Don was found guilty and his license was suspended for six months

26. If only Martha Stewart had this kind of help she might have gotten off! Cross examination by Don’s attorney: Q: Didn’t you make a police report about this incident? A: Yes? Q: Isn’t this the report? [Tendering document]

27. It’s almost over... Q: In your report where you refer to Don's statement, all you have written is, “Don said, 'Let me pay your medical expenses.’ ” Isn't that correct? A: Yes. That's all that's there.

28. The final question... Q: Isn't it true that you have received four departmental reprimands for using excessive force? A: Yes.