EVIDENCE

1. EVIDENCE CLASS ONE – AUG. 22 PRATER CHAPTERS 1-3

2. Check emails • Assignments/hypos/announcements sent over class email list – assignment by Thurs of week before class • If not getting emails– not enrolled – see registrar • Get email address of 2 classmates – go to them if you need copies of emails or class notes

3. Prater textbook • Prater text – puts rules in context of different cases; won’t read all cases; sometimes will only read notes • When reading cases: • 1. identify the contested evidence • 2. articulate arguments for/against admissibility • 3. who wins & articulate reasoning

4. Goode & Wellborn • Read rules and headnotes each time a rule is assigned • Keep this book for your litigation course (and maybe for practice)

5. Hypo problems • Do the reading and then do the problems – make sure you don’t just answer the problems but are able to explain your answer • KEY TO THIS CLASS – THE WORD “BECAUSE” (E.G. - the court should over-rule the objection BECAUSE . . . (apply facts to the legal rule)

6. WORKLOAD • 4 HOUR CLASS • MUST STUDY ALL THE RULES • HEAVY WORKLOAD (EXPECT 3-4 HOURS PREP/WEEK)

7. QUESTIONS • QUESTIONS FROM SYLLABUS OR ABOUT CLASS?

8. Today’s class • Brief overview lecture • Objections to form of question/logistics of objections • Different than other courses – today mainly will use the cases as background – if you read the cases you should be able to answer my questions. Other classes, we will go over the cases in slightly more detail than today.

9. ROLE OF JUDGE, JURY, ATTORNEY • JUDGE = GATEKEEPER • JURY = VALUES EVIDENCE (HOW MUCH WEIGHT TO GIVE IT) • ATTORNEY = PRESENTS/OBJECTS TO EVIDENCE

10. GENERAL KINDS OF EVIDENCE • SPOKEN TESTIMONY

11. Other forms of evidence • Written documents (contracts, order forms, emails)

12. Forms of evidence • Real evidence (actual tangible objects having something to do with the case – e.g. the cocaine, the gun, or the bloody shirt with a bullet hole)

13. Forms of evidence • Demonstrative evidence (pictures, diagrams, charts, maps, sketches, a plastic replica of a body part – things used to demonstrate/illustrate a witness’ testimony)

14. ADMIT/EXCLUDE • EVIDENTIARY ISSUES ARISE WHEN ONE SIDE WANTS TO ADMIT THE EVIDENCE AND THE OTHER WANTS TO EXCLUDE IT • HOW THE JUDGE RULES ON CONTESTED ISSUES OFTEN DEPENDS UPON THE ANSWER TO 3 KEY QUESTIONS

15. INITIAL QUESTIONS • What is the Evidence being offered to prove? • Who is offering it? • What form is it in?

16. AFTER ANSWERING 3 KEY QUESTIONS • AFTER ANSWERING 3 KEY QUESTIONS – JUDGE MUST DO THE BARPH TEST • THAT’S RIGHT – WHEN YOU THINK EVIDENCE – THINK BARPH

17. When you think evidence, think BARPH • Best Evidence – FRE 1,000 et seq • Authentication – FRE 900 et seq • Relevance* – FRE 400s, 600s, 701- 704 • Privilege – State law • Hearsay – FRE 800 et seq • *encompasses rules which may exclude relevant evidence for policy reasons

18. Key terms • Civil case – plaintiff & defendant • Criminal case – state (D.A. or prosecutor) And defendant Objection over-ruled means the evid comes in Objection sustained means the evid stays out

19. U.S. v. Reaves (page 1) • The main point of this case is . . .

20. Practice pointers • Have a checklist of all elements of your claim/defense and all evidence you must get in to establish that element (don’t rest until it’s admitted b/c otherwise . . . .) • The best place to find a checklist of elements is pattern jury instructions.

21. Objections • Two types • 1. objections to form of the question (the way the question is phrased); see generally Rule 611 (Goode & Wellborn p. 191-92; Prater text pp. 7-9) • 2. substantive objections (see generally weeks 2-14 of this class)

22. Practice pointer • Listen for: • A. Assume facts not in evidence • B. Mis-state evidence • WHY are these very important objections to make?

23. Straub case – p. 9 • Which of these is leading? • A. Is the Straub case about leading questions? • B. What would you say the Straub case is mainly about? • C. The Straub case is about leading questions isn’t it?

24. A leading question suggests the answer • Often a matter of tone and context rather than words

25. General rule about leading questions on direct examination • what is direct examination? • What is the general rule about leading questions on direct examination? • Why do we have that general rule (what’s the policy underlying the rule)? • Is it likely a case will be over-turned because an attorney asks a few improper leading questions? • Why was Straub over-turned?

26. Objection, leading the witness

27. Practice pointer • Do you want to constantly object? • What can you do if the opposing party keeps making the same evidentiary error? • Make a continuing objection

28. Exceptions to general rule about leading on direct • Car wreck case. Plaintiff puts on her first witness and asks: “Isn’t it true that your name is Mary Jones?” “Isn’t it also true that you are married and have two children?” Objection: leading questions Ruling ???

29. You can lead on preliminary matters • Why?

30. Hypo 2 – leading • Civil car wreck suit; plaintiff has an 8 year old son; plaintiff’s attorney wants the son to testify about how the plaintiff’s brain injuries have effected the family. • Q: “What changes have you seen in your father since the wreck?” • Q: “ Could you describe how your dad is different since the wreck?”

31. After a few more questions like those in the last slide . . . • Q: “Your daddy can’t play with you like he used to, isn’t that right?” • Objection: Leading

32. You can lead a child or lead when the witness’ memory is exhausted • Why can you lead a child witness or one whose memory is exhausted?

33. Plaintiff calls the defendant to the stand • “Ms. Defendant, isn’t it true that you knew you had hit someone when you felt the big thud against your car bumper?” • Objection – leading • What response and why?

34. Other exceptions • Hostile witnesses (exhibits clear bias in answering questions) • Witnesses identified with opposing party (e.g. corporate officer if sue corporation, wife if sue husband, etc) • Why do we have these exceptions

35. U.S. v. McKenna • What is the general rule about leading on cross examination? • Why do we have that rule • What was the issue in Mckenna? • What was the ruling/reasoning? • What big tactical mistake did the attorney make?

36. In federal court (not in GA state court) • Cross examination is limited to the scope of the direct examination and matters of credibility • Scope of direct in most jurisdictions includes all inferences/implications regarding matters testified to on direct; a few jurisdictions only allow cross on exactly what was testified to on direct

37. Procedure for objection • Q: What did John tell you the defendant said • What should you do if you want to object to this?

38. Objection procedure • Stand up and state the reason you object

39. Thorny issue • What if your argument about admissibility involves the evidence itself (e.g. the issue is whether the bloody pictures are too prejudicial – the judge needs to see the pictures to decide; how should you handle that one?)

40. Do NOT • Prosecutor: Q: “What did John tell you the defendant said?” • Defense lawyer: OBJECTION, that’s hearsay. • Prosecutor (in front of the jury) “Judge the fact that the witness is going to say he heard the defendant say he killed Mrs. Smith isn’t hearsay because . . .”

41. Objections to the form of the question • Casebook practice problems p. 21

42. Motions in limine • Before trial, make objections via motion in limine; usually made in writing and accompanied by a short (2-3 page) brief • Why would you make a motion in limine • What are the two ways a judge can handle a motion in limine – definitive ruling or can say wait and see

43. hypos • In a car wreck case, the defendant makes a motion in limine (MIL) to keep out his reckless driving convictions in other instances on the grounds that they are unduly prejudicial and have low probative value. The judge denies the MIL and says the evidence comes in. At the point the evidence is introduced, does the defendant have to renew his objection?

44. Need definitive ruling • If the ruling on the motion in limine was definitive, no need to renew the objection UNLESS the court changes its mind later, or the opposing party ignores the ruling and the contested evidence is offered and admitted.

45. Hypo #2 • What if the judge says, “I am not ruling now b/c I want to see how the evidence plays out and the context in which the evidence will be introduced.” • Now, plaintiff wants to introduce the evidence during trial– can she just do it? • If she does it, must the defendant object?

46. Hypo #3 • What if – the court rules the reckless driving convictions are inadmissible but the cop, in testifying for the plaintiff, says “I questioned this defendant immediately because I knew him and he’d had a mess of reckless driving convictions before this wreck”. • What should the defendant do?

47. Practice pointer • Prep your witnesses about MIL Rulings!!!!

48. The defendant’s dilemna • Luce • Ohler

49. Luce • In a criminal case, the defendant moves, in limine, to exclude prior convictions (e.g. it’s a bank robbery case and he wants to exclude convictions for armed assault b/c of their prejudicial impact on the jury; the prosecutor wants them in to impeach the defendant); the judge rules the convictions are admissible if the defendant testifies (they won’t come in unless the defendant testifies). The defense believes this ruling is erroneous. The defendant’s objection has been over-ruled. Now what must the defendant decide?

50. Luce • Defendant must decide if he will testify – if he doesn’t testify – may he appeal the court’s ruling? no • If he does testify, what’s the risk? • Why would the Supreme Court rule that he loses his right to appeal if he doesn’t testify? (p. 30)