Evidence on Trial: Effectively Using the Rules of Evidence

Evidence on Trial: Effectively Using the Rules of Evidence • Ray Brown and Larry J. Cohen • Alaska Bar Association • Anchorage, Alaska • March 2, 2004

Program Goals • Leave with practically useful framework for working with the rules of evidence • The rules are our friends! • Impression is that lawyers generally aware of the rule but lack working familiarity that affords opportunity to take advantage of them

Program Content • Evidence Principles Generally • Objections in Practice • Evidence Rules Analysis

Program Level • Beginning to Intermediate Level Program • Focus on Practical Aspects of Evidence Practice • Provide as Many Practice Tips as Can in the Time Available

Presentation Format • Some Lecture • Lots of Illustrations • Invite your participation • Lots of Discussion • Starts with You

What are we Talking About Here? • Evidence • Materials from which inferences may be drawn as the basis for proving the truth or falsity of a fact in dispute • Types of Evidence • Direct – proves a proposition directly, in one step and without inference • Circumstantial – proves a proposition through an inference based one or more pieces of information

Forms of Evidence • Testimonial • Oral testimony under oath in court • Hearsay when admitted • Tangible • Real – the real thing at issue in case • Murder weapon; contract • Demonstrative -visual or audio aide to help the fact finder understand other form of evidence • Model, chart, diagram • Testimonial-Tangible • Hybrid of the Two • Deposition transcript

The Rules of Evidence – All of Them! • 100 Series: Court Rules • 200 Series: Judicial Notice • 300 Series: Presumptions • 400 Series: Relevancy • 500 Series: Privileges • 600 Series: Witnesses • 700 Series: Opinions • 800 Series: Hearsay • 900 Series: Authentication and Identification • 1000 Series: Writings, Recordings, Photographs • 1100 Series: Miscellaneous

Preliminary Observations about Rules of Evidence • Focus on the principles or reasoning underlying the rules • Look beyond the letter of the rules • General purpose is to exclude that which is unreliable, untrustworthy, prejudicial, capable of misuse, or inefficient • Distinguish from privileges which deals with information though reliable and relevant is protected for policy reasons

Preliminary Observations (cont.) • Evidence should be evaluated at multiple levels • Just because meets one evidentiary hurdle does not mean it is admissible • Apply rules whenever there is an admissibility issue • At any point in proceeding • In any venue

Objections • Best Made Before Trial • Motion to Preclude Evidence • Pretrial Memorandum • Motions in Limine

Pretrial Motions • Take Advantage of Opportunity • Goals • Resolve Evidentiary Issues • Educate Judge as to Issue • Timing of Motion • Pre-Trial • Discovery • Motions in Limine • During Trial • Raise New • Reassert

Pretrial Motions (cont.) • Content • Item of Evidence in Issue • Authority • Prejudice • When Anticipate Will Come Up • Why Require Pre-Trial Ruling • Using Opponents Admissions at Trial • Relief Sought • Be Clear About Court’s Ruling • Do Not Waste Court’s Time • Remember Rule 1: Credibility

Factors to Consider in Deciding Whether to Object During Trial • Jurors Dislike Objections • Will the Answer Hurt Your Case • Sometimes Answer will Help Case • Does the Foundation Hurt Worse than the Answer • Does Your Objection Have a Solid Legal Basis • Do You Need to Protect the Record • Will the Objection Serve a Tactical Advantage

The Practice of Objecting During Trial • Timely • Make objection to question before answer given • Make objection to answer before next question • State “objection” and then reason • Reason given should state legal basis as simply as possible • Judges vary in how want attorney to object

Common Objections at Trial • Objections to form • Usually can be cured by rephrasing • Objections to substance • Capacity to cure depends on what facts are available to overcome objection • May be legal considerations that preclude cure

Categories of Objections • Objections to Questions • Objections to Answers • Objections to Exhibits • Evidentiary • Demonstrative

Common Mistakes Attorneys Make When Objecting • Delay in objecting until the answer is in • Fail to move to strike after answer in • Objects to question first time asked, but not subsequently • Failure to direct objection to the judge • Withdraw objection when there is an adverse ruling

Common Mistakes Attorneys Make When Objecting (cont.) • Argumentative or emotional when objecting • Allow emotionally laden terms in question • Does not object to irrelevant material • Argue with court after decision made

Objection Tips • Consider making general objection first • When objection sustained court’s ruling not disturbed so long as any basis for ruling • But do not hesitate to be specific if it appears that the judge is waiting for the specifics • Be specific to preserve when objection over-ruled and evidence admitted • When get specific include all possible bases

Objection Tips (cont.) • Be clear that you are making an objection • To the court • To the jury • Make objection intelligible to the juror • Do not lead the court into error

Objection Tips (cont.) • When on the receiving end, ask for the specific basis of a sustained general objection • Make your record • Rise when make objection • Seek continuing objections when can

When to Make Offer of Proof • Use Where Objection has Successfully Precluded Admission of Evidence • May convince the trial judge made a mistake • Create record for the reviewing court • See Rule 103

How to Make Offer of Proof • Always outside presence of jury • Interrupt trial • Ask court for opportunity during recess • Two Methods • Lawyer tells court what proposed evidence would be • Examination of witness • Be sure offer conforms to applicable rules of evidence • Where exhibit make part of the record

Other Times to Object • Jury Selection • Mentions insurance (411) • Discusses law • Other than to put question in context • Discusses facts • Other than to put question in context

Other Times to Object (cont.) • Opening Statement • Argues law or instructions • Argues inferences to be drawn from evidence • Mentions inadmissible evidence • Mentions facts that cannot be proven • Gives personal opinions

Other Times to Object (cont.) • Closing Argument • Misstates evidence • Misstates law • Including jury instructions • Gives personal opinion • Appeals to jury’s bias, prejudice, financial interest • Personal attack on opposition • Party or attorney • Prejudicial argument

Specific Objections #1 • Relevance – 400 series rules • Is it relevant? (401, 402) • If relevant, is it prejudicial (403) • Do character trait factors apply (404, 405) • Do other act considerations apply (404b) • Do habit rules apply (406) • Do policy exclusions apply (407-412) • Consider insisting on offer of proof before evidence presented to jury

Specific Objections #2 • Materiality – implicit in 400 series rules • Does evidence have a logical bearing on an issue in the case • Generally subsumed within the relevance objection

Specific Objection #3 • Incompetence – 600 series rules • Not presumed competency (601) • Has witness taken oath (603) • Does witness have first hand knowledge (602) • Can witness be understood (604) • Incompetent for policy reasons: judges, jurors (605, 606)

Specific Objections #4 • Privileged Communication (501) • Is there a privileged relationship • Has the privilege been waived • Expressly • Written • Oral • Implicitly • Issue in the case • By conduct • Disclosure to third party

Specific Objections #5 • Best Evidence Rule (1001) • Is it a writing, recording or photograph • Is there a genuine dispute over authenticity of original document • Where duplicate offered is there a genuine dispute as to whether true duplicate

Specific Objections #6 • Parol Evidence Rule • Is there extrinsic oral evidence • offered to modify or contradict a contractual instrument • that is complete and clear on its face • that was freely entered into by competent parties • Focus is on eliciting testimony to explain • What parties intended • What terms of contract mean to the parties

Specific Objections #6 (cont.) • Is there an Exception to Parol Evidence Rule • Mistake • Incompleteness • Ambiguity • Other uncertainties of the contract • Should insist on offer of proof to establish that an exception applies

Specific Objections #7 • Lack foundation • Does the witness have the necessary fund of information from which to offer the testimony • Is there sufficient factual information to establish that an exhibit is what it purports to be • Would it be better to leave foundation incomplete

Specific Objections #8 • No authentication (901, 902) • Has the witness established that the exhibit is what the proponent purports it to be • Not that business records exception applies only to hearsay problem • Is the exhibit self-authenticating

Specific Objections #9 • Hearsay (801-805) • Is the “statement” one made by the declarant outside of court (801) • Is the “statement” offered to prove the truth of the matter asserted (801) • Is the statement by definition “not hearsay” (801d) • Is there an applicable exception • Witness available (803) • Witness not available (804) • Is there hearsay within hearsay (805)

Specific Objections #10 • Leading (611c) • Does the question which suggests its own answer • Is the question simply preliminary or positional • Can the leading nature of the question be easily remedied • Is there any substantive significance to the leading nature of the question

Specific Objections #11 • Narrative (611a) • Does the question permit counsel the opportunity to make a timely objection • Applies to question and answer • Is the narrative productive or confusing

Specific Objections #12 • Lay Opinion (701) • Is the testimony an inference or an observation • Is the inference reasonably drawn from facts actually perceived • Is the inference helpful to the jury • In understanding the testimony • In deciding a fact in issue

Specific Objections #13 • Expert Opinions (702-705) • Is the person qualified as an expert (702) • Is the opinion based on scientific, technical or other specialized knowledge (702) • Is the opinion helpful to the jury (702) • In understanding the evidence • In determining a fact in issue

Specific Objections #13 (cont.) • Is the opinion based on facts (703) • Perceived by the expert • Made known to the expert • Are the facts relied on of a type reasonably relied on by those in field • Have the underlying facts been disclosed • May limit objecting party to cross examination

Specific Objections #14 • Repetitive (611a) • Has question previously been asked and answered • Is the cumulative nature of the testimony prejudicial • Does the cumulative nature of the testimony waste time • Even where question phrased differently does it call for an answer previously given • Note that there is no specific rule dealing with repetitive questions • Issue within scope of trial judge’s discretion

Specific Objections #15 • Assumes facts not in evidence • Does question presume fact that is not in evidence • Especially applicable to cross examination • May apply to direct examination where assumes witness has knowledge that is not in evidence

Specific Objections #16 • Misstates evidence or misquotes witness • Does question misstate substance of previously received evidence • Has attorney repeated this witness’ testimony inaccurately • Judge will often leave to the jury its recollection of the prior testimony

Specific Objections #17 • Confusing, Misleading, Ambiguous, Vague, Unintelligible • Is question sufficiently clear for witness to focus on the information solicited by the question

Specific Objections #18 • Speculative • Does question call on the witness to speculate or guess • But can the witness provide a reasonable estimate • Note that speculation often permitted with expert with respect to opinions offered or inferences drawn

Specific Objections #19 • Compound • Does the question elicit information about two different facts • Is the answer to the question likely to be unclear about the fact in issue • Risk that counsel will try to use answer applicable to part of the question to infer the entire question

Specific Objections #20 • Argumentative • Is the question arguing the fact to the jury • Does the question seek to elicit new information

Specific Objections #21 • Improper Characterization • Does the question ask the witness to characterize a fact • Does the question ask the witness to label a party or witness or event

Evidence on Trial: Effectively Using the Rules of Evidence