§ 1 - Evidence & the Trial Process

Question 1

“evidence”

Answer 1

refers to witness testimony and exhibits formally admitted as proof

Question 2

“testimony”

Answer 2

sworn oral statements at trial / made it court

Question 3

“exhibits”

Answer 3

another source of evidence; by convention they are either demonstrative or real evidence.

Question 4

when can error on appeal not be claimed?

Answer 4

when a lawyer fails to timely object to evidence at trial

Question 5

What is the standard of review for evidentiary issues on appeal?

Answer 5

the rules application is subject to an abuse of discretion standard. that’s why trial is so important. even if appellate court feels it could have ruled differently, so long as judge did not abuse discretion? OK. and even if they did… often a harmless error.

Question 6

Rule 107

Answer 6

a rule that becomes effective 01-Dec-2024 regarding illustrative evidence

Question 7

“admitted into evidence”

Answer 7

the jury gets to see it / hear it

Question 8

Can inadmissible evidence be ever disclosed to a jury?

Answer 8

If it’s fed to an expert witness, they can base their expert opinion on inadmissible evidence through rule 703

Question 9

When a witness is on the stand?

Answer 9

It’s a closed book exam.

Question 10

Summary judgment proceedings?

Answer 10

the name of the game in civil litigation… in effect a “paper” trial. only appropriate where no issues of material fact exist.

Question 11

“Credibility” & its stages?

Answer 11

undefined by FRE, but goes to how much weight a jury will give a Ws testimony.
Viewed in three stages
1) Bolstering
2) Impeachment
3) rehabilitation

Question 12

Impeachment?

Answer 12

Attack the witness’ bias, untruthful character, sensory or mental defect, prior inconsistent statements, and specific contradictions

Question 13

Substitutes to evidence

Answer 13

1) Judicial Notice FRE 201
2) Stipulation by parties

Question 14

“Jury knowledge”

Answer 14

the “things” jurors know from their own life experience. evidence law is unconcerned. this is addressed through voir dire.

Question 15

Jury trial phases

Answer 15

Jury selection
Opening statements (what we hope to prove)
Evidentiary Phase:
- π’s case in chief
- ∆’s case in chief
- rebuttal π then ∆
- surrebuttal (rare)
Closing arguments
Jury Instructions
Deliberations & verdict

Question 16

When do formal presentations of proof occur?

Answer 16

During the trials evidentiary phase.

Question 17

Admissibility of the evidence?

Answer 17

Always a question for the trial judge under rule 104

Question 18

104(a)

Answer 18

the JUDGE decides all issues of law and fact by a preponderance of the evidence standard. the judge may rely on inadmissible evidence (if you gotta break out the ol’ rules of evidence book, its a 104(a) issue) this is the success in the class rule.

Question 19

104(b)

Answer 19

the judge and jury “share” responsibility for admitting evidence. judge is essentially deciding whether a Reasonable jury could find the fact by a preponderance of the admissible evidence standard. this is the success at trial rule.

Question 20

When is 104 invoked?

Answer 20

When there is an objection, or sua sponte by the court

Question 21

What is jury selection really about?

Answer 21

Getting rid of bad jurors.

Question 22

Which phase of trial is influenced by the FRE

Answer 22

all of them.

Question 23

What is the goal of the opening statement?

Answer 23

outline the case. what are the issues? what do you want? and unless there’s been a pretrial motion “we’re gonna show (hopefully) some evidence…”

Question 24

What happens when an objection is overruled?

Answer 24

The evidence is IN.

Question 25

What happens when an objection is made?

Answer 25

A judge must rule under 104(a) or 104(b). if the objection is sustained under either, the evidence is BLOCKED

Question 26

What does rule 611 do?

Answer 26

It allows the trial judge to control the flow of evidence… but they will usually just let the attorneys duke it out.

Question 27

Can a judge compel a party to call witnesses?

Answer 27

No, rule 614 only allows attorneys to ask the court to call a witness, the judge can say no.

Question 28

Can a judge step in to question a witness? When may they do this?

Answer 28

Yes, rule 614 allows a judge to step in and question a witness, but they must remain unbiased.

Question 29

May jurors ask questions?

Answer 29

FRE is silent as to this question. However, some federal district court judges may within their discretion allow jurors to ask questions provided certain safeguards to avoid an unfair trial, etc.

Wisconsin, on the other hand, provides a specific rule that allows this exact type of thing: Wis. Stat. § 906.14(2). and theres a process: (1) Jurors must submit their questions in writing. (2) The judge reviews the questions for relevance and admissibility with input from the attorneys. (3) If approved, the judge or attorneys pose the question to the witness.

Question 30

Stipulations

Answer 30

voluntary agreements to accept facts. lawyers often agree on undisputed facts to save time and money. judge will instruct the jury that these facts are to be accepted as true.

Question 31

Judicial notice?

Answer 31

governed by 201 and comes from two sources: (1) facts generally known within the court’s jurisdiction (2) a repository of knowledge that is trustworthy ie, “facts capable of accurate and ready determination by resort to sources whose accuracy cannot be reasonably questioned.”

Question 32

Testifying as to our birthday?

Answer 32

hearsay… but there’s an exception! could do under 803(19) or perhaps 803(23)

Question 33

Disagreement as to math question?

Answer 33

stipulate. request judicial notice. or leave it to the jury.

Question 34

on appeal…

Answer 34

103 controls: errors involving evidence rule must effect a “substantial right” of the party and meet either of the following: (1) for admitted evidence gotta object timely or motion to strike, gotta be on the record, gotta state what ground (2) for excluded evidence, gotta have made a proper offer of proof that informed the court of substance of the evidence and theory of admissibility

Question 35

103 absent proper objection or offer of proof?

Answer 35

recourse on appeal is limited to plain error. fat chance. 103(e)

Question 36

“Waiver”

Answer 36

When a lawyer knowingly, intelligently, and voluntarily chooses not to object to an issue, even though they see it.

Question 37

“Forfeiture”

Answer 37

When a lawyer misses an opportunity to object. From which there is no appeal, as plain error is exceedingly rare.

Question 38

Why is the appellate process deprived of meaningful change?

Answer 38

because often even if there was an abuse of discretion it is likely to be called a “harmless error.”

Question 39

Luce v. United States (1984) and Ohler v. United States (2000)

Answer 39

Luce: ∆ does NOT testify > forfeits the right to appeal an in limine ruling about impeachment evidence. (This was decided before the clear distinction between forfeiture waiver).

Ohler: ∆ DOES testify > waived objection to the in limine ruling because she effectively controlled how the evidence was introduced. “lean into the punch”

Question 40

authentication

Answer 40

governed by rules 901 and 902, in wisconsin public knowledge can serve as authentication, and 602 goes to weight and credibility. “Who’s telling the truth?”

is the matter what the proponent purports it to be?

Question 41

What are the three standards of proof?

Answer 41

(1) preponderance of the evidence, (2) clear and convincing proof, and (3) beyond a reasonable doubt.

Question 42

What is the order of examining each witness?

Answer 42

D.x (by the party that calls the witness)
C.x (by opposing party)
ReD.x
ReC.x
Re-reD.x, etc

Question 43

What is the function of Direct Examination?

Answer 43

Establish the Factual Narrative, Elicit Admissible Evidence,
Bolster/Impeach Witness Credibility, Lay Foundations, and Humanize the Witness.

This is guided by three objectives: (1) ascertaining the truth, (2) avoiding wasting time, and (3) protecting witnesses from harassment and undue embarrassment.

Leading questions are heavily limited on Direct. So open ended questions are preferred.

Question 44

What is the function of Cross examination?

Answer 44

The scope of cross examination may vary. Rule 611 restricts C.x to (1) anything raised on D.x and (2) the credibility of the witness. Leading questions permitted, to “lay a foundation.”

Wis. Stat. § 906.11 allows anything relevant on cross.

Question 45

When are attorneys entitled to ask leading questions on direct?

Answer 45

To direct a witnesses attention to a different subject; to refresh a witness’ memory on an innocuous point; to lay a foundation for an exhibit or opinion.

Question 46

Go through the protocol for handling of an exhibit

Answer 46

Step 1: proponent marks the exhibit. this can be done by court reporter, clerk, or even judge. tho lawyers may often do it themselves.

Step 2: proponent makes the record. say “let the record reflect that exhibit 5 for identification consists of a photo image.”

Step 3: proponent shows ‘exhibit 5 for identification’ to opposing counsel making note for the record. say “let the R. reflect i’ve shown ex. 5 for id to opposing counsel.”

Step 4: proponent asks the judge if she would like to see the exhibit. also make verbal note for the record.

Step 5: proponent asks permission to approach the witness. always ask.

Step 6: Proponent hands to witness and make verbal note for record, asking them to review it silently to themself.

Step 7: proponent lays the foundation to answer any foreseen evidentiary issues

Step 8: proponent may move into evidence. making verbal note for the record.

Step 9: Judge will ask opposing counsel if there are any objections. If yes 104 is invoked.

Step 10: If exhibit is received into evidence it is published to the jury at that time or later as determined by judge.

Question 47

When to object to a bad question?

Answer 47

BEFORE the answer is given. IMMEDIATELY. no sandbagging.

Question 48

“Timely” objection

Answer 48

if motion to strike? right then.
if motion to suppress? before trial.
if depo? during depo.
Connecting up? if never closed.

Question 49

When is irrelevant evidence admissible?

Answer 49

Never. 402. When irrelevant evidence is objected to on that grounds the other party must show relevance.

judge may (unlikely) bar the evidence sua sponte 611 adversarial system.

Question 50

What rules significantly control 104(a)?

Answer 50

401, 402, and 403. “Does the probative value substantially outweigh its prejudicial nature?”

also “all of them” 104(a) is the rules rule.

Question 51

“Foundation”

Answer 51

testimony needed to overcome an objection or forestall objection in the first place. eg, excited utterance? lay foundation that the witness was under stress.

Question 52

what are some objections? what is Blinka’s favorite objection?

Answer 52

leading, compound, calls for narrative, calls for speculation, asked and answered, assumes a fact not in evidence, non-responsive, argumentative, hearsay, irrelevant.

waste of time

Question 53

Authentication issues are those of…

Answer 53

conditional relevancy and therefore fall into 104(b) determinations for the Judge.

Question 54

“Admissible”

Answer 54

Undefined by the rules of evidence. By convention, “Admissible evidence” may be used for any “relevant” purpose. 401

Question 55

What is an “illustrative aid”

Answer 55

Not evidence. 107. It’s just to help the jury understand the admissible evidence. the courtroom is the toy box.

Question 56

Limited admissibility?

Answer 56

An incomprehensible idea that a jury can use evidence for one purpose but not another.

When in doubt, object. Why? b/c if the evidence is usable for inference 1 but not for inference 2, when it’s in evidence it can by used by the jury for any and all purposes. so get it out on inference 1. conversely if you want it in, know for what inference it is permissible. never object on irrelevance alone, invoke 403!

Question 57

Limiting Jury Instruction?

Answer 57

a fiction.