Evidence! Flashcards
Proponent
person offering the evidence
opponent
making the objection = excluding evidence
Rule 403: Exclusion of Relevant Evidence on Grounds of Prejudice, Confusion or Waste of Time
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.
“unfair prejudice”
an undue tendency to suggest decision on an improper basis, commonly, though not necessarily, an emotional one
demonstrative evidence
tangible evidence
documentary evidence
writings
Rule 611: Mode and Order of Interrogation and Presentation (what happens during direct and cross-examination of the witness)
(A) control by court: (1) make the interrogation and presentation effective for the ascertainment of the truth, (2) avoid needless consumption of time, and (3) protect witnesses from harassment or undue embarrassment - this rule does not foreclose efforts to discredit the witness
(B) scope of cross-examination: should be limited to the subject matter of the direct examination and matters affecting the credibility of the witness. The court may, in exercise of discretion, permit inquiry into additional matters as if on direct examination. (C) leading question: should not be used in direct examination - leading Q is the one that is suggestive of the answer ** except to develop witness testimony
IN DIRECT EXAMINATION
- bring out background info of witness 2. show witness has personal knowledge 3. ask substantive questions to get witness knowledge of the pertinent facts
IN CROSS EXAMINATION
opportunity to set limits on what the witness said in direct examination; to point out inconsistencies of the testimony; establish reasons why jury shouldn’t pay attention to this witness testimony; considered the most important part of the trial
Order of proof
- P presents his case-in-chief, then rests
- D presents case-in-chief, then rests
- P presents case in rebuttal
- D presents case in rebuttal
- each side presents further case in rebuttal
Order of Examination
- Direct by calling party
- Cross by adverse party
- redirect examination by the calling party
- re-cross by the adverse party
- further redirect and re-cross may be necessary
“Official Record”
- Pleadings
- Filed Documents
- The record of proceedings
- The exhibits
- Docket entries
Real Evidence
tangible things that are directly involved in the litigation; not required to be produced; their existence and nature can be established by testimony
*need to “authenticate” the evidence by: stipulation OR (sponsoring) witness testimony
Demonstrative Evidence (“Aid”)
maps, models, photos, computer-aided reconstruction; used for illustrative purposes; not admitted as evidence – just used to show aid
Rule 103: General Objections
- Timely
- Specific
- State Legal Grounds
The motion in limine “at the threshold”
- use this when preparing cases in advance, have to file before trial
- a party anticipates that particular evidence will be offered to which he will object( you want the evidence in) OR item of proof may meet objection by his adversary so he may want to get a ruling in advance (you want to exclude evidence)
Rule 103: “Definitive Ruling”
an objection need not be renewed at trial if the judge makes a “definitive ruling” on a pretrial motion but if the trial goes differently than anticipated then the judge may change the ruling
- if it was not a definitive ruling, you proceed to bring the evidence as if the motion in limine didn’t happen
Rule 103: Offer of Proof
a trial attorney who had a ruling excluding evidence (when proponent loses), attorney must make an offer of proof to preserve it for appeal
Rule 401: Relevant Evidence
evidence having a tendency to make the existence of any fact that is of consequence to the determination of the action more probably or less probable than it would be without the evidence
-avoids use of “materiality”
Two kinds of Relevance
- logical
2. pragmatic
Logical Relevance: 2 elements
- materiality
2. probative value
Logical Relevance: Materiality
a fact of consequence in the litigation: look at the pleadings and SUBSTANTIVE LAW to find if it is material
- evidence doesn’t necessarily have to prove the fact; may instead prove a link in chain - like a motive by inference, by proving intent
- relevancy of evidence depends on what fact we are trying to prove
Logical Relevance: Probative Value
tendency of evidence to make the existence of the fact more probable or less probable than it would be without the evidence
*doesn’t have to be “more probable, than not”—all you have to do is push it up the incline just a little and not all the way (minimal standard for evidence to have probative value)
direct evidence
– if accepted as genuine or believed to be true, necessarily establishes the point trying to be proven
circumstantial evidence
the conclusion does NOT necessarily follow from the underlying premises, though at least they support the evidence
Requirements:
1. have to believe witness AND
2. have to infer what witness is telling us
“alternative inferences” from evidence
goes to weight (emphasis) and not admissibility
Rule 104: Conditions of Relevancy
Conditional relevancy: both judge and jury have role in decision making – is there a fulfillment of the condition? (judge admits or not, then jury decides whether it is good or bad evidence)
simple relevancy
judge makes the decision
Rule 402: Relevant Evidence Generally Admissible; Irrelevant Evidence Inadmissible
All relevant evidence is admissible UNLESS there exists some other rule barring admissibility of that evidence (could come from Constitution, state statute, act of congress, etc.)
Is the evidence of “materiality” AND has “probative value”?
Rule 403 (revisited)
- legal relevancy bars admissibility of evidence (hearsay, character evidence of a certain kind) – applies across the board to all “different types” of evidence
- although relevant, evidence may be excluded if costs of probative admitted evidence outweighs benefits of the evidence, we must bar admissibility
- *we presume admissibility UNLESS costs SUBSTANTIALLY outweigh the benefits
Rule 403 (Equipoise)
if the scale is BALANCED then the evidence is admitted
Costs: Rule 403 - 6 dangers
- “unfair” prejudice
- confusion of the issues
- misleading the jury
- considerations of undue delay
- waste of time
- needless presentation of cumulative evidence
Pragmatic Relevance: FIX THIS MOTHERFUCKER IT AINT RIGHT
Prejudice
Confusion
state v. chapple
old chief 2
Rule 105: Limited Admissibility
When evidence is admissible as to one party or for one purpose but not admissible as to another party or another purpose is admitted, the court, upon request, shall restrict the evidence to its proper scope and instruct the jury accordingly
-limiting instructions will reduce unfair prejudice
Rule 106: Remainder of or Related Writings or Recorded Statements
When a writing or recorded statement or part thereof is introduced by a party, an ADVERSE party may require the introduction at the time of “any other part” or any other writing or recorded statement that “ought in fairness be considered to contemporaneously with it”
Rule 106 – rule of completeness
a party limits the evidence so much that it causes a distorted view of the other side; need to avoid the danger of misleading so we need to supply the context the right way
- this rule changes the order of evidence because it allows the other side to interject so that the jury can hear the entire piece of evidence the right way
Rule 104: Preliminary Questions
(a) questions of admissibility generally
preliminary questions concerning the qualification of a person to be a witness, the existence of a privilege, or the admissibility of evidence shall be determined by the Court (Judge), subject to the provisions of subdivision (b). In making its determination it is not bound by the rules of evidence except those with respect to privileges.
Rule 104: Preliminary Questions (b) Relevancy conditioned on fact
When the relevancy of evidence depends on the fulfillment of a condition of fact, the court shall admit it to the jury upon, or subject to, the introduction of evidence sufficient to support a finding of the fulfillment of the condition.
Rule 104 Notes
- Judge determines if evidence is sufficient to conclude a finding, then the jury determines whether the evidence is valid
- Then, conditional relevance goes to the jury
* This rule strikes a balance of what a judge should decide and what jury should decide
Product Rule
Probability of the joint occurrence of a number of mutually independent events is equal to the product of the individual probabilities that each of the events will occur
Example: used to show Ds committed a robbery (1/12 mil). Man with mustache (1/4); girl with ponytail (1/10); interracial couple (1/1000)
Rule 801 (c): “Hearsay”
“Hearsay” means a statement that:
- the declarant does not make while testifying at the current trial or hearing AND
- a party offers in evidence to prove the truth of the matter asserted in the statement
to prove the truth of the matter asserted
ask is the statement still relevant if it is false? If it is still relevant after being false, it is not the truth of the matter asserted
Rule 801 (a): “Statement”
- oral or written assertion OR
2. nonverbal conduct of a person, if it is intended by the person as an assertion
Rule 801 (b): “Declarant”
a person who makes a statement
Rule 802: Hearsay Rule
Hearsay is NOT admissible except under these rules or by Supreme Court of by Acts of Congress
Rule 803: Hearsay Exceptions; Availability of Declarant Immaterial
The following are not excluded by the hearsay rule, even though the declarant is available as a witness:
- Present sense impression - a statement describing or explaining an event or condition made while the declarant was perceiving the event or condition, or immediately thereafter.
- Excited Utterance - a statement relating to a startling event or condition
In State v. A, matter asserted is “A shot B,” what is the thing to be proven?
A shot B
In State v. C, matter asserted is “A shot B,” what is the thing to be proven?
B believed A shot B
Jury has to ask: (2 things)
- does the witness believe what they are saying? (first, resolve ambiguity; second, examine sincerity)
- does that belief comport with reality (first, examine false memory; second, examine inaccurate perception ex. poor lighting)
Ways to deal with answering questions/concerns of jury:
- Oath
- Demeanor evidence (under gaze of the jury)
- Cross-examination (truth-testing technique)
Closer look at 801 “Statement”: Assertive Conduct
there must be an INTENT to convey info to be assertive conduct
Closer look at 802 “Statement”: Nonassertive Conduct
WITHOUT INTENT to convey info, it is nonassertive conduct , and therefore not included under the hearsay rule
–Wright v. Doe example***ADD it !! “implied assertion”
Implied Assertion: Texas
Proof of a particular fact which is not itself a matter at issue, but which is relevant only as implying a statement or opinion of a 3rd person on the matter in issue, is INADMISSIBLE in all cases where such a statement or opinion not on oath would be of itself inadmissible
Texas: “matter asserted”
any matter explicitly asserted, and any matter implied by a statement, if the probative value of the statement as offered flows from declarant’s belief as to the matter
Implied Assertion: Federal Rule
Implied assertion is NOT hearsay because no danger of insincerity; it is only hearsay when it is “explicit assertions” —intentional assertions
Nonverbal conduct: Texas and Federal Rule
Nonverbal conduct intended as an assertion is hearsay when used to prove the truth of the matter asserted
-if the nonverbal conduct implies something, it is not a statement and is not hearsay; it needs to be intentional for it to be hearsay
Verbal Conduct: TX
Tatham rule: hearsay even if implied
Verbal Conduct: Federal
not hearsay if implied; even explicit assertions are hearsay
