Introduction

Question 1

Rule 102

Answer 1

Purpose of rule:

i. Fairness
ii. Efficiency
iii. Truth
iv. Reliability
v. Just Verdicts

Question 2

Why do we exclude evidence

Answer 2

While we have liberal evidence code; we keep out some things:

i. Trials have to end, can’t allow everything
ii. Some evidence obtained in violation of Constitution
iii. Policy considerations to keep out some evidence (husband-wife, attorney-client, etc.)
iv. Emotionally charge evidence (dead bloody baby)
v. Past crimes at times
vi. Objectively bad expert testimony
vii. Otherwise inadmissible evidence

Question 3

Rule 103(b)

Answer 3

Claim of error preserved on appeal on if pretrial ruling is definitive. When in doubt, ask if ruling was provisional or definitive. If provisional, must renew motion later

Question 4

Rule 103(a)

Answer 4

Motion to strike

Question 5

Rule 103(d)

Answer 5

May we approach your honor

Question 6

Types of objections

Answer 6

Content: This evidence is not admissible at all. Most of the FRE are directed towards these.

Foundation: This evidence is not admissible unless the proponent can show something else first (conditional relevance - expert/personal knowledge, authentication/qualifications).

Form of the Question: This evidence may be admissible, but you’ve asked the wrong sort of question, or asked in the wrong way.

Timing/Sequence: This evidence is coming at the wrong time. Non-responsive or volunteered answer; cumulative or repetitive; question has been asked/answered.

Question 7

Non-content objections

Answer 7

a. Argumentative
b. Asked and Answered
c. Assumes a Fact Not in Evidence
d. Broad
e. Improper Characterization – adding gloss to a witness’s answer
f. Compound Question
g. Confusing Question
h. Counsel is Testifying – making an assertion without asking a question
i. Cross-Examination Beyond Scope of Direct – 611(b)
j. Cumulative – waste of time because too much other equivalent evidence has been brought (403/611)
k. Foundation Lacking
l. Harassing the Witness – 611(a)(3)
m. Leading – 611(c)
n. Misstates the Testimony
o. Calls for a Narrative Answer
p. Nonresponsive Answer – if the witness answers a different question than was asked
q. Lack of Personal Knowledge – 602 – unless expert (703)
r. Speculative
Vague

Question 8

When is leading allowed?

Answer 8

Allowed on cross.
Also allowed on direct in certain circumstances:
1. Don’t go to heart of case – just a transition from one subject to another
2. Undisputed matters
3. Adverse or hostile witness. FRE 611(c)(2)
4. When a witness gives “surprise answers” (at odds with deposition testimony)
5. Witness of limited understanding (child, retarded, language difficulty)
6. When refreshing memory is needed
7. If providing factual basis for the expert’s opinion

Question 9

Rule 601

Answer 9

Every person is competent to be a witness unless these rules provide otherwise

Question 10

Dead Man’s Statutes

Answer 10

In a civil case, whether someone can testify as to what a deceased person said is up to the state rules of evidence (Rule 601, Erie)

Question 11

Rule 603

Answer 11

Before testifying, witness must give oath or affirmation to testify truthfully

Question 12

Rule 605

Answer 12

Presiding judge may not testify as a witness at the trial. There is an automatic objection (prevents issue of lawyer having to object to judge’s action and looking bad in front of jury)

Question 13

Rule 606(a)

Answer 13

A juror may not testify as a witness before the other jurors at trial. If they are called to to testify, must be given opportunity to object outside jury’s presence (don’t want juror to know that lawyer is objecting to their testimony if they will then decide the case)

Question 14

Rule 606(b)

Answer 14

During an inquiry into the validity of a verdict or indictment, juror may not testify about:

i. any statement made or incident that occurred during the jury’s deliberation
ii. the effect of anything on the juror’s or another juror’s vote
iii. juror’s mental process concerning the verdict

If we allowed testimony about verdicts; no verdict would be safe, it would open the door to post-trial arguments and witness tampering, etc.

A juror may testify about:
(A) extraneous prejudicial information (including racism)
(B) outside influences
(C) mistake in entering the verdict on verdict form

Question 15

Warger v. Shauers

Answer 15

Juror contacts plaintiff’s counsel to say that foreperson told personal story about how their daughter had been in a similar situation (caused death during accident) and if she had been found guilty, it would have ruined them

i. Court says can’t bring up how decision was made - don’t want to know how the sausage is being made
ii. Sucks that he lied during voir dire, but too bad

Question 16

Peña-Rodrqiuez v Colorado

Answer 16

Two jurors come forwards to show that another juror made decision based on clear and explicit racial animus

i. Court finds that discrimination on the basis of race is especially pernicious in the administration of justice.
ii. Racial bias, left unchecked, would risk systemic injury to the administration of justice

Question 17

Tanner v. United States

Answer 17

Doesn’t matter that some jurors may have been under influence of drugs or alcohol. We protect jury deliberations from intrusive inquiry - want finality
i. Can prevent misconduct through voir dire and jurors can report misconduct during trial

Question 18

Rule 602

Answer 18

Witness testify must have personal to what they are testifying about. Must (a) have had an opportunity to observe and (b) have actually observed the fact

Question 19

Rule 701

Answer 19

When not testifying as an expert, witness opinion limited to facts:

(a) rationally based on the witness’s perception (first-hand knowledge);
(b) helpful to clearly understanding the witness’s testimony or to determining a fact in issue; and
(c) not based on scientific, technical, or other specialized knowledge within the scope of Rule 702

Question 20

United States v. Westbrook

Answer 20

Lay witness can testify if substance was amphetamine because they were heavy amphetamine user. Can testify to certain facts without being certified as expert if personal knowledge is great enough