Basic Evidence and Trial Procedure

Opening Statement Preview the evidence

“The evidence will show” Introduce theme Briefly describe the issues, factual

contentions

Relevance Rule 401:

“Relevant evidence” means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.

Relevance Rule 402

All relevant evidence is admissible, EXCEPT as otherwise provided in the Constitution of the United States, by Act of Congress, by these rules, or by other rules prescribed by the Supreme Court pursuant to statutory authority. Evidence which is not relevant is not admissible.

Relevance Rule 403

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.

Foundation The word “foundation” is applicable in

various contexts to describe prerequisites for the admission of evidence.

Generally, to show that evidence is admissible, counsel must first lay a foundation

Foundation—Common Examples Personal Knowledge

A fact witness must have personal knowledge as to any matter to which she testifies. (Rule 602)

Foundation—Common Examples Authenticity

Real exhibits and other physical evidence must be authentic;

Rule 901: the requirement of authentication, or identification, is satisfied by “evidence sufficient to support a finding that the matter in question is what is proponent claims”

Foundation—Common Examples Hearsay Exceptions and Exclusions

Establishing the requirements necessary for applicability of hearsay exceptions

Foundation—Common Examples Privileged Information

Circumstances giving rise to the privilege

Hearsay Out-of-court statement offered to prove

the truth of the matter asserted

Rule 801. Definitions Rule 801(a)

A statement is (1) an oral or written assertion OR (2) nonverbal conduct of a person if it is intended

by the person as an assertion Rule 801(b)

A “declarant” is a person who makes a statement. Rule 801(c)

“Hearsay” is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted

Hearsay Exceptions Myriad of Hearsay Exceptions

Roughly 30

Common Hearsay Exceptions Availability of Declarant Irrelevant

Party Opponent Admissions--FRE 801(d)(2) Prior Inconsistent statements--FRE 801 (d)(1)) Regularly Kept Records—FRE 803(6),(7) Present Sense impression--FRE 803(1) Then-existing mental, emotional, or physical

condition--FRE 803(3) Excited Utterances--FRE 803(2) Recorded Recollection--FRE 803(5) Reputation—FRE 803(19), (20), and (21)

Common Hearsay Exceptions Unavailability Required (FRE 804—

describes what unavailable means) Former Testimony--FRE 804((b)(1) Statement Against Interest—FRE 804(b)(3)

Directing Witnesses Generally, witnesses on direct are friendly

and want to be helpful Basic opportunity to make your case

Emphasize your theme Select and emphasize favorable points Refute opposing side’s theory

Directing Witnesses Generally cannot ask leading questions on

direct (FRE 611) A leading question is one that suggests the

answer (“The light was green, wasn’t it”?) Ask “Who,” “What,” “When,” “Where,”

“Why,” “How?” questions How were you dressed? What were the lighting conditions?

Common Objections to Direct Leading Calls for narrative Assumes facts not in evidence Counsel “testifying” Asked and answered Calls for speculation (“If he had provided

the material, what would you have done?”)

Cross Examining Witnesses Limited to

Subjects covered during direct Matters affecting the witness’ credibility

Such as bias or motive to lie FRE 611

Should ask leading questions on cross (FRE 611 permits leading questions)

Cross Examining Witnesses Impeachment with prior inconsistent

statement (like deposition) Ask witness about the point (“The light was

green, wasn’t it?”); if witness lies . . . Ask the witness if she recalls giving prior

testimony (“You recall giving your deposition, under oath, in my office, don’t you”?)

Read prior statement, citing the page number for opposing counsel.

Ask witness to admit making statement.

Cross Examining Witnesses If witness admits, impeachment complete If witness denies, show her the statement

to get him to agree If she still denies, ask to have deposition

introduced into evidence (authenticity should be stipulated to)

Common Objections to Cross-Examination Outside the scope of direct examination Argumentative “Testifying” by counsel Compound question Assumes facts not in evidence or

misleading—asking a question based on a premise that has not been established

Asked and Answered Calls for Speculation

Moving “Real Exhibits” Into Evidence Foundation requirement: A showing

sufficient to support a finding that the document is what the proponent claims it is (FRE 901(a)) E.g., “This is the letter that I sent Mary on

September 23, 2005”

Moving “Real Exhibits” Into Evidence Mark the Exhibit

Usually pre-marked Just say for the record: “This document has

been marked, for identification purposes, as Plaintiff’s Exhibit 1”

Show to opposing counsel (if he does not have copy already)

Ask permission to approach witness

Moving “Real Exhibits” Into Evidence Ask witness to identify the exhibit

Might say: “Can you tell us what this exhibit is?” This is where foundation is laid

Offer the exhibit Might say: I offer the exhibit as Plaintiff’s Exhibit 1”

Court ordinarily asks if there’s an objection If opposing side does not think that proper foundation

was laid, can object before it is admitted and cross-examine the witness on foundation

May want to object for some other reasons—relevance, hearsay, etc.

Using Demonstrative Exhibits Federal rules don’t deal with these (usually

admitted if accurate and relevant) Foundation: the exhibit is a reasonably

accurate depiction Must help the trier of fact understand the

relevant facts Examples: Models, maps, diagrams,

charts Technically not admitted because they are

not evidence—used for illustrative purposes

Using Demonstrative Exhibits Mark the exhibit Show it to opposing counsel Ask permission to approach witness Ask witness if exhibit is accurate depiction

Might say: “How does this scene compare to the scene that you observed at Washington & Nelson?” Witness: “It looks like the same.”

Offer the exhibit “Your honor, I would like to offer this as an accurate

illustration of the scene at Washington & Nelson” Use the exhibit

Closing Argument Argue Reinforce Theme