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Evidence Presentation: Judge and Jury Roles

• Judges decide if evidence is admissible, which is a question of law.
• This includes evaluating privilege and witness qualifications.
• Preliminary fact questions related to evidence admissibility are also determined by judges.
• Federal Rules of Evidence (FRE) do not apply to these decisions.
• The jury determines the weight and credibility of evidence.

Challenging Evidence Rulings

• An evidentiary ruling can be overturned on appeal if a party's substantial right was affected and the judge had a chance to correct the error at trial via objection or offering proof.
• Objection: To challenge evidence that should have been excluded, the attorney must object and explain the reason for exclusion.
• Offer of proof: If the court refuses to admit evidence that should have been admitted, the attorney must make an offer of proof on the record, explaining the substance and relevance of the evidence, unless it’s straightforward.
• Plain error rule: An appellate court may reverse a case to prevent injustice, even without an objection or offer of proof if the error is obvious.

FRE 105, 106, and Judicial Notice

• Limited Admissibility (FRE 105): Evidence may be admissible for one purpose but not another; upon party request the court will give limiting instructions to the jury..
• Rule of Completeness (FRE 106): If a party introduces part of a written statement, the opposing party can introduce other necessary portions to provide context immediately.
• Judicial Notice: If a fact isn't subject to reasonable dispute, the court won't require evidence and will instruct the jury to accept it as proven.
• This includes facts generally known within the court's jurisdiction or readily determined from reliable sources.
• MUST instruct jury to accept the fact in civil cases
• MAY (but need not) instruct jury to accept the fact in criminal cases.

Questioning Witnesses

• Leading questions, which suggest an answer, are generally not allowed during direct examination, except for preliminary info, aiding communication-impaired witnesses, or questioning hostile witnesses.
• Leading questions should be used during cross-examination.
• Present Recollection Refreshed: A note can assist a forgetful witness, but they must testify from memory, cannot read the note aloud, the note stays out of evidence, and the opposing party can inspect it.
• Improper Questions: Includes compound questions, statements that assume facts not in evidence, argumentative questions, requesting inappropriate conclusions, and repetitive questions.

Witness Exclusion

• Witnesses must be excluded upon party request or court order.
• Exceptions: If the witness is essential to the case presentation or if a person (like a crime victim) is permitted by state rule, and a party involved in the case.

Burden of Proof and Presumptions

• Burden of Proof: A party must produce adequate evidence to reach the jury and then persuade the jury to decide in their favor.
• Civil cases: the preponderance of evidence is sufficient.
• Criminal cases: evidence must prove every element of the crime beyond a reasonable doubt.
• Rebuttable Presumption: Shifts the burden of production but not persuasion. If counter-proof is introduced it is eliminated.
• Destruction of Evidence : If destruction of evidence occurs it is presumed that it would have been adverse to that party.
• Conclusive Presumption: Legal rules using the language of presumption.

Relevance (FRE 401, 402, 403, 104(b))

• Relevant Evidence Test (401): Evidence must be relevant by making a fact more or less probable than without it, and must be material and probative.
• Direct Evidence: Proves a fact directly (e.g., eyewitness testimony).
• Circumstantial Evidence: Infers a fact.
• Admissibility (402): Irrelevant evidence is inadmissible.
• Exclusion (403): A court may exclude relevant evidence if the risks of confusion, unfair prejudice, misleading the jury, or wasting time outweigh the evidence's value.
• Relevance conditioned on the fact (104(b)): Courts may admit evidence dependent on other fact if jury will then decide that preliminary fact.

Character Evidence

• Rule: Propensity arguments, assuming a person acted in conformity with a certain character trait, are prohibited.
• Proving Character: Can be done through opinion or general reputation testimony only when admissible.
• Relevant Character Uses: Admissible when character is at issue like in negligence or defamation cases; propensity arguments are nearly always impermissible (aside from cases with sexual assault or child molestation, whereas presenting P’s evidence allows introduction of D's priors).
• It can be used to impeach witnesses.

Relevance - Character Evidence: Criminal Cases

• D can present pertinent trait of good character through opinion or reputation, prosecutor rebuts with specific prior acts.
• Prosecutor allowed to inquire about specific acts on cross-examination, may not prove incident through earlier evidence.
• For homicide or assault, D can introduce victim's character trait if the victim start the case altering (self-defense argument).
• However, sexual assault case D cannot introduce evidence of victim's promiscuity.
• Prior Bad Acts: Admissible for purposes beyond propensity, like proving motive, intent, common scheme, identity, or lack of mistake (MIMIC).
• Habit Evidence: action in conformity with habit, routine, regulator or automatic; can be used in organizations, and can be admitted without witnesses.

Witness Competence

• Who can testify? Competency requires having personal knowledge, understanding the obligation to tell the truth, and swearing to tell the truth.
• Judge as Witness: A judge cannot testify in a trial they are presiding over.
• Juror as Witness: A juror cannot testify as a witness regarding jury room discussions or influences on deliberations.
• Jurors can testify about extraneous prejudicial information, improper outside influence, a technical error on the verdict, or statements indicating racial bias in the conviction.

Impeaching Witnesses

• Ways to Question Witness Credibility: Showing a bad character, bias, or lack of sensory competence.
• Bias: Showing a reason a witness might lie or shade facts.
• Sensory Competence: Showing the witness is mistaken or didn't perceive things accurately.
• Bad Character: Can be introduced through general reputation or opinion when related to truthfulness. Prior acts can only be inquired about on reasonable basis on cross-examination.
• Criminal convictions on dishonesty, perjury, fraud, or embezzlement.
• Felonies: can be used unless substantially outweighs probative value. Old Conviction >10 years can only be used if probative outweighs prejudicial and there is reasonable advanced notice Pardon means cannot be used
• Prior Inconsistent Statements: Proved by extrinsic evidence, but only if the witness has an opportunity to explain or deny.

Witness Rehabilitation

• Rehabilitation of impeached witnesses is achieved giving the witness a chance to clarify and explain.
• Introducing a prior consistent statement
• If bad character was attacked then introduce good character through opinion testimony

Witness Testimony

• Lay Witness Opinion rules: admissible of based on perception, helpful for understanding the facts of the case, and are respectful to common sense. Cannot be conclusion, only provide observation.
• Expert Witnesses: Opinions or conclusions admissible if knowledge is in scientific and technical fields.
• Not applicable to witness
• Must satisfactory to the Daubert test:
  • Qualified
  • Supported by facts, data, and reliable principles

tangible

• Apply accepted principles to the case.

Testimony Continued:

• Experts can use evidence and personal knowledge.
• Must outweigh value by prejudice.

Tangible Evidence Authentication

• Courts must find enough reliable evidence to prove a claim.
• Methods of authentication:
  • Personal knowledge
  • Chain of order
• Documentary evidence (writing, etc.) may be provided with signatures.
• Ancient documents, plus 20 years, no suspicion, found in place where should be. Authentic.
• Reply letter authentic if evidence saying it was a response to another letter
• Handwriting authenticated if personal knowledge
• Self authenticating doc (gov documents, public records etc.)
• Oral Statements authenticated at any given time.
• Identification caller needs to recognize speaker voice if recognizing the number.

Tangible - Best Evidence Rue

• Best: a document must be provided when contents are at stake, not witness
• Contents at stake - used as legal proof.
• Duplicates can be admissible unless genuineness questioned
• Sum/charts can take place of large originals.
• Exceptions original is lost or destroyed! A copy is provided. collateral agreement not needed

Tangible Evidence- Parol Evidence Rule

• excludes extrinsic evidence that could fully change a contract's term in writing.
• Partial integration - cannot contradict the terms of an agreed-upon agreement but allows for additional evidence.
• Extrinsic can be used to clarify ambiguity and prove custom

Privleges

• Confidentiality of attorney, lawyer to gather legal advice.
• Communication. Must be reasonable to keep comm private. If too many third parties involved, no comm. If necessary, like lawyer assistance privilege uphelp
• Only the speaker can waive

Privleges Corporate

• Some recognize board.
• Federal law extends the non-controlling group if in scope

Privleges Exceptions

• Getting help getting to know something is a crime. Fraud related.
• Comm relevant in dispute between former/curr client.

Comm Relevant

• Dispute between former/curr client

Prev - work doctrine

• Document compiled is safe unless party shows what?
• Unless info from anywhere else.

Med privilege

• Used in medical treat
• Doesnt apply if:
  • For another purpose
  • Waived
  • Made during something
  • When there is a dispute between the dr. Or other med. people with pt.

psychotherapist/ 5 amend. and spousal

• Therapist must exist
• No 5 amend against crim.
• This only applies to statement and mannerism
• Spousal need trust between spouse and trust from a real marriage cannot be against person if they are against

Public Policy

• Does not admit if you have liabilities or no.
• Not given to provide negligence
• Less asset control you have.

Offers - medical and plea

• You CANNOT be forced to pay medical bills
• Unless they are medical/admissible
• Pleas are not in session whether for legal reason or criminal case

Past set rules

• Rape shield laws

• Past laws behavior vs. sexual predisposition are inadmissible if doing crim pro

• Cannot be related to having bruises

• Victim must prove rep

• Conduct is accused of acting when sexual, prove rel matter

Public law

• In crim case, sex. Must prove the above
• Rule must be stated that way