Evidence Basics

Question 1

What is Evidence?

Answer 1

• Factual proof that assists the trier of fact (often jury, but can be judge in bench trial) in resolving a material issue.
• Lawyers’ arguments are not evidence.
• Nothing is evidence until court admits it (e.g., by formally admitting exhibit into evidence or permitting witness to testify).

Question 2

Venire

Answer 2

• Panel of prospective jurors.
• A jury is eventually chosen from the venire

Question 3

Voir Dire

Answer 3

• French for “speak the truth”
• Process through which potential jurors are questioned by court or lawyer to determine their suitability for jury service.
• Looking for grounds of prejudice (e.g., past experience related to case, relationship to someone involved).
• Used to excuse prospective jurors deemed incapable of fulfilling juror obligations, such as impartiality.
• No evidence is presented at voir dire.
• Also involves preliminary questioning of witnesses (especially experts) to determine their competence to testify.

Question 4

Basic Anatomy of a Trial

Answer 4

• Jury is selected, paneled, and sworn
• Each side gives opening statement - party with burden of proof starts
• Plaintiffs presents case-in-chief (defendant cross-examines witnesses); almost always start with witness
• Defendant presents case-in-chief (plaintiff cross-examines)
• Plaintiff presents rebuttal case (more cross-examination)
• Defendant presents rebuttal case (more cross-examination)
• Each side gives closing statement

Question 5

Opening Statement

Answer 5

• Goal is to provide roadmap and organizational structure; polling shows jurors depend on it.
• NO evidence presented in opening statement.
• “What the evidence will show,” “You’ll hearing evidence that,” “We’ll present witnesses that” - lets you sprinkle in hints of evidence.
• Can object during opening, but usually not good idea (looks non-collegial). But may be circumstances where objecting is appropriate (e.g., starts presenting evidence during opening)

Question 6

Direct Examination

Answer 6

• When proponent engages with proponent’s own witness
• Can only ask non-leading (open-ended) questions, which are questions framed in way that do not suggest the expected answer
• Two ultimate non-leading questions that you generally ask immediately after a leading question objection: “What happened next?” and “What did you see?”
• Witness’ basis of knowledge and any info bearing on complaint set scope of direct (super broad scope, basically relevance)

Question 7

Cross-Examination

Answer 7

• After proponent finishes direct, opponent cross-examines.
• Opponent asks leading questions for witness management (witness probably not cooperative, so want to box them in).
• Leading question is declarative statement ending in “correct?”
• Best word to end leading question: “correct?”
• Scope of coverable subject matter opens up and can impeach credibility of witness in cross.

Question 8

Re-Direct

Answer 8

• After cross, proponent has re-direct.
• Limited to topics you explored during direct - driven by considerations of efficiency (i.e., don’t want it to go on and on).

Question 9

Defense Case-in-Chief

Answer 9

• Defense presents case-in-chief, which is a mirror image (i.e., defendant direct, plaintiff cross, etc.)
• May have motions after cases-in-chief (e.g., motion to dismiss)
• Evidence can only be presented in cases-in-chief and in rebuttal
• But motions to suppress (and others) come earlier (they’re not evidence)

Question 10

Rebuttal Case

Answer 10

• May be “sur rebuttals” too
• Party with burden goes first
• Still constrained: Want pressure on both sides to present best stuff upfront (efficiency considerations)
• Evidence can only be presented in cases-in-chief and in rebuttal

Question 11

Closing Statement

Answer 11

• Or “summation”
• Tying stuff together, connecting dots
• Prosecutor can go twice (burden of proof goes first, then opponent, then burden of proof can go again)
• Lawyer is not source of authority, so consists of statements like “The evidence has shown and “Witness X has provided testimony that”

Question 12

Burden of Proof

Answer 12

• Generally, burden of proof describes the standard that a party seeking to prove a fact in court must satisfy to have that fact legally established.
• There are different standards for different circumstances (e.g., in criminal cases, burden of proving defendant’s guilt is on prosecution and they must establish that fact beyond a reasonable doubt).
• Consists of two parts: Burden of production (presenting sufficient evidence) and burden of persuasion (convincing trier of fact to relevant standard).

Question 13

How is Evidence Presented?

Answer 13

• Proponent must wait for appropriate juncture.
• Proponent must lay foundation (e.g., authenticity, relevance).
• Proponent must move for admission.
• Other side has chance to object.
• Judge admits or excludes evidence.
• If admitted, proponent publishes evidence to jury.

Question 14

What are the four basic considerations that determine the admissibility of evidence?

Answer 14

There are 4 issues that must always be considered:

1. Materiality (is evidence offered for a proper purpose?)
2. Probative value (does evidence help to prove point for which it is offered?)
3. Form (does evidence clear all formalistic hurdles like hearsay, authenticity, best evidence rule, etc.?)
4. Prejudice or other harmful effect (should evidence be excluded because its admission would cause prejudice, confusion, delay, etc.?)

Question 15

Motions in Limine

Answer 15

• Pretrial strategy
• “lim-in-ay” - means “at the threshold”
• Movant seeks pretrial order either to admit or exclude evidence.
• Trying to get judge to rule in advance on evidentiary issues; judge usually would rather resolve issues quickly and not in front of a jury (main reason is to keep judge happy).
• Also when you want to avoid prejudicial stuff being out.

Question 16

Stipulations

Answer 16

• Pretrial strategy
• Parties agree in advance of trial that certain evidence should be admitted.
• Want to pick your battles, conserve energy, etc.

Question 17

Four Types of Evidence

Answer 17

1. Writings
2. Testimony
3. Other forms of real evidence (i.e., any tangible thing that was involved in the transactions at issue in the trial)
4. Demonstrative evidence (i.e., something that was created for illustrative purposes at trial and that played no role in the events or transactions at issue in trial)

Question 18

Settings Where FRE Apply

Answer 18

• Usually applied in trials
• Apply in civil cases and proceedings, including bankruptcy, admiralty, and maritime cases
• Applied in criminal cases and proceedings
• Applied in contempt proceedings, except those in which the court may act summarily
• Usually not applied in hearings such as sentencing hearings, suppression hearings, preliminary hearings, etc.
• Do not apply to court’s determination on preliminary questions of fact governing admissibility
• Do not apply to grand jury proceedings
• Do not apply to miscellaneous proceedings like extradition, issuing arrest warrant or search warrant, granting or revoking probation or supervised release, considering whether to release on bail
• Rule determining applicability is FRE 1101