1、1Copyright 2003, 2005 LexisNexis, a division of Reed Elsevier Inc. All rights reserved.Note: Numbers in brackets refer to the printed pages of Understanding Evidence by Paul C. Giannelli where the topic is discussed.LexisNexis Area of Law SummaryEvidenceChapter 1OVERVIEW 1.01 Introduction 1The rules
2、 of evidence govern how we go about the task of attempting to determine at trial what occurred in the past, often under circumstances of uncertainty. 1.02 Proof at Trial 1-4In the common law system, proof typically comes in the form of witness testimony testimonial proof. Proof may also consist of d
3、ocumentary evidence (e.g., written contract) or “real” evidence (e.g., murder weapon). Photographs, models, blackboards, and charts may be used to illustrate testimony demonstrative evidence. In some cases, a witness may exhibit a scar or amputated arm to show the jury the result of an accident (in-
4、court exhibition), or, perhaps show how she can no longer walk without a limp (in-court demonstration). 1.03 Law of Evidence 4-8Evidence law may be divided into three major categories: (1) rules governing the substantive content of evidence, (2) rules governing witnesses, and (3) substitutes for evi
5、dence.A Rules Governing the Content of Evidence 1 Relevance RulesCharacter evidence Other acts evidenceHabit evidence Insurance evidence2 Competence Rulesa Rules Based on Reliability ConcernsHearsay rule“Best evidence” ruleb Rules Based on External PoliciesPrivileges (e.g., attorney-client)Quasi pri
6、vileges (e.g., subsequent remedial measures)B Rules Governing Witnesses1 Competency of Witnesses2Copyright 2003, 2005 LexisNexis, a division of Reed Elsevier Inc. All rights reserved.2 Examination of Witnesses3 Types of Witnesses a Lay Witnessesb Expert Witnesses4 Credibility of WitnessesC Substitut
7、es For EvidenceJudicial notice of factStipulations of fact 1.04 Federal Rules of Evidence 8-10 The Federal Rules of Evidence were enacted in 1975. As a federal statute not intended to preempt state law, the Federal Rules are not binding on the states. 1.05 State Adoptions of the Federal Rules 10Over
8、 forty jurisdictions, including the military, have rules patterned on the Federal Rules. 1.06 Interpreting the Federal Rules: The “Plain Meaning” Debate 11-13The Supreme Court has often, but not always, espoused an almost mechanical “plain meaning” approach in construing the Rules of Evidence, treat
9、ing the Federal Rules as any other statute. In one case, the Court wrote: “We interpret the legislatively enacted Federal Rules of Evidence as we would any statute.” Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 587 (1993). 1.07 Themes in the Federal Rules 13-14The paramount goal of a
10、trial is truth-seeking, but that is not the only goal. The law of privileges, for example, precludes the admissibility of evidence that may be both relevant and reliable. Moreover, even when the ascertainment of truth is the goal, how to achieve that goal is often a matter about which reasonable peo
11、ple may disagree. Here, the federal drafters adopted several guiding principles. First, the Federal Rules are biased in favor of admissibility, which implicitly endorses jury competence. Another theme is judicial discretion. Although many trial lawyers prefer fixed rules, which they argue are predic
12、table, the drafters believed that too many issues arise that cannot be anticipated, and therefore the trial judge must be given some leeway to shape the rules of evidence to deal with such contingencies. 1.08 Criminal that deductions and theories not warranted by the evidence should be studiously av
13、oided.” Quercia v. United States, 289 U.S. 466, 470 (1933) (citations omitted). 2.06 Jury Questioning of Witnesses 21-22There is no Federal Rule on questioning by jurors, but the cases recognize the trial courts discretion on this issue. There are a number of dangers in the practice. If jury questio
14、ning is permitted, jurors should be required to submit written questions so that the judge has the 5Copyright 2003, 2005 LexisNexis, a division of Reed Elsevier Inc. All rights reserved.opportunity to review the propriety of questions. If a question is unobjectionable, the judge puts it to the witne
15、ss.6Copyright 2003, 2005 LexisNexis, a division of Reed Elsevier Inc. All rights reserved.PART A: PROCEDURAL FRAMEWORK OF TRIALChapter 3STAGES OF TRIAL 3.01 Introduction 23Most students have taken a course in civil procedure before they take the evidence course. The same cannot be said for criminal
16、procedure. Thus, this chapter briefly summarizes some of the initial steps before trial, with more background information provided for criminal litigation. 3.02 Pretrial Stages in Civil Cases 23-29A civil suit commences with the filing of a complaint. A summons along with the complaint is then serve
17、d on the defendant, who is required to respond with an answer. The party must either admit or deny the averments in the complaint, unless unsure. Failure to deny may result in an admission. Affirmative defenses must also be set forth in the answer. Once the pleadings are closed, a party may move for
18、 a judgment on the pleadings. 3.03 Pretrial Stages in Criminal Cases 29-34A Charging InstrumentsCriminal cases may commence with the filing of a complaint or an arrest, which then is followed by a complaint. The process may also start with a grand jury indictment or in some jurisdictions, with the f
19、iling of a prosecutors information. B Preliminary HearingThe preliminary hearing is a screening device, much the same as the grand jury is a screening device, designed to insure that persons are not made to stand trial for a felony in the absence of “substantial credible evidence.” Unlike a grand ju
20、ry, a preliminary hearing is an adversarial proceeding. C Grand Jury ProceedingsState law generally governs indictment issues. Indeed, approximately two-thirds of the states do not require grand jury indictments for felonies. The rules of evidence, constitutional or otherwise, are generally inapplic
21、able to grand jury proceedings. 3.04 Jury Selection (2) “clear and convincing evidence” (an intermediate standard); and (3) “preponderance of evidence” (more probable than not). 4.04 Burden of Production 49-52The burden of production, sometimes called the “burden of going forward with evidence,” ref
22、ers to a partys responsibility to introduce evidence at trial. Technically, it is the risk of nonproduction. The judge (never the jury) determines whether this burden has been satisfied. There are two possible adverse consequences if a party fails to satisfy its burden of production: (1) the party m
23、ay suffer a directed verdict, or (2) in the case of an affirmative defense, the jury may not be instructed on the defense. Both consequences take the issue away from the jury. 9Copyright 2003, 2005 LexisNexis, a division of Reed Elsevier Inc. All rights reserved.Chapter 5PRESUMPTIONS it merely gover
24、ns their effect. The rule further limits its own reach by explicitly recognizing legislative authority over the effect of presumptions. 5.02 Definitions of Presumptions often the basic fact would be circumstantial proof of the presumed fact. Another approach would look to the underlying rationale fo
25、r the two presumptions, and the presumption with the stronger policy basis would trump the other presumption. 5.07 State Presumptions in Federal Civil Cases 58-59Federal Rule 302 provides: “In civil actions and proceedings, the effect of a presumption respecting a fact which is an element of a claim
26、 or defense as to which State law supplies the rule of decision is determined in accordance with State law.” 5.08 Selected Presumptions 59-60 5.09 Criminal Presumptions 60-65Neither Rule 301 nor any other rule of evidence governs presumptions in criminal cases. As with presumptions in civil cases, c
27、onfusing terminology is responsible for many of the problems in this context. For example, the presumption of innocence is not a true presumption; the accused is not required to prove any basic fact in order to trigger the presumption of innocence. Rather, the “presumption of innocence” is the tradi
28、tional way of stating that the burden of persuasion is on the prosecution. Civil-criminal distinction. Although the term “presumption” is used in both criminal and civil cases, a presumption operates differently in the criminal context than in a civil case. The difference arises from constitutional
29、limitations. In a criminal case, an accused cannot constitutionally suffer a directed verdict. Thus, although the term presumption is often used in criminal cases, the effect of such a presumption generally is only that of an inference.11Copyright 2003, 2005 LexisNexis, a division of Reed Elsevier I
30、nc. All rights reserved.Chapter 6OBJECTIONS such testimony does not subject the defendant “to cross-examination as to other issues in the case.” 7.06 Weight Rule 407 (subsequent remedial measures); Rule 408 (compromises and Rule 411 (liability insurance). However, sometimes the Rules are silent e.g.
31、, hearsay context. For example, prior inconsistent statements are generally admissible only for the purpose of impeachment (and not for their truth). But see Rule 801(d)(1)(A). 8.03 Evidence Admissible Against One Party 98-101Under Rule 105, when evidence is admissible against one party, but not ano
32、ther party, a limiting instruction must be given upon request, directing the jury to use the evidence only against the proper party. This issue most often arises in joint trials in criminal cases when a confession implicates the codefendant. This may raise a confrontation issue under Bruton v. Unite
33、d States, 391 U.S. 123 (1968). The Bruton issue can be obviated if separate trials are ordered, the defendants name is redacted, or the codefendant testifies. There is no Bruton issue if the statement falls within a recognized hearsay exception.18Copyright 2003, 2005 LexisNexis, a division of Reed E
34、lsevier Inc. All rights reserved.PART B: RELEVANCYChapter 9RELEVANCY Rule 411 covers that issue.Ancillary rules based on policy. Rules 407-410 are relevance rules of a different kind. They involve the exclusion of relevant evidence based on external policy reasons i.e., external to the truth-seeking
35、 function of the trial. For example, subsequent remedial measures (Rule 407) are excluded in order to encourage people to make repairs after accidents. 9.02 Consequential (“material”) Facts Defined 106-07Rule 401 embraces two concepts: relevancy and materiality. To be admissible, evidence must be bo
36、th relevant and material. However, instead of the term “material fact,” Rule 401 uses the phrase “fact that is of consequence to the determination of the action,” which can be shortened to consequential fact. “Relevancy” describes the relationship between an item of evidence and the proposition it i
37、s offered to prove. In contrast, “materiality” describes the relationship between that proposition and the issues in the case i.e., the consequential or material facts.With the exception of the credibility of witnesses, the “consequential facts” in a particular case are a matter of substantive law (
38、1) the elements of the charged crime, (2) the elements of a cause of action, (3) the elements of an affirmative defense, and (4) damages in civil cases. 9.03 “Relevancy” Defined 108-14Rule 401 defines “relevant evidence” as evidence having any tendency to make the existence of a material or conseque
39、ntial fact “more probable or less probable than it would be without the evidence.” Rule 401s standard does not require that the evidence make a consequential 19Copyright 2003, 2005 LexisNexis, a division of Reed Elsevier Inc. All rights reserved.(material) fact “more probable than not” (preponderanc
40、e of evidence), but only that the material fact be more or less probable with the evidence than without the evidence. A Admissibility vs. SufficiencyThere is a difference between relevancy (admissibility) and sufficiency. Although the evidence as a whole must be sufficient to satisfy a partys burden
41、 of production and thus send an issue to the trier of fact, each item of evidence need only advance the inquiry. B Basis for Relevancy DeterminationIn determining relevancy, the trial judge must rely on logic as informed by experience or science.C Direct reasoning requires inferences upon inferences
42、.E “Background” EvidenceAll evidence need not involve a disputed issue. The federal drafters specifically approved of the admission of “background” evidence. As examples, the drafters cited charts, photographs, views of real estate, and murder weapons. 9.04 Admissibility of Relevant Evidence: FRE 40
43、2 114-17Rule 402 is the general provision governing the admissibility of evidence: relevant evidence is admissible, in the absence of a rule of exclusion, and irrelevant evidence is inadmissible. For present purposes, the most important part of Rule 402 is the phrase “by these rules.” This language
44、allows relevant evidence to be excluded by operation of some other rule of evidence. A number of exclusionary rules are found elsewhere in the Rules of Evidence. Rule 403 is an illustration. Examples in other Articles include rules on privilege, competency, firsthand knowledge, hearsay, authenticati
45、on, and best evidence. In sum, evidence may meet the relevancy standard of Rule 401 but nevertheless be inadmissible because it fails to satisfy the requirements of some other provision of the Rules of Evidence.20Copyright 2003, 2005 LexisNexis, a division of Reed Elsevier Inc. All rights reserved.R
46、elevant evidence may also be excluded due to the Constitution, federal statutes, or the Civil and Criminal Rules of Procedure. 9.05 Rule 403 “Balancing” Rule 403 is the most important rule in evidence law because every item of evidence raises a Rule 403 problem at least in theory. It confers no auth
47、ority to admit irrelevant evidence; Rule 402 mandates the exclusion of irrelevant evidence.A Estimating Probative ValueThe application of Rule 403 requires a three-step process. First, the judge must determine the probative value of the proffered evidence. Second, the court must identify the presenc
48、e of any of the enumerated dangers (unfair prejudice, confusion of issues, or misleading the jury) or considerations (undue delay, waste of time, or needless presentation of cumulative evidence). Finally, the court must balance the probative value of the evidence; exclusion is discretionary. The wor
49、d “substantially” is significant; it makes Rule 403 biased in favor of admissibility.B Rue 403 “Dangers”Unfair prejudice. Rule 403 requires exclusion only in the case of unfair prejudice. Most evidence introduced by one party is “prejudicial” to the other side in the sense that it damages that partys position at trial. This is not the concern of Rule 403. Otherwise, the most probative evidence (e.g., a confession) would be excluded
