mcdonnell hornbook on duane's evidence midterm)

8/14/2019 McDonnell Hornbook on Duane's Evidence Midterm)

1/26

THE MCDONNELL HORNBOOKON DUANES EVIDENCE

(PRE-MIDTERM):

PUTTINGTHE BRAKESON DUANE

Most important tip: Dont let your pursuit of grades or class rank become your god. It will ruin you, and worse, God willwant nothing to do with it. He may not bless you, you will not be filled with His Spirit, you will not receive the fruits ofHis Spirit, and He may/will be disappointed/angry with you. Remember:

Let the peace of Christ rule in your hearts, since as members of one body you were called to peace. And bethankful. Let the word of Christ dwell in you richly as you teach and admonish one another with all wisdom,and as you sing psalms, hymns and spiritual songs with gratitude in your hearts to God. And whatever you do,whether in word or deed, do it all in the name of the Lord Jesus, giving thanks to God the Father through

him. (Col. 3:15-17)

Love the Lord your God with all your heart and with all your soul and with all your mind. (Matt. 22:37)

Tips from the author: Prepare as well as possible for the mid-term, because the final is insanely difficulteveryone I

knew walked out of the final in mind-blowing confusion. I literally almost just gave upI seriously randomly guessed atleast a fourth of it. BUT, the mid-term is more reasonable, so do as well as you can on it.

Here is what I did to pull an A- on the mid-term:

I prayed.

I made my insanely detailed outline, which you now have in your hands. This directly follows his lecture andpower point slides, and I hope it will be a real help to you.

I read the book and outlined it. I did this during the fall break, since our mid-term was right after it.

103!

An objection ormotion to strike is used to exclude evidence an attorney believes is inadmissible. Incontrast, when an attorneys proffer of evidence has been excluded by a trial judges ruling, an offer of

proofis required to preserve the issue for appeal. Failure to make timely and specific Objection Consequences: (Entered on record, therefore)

o Cannot raise issue on appeal

o Considered by jury in deliberations

o Considered by judge in motions

o Considered by appeals court for sufficiency of evidence

Failure to move to strike

o Will allow jury to consider and will not require judge to instruct jury to disregard

o Will allow opposing counsel to use in closing argument

Failure to make offer of proof when evidence has been excludedo Error not preserved, so appeals court cannot consider whether error was harmless or not

Forms of offers of proofo Testimonial

Summary by counsel as to testimonys content

Direct/cross examination (judge will then determine)

Signed affidavit by witness as to expected testimonyo Documentary

Append to trial record

Motions in Limine (at the treshhold)

o Pretrial request for decision on objection or offer of proof

o ??? Once court makes definitive ruling on the record regarding exclusion/admission before or at

trial, the party need not renew their objection/offer of proof to preserve error.???


2/26

o If condition to exclusion is not met: no preservation of error

Evidence excluded unless defendant testifies

Luce: cant appeal on error of exclusion when you didnt meet condition: you didnt

testify, so the evidence REMAINED EXCLUDED

o Invited Error Doctrine: Party inducing the error cant take advantage at appeal

Evidence of conviction excluded UNLESS brought up by moving party

Ohler: cant appeal on error of admission when you brought up the conviction

yourself

Principleso Making the record is one of trial counsels most important responsibilities. If the court does

not make a decision, it is assumed that the court overruled the objection. It is counselsresponsibility to ensure that all objections and offers of proof are recorded.

Off-the-record objections are typically insufficient.

Questions regarding admissibility are generally out of the jurys hearingo Plain Error Doctrine: Appeals can consider evidentiary error despite failure to object, move to

strike, or offer proof. Helps preserve fair trial.o Harmless error: Simple existence of error does not overturn. Must be REVERSIBLE because it

was PREJUDICIAL.

PREJUDICIAL=properly preserved + involved substantial right

RELEVANCY OVERVIEW:

o Relevancy is the most pervasive concept in evidence law. It is the threshold issue for evidence.

If the evidence is not relevant, it is excluded.

Federal Rule 401 defines relevant evidence (probative value). The rule must be read inconjunction with Rules 402 and 403. Rule 402 makes relevant evidence admissible in theabsence of a rule of exclusion, and Rule 403 specifies the circumstances under which atrial court is permitted to exclude relevant evidence.

Special relevance rules. In some situations an issue recurs so frequently that the courtsdeveloped categorical rules.

For instance, character evidence is generally prohibited, although there are

important exceptions. Rules 404,405,412-15deal explicitly with character. Similarly, evidence of liability insurance is generally inadmissible; Rule 411

covers that issue.

Ancillary rules based on policy. Rules 407-410are relevance rules of a different kind.They all involve the exclusion of relevant evidence based on external policy reasons i.e., external to the truth-seeking function of the trial. For example, subsequent remedialmeasures (Rule 407) are excluded in order to encourage people to make repairs afteraccidents.

FRE 102Least important rule and dangerously misleading because arguing for evidence in the name of truth, justice and fairness isnot going to get me anywhere in court.Carlisle v. United Statesdefendant had drug charge, attorney filed a motion for a judgment of acquittal one day late, yetthe judge granted the motion in the name of justice. This went to the Supreme Court who reversed this on the grounds (1)that the command to interpret the rules to do justice sets forth a principle to be used in construing ambiguous rules, not aprinciple of law superseding clear rules that do not achieve their stated objectives (not that I think this has to do with theexpense clause in 102). This reduces the rule to mean nothing and this rule affects nothing!

FRE 1101(c)Rules of Privilege apply to all actions, cases, and proceedings (this is related FRCP 26(b)(1)). Civ Pro deals withdiscoverability whereas evidence deals with admissibility. Yet things can be non-discoverable or non-admissible becauseof privilege.
http://www.lexis.com/xchange/search/xlink.asp?keyenum=25271&keytnum=0&searchtype=Lexstat&search=FRE+401http://www.lexis.com/xchange/search/xlink.asp?keyenum=25271&keytnum=0&searchtype=Lexstat&search=FRE+402http://www.lexis.com/xchange/search/xlink.asp?keyenum=25271&keytnum=0&searchtype=Lexstat&search=FRE+403http://www.lexis.com/xchange/search/xlink.asp?keyenum=25271&keytnum=0&searchtype=Lexstat&search=FRE+402http://www.lexis.com/xchange/search/xlink.asp?keyenum=25271&keytnum=0&searchtype=Lexstat&search=FRE+403http://www.lexis.com/xchange/search/xlink.asp?keyenum=25271&keytnum=0&searchtype=Lexstat&search=FRE+404http://www.lexis.com/xchange/search/xlink.asp?keyenum=25271&keytnum=0&searchtype=Lexstat&search=FRE+404http://www.lexis.com/xchange/search/xlink.asp?keyenum=25271&keytnum=0&searchtype=Lexstat&search=FRE+405http://www.lexis.com/xchange/search/xlink.asp?keyenum=25271&keytnum=0&searchtype=Lexstat&search=FRE+405http://www.lexis.com/xchange/search/xlink.asp?keyenum=25271&keytnum=0&searchtype=Lexstat&search=FRE+412http://www.lexis.com/xchange/search/xlink.asp?keyenum=25271&keytnum=0&searchtype=Lexstat&search=FRE+415http://www.lexis.com/xchange/search/xlink.asp?keyenum=25271&keytnum=0&searchtype=Lexstat&search=FRE+415http://www.lexis.com/xchange/search/xlink.asp?keyenum=25271&keytnum=0&searchtype=Lexstat&search=FRE+411http://www.lexis.com/xchange/search/xlink.asp?keyenum=25271&keytnum=0&searchtype=Lexstat&search=FRE+407http://www.lexis.com/xchange/search/xlink.asp?keyenum=25271&keytnum=0&searchtype=Lexstat&search=FRE+410http://www.lexis.com/xchange/search/xlink.asp?keyenum=25271&keytnum=0&searchtype=Lexstat&search=FRE+410http://www.lexis.com/xchange/search/xlink.asp?keyenum=25271&keytnum=0&searchtype=Lexstat&search=FRE+407http://www.lexis.com/xchange/search/xlink.asp?keyenum=25271&keytnum=0&searchtype=Lexstat&search=FRE+401http://www.lexis.com/xchange/search/xlink.asp?keyenum=25271&keytnum=0&searchtype=Lexstat&search=FRE+402http://www.lexis.com/xchange/search/xlink.asp?keyenum=25271&keytnum=0&searchtype=Lexstat&search=FRE+403http://www.lexis.com/xchange/search/xlink.asp?keyenum=25271&keytnum=0&searchtype=Lexstat&search=FRE+402http://www.lexis.com/xchange/search/xlink.asp?keyenum=25271&keytnum=0&searchtype=Lexstat&search=FRE+403http://www.lexis.com/xchange/search/xlink.asp?keyenum=25271&keytnum=0&searchtype=Lexstat&search=FRE+404http://www.lexis.com/xchange/search/xlink.asp?keyenum=25271&keytnum=0&searchtype=Lexstat&search=FRE+405http://www.lexis.com/xchange/search/xlink.asp?keyenum=25271&keytnum=0&searchtype=Lexstat&search=FRE+412http://www.lexis.com/xchange/search/xlink.asp?keyenum=25271&keytnum=0&searchtype=Lexstat&search=FRE+415http://www.lexis.com/xchange/search/xlink.asp?keyenum=25271&keytnum=0&searchtype=Lexstat&search=FRE+411http://www.lexis.com/xchange/search/xlink.asp?keyenum=25271&keytnum=0&searchtype=Lexstat&search=FRE+407http://www.lexis.com/xchange/search/xlink.asp?keyenum=25271&keytnum=0&searchtype=Lexstat&search=FRE+410http://www.lexis.com/xchange/search/xlink.asp?keyenum=25271&keytnum=0&searchtype=Lexstat&search=FRE+407


3/26

The FRE apply in federal court to both civil and criminal cases (FRE 1101(a)). In theory these rules apply to jury orbench trials, yet in practice the rules operate differently in a bench trial than a jury trial. In bench trial the judge is goingto hear the evidence and promise the attorney that he wont consider it when deliberating.

FRE 1101(d) deals with when the FRE does not apply because, at the time these rules were written, these proceedings didnot involve a jury (a grand jury is not a jury).

FRE 1101(b)

FRE does not apply to contempt proceedings in which the court may act summarily. There is direct contempt (committedin the presence of the judge and the court can act summarily, this is allowed otherwise the judge will have no control overhis courtroom and that there is no jury (?)) and indirect contempt (committed not in the presence of the judge and therecan be a trial, possibly by jury) (2).

9/26 REVIEW:

Jury has wide girth to decide the ultimate issues in the case (the allegations of the complaint (in a civil case or theindictment (in a criminal case) identify the essential elements of the claim or charge, which are what the attorney intendsto prove at trial). But these are not preliminary questions. Preliminary Question: A question of law or fact arising out ofan objection to the admission of evidence which must be resolved (at least provisionallyfor now) before the objectioncan be decided (this is the definition in evidence class). Note that not every objection raises a preliminary question (suchas with leading the witness), but some do (such as an objection for attorney-client privilege). The first thing to do with a

preliminary question is sort out whether it is a question of law or fact. The judge decides all the legal (law) questions.Rule 104a states that must preliminary questions of fact go to the judge also, but there are two times when they go to thejury.

Factual Question that goes both to admissibility and credibility (Rule 104e): Questions that go not only tolegal admissibility but also to weight or credibility go first to the judge and then can go to the jury if the attorneywants them to (this is under Rule 104e) (such as a confession that the defendant signed after the police beat himinto doing it). Note that This rule in 104e is referring to 104a. Yet they cannot tell the jury that the judgealready considered the issue. But remember that the judge is only finding by a preponderance of the evidence thatthe police officer is telling the truth (therefore admitting the confession into evidence). But the jury trying todecide whether there is a reasonable doubt as to whether the defendant is telling the truth, and from there theymay not be able to convict (???).

Factual Question upon which the very logical relevance depends (Rule 104b): Some objections go to afundamental/logical proposition that go to the very relevance of the evidence (such as whether something is aforgery, because if it is then it is irrelevant). The judge considers it first to determine whether there is or will besufficient evidence to support a finding by the jury that the evidence is what it is claimed to be. Specifically, thejudge is deciding whether there is enough admissible evidence here that this issue could go either way (not a lot isneeded, just a little something, and the judge doesnt deny this much). If there is, then the judge will admit itand it will go to the jury. NOTE that if neither side has any evidence that it is or isnt relevant, then the judgeshould exclude it (not let it in). Another example is that a letter that the deceased wrote to complain about thestairs that he fell on and died that his widow found who wants it admitted as evidence for notice of the defect tothe landowner. The problem is that the widow has no evidence or knowledge that it was mailed and the defendantlandlord claims he has never seen it. The judge should probably not let the jury see this because 104(b) says thatif the relevance of evidence depends upon the fulfillment of a condition of fact (here the condition of fact waswhether the letter was received by the landlord), the court shall admit it uponsufficient evidence to support afinding. The widow doesnt have any evidence to support the finding. She never shifted the burden ofproduction. If the jury does see this, they might find for the poor old widow without any real evidence underbased on emotions, which is why we dont let the jury see this. BUT if the guy never died and he is willing totestify that he did mail it, then there is enough to shift the burden of producing evidence (production) to thedefendant because of the applicable presumption. And if the defendant testifies that he never got the letter, thenthe presumption is lifted and it goes to the jury to decide.

Also, once a judge decides that evidence (a confession) is inadmissible, the prosecuting attorney cannot bring it outbecause it is inadmissible and the jury cannot hear about it under Rule 103(c). Evidence that goes to the weight orcredibility of the evidence is irrelevant unless the evidence gets admitted. Thats why 104(e) doesnt come into playunless the objection gets overruled (which means that the evidence will be admitted!).


4/26

ALWAYS ASSUME THAT THERE IS A JURY TRIAL (1)FRE 104A judge decides all the questions of law, yet a jury does not decided all the questions of fact. The jury decides: Theultimate or general issuethis is the question raised by the very heart of the pleadings (civil-complaint-claims/criminal-indictment-charges/civil-the answer/criminal-the defenses). Jury is typically called to decide the claims or charges (whatis alleged, etc.).Basic Point of 104(a): Judges decide preliminary factual questions (and of course preliminary legal questions) (any

factual or legal issues upon which the parties disagree) that must be decided logically before some legal issue can be

decided. But the jury decides all factual disputes that are preliminary to a factual issue rather than a legal issue

(was that her blood on the shirt or his knife). These are leading to a ruling on the ultimate issue rather than

admissibility of evidence.

Preliminary Question: A question of law or fact arising out of an objection to the admission of evidence which must

be resolved (at least provisionallyfor now) before the objection can be decided (this is the definition in

evidence class).

There are two kinds of preliminary questions (104a and 104b respectively)

Conditional Admissibility: Preliminary Questions that only affect the admissibility of the evidence but not its

relevance.

Example: Police must read Miranda rights to use a defendants confession against him. If the defense

attorneys only objection is that the police forgot to read him his rights, then this preliminary question has

nothing to do with its relevance to the case. So if the defendant confessed but the police didnt read him

the rights, that evidence will still be VERY relevant but not admissible.

Judge gets to decide this under 104(a). (NUMBER 1)

The judge is not bound by the FRE except those with respect to privileges (the judge can hear inadmissible

evidence unlike the jury). (NUMBER 2)

Questions of conditional admissibility are to be decided by the judge by a preponderance of the evidence.

The proponent of the evidence (party trying to get this thing admitted into evidence) bears the burden of

proving to the satisfaction of the judge to a preponderance of the evidence (NUMBER 3). 51% or more,

then the objection is overruled and the evidence will be admitted, 50% or less then the objection will be

sustained and the evidence will be excluded (not admitted).

Almost every FRE fits into this category, rather than conditional relevance.

Conditional Relevance: Factual questions that affect not only the admissibility of the evidence but also its very

relevance in the case (affects both). Note that all irrelevant evidence is inadmissible (its a waste of time and

shouldnt be in the trial). Example: The written confession is objected to because it is a forgery, and now the relevance of this

question depends on whether this was a forgery or not. If it is a forgery then it has no value to the jury.

104(e) holds that the jury gets to decide all the factual questions relevant to the weight or credibility of the

testimony and the exhibits of the other evidence.(6) Whether the confession is a forgery has everything to

do with the weight and credibility of the evidence.

104(b) holds that the judge has a preliminary screening role and must first determine whether there is

sufficient evidence that would support a finding that the condition has been fulfilled (whether there is any

way a rational jury could find). Note that 104(b) deals with relevancy conditioned on factthe relevance

of the evidence depends on a factual question (the factual condition here is did the defendant really sign the

confession). Objections under 104(b) are rarely sustained, they are only sustained if there is no evidence or

the evidence isnt present.

104(b) is referring to admissible evidence. This is because the whole question is whether there issufficient evidence to prevent the jury from finding in your favor. If there is only inadmissible evidence,

then the jury will not be able to find in your favor because they wouldnt even be able to hear it.

The judge decides (all other factual issues) those that determine the outcome of any other issue in the case; that is, thelegal issues (2). Such as whether there is personal jurisdiction or whether the defendants letter is admissible against himor privileged. These are preliminary factual questions and preliminary legal OR factual questions are determined by thejudge (the court) (4). This is covered by FRE 104(a).Yet there are some preliminary factual questions to a factual issue that a jury will decide because they are leading to aruling on the ultimate issue rather than a legal issue (such as was that the defendants blood on the shirt).A preliminary question is a question of law or fact arising out of an objection to the admission of evidence, which must beresolved (at least provisionally) before the objection can be decided. There are two kinds of these:


5/26

Conditional Admissibility: Questions that affect only the admissibility of the evidence, but not its relevance. Did thepolice read the accused his rights?Conditional Relevance: Questions that affect the relevance of the evidence (and therefore also its admissibility). Did theaccused really sign the confession? (5)FRE 104(e) (6)Objections under 104(b) are rarely sustained because the party needs to provide some evidence.Questions of admissibility are decided by a preponderance of the evidence. Conditional Admissibility takes much longerbecause

8/27/07

Conditional Admissibility: These are questions raised by rules of law that we do not trust the jury to obey. While we trustthe jury to follow the basic principal rules of law (they are logical and written on their hearts), we do not trust the jurywith the technical and procedural rules (they are not common sense or logical), such as rules of evidence (confessiondoesnt count if Miranda rights arent read). This is not because the jury cannot understand them, but because the jury isnot trusted to hold to them (So what if he didnt get his Miranda rights, he CONFESSED!). Note that rules of evidencewere formed because of the distrust of the jury.Conditional Relevance: These are raised by rules of logic, not by a legal principle (objection that it is a forgery).

FRE 104(c)

Jackson v. Denno: Defendant confessed to killing a cop but argued the police didnt read him his rights, so the judge letthe jury hear it and then told them to put it out of the juries mind if the police didnt read him his rights. Supreme Court

decided as a matter of constitutional law that these technical and procedural questions have to first be decided by thejudge and not the jury. Yet the jury can make a decision on it after the judge already makes a ruling that it is admissibleevidence, the jury just cant decide on it instead of the judge.

The excluding of the jury is automatic if either (1) the objection is to the admissibility of a confession (any

preliminary dispute over the admissibility of a confession), or (2) if the accused is a witness and so requests (note).Exclusion of Jury: Exclusion of jury technically means taking them out of the courtroom, but it is also sufficient to dealwith the objection at sidebar if it is out of hearing of the jury (judge decides which).The first clause is now kind of outdated because there are certain issues that must be raised prior to trial, specificallymotions to suppress evidence (12b3). Motions to suppress evidence have to be made before trial (because they are easy topredict and are very time consuming), otherwise the objection to suppress the evidence is waived (all other objections toevidence can happen during trial). Suppression motions Suppression of evidence does not mean exclusion of evidence

because it violates some FRE or procedure, but exclusion because its admission would violate the federal constitution.This motion allows the court to deal with these issues before trial and avoid wasting time with a mini-trial during trial inwhich the jury has to leave.Questions: Why isnt the second clause redundant? While the first clause requires the exclusion of the jury in regard toconfessions, the second clause just gives the accused the option of excluding the jury when testifying (being a witness) onother preliminary matters.Why is it limited to preliminary questions? For the primary questions the defendant would either want to testify in frontof the jury or not at all.What is its purpose? No matter what the defendant says when he takes (for whatever preliminary question), the jury willwonder why he didnt testify if he is guilty or innocent while he was on the stand. In short, it is to protect his 4th and 5th

Amendment rights, the right not to answer any questions about whether he is guilty or innocent, or be a witness againsthimself in the presence of the jury, etc. It is also to keep the jury from seeing the judge chose to believe the police over

the defendant (which would damage the defendant character by making look less trustworthy).How does the judge know when to exclude the jury on other preliminary matterswhen the interests of justice require?The judge will consider (1) prejudice (whether there is someone in the courtroom that will be unfairly prejudiced if thejury is allowed to stay) and (2) efficiency (while most objections involve questions of admissibility (technicalities) that thejudge decides and are not useful to the jury because they do not involve the weight or credibility, some objections bearboth on admissibility and weight or credibility and are useful for the jury to hear because if the evidence is admitted, thenthe jury would have to hear the stuff all over again according to 104(e), as long as it doesnt prejudice someone).

Three kinds of objections:

Objections that only go to admissibility (law says so), but not weight or credibility (police did not read defendanthis rights before the confession). These are determined with finality by the judge.


6/26

Objections that only go to weight or credibility (common sense says so), but not admissibility

Objections that bear on both admissibility AND weight and credibility (police physically beat the confession outof my client). After the objection has been argued before the judge and the judge rules that it is admissible, thedefendant has a right to have this reargued before the jury under 104(e). This is because the confession wasbeaten out of him goes to the weight and credibility. Note that a jury will generally never know the stuff is beingreargued and what was the judges ruling. But the jury is deciding a different question than the judge becausewhile the judge is ruling on a preponderance of the evidence, the jury is ruling beyond a reasonable doubt (is therea reasonable doubt that the defendant is telling the truth). Even though the judge may rule that the evidence is

admissible, if the objection also goes to the weight or creditability, then it can be reargued before the jury again(without the jury even knowing that it was argued), and the objector can still win the war (even though he lost thebattle on admissibility) if he convinces the jury through testimony or legal arguments that the evidence, eventhough it is admissible, is not credible and therefore worthless.

FRE 102:Bowles v. Russell: Defendant sentenced to life for murder relied on judges miscalculation for extension to file an appeal.Even though there was a line of cases that courts have the inherent equitable discretion to disregard a late filing, theSupreme Court ruled that the procedural rules must be followed, and its up to Congress to make a rule to excusecompliance. But there was a big dissent against this ruling.

FRE 103: This has little to do with truth and justice and is mostly about expense and delay (criminal could be wronglyconvicted but wont be preserved because attorney did not do something right). This rule is about making sure the systemis running on schedule.

Two kinds of Evidence:

Testimony : answers from the witnesses to the questions that are put to them on either direct or cross examination.Direct examination is the questioning of a witness that you called to the stand. Cross-examination is thequestioning of a witness that the other attorney called to the stand. (Note: Then there is redirect and re cross).Virtually everything that comes out of the mouth of lawyers is not evidence (opening & closing statements,arguments, etc.), including lawyers questions, EXCEPT when the witness says yes to the question, then itbecomes evidence.

Exhibits : Objects, documents, or things that are shown to the jury.

8/30/07

Three kinds of Objections (ask which type of one we are talking about for each rule) (these are listed in terms of differingdegrees of impediment they set up for the opponent, from most to least):

The fact you are trying to prove is inadmissible (pursading judge that any evidence about the defendants criminalrecord is inadmissible, which is a great impediment/victory)

The evidence you are trying to use is inadmissible (the facts can be proven but some other evidence will have tobe used to prove those facts) (sometimes the fact is not the problem, its just the evidence that you are trying touse, such as hearsay).

The form of the question is improper (such as leading or badgering the witness) (this just means that the questionwill have to be reworded).

Motions: A request to the court for an order. If I win, it is granted, but if I lose, it is denied.Objections: If I win, it is sustained, but if I lose, it is overruled.

103 is unique: All other FRE tell me when I may object and focus on the trial, but 103 in complete contrast, is not aboutwhen one is permitted to object nor does it govern admissibility (not really a rule of evidence), but it defines situationswhen I MUST object or make a second or better objection (even if I do not want to). This is about preservation of errorand the focus is on the appeal. This is the least important rule for prosecutors (and trial judges) because prosecutorscannot appeal.

The three requirements for a court to reverse (all of these must be argued and proved before the court of appeals and thereis no order as to which goes firstthey are independent).


7/26

Error must have been committed at the trial in the lower court.

The error must be prejudicial (is there a reasonable probability that the error may have affected the outcome of thecase). If the error is not prejudicial, then it is a harmless error. To decide this, the court looks in the trial recordto determine the strength of the prevailing parties case. The smaller the case and the shorter the trial, the betterchance that the error was substantial and affected the outcome. The court also looks at the length of the juriesdeliberation and the nature of the verdict (how many counts of indictment) to determine how substantial the erroron evidence was. If the jury convicts on a smaller amount of indictments, that means they scrutinized the countsand evidence more and it looks better for the prosecution. Also whether the error goes to what the jury convicted

the defendant of. The error must be preserved.

The FRE and FRCP connect, FCRP deals with preserving errors at deposition.FRCP 30(c) says that at a pre-trial deposition, examination and cross-examination of witnesses may proceed as permittedat the trial under the provisions of the Federal Rules of Evidence except Rules 103 and 615. These rules are not bindingon a deposition. This is because all objections made at the time of the examination to the qualifications of the officertaking the deposition, to the manner of taking it, to the evidence presented, to the conduct of any party, or to any otheraspect of the proceedings shall be noted by the officer upon the record of the deposition; but the examination shallproceed, with the testimony being taken subject to the objections (still 30(c)).When an objection is made in trial, that is a time-out in which the trial stops and a ruling must be made, but a depositiondoes not stop for a ruling when an objection is made.

FRCP 32(d)(3)(a) states that Objections to the competency of a witness or to the competency, relevancy, or materiality oftestimony are not waived by failure to make them before or during the taking of the deposition, unless the ground of theobjection is one which might have been obviated or removed if presented at that time. (this means that the objections areautomatically preserved and do not have to be made unless)FRCP 32(d)(3)(b) states that Errors and irregularities occurring at the oral examination in the manner of taking thedeposition, in the form of the questions or answers, in the oath or affirmation, or in the conduct of parties, and errors ofany kind which might be obviated, removed, or cured if promptly presented, are waived unless seasonable objectionthereto is made at the taking of the deposition.FRCP 30(d)(1) states Any objection during a deposition must be stated concisely and in a non-argumentative and non-suggestive manner. A person may instruct a deponent not to answer only when necessary to preserve a privilege.Note that FRCP 26(b)(1) states that evidence is not undiscoverable just because its inadmissible.Key Rule: If the objection is one that, if true, could be obviated or fixed (other than prevelige, such as leading the witness

where the questions could be made less leading) (an objection here would put the other attorney on notice that he willobject to this evidence at trial and if the judge agrees it will not be let in), then it must be raised at the deposition or else itis waived. But if the objection goes to anything else (the competency of a witness or to the competency, relevancy, ormateriality of testimony), then an objection does not have to made and should only be made sparingly (because too manyobjections can be sanctioned) and it is not waived (they are automatically preserved) (such as the criminal record isinadmissible or it is hearsay) (this is because nothing can be done to change this). You cannot tell the deponent to notanswer the question unless you believe that the information is privileged (could get sanctioned). If the information isprivileged, then not only does the attorney have to object, he has to instruct the deponent not to answer, because if he doesthen the privilege has been waived (because soon everyone will know about the privileged secret if it is told by the time itgets to trial).

Two basic requirements for reversible error:

Prejudice: Was the error prejudicial? (no exceptions to this) Hear (note) Preservation: Was the error preserved, or else plain?

After Break

Four Types of Error (in order from best to last) (look at diagramif it was forfeited, then it was it waived, then was itinvited).

Preserved Error : this is done when there is a proper objection, otherwise it is waived

Forfeited Error (but not waived): this is passive, when the attorney does nothing. This is good enough reason foran appeals court not to consider an issue on appeal, but this is better than a waived error because the appellant can


8/26

still get a reversal on the grounds of plain error (plain error is an objection to the general rule that every error hasto be preserved).

Waived Error (but not invited): Waiver requires an affirmative active expression of consent, this is when theattorney specifically says he has no objection.

Invited Error : This is when the attorney introduces the evidence or asked the question himself (attorney shootshimself in the foot).

The proponent is not the one objecting, but the attorney standing up with the floor who is asking questions and offering

evidence (exhibits and testimony).The opponent (or objecting party) must object if he disagrees with the admission of the proponents offer of evidenceThe archaic language of 103(a) to predicate an error upon a ruling simply means to seek reversal on appeal because ofan error. One cannot seek reversal on appeal unless (1) the error is prejudicial (not harmlessa substantial right of theparty is affected) and (2) an objection or offer of proof was made:

An objection must be made in case the ruling is one admitting evidence (the objection is overruled and theevidence is admitted, then the opponent must be sure to preserve correctly). Depending on the timing, a timelyobjection or motion to strike must be made. If the evidence has not yet been admitted (the question has not yetbeen answered), then the opponent must object. If the evidence has already been admitted (the question has beenanswered and the evidence has been seen by the jury), then the opponent must make a motion to strike. A motionto strike is basically asking the judge to take the evidence out of the record, or more precisely, asking the judge toinstruct the jury to put this evidence out of their mind. If the motion to strike is granted, the evidence will remain

on the transcript, but the judge will remove the evidence from the admissible evidence that is allowed to be heardand considered. It will not be referred to in closing arguments and the appeals court will not considered it for thechallenge to the sufficiency of the case (makes a big difference technically). Note that a motion to strike is sillyand superfluous (and will likely irritate the judge) if the same objection was considered and overruled a couple ofmoments ago. Yet a good attorney may do this in an attempt to persuade the judge to change his mind about theobjection he just overruled (note that two officially sanctioned reasons for objecting are to (1) prevent error and(2) preserve the point for appeal). The timely objection or motion to strike must be adequately specific as to the(1) ground of the objection (privileged, hearsay, irrelevant, etc.), (2) what the attorney wants the court to do, i.e.,what part of the evidence is inadmissible (generally this is pretty obvious, but it may not be if, for example, he didnot state the specific page or line of the 500 page document that he was objecting to), and (3) why the evidence is,although admissible to the co-defendant, is not admissible against his client (this refers to semi-admissibleevidence that is admissible against one party and not the other). Note that an objection that is not specific is

called a general objection. An offer of proof must be made in case the ruling is one excluding evidence (the objection was sustained and the

evidence was excluded).

9/4/07

HYPO: If the judge overrules your general objection before you have a chance to make it specific, before you continue tomake a stink out of this to make it specific, you need to consider (1) how substantial the objection and how good thechance is to persuade the appeals court that the trial judge abused his discretion and (2) even if you can persuade theappeals court that the evidence was clearly inadmissible, how great are the chances that the appeals court will reverse onthat ground (key is to exercise some discretion and choose wisely what is worth fighting for, or else you will look bad infront of the jury). If it is, then tell the judge your honor, for the record, I object to this because _______.

If the defense counsel objects to plaintiffs counsel and asks to discuss this in his chambers, then the objecting defensecounsel is going to want the court reporter back there (or make sure the reporter puts in what happened in the chambers ifhe felt there was an error) because he will need that to preserve an error for reversal (but the plaintiffs counsel is notgoing to care because he cannot appeal errors and it is not his objectionhe has everything to lose and nothing to gain).The three requirements to preserve a point for appeal is that the objection or motion to strike must be (1) timely (noprecise definition, but the sooner the better), (2) on the record (which means that it must have been heard by the judgeand the reporter, but although it can be heard by the jury, it doesnt have to be), and specific (not a general objection).A general objection is not worthless because (1) a general objection is just as likely to be sustained as a specific objection(actually and paradoxally more likely to be sustained because sometimes the judges dont recall all the FRE, but mayinstinctively share the objecting attorneys feeling that one has been violated). But while they can be very effective in triala general objection is almost worthless on appeal unless the ground for the objection was obvious from the context (but nosane lawyer would purposefully gamble with this, they would make it specific). A general objection can and will be


9/26

treated by the court of appeals just as if it had been a specific objection if the specific ground for the objection wasobvious or apparent from the context. (this is a safety valve written for appeals specialists, not trial lawyers) (not plainerror because that is appropriate when no objection is made).Degrees of Preservation (from best to worst for chances of success on appeal):

1. The lawyer who made the right objection in the lower court.2. The lawyer who made only a general objection in the lower court.3. The lawyer who made no objection in the lower court (or it was not on the record). This attorneys only hope is

plain error (even though the attorney made no objection, it should have been obvious to the judge because it wasso outrageously inappropriate).

4. The lawyer who made a specific but different objection in the lower court (the wrong objection). It is ironicthat the attorney who at least makes a specific objection comes in lower than the other two, but he will almosthave no hope because it will be very hard to convince the appeals court of plain error when the attorney made thewrong objection to such a plain and obvious error.

5. The lawyer who told the judge we have no objection. This guy is worse than all the rest because he cannotpersuade the appeals court that he is a victim of plain error, if the error was not just forfeited but also waived thenit cannot be error. When a judge violates a FRE with a counsels explicit consent then that is not an error.

HYPO: The attorney who speaks up to make specific his reason for an objection that has already been overruled is doingsmart work because he is preserving the error for appeal.

The appellee in appeals court who had his objection sustained or whose opponent had his objection overruled may defend

an evidence judgment on any ground which the law and the record permit, even if the trial judge made the ruling for noreason or the wrong reason (so if you win the objection, shout up and sit down and dont try to add things to preserve it).Preservation is for losers (preservation of error, not preservation of why the judge was correct).

HYPO: If the judge sustains a general objection made by the defense counsel, then defense counsel should not doanything to specify why it was sustained, but the plaintiff may want to make an offer of proof if he feels the evidenceshould be and is important enough to be fought for (he is unhappy with the exclusion of evidence).The offer of proof must be specific in that it is factually specific as to the nature of the evidence excluded (what theevidence would have been/what the jury would have seen). There is no need to cite any legal authority because Rule 402states that all relevant evidence is admissible, except as provided by the rules (check the note here). This is why theproponent does not have to cite legal authority for admitting evidence, because this rule states that if it is relevant then it isadmissible, and the proponent will argue that it is relevant. The proponent just has to show what the evidence would have

been for the appeals court, because they need to know this to determine whether it was harmless or prejudicial (if theevidence could have enabled the proponent to win, then the error of not allowing the evidence would be prejudicial andnot harmless). The offer of proof must be on the record in that it is heard by the judge and court reporter, but must not beheard by the jury. But there is no requirement for timeliness for an offer of proof. This difference between objectionand offer of proof is because errors in terms of what has not yet been done are never too late to remedy (you can alwaysadd in the evidence later).The two most basic methods for offers of proof are (1) attorney narrative (this is easier and the attorney can articulate itbetter than the witness, the advantage here is that it is fast) and (2) question and answer form (the court can choose to havethis done to specifically hear what the witness says without the jury therecan call a shady lawyers bluff if he is beingdishonest, the advantage here is that it is honest and reliable). To have the best of both worlds, have it in writing.

Plain Error: This strikes a balance between finding truth and having an efficient court system between the extremes of

having errors always preserved (court always finding truth but very inefficient) and never having errors preserved (courtvery efficient, but chance of not finding truth). This allows plain error review when it can be shown that a monstrouserror was committed. Of the four types of cases (civil & criminal for admission and exclusion of evidence), plain error ismost likely to be found in appeals over the admission of evidence in criminal cases (its easy for a court to imagine thecase without the evidence that is in the record, exclusion dont work well because there hasnt been an offer of proof).People dont get to worked up over money in civil cases (not life or limb). Remember the plain error is for the attorneywho forgot to preserve the point for appeal by making a timely and specific objection or an offer of proof on the record (ifthat is done then you dont have to worry about plain error).

Exceptions Not Necessary: Under FRCP 46, formal exceptions are not necessary. Exception basically means that theattorney does not like the judges decision to overrule his objection (objection-overruled-exception-noted), this just states


10/26

the obvious and is not necessary to preserve an error when the attorney has already made his objection and specified it bystating the ground (does not give the judge any incentive or opportunity to reconsider the point) (exceptions are a thing ofthe past). This was required back when there wasnt a court reporter and it was a signal for the judge to hand-write theobjection done for the record.Reason for Requirement of Objection: There must be an objection to reserve a point for appeal (even if a huge erroroccurred which resulted in a wrong conviction) because this gives the court a chance to fix the error. Otherwise anattorney could see the error and let it go and if he loses he could try to overturn the entire case, causing all kinds of extrawork for the courts.Objecting a lot is not realistically a good thing, because jurors see this as the lawyer is trying to hide something from

them. Lawyers do not want anymore than they absolutely have to.

Eight situations where a timely specific objections on the record may not be enough, depending on what happens next(these are all governed by case law). Just because you did the three things, doesnt mean they will be upheld on appeal.

1. If the inadmissible evidence was offered or invited by you : Generally this happens on cross-examination, whenthe lawyer is examining a witness he has never examined before (need to be careful, and even need to lead thewitness). For instance, the defendants counsel asks the prosecutors witness on cross-examination what he has inhis notes about a conversation he had with the defendant (which the attorney isnt sure whats in the notes), and itturns out to be stuff about the defendants criminal record. This is invited error for the defendants counsel so he isscrewed, but if it would have been the prosecutors question then it would have been plain error and the defendantwould have been good. (how does he get around this?) Even if counsel asks a reasonable question, and thewitness starts going into inadmissible stuff, the attorney has to object or it may be invited (is this right?)Whatdoes it mean to lead the witness?

9/6/07

Continuation on Eight Circumstances

2. Failure to request a continuing (or running) objection when (1) your objection has been overruled, and (2) theother lawyer asks the same question again (the objection has to be renewed by requesting a continuing objection).Also, you need to specify what you continuing objection is. (Have you ever had a gun before? This isirrelevant because it doesnt have to do with the present charge and is therefore inadmissible and prejudicial. Ifthe judge overrules your objection to this and opposing counsel continues asking the same question, youve got toask for a continuing objection.)

3. Failure to request a mistrial (What???)4. Request that the judge make a specific ruling when (1) your objection has been successful (sustained) but (2) you

are not satisfied with what the judge has done for you. If you sit down after the judge rules sustained for yourobjection, the appeals court will presume that you were satisfied with his ruling (youve got to speak up further ifyou are not satisfied with what the judge is doing for you). For example, if the judge doesnt actually make aruling, or doesnt say sustained or overruled (Ill keep an eye on him or we dont usually do that in thiscourtroom or Im warning you). Request that the judge make a specific ruling.

Motion in Limine: A request for a ruling on the admissibility of evidence before the evidence is offered (usuallypretrial, but not always). This is usually about the opponents evidence, dont do this for your own evidence, just tryto get it in (dont do opponents work).

5. The motion in limine denied : If your motion in limine was denied in federal court, and you think it was anerroneous ruling, this will be adequate to preserve a claim of error as long as the objection was definitivelyoverruled (tentative rulings count for nothing, these are not solid rulings, such as At this time point in time Iminclined to overrule). This means that the attorney does not have to object to this evidence when it is offered attrial. This is covered in FRE 103(a) with Once the court makes a definitive ruling on the record admitting orexcluding evidence, either at or before trial, a party need not renew an objection or offer of proof to preserve aclaim of error for appeal. Note that state courts are split on this.

6. The motion in limine and the conditional ruling : A ruling can be definitive yet conditional. A conditional rulingis a definitive ruling by the judge that depends on what the attorney or one of the parties will do. For example, ifthe defendant testifies, then the defendants criminal record can be brought in, but if he doesnt, then the criminalrecord does not come in. Note that states are also split on this. The Supreme Court held inLuce v. UnitedStatesthat the condition ruling on the motion in limine is enough to preserve a claim for error IF the party does what thejudge warned him not to do. If he doesnt, then he has waived his right to claim error on the judges pretrial ruling(this is because it is hopelessly speculative for the reviewing court). This is tough on the defendant because if hedoesnt do what the judge warned him not to do, then he doesnt have to deal with the warned about consequences


11/26

(such as admitting his criminal record) but he loses his claim for error. But if he does do what the judge warnedhim not to do, then he shoots himself in the trial but he preserves his error for appeal.

7. The motion in limine and biting the bullet. : This is the situation in which the defense counsels motion in liminewas denied (to exclude his criminal record), so he brings it out himself before the prosecutor offers it so hedoesnt appear to the jury like he is hiding something (such as on direct examination of the defendant). But theSupreme Court ruled in Ohler v. United States that if you bring this out yourself on direct examination, then youwaive any claim of an erroneous motion in limine ruling. The states are evenly split on whether this is invitederror (note) and waiver, the federal courts hold this is a waiver.

8. The motion in limine and biting the bullet in opening statement : Some clever lawyers try to bring out theevidence that they couldnt get to be inadmissible because the judge denied their motion in limine in their openingstatement, rather than on direct examination, to preserve the claim for error on appeal. The Supreme Court hasnot yet ruled on this, but must courts rule that this is also a waiver.

HYPO for 7 & 8: Im letting them use the conviction if your client testifies. Under Luce he cannot get a reversal on thosegrounds unless his client takes the stand anyways and under Ohler he cant get a reversal unless his client keeps his mouthshut about his conviction under oath. Now hes got to put his client on the stand and ask nothing about the conviction andthen wonder if the prosecutor is going to bring out the conviction.

Final Judgment Rule: This is the FRCP that holds that nothing can be appealed until the case is finished. If this wasnt thecase then all these situations above become moot because the attorney could just go directly to the appeals court duringthe trial on the issue.

Judicial Notice & Stipulations

The concept of judicial notice and stipulations are very close, but stipulations are almost mentioned nowhere in the FRE(there does not need to be rules as to what parties can agree to). A stipulation is when the attorneys agree that somethingis true.FRE 201 is the first of three rules that has a different effect depending on whether the case is civil or criminal. Whetherthe judge agrees to take judicial notice on the request of the parties does not depend on whether it is a civil or criminalcase (its the same standard/its not easier one way or the other). The difference is that in a civil case judicial notice isconclusive, and the judge will order the jury to take that fact as though it was proven, BUT in a criminal case the jury isnot required to accept any judicially noticed fact as conclusive. (Look at some slides here he skipped)Judicial notice, like stipulation, is a way of proving something without any evidence (this is so obvious and indisputablethat we are not going to waste court time proving it). On all other issues that arent governed by judicial notice andstipulations, the juries verdict must be based only upon the evidence.

Note that even a criminal jury must agree with and accept as fact what has been stipulated (its conclusive) because thedefendant has already agreed to it. This does not violate a defendants right to a trial by a jury of his peers because thedefendant has already agreed/consented to the stipulated fact. A stipulation represents a waiver by the defendant of hisright to demand a jury by his peers. Note that the government cannot get a summary judgment, not matter how heavy theevidence of guilt is, because a defendant has a right to a jury by his peers.Stipulations are the reason why judicial notice is becoming obsolete these days (which is why Duane is not spendingmuch time with this) (BUT JUDICIAL NOTICE WILL BE ON THE FINAL). Stipulations work better than judicialnotice in that (1) they take less court time (more efficient for the court) and (2) judicial notice is limited to the trulyexceptional and rare category of facts where some fact is not just probably true or almost definitely true but for facts thatare indisputable that no reasonable person would doubt (probably no judicial notice that tobacco causes cancer becausesome scientist may disagree but judicial notice for Jefferson City is the capital of Missouri). But stipulations can be madeand frequently are to things that might not be true. The rule on judicial notice was more relevant back when pretrial

conferences and meetings were not encouraged. (he skipped some more slides here)

Presumptions

Rule 301 is the first of three FREs that state that sometimes a federal judge may follow state law. FRE 301 states that ifit is a diversity case in federal court, then the judge will follow state law, even though he is not bound to by the Eriedoctrine (federal courts apply federal procedure). If it is a different civil case (such as a federal question case), then thejudge will follow federal case law (the presumptions that govern federal question cases are governed by case law). InSandstrom v. Montana, the Supreme Court has obliterated any role for presumptions in criminal cases. The SupremeCourt stated in Francis v. Franklin that a mandatory presumption may be either conclusive or rebuttable. A conclusivepresumption removes the presumed element from the case once the state has proved the predicate facts giving rise to thepresumption. A rebuttable presumption, on the other hand, does not remove the presumed element from the case, but


12/26

nevertheless requires the jury to find the presumed element, unless the defendant persuades the jury that such a finding isunwarranted. Note that mandatory presumption is technically redundant because all true presumptions are mandatory,mandatory meaning that they are binding (yet they are not all conclusive).An example of a rebuttable presumption is the presumption of legitimacy, in which children born to married parents arepresumed to be legitimate (the biological offspring of the mothers married lawful husband). So if the plaintiff wasmarried to Joe when she gave birth to her son, and the defendant has no other evidence that anyone else is the father, thenthe jury will be told that they must conclude that Joe is the father (this presumption comes from when DNA testing wasntavailable).An example of a conclusive presumption is that if a man has not been heard from in seven years, then there is a conclusive

presumption that he is dead (though he may be alive). Or children under seven years of age are conclusively presumed tobe incapable of contributory negligence.Rule 301 states that in all civil actions and proceedings not otherwise provided for by Act of Congress or by these rules,a (rebuttable) presumption imposes on the party against whom it is directed the burden of going forward with evidence torebut or meet the presumption, but does not shift to such party the burden of proof in the sense of the risk ofnonpersuasion, which remains throughout the trial upon the party on whom it was originally cast. Presumption does notshift the burden of persuasion, but it does shift the burden of production. The term burden of proof is comprised of thetwo different ideas of the burden or persuasion and the burden of production. The burden of persuasion (also known asthe risk of nonpersuasion) is a rule of law that must be explained to the jury at the end of the trial and that does not shiftduring the trial. This is how much evidence a party needs to win the case (in a criminal case it is beyond a reasonabledoubt and in a civil case it is usually by a preponderance of the evidence or sometimes by clear and convincingevidence). In a civil case it is on the plaintiff and in a criminal case it is on the government. A burden of persuasion is a

way of telling a party upon whom it rests that they better come up with more and better evidence than their opponentbefore the end of the trial, otherwise the court will tell the jury that they must find for the opponent. The jury will decidewhether that party has met his burden of persuasion.The burden of production (also known as the burden of going forward) does not need to be explained to the jury. Apresumption is a rule of law that shifts the burden of production (this is what it is all about). The burden of productionsays to the party upon whom it rests that they better come up with some evidence right now (or before they rest theircase), or else the court will not go any further on this issue and it will be taken from the jury.Every presumption, whether it is rebuttable or conclusive, operates to identify a legal connection between the base factand the presumed fact. For example, if you can prove that your husband has not been heard from in seven years (the basefact), then there is a conclusive presumption that he is dead (the presumed fact).PRESUMPTION HYPO: Suppose there is a civil case in which a widow (plaintiff) and her son the lawful heir (co-plaintiff) is suing an insurance company (defendant) because she has a life insurance policy on her husband that if he dies

of natural causes then she can collect five million dollars. She claims he is dead and there is some circumstantial evidencethat he is dead, but no body has been found. But the insurance company does not know that he is actually dead andwhether the son is the actual son (no DNA test cause father is dead). At the beginning of the trial both the burden ofpersuasion and the burden of production rests on the plaintiff. Since plaintiff has the burden of production, she has to gofirst and present some evidence that her husband is dead.Scenario One: Now, if she doesnt have any evidence, but she just hasnt seen him in a week, then the judge is going tothrough this out because no jury could reasonably find for her.Scenario Two: If she states that nobody has heard from him in five years and he was last seen going over Niagara Falls ina barrel, then this is good enough to give to the jury (in which she may win) but it doesnt trigger the presumption becausehe hasnt been gone seven years. Then the judge will turn to the defendant to see what evidence he has, but since thepresumption has not been triggered the burden of production has not shifted (he has no burden of production) and he has achoice to (1) present evidence or (2) offer no evidence and rest his case for closing argument in which he will try to

persuade the jury.Scenario Three: If she testifies that he hasnt been heard from in seven years and that she was lawfully married on the dateof conception and birth of the son. Though this is not good enough for summary judgment or a directed verdict, it is goodenough to trigger the two presumptions. Therefore the burden of persuasion is going to stay on the plaintiff but theburden of production is going to shift to the defendant. If it is a rebuttable presumption and if the defendant presents awitness who says she saw him last week, then the presumption is gone and everything is given to the jury to decide (jurydecides weight and credibility of evidence). But if the defendant has no evidence, then the plaintiffs proof on the basefact is uncontradicted, the court will take this question away from the jury and the jury will be ordered to find that thefather is dead.If it is a conclusive presumption, then it is even harder. For example, there is a negligence case in which the mother(plaintiff) is suing the defendant for negligently hitting her daughter with a car, but the defendant is claiming contributory


13/26

negligence on the daughter. There is a conclusive presumption that children under 7 cannot be contributorally negligent.If the plaintiff testifies that the daughter was 6, then the judge is going to turn to the defendant to see if he has anyevidence to contradict the base fact that the kid was 6 (to say the kid was actually 8), and if he doesnt then the court willtake this question away from the jury and order them to find there is no contributory negligence (even if the defendant hasproof that the kid was drunk and running around crazy, wont let this be presented).Remember: None of this applies to criminal court, facts are not taken away from the jury in criminal cases.

9/11/07

A rebuttable presumption is preferable over a conclusive presumption because there are two ways to rebut a rebuttable

presumption. Either (1) prove that the base fact is not true (rebut the base fact) (that plaintiff was married to Joe at time ofbirth) or to (2) prove that the presumed fact is not true (rebut the presumed fact) (Joe was the father). If the attorneycannot rebut the base fact or presumed fact of a rebuttable presumption, then the question will be taken away from thejury in a civil case and he will not be allowed to argue the point on closing argument, and the jury will be told that thepresumption is basically fact (the child is legitamite).But the only way to rebut a conclusive presumption is to prove the alleged base fact is not true (rebut the base fact)(plaintiffs husband has not been seen in seven years), or else the court court will go straight to the presumed fact.

Presumptions v. (Permissive) Inferences: They have a lot in common; they both come from well-known and well-settledstatistical generalizations. But there is a fundamental difference in that presumptions are a rule of law and mustbeaccepted (all presumptions are mandatory) and the jury may apply a permissible inference (all inferences are permissiveand the FRE does not regulate these). Note that the use of may indicates an inference, such as in a criminal statute

where presumptions are not allowed against the accused. There is even debate as to whether to tell juries anymore aboutinferences; they still do largely because that is how it has been done so long).

Witness Competency: This area is different than most other FREs because the result is that a witness is not allowed toanswer any questions, where usually a particular line of the evidence (such as a particular question) is taken out. Theycompletely take out the witness and label him as incompetent and unfit to serve (a radical ruling).

Rule 601: This rule states that every person is competent to be a witness, accept as otherwise provided in these rules.Most FREs have stayed the same as common law, but this is a radical change from the common, which would not allowmany different types of witnesses (spouses, anyone with an interest, infants, convicted felons, etc.) because of theirquestionable trustworthiness (there was concern about the trustworthiness of their testimony).

Common Law Category (3 large incompetent groups inthe Common Law)

What Remains Today?

Infants, the insane, and felons (inmates) Impeachment.

Interested Witnesses Impeachment & Dead Mans Acts.

Atheists Nothing at all!

There are three groups of witness competence rules (what is left over from the common law).Questionable Trustworthiness: One group are witnesses who are incompetent because of their questionabletrustworthiness (Rule 601-603). They are divided up between witnesses who gave the court doubt about their (1) mentalcapacity (insane and young children) and (2) moral capacity (felons, atheists, and interested witnesses). At common lawthese witnesses (infants, the insane, and felons) were incompetent, but today they are subject to impeachment and cross-examination (the facts are thoroughly explored on cross-examination). While these people arent as trustworthy as the

ideal witness, to kick them all out is to deny a lot of truth from the courtroom. Three big differences from today versescommon law: At common law, the jury would have to take true all the testimony given by the ideal witnesses who wereallowed to testify and try to reconcile it all together, but today we dont trust the witnesses so much. The other is thatRule 601 puts a lot more faith in the jury to determine witnesses and testimony should be believed and trusted, whereas atcommon law they did not. The third thing is that today we are infinitely less worried about people committing perjury,whereas before the court did not want witnesses to be tempted into committing perjury.Interested Witnesses: Generally we will not preclude a witness from testifying because it is obvious that he has a specialinterest in the case. But on cross-examination the attorney can bring out all the facts to determine the witnesses interestand if he is truthful (temptation to lie). But there are two remnants that interested witnesses are incompetent to bewitnesses: One is the spousal rules of privilege (cannot testify against spouse). Interested witnesses can be impeachedand also the old rule that they are incompetent remains in the Dead Mans Acts (when there is an action brought against


14/26

the estate of a dead man, interested parties cannot testify because there is a great temptation to lie-witnesses word againsta dead mans word). Rule 601 states that in diversity cases, the competency of witnesses is determined in accordancewith state law (an example of a state law that may have to be enforced are Dead Mans Acts). This means that if anattorney is trying a civil case in federal court and it is a diversity case, and if an evidence objection comes up regarding aquestion about the competency of a witness, then the court will follow state law.Atheists: Nothing can now be done to atheist witnesses. Rule 610 states that a witness cannot impeach or rehabilitate awitness with his beliefs. The facts about a witnesses beliefs are inadmissible and cannot be exposed or revealed to thejury on cross-examination. This differs greatly from the past. But note that evidence of a witnesses religious belief is notinherently inadmissible, but is inadmissible for purposes of showing the witnesses credibility is impaired or enhanced

(sometimes it is relevant to some other issue in the case).

But Rule 601 does not leave a judge powerless to exclude even the most unreliable witnesses. The rule states that everywitness is competent except as provided by these rules (referring primarily to 602, 603, 605, 606). Remember that rules602 & 603 do not allow the judge to exclude witnesses because HE doesnt believe them, a rational jury cannot be able tobelieve the witness.

Rule 602 states that a witness may not testify to a matter unless evidence is introduced sufficient to support a finding thatthe witness has personal knowledge of the matter (this is about mental faculties). This does not disqualify a witness causehe is crazy or young or has too low of an I.Q., but allows a judge to exclude a witness whose testimony is so far-fetchedthat it is incredible as a matter of law and could not be believed by a rational jury. This excludes very few witnesses.

Rule 603 (moral faculties) states that every witness shall testify truthfully under an oath or affirmation. This makes nobelief requirement on the witness and there is no specific ritual or wording that must be followed. As long as the witnessis willing to affirm under penalty of perjury that what he says is truthful, then that is good enough. A witness will not beallowed to testify if he cannot at least affirm the truth of what he is saying, and this is because the crime of perjury iscommitted when you knowingly give false information that is material under oath or affirmation (note that it doesntmatter if he has a huge perjury record). This excludes very few witnesses.

Role in the Trial: The second group, witnesses made incompetent because of their role in the trial, are governed by Rule605 & 606(a). There will be some questions on this on the exam). These state that judges and juries cannot be witnessesin the same trial. There does not need to be a rule against the attorney taking the stand because that is covered by theethical rules (conflict of interests). Remember that these rules do not apply to summarily contempt cases, when a judgefinds someone in contempt and acts as the judge, witness, and jury.

Top Secret Reasons: The third group is witnesses who are made incompetent for top secret reasons.The difference between Rule 606(a) and 606(b) is that (a) is during the trial and (b) is after the trial. Rule 606(b) dealswith whether a juror should be allowed to testify on a post-trial motion, inquiring into whether there has been amiscarriage of justice.Rule 606(b) states in the advisory committee notes that the reasons are (1) freedom of deliberation, (2) stability andfinality of verdicts, and (3) protection of jurors against annoyance and embarrassment.Supposed Reasons for Rule 606(b) (in Duanes format):

Privacy : This is the theory to ensure the secrecy of deliberations, and thereby promote free and frankcommunication among jurors. But if a juror tells the other jurors something that he wants to be kept secret (oranything) during deliberation, the jurors can tell the judge if there has not yet been a verdict. This rule does notimpose any limitations on what the jurors can reveal to the judge, and the judge can yank out a juror and replace

him with an alternate. This rule does not come into play until after a verdict has been returned. Rule 606(b) doesnot seal a jurors mouth from telling the judge about something another juror said or did even after the verdict hasbeen delivered because the jury has not yet been discharged. Even after the jury has been discharged, they can goand tell EVERYONE (press release, write a book, etc.) about every detail about what happened in the trial andduring deliberations because they are not on the witness stand about it. Rule 606(b) is not a tort law, it just keepsa juror from going on the witness stand about this stuff. The bottomline is that 606(b) is not about privacy. If itwas, we would (1) tell the jury about the rule (this rule will not change the jurys behavior unless we tell themabout it), (2) make what the jury knows secret and make them take an oath to keep it secret (like criminalprocedure grand jury), and (3) require the lawyers to file an affidavit taken from a juror to be used for a motionfor mistrial under 606(b) under seal like other privileged stuff instead out in the open with all the other courtdocuments were everyone can see it (nor would courts be expected to quote from these affidavitsOConnor).


15/26

To protect former jurors from harassment after the case is over : This is supposed to minimize the incentive forlawyers to waste their time bothering the jurors, but 606(b) does not forbid the attorney from talking to the jurors.This rule does not even reduce an attorneys incentive to talk to the jurors because 606(b) lists three differentkinds of information that will be admissible (exceptions), and the lawyer will not know this stuff unless he asks!This rule doesnt even discourage the press from calling on the jurors because it is only a rule of evidence (not torlaw), so the press can hound them all they want. If we were serious about this, we would (1) forbid the lawyersfrom harassing the jurors (which is already an ethical rule) and (2) give jurors a privilege to refuse to answer thesequestions which they could waive (rather than making them incompetent).

Finality : This is what Rule 606(b) is really all about. Once the jurors have been discharged, this keeps them fromcoming back and being able to undue the verdict they gave (impeach their own verdict), unless the informationfalls into one of the three exceptions. This rule is about minimizing retrials and denying appeals.

9/13/07

So help me God is an abbreviated form of asking God not to help me on judgment day if I do not tell the truth under thisoath.Tanner Case: OConnor stated that if the public were able to discover the things that the jurors do to easily, the publicmay want to get rid of the jury trial (then Duane talked about some ridiculous things that the jury did).You cant blame the makers of this rule, because who knows what would happen if any juror could come forward to sayall kinds of things to change the sentence after it has been given.

There is two limits on Rule 606(b). This rule does not say that you can never get a new trial based on the misconduct ofthe jurors.

The first reason is that this rule does not come into play until (does not impose any limitation on the judge,attorneys, jurors, bailiff, waiter at lunch) until after the jury has been dismissed. Therefore, if something is goingwrong, then the court can do something about it. The judge can even conduct a hearing (an inquiry) in the middleof the trial to determine the misconduct and throw out the bad juror. This may seem to violate 606(a) because thejurors may be asked to testify as to their conduct in the same trial, but it doesnt because the jurors are not askedin front of the other jurors (otherwise it may be a violation).

The second reason is that if there are other witnesses to this juror misconduct that are not jurors (waiter, bailiff,etc.), they can testify even if the trial is all over. This rule only seals the mouths of jurors.

Duane thinks we ought to tell jurors about 606(b), that they have to say something before the verdict is in or they are

dismissed, and they cannot change their verdict.

606(b) allows an attorney to use an affidavit from a juror even after he has been dismissed if the information falls into oneof the three exceptions, such as if there was any improper outside influence (threats, bribes, tampering with the jurythere is a list in the book) or improper internal things (listed in the book, like a newspaper with prejudicial info in it thatwas not allowed in the case). But other things will not be allowed, such as how the jurors were sleeping, got into a fight,etc. The Tanner case was in the middle, because the jurors were doing drugs outside the courthouse, but ruled that it wasnot like one of the exceptions.

Under the first sentence of Rule 606(b), jurors are never allowed to testify on what effect the irregularity had. They cantestify as to what the irregularity was (the bailiff told about the inadmissible confession), but they cant testify as to whateffect that had (whether it affected their decision, even though they are the best people to ask this). The judge applies an

objective standard of review in determining whether a retrial should be awarded (not how this affected this jury but anordinary jury).

North Carolina v. Robert Kelly: This case was thrown out because there were parents of the abused kids that wereproviding expert testimony.Opinion testimony of lay witnesses is admissible as long as they meet the three requirements in the rule (it is limited, notinadmissible). The opinions or inferences must be (a) rationally based on the perception of the witness, and (b) helpful toa clear understanding of the witness testimony or the determination of a fact in issue, and (c) not based on scientific,technical or other specialized knowledge within the scope of Rule 702. The parents gave testimony of the actions of thekids (waking up at night) which is admissible (these are facts which is totally admissible), about the emotions of the kids(scared, nervous) which is admissible inferences/opinion about mental states because they are not based on scientific,technical, or other specialized knowledge (you dont have to be an expert to know this and are therefore competent to


16/26

diagnose this, like knowing if someone is drunk, tired, angry, scared, etc.). A lay witness is able to testify whether hethought the red stuff on the mirror was blood because it is not based on specialized knowledge. The parents were alsoasked to testify about their kids behaviors and how that is typical of children being abused, which is inadmissible becausethis requires specialized knowledge. On appeal, the prosecutors could argue that this was not reversible error because thisis harmless error because of the other overwhelming evidence of guilt and because a jury usually doesnt give muchweight to lay witness expert testimony. But the defense could argue that this is reversible error because the testimonyreferenced other experts, which does give weight to the jury. Note: The parents testifying that I believe my child, hewould not lie is not proper because it is not helpful opinion testimony, unless that parent has some special first-handknowledge that the jury does not know. These kind of character witnesses are not generally allowed in civil or criminal

trial, but a narrow exception is made for criminal defendants who call character witnesses for his own defense.

The second requirement of Rule 701 requires that the opinion of the witness be helpful to the jury somehow. To a largeextent this second requirement overlaps with the first requirement (rationally based on the perception of the witness),because if (a) is violated then (b) is most likely violated also (I wasnt there but I think I know who killed Kennedy). Thesecond requirement deals with situations where the testimony of the witness will not be helpful to the jury even though itis rationally based on things that they saw. Is there some way that we can possibly put the jury in as good a position as thewitness is to reach the same conclusion? Usually words alone cannot do this. For example, if Daunes witness testifiedthat she saw the silloute of the man at night on Regent and she made an inference that she is fairly certain that it was DeanBrauch, this is a permissible basis for opinion testimony because it is rationally based on her perception (assuming thatshe is familiar with the Deans features) and it is helpful to the jury (assuming that it is relevant). It is ridiculous to notallow the witness to say who he thinks it was because there is certain kinds of factual data that cannot be translated with

100% accuracy into words, that the witness cannot put the jury in the same position that he was in to tell if that was thedrunk dean with lipstick on his collar. But if the witness did not see the Dean, but saw his car parked in his parking spotand the light was on then turned off when it was gone, then it is not helpful for the witness to tell the jury that the personwas the Dean, even though it would be based on his own rational perception, because he has already put the jury in asgood a position as he ever was or ever will be to tell if the Dean was there that night. Nor is it helpful to take a letter andas a witness whether it is sexual harassment, even though it would be based on his own rational perception, because thesame letter (or video or whatever) can be given straight to the jurors.Note that it is probably not proper for a lay witness to distinguish between whether the white stuff in the baggy wascocaine, flour, or sugar. But if he tasted it or smelled the marijuana, then he can properly testify as to what it is becauseyou do not have to be an expert to tell what it is, as long as you have some familiarity with it.

9/18/07

Rule 701: the basic idea is that an opinion by a lay witness is admissible if it is helpful to the jury, if the witness is in abetter position to answer a question than the jury.These rule ends up getting argued in many different ways:Many lawyers think that questions that begin with Is it possible that or Can you give us a guess are inherentlyobjectionable, but it just depends on the context.For example, in what country was Woodrow Wilsons mother-in-law born? Could you give me a guess? This guess isinappropriate because it is a shot in the dark for the witness. Same with in a bank robbery prosecution, asking the teller,after he testified that he couldnt see what was in his pockets, whether it was possible the defendant was carrying a walletstuffed with counterfeit bills.How much did your son weigh before he went to college? Could you give me a guess? This guess is permissible becauseit is an estimate (asking for an estimate), rather than a shot in the dark. Same thing with was your son in Onterio onTuesday? Or is it possible if the bang held a shotgun when the bag is not in the courtroom

Test for Admissibility: What determines addmissiblity is whether the witness is being asked something that she is likely tohave an opinion about and is his opinion on the subject, for any reason, likely to be better than the jurys guess on thesame question. If so, then it will be allowed.

Rule 704(a) is different because it tells you what is not objectionable, this is because this rule is a significant departurefrom the common law (this relaxed the common law rule), where witnesses could not answer questions on the ultimateissue of the case, but there were many problems with this. The advisory committee notes stated that the common lawapproach was not unworkable because it is hard to distinguish between the ultimate and penultimate issues, especiallywhen the ultimate issue is the only issue in the case (whether it was a forgery or not is the only issue in the case). CANstates that 701 and 702 stand to exclude the kinds of questions that the common law rule was chiefly worried about,because the closer one gets to the ultimate issue, the closer one will get into legal terminology (inadequately explored


17/26

legal criteria) from which the helpfulness of the question and answer are going down fast (Do you believe he was guiltyof a tort?). Asking the witness questions in terms of legal criteria is allowing the witness to take over the responsibilitiesof the judge (gives the jury the instructions on the law) and the jury (listen to the facts and combine them with the judgesinstructions). It is not helpful, and may be prejudicial, if the witness does this. Another problem is that the witness maynot really know what the legal terms mean, such as there are many different legal definitions of rape (same with askingabout an anti-trust violation).

Rule 704(b): Duane says this is the most silly rule in the entire book. Congress made this rule to eliminate the confusingspectacle of competing expert witnesses testifying to directly contradictory conclusions as to the ultimate legal issue to be

found by the trier of fact (such as in the Lorana Bobbet case when the jury could not tell which experts to believe). Butthis rule is both under-broad and under-inclusive because Congress wrote this and were only addressing the case of theattempted assassination of Regan. This is under broad because it is only limited to criminal cases instead of also includingcivil cases and it is limited to expert testimony when it could also include lay witness testimony and it is only limited toquestions about the mental state when there is plenty of confusing expert testimony in all kinds of areas. This is underinclusive because even where this rule does apply it does not do anything of any real value because it does not reduce theconfusing spectacle because the experts can still give all there opinion (whether the defendant has mental illness,conditions of illness, if he is faking symptoms, diagnoses and grounds for diagnoses, etc.) except for the one question ofwhether the defendant had the requisite mental state that would require and permit him to commit the crime charged.Rule 706 does help out with the problem of a jury being confused by the experts by allowing the court to pick anindependent expert (but unfortunately this hardly ever happens) who is not being paid by one of the parties (parties pickexperts that testify in their interests).

Rule 26(a)(3) does not require disclosure of evidence in regard to evidence to be used solely for impeachment purposesbecause this helps to keep the witnesses truthful and allow liars to be revealed (by keeping them in the dark about whatthe opposing attorney may have on them).Rule 26(a)(3) requires that an attorney tell the opposing side who his witnesses are and which ones are experts (in bothcivil and criminal cases).

Difference between Experts and Lay Witnesses: Expert witnesses can (1) give opinion or inferences on specialized andtechnical areas in their expertise and can (2) make inferences not based on their own first-hand knowledge. Rule 701 &702 say that every opinion witness must know more than the jury does about either the (1) facts and (2) the factscombined with their learning and insight. Otherwise, the witness is not helpful. Remember that an expert does not haveto be some kind of graduate to be an expert (they could get a crack-head to talk about crack).

Rule 703 states that experts may testify to opinions based on facts that were:

Perceived by them

Made known to them at the hearing (the expert is at the trial and hears all the testimony and can then give hisopinion, but this is generally way

mcdonnell hornbook on duane's evidence midterm)

Documents