Types of evidence

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Evidence Outline

Professor Capowski

***Evidence is the framework of rules of case law, practice, and customs within which trial attorneys work***


  1. Documentary, Demonstrative, and Real Evidence

    1. Testimonial

      1. Statements of witnesses on the stand

        1. Direct and cross examinations

          1. Direct examination

            1. Leading questions are inappropriate

          2. Cross examination

            1. Leading questions are permissible

      2. Structure of Examination

        1. Background information

          1. State your name, occupation, etc.

        2. Lay foundation

          1. Are you familiar with what has been marked for identification as people’s exhibit I?

        3. Ask substantive questions

      3. Pitfalls of Examination

        1. Echoing

          1. Repeating the answer after the witness has given it for the record.

          2. After every answer, stating, “ok” or “alright”

        2. Exhibits

          1. Must be introduced for identification first, then

          2. Entered as / exhibit

        3. Attorney must clarify physical gestures made by witnesses for the record

        4. Tendency for attorneys to use eloquent words when asking lay witnesses questions

    2. Scope of Direct—Questioning is limited to matters explored on direct.

      1. Subject matter of direct examination

        1. Particular facts in direct examination

          1. The blue car ran a red light
        2. The transaction or occurrence testified to in direct

          1. The accident itself OR

        3. The issue presented in direct

          1. Negligence of the driver

      2. Although it is outside the scope of direct, matters of witness credibility FRE 611(b) can be properly raised in cross-examination.

        1. The attorney on cross should not wait to attack the credibility of a witness because:

          1. Jury may be crediting testimony that it should be discrediting

          2. Attorney should be allowed to impeach credibility immediately

      3. Judicial Discretion over scope of direct rule

        1. Judges have great discretion in determining the scope

        2. An objection to the scope of direct is rarely won on the appellate level. Rather, it is won at the trial level

        3. Why Judicial Discretion?

          1. Efficiency

          2. Party autonomy to put on its case

          3. Opposing party’s opportunity to defend

          4. Preserve the record for appeal

      4. Application of scope of direct rule

        1. Application will vary depending on which side you’re on

          1. Interpret broadly or narrowly


  1. Mistrust of Juries

  2. Substantive policies—Subject matter of the litigation

    1. Each party bears some burden

      1. Production OR

      2. Persuasion

  3. External policies unrelated to the subject matter of litigation

    1. Privileges
  4. Discern the Truth

  5. Efficiency


  1. Generally

    1. Immediately sustained by the court e.g., Attorney: OBJECTION . . . Court: Sustained.

    2. Objections used to buy time or disrupt examination

      1. PA requires grounds for objection to be stated by objecting attorney

        1. See Dillipaine v. Lehigh Valley Trust

    3. Object where context leaves no doubt

    4. Types

      1. Substantive

        1. Exclusionary principles founded in the FRE

        2. Keep the evidence out completely

        3. Example

          1. Hearsay

          2. Best Evidence Doctrine

          3. Attorney/Client privilege

      2. Formal

        1. Focus on the manner of questioning

        2. Not enshrined in particular FRE

      3. Speak to broad authority of the trial judge to regulate the trial

        1. SEE ATTACHMENT—list of objections

  2. FRE Requirements

    1. FRE 103(a)(1) requires objections to be

      1. Timely AND

      2. Specific

        1. Otherwise, there would be errors throughout the trial with no chance for the judge to correct

        2. Appeals are lessened by dealing with errors immediately

        3. Helps the trial court and appellate court

    2. Motions in Limine

      1. Request for an order at the threshold—before trial commences

        1. made in anticipation that particular evidence will be offered by opposing counsel to which the moving attorney will object OR
        2. made in anticipation that particular evidence the moving attorney wishes to offer will be objected to by opposing counsel

      2. FRE 103(a)(2) provides

        1. Once a definitive rule is made on the [motion in limine]

        2. The party need not object again at trial when the issue is raised.

    3. Offers of Proof

      1. FRE 103(a)(2)

        1. Where the court’s ruling excludes evidence,

        2. Attorney provides the court with the substance of the evidence that would be presented if allowed to

        3. Preserves record for appeal

        4. Two Methods:

          1. Sidebar conference OR

          2. FRE 103(b)—attorney is afforded the opportunity to offer evidence in question and answer form outside presence of jury (See FRE 103(c)).

  3. Errors and Review

    1. FRE 103(a) requires that evidence excluded or admitted must affect a substantial right of the party.

      1. Outcome Affected

        1. In criminal cases, the outcome must have been affected beyond a reasonable doubt

        2. In civil cases, whether the ruling probably effected the outcome

        3. Burden of proof to show error

          1. Show that the objection was preserved for appeal

          2. Show the error according to the particular standards (civil or criminal)

          3. Show that no other evidence was sufficient to substantiate the error

      2. Types

        1. Reversible error

          1. Where record is preserved AND

          2. Outcome was affected

        2. Harmless error

        3. Plain Error

          1. Clearly erroneous ruling
            1. Very rare

            2. Usually found in criminal cases

        4. Constitutional Error

      3. Three situations that will trump error

        1. Cumulative evidence doctrine

          1. So much similar evidence was presented that the erroneous admission of evidence would not matter

        2. Curative instructions to jury

        3. Harmless Error

      4. To argue that the lower court was correct on appeal, look to:

        1. Whether opposing counsel properly preserved the record by timely and specifically objecting AND

        2. If evidence was excluded, whether counsel made any offer of proof

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