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Evidence on Trial: Effectively Using the Rules of Evidence

Evidence on Trial: Effectively Using the Rules of Evidence. Ray Brown and Larry J. Cohen Alaska Bar Association Anchorage, Alaska March 2, 2004. Program Goals. Leave with practically useful framework for working with the rules of evidence The rules are our friends!

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Evidence on Trial: Effectively Using the Rules of Evidence

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  1. Evidence on Trial: Effectively Using the Rules of Evidence • Ray Brown and Larry J. Cohen • Alaska Bar Association • Anchorage, Alaska • March 2, 2004

  2. Program Goals • Leave with practically useful framework for working with the rules of evidence • The rules are our friends! • Impression is that lawyers generally aware of the rule but lack working familiarity that affords opportunity to take advantage of them

  3. Program Content • Evidence Principles Generally • Objections in Practice • Evidence Rules Analysis

  4. Program Level • Beginning to Intermediate Level Program • Focus on Practical Aspects of Evidence Practice • Provide as Many Practice Tips as Can in the Time Available

  5. Presentation Format • Some Lecture • Lots of Illustrations • Invite your participation • Lots of Discussion • Starts with You

  6. What are we Talking About Here? • Evidence • Materials from which inferences may be drawn as the basis for proving the truth or falsity of a fact in dispute • Types of Evidence • Direct – proves a proposition directly, in one step and without inference • Circumstantial – proves a proposition through an inference based one or more pieces of information

  7. Forms of Evidence • Testimonial • Oral testimony under oath in court • Hearsay when admitted • Tangible • Real – the real thing at issue in case • Murder weapon; contract • Demonstrative -visual or audio aide to help the fact finder understand other form of evidence • Model, chart, diagram • Testimonial-Tangible • Hybrid of the Two • Deposition transcript

  8. The Rules of Evidence – All of Them! • 100 Series: Court Rules • 200 Series: Judicial Notice • 300 Series: Presumptions • 400 Series: Relevancy • 500 Series: Privileges • 600 Series: Witnesses • 700 Series: Opinions • 800 Series: Hearsay • 900 Series: Authentication and Identification • 1000 Series: Writings, Recordings, Photographs • 1100 Series: Miscellaneous

  9. Preliminary Observations about Rules of Evidence • Focus on the principles or reasoning underlying the rules • Look beyond the letter of the rules • General purpose is to exclude that which is unreliable, untrustworthy, prejudicial, capable of misuse, or inefficient • Distinguish from privileges which deals with information though reliable and relevant is protected for policy reasons

  10. Preliminary Observations (cont.) • Evidence should be evaluated at multiple levels • Just because meets one evidentiary hurdle does not mean it is admissible • Apply rules whenever there is an admissibility issue • At any point in proceeding • In any venue

  11. Objections • Best Made Before Trial • Motion to Preclude Evidence • Pretrial Memorandum • Motions in Limine

  12. Pretrial Motions • Take Advantage of Opportunity • Goals • Resolve Evidentiary Issues • Educate Judge as to Issue • Timing of Motion • Pre-Trial • Discovery • Motions in Limine • During Trial • Raise New • Reassert

  13. Pretrial Motions (cont.) • Content • Item of Evidence in Issue • Authority • Prejudice • When Anticipate Will Come Up • Why Require Pre-Trial Ruling • Using Opponents Admissions at Trial • Relief Sought • Be Clear About Court’s Ruling • Do Not Waste Court’s Time • Remember Rule 1: Credibility

  14. Factors to Consider in Deciding Whether to Object During Trial • Jurors Dislike Objections • Will the Answer Hurt Your Case • Sometimes Answer will Help Case • Does the Foundation Hurt Worse than the Answer • Does Your Objection Have a Solid Legal Basis • Do You Need to Protect the Record • Will the Objection Serve a Tactical Advantage

  15. The Practice of Objecting During Trial • Timely • Make objection to question before answer given • Make objection to answer before next question • State “objection” and then reason • Reason given should state legal basis as simply as possible • Judges vary in how want attorney to object

  16. Common Objections at Trial • Objections to form • Usually can be cured by rephrasing • Objections to substance • Capacity to cure depends on what facts are available to overcome objection • May be legal considerations that preclude cure

  17. Categories of Objections • Objections to Questions • Objections to Answers • Objections to Exhibits • Evidentiary • Demonstrative

  18. Common Mistakes Attorneys Make When Objecting • Delay in objecting until the answer is in • Fail to move to strike after answer in • Objects to question first time asked, but not subsequently • Failure to direct objection to the judge • Withdraw objection when there is an adverse ruling

  19. Common Mistakes Attorneys Make When Objecting (cont.) • Argumentative or emotional when objecting • Allow emotionally laden terms in question • Does not object to irrelevant material • Argue with court after decision made

  20. Objection Tips • Consider making general objection first • When objection sustained court’s ruling not disturbed so long as any basis for ruling • But do not hesitate to be specific if it appears that the judge is waiting for the specifics • Be specific to preserve when objection over-ruled and evidence admitted • When get specific include all possible bases

  21. Objection Tips (cont.) • Be clear that you are making an objection • To the court • To the jury • Make objection intelligible to the juror • Do not lead the court into error

  22. Objection Tips (cont.) • When on the receiving end, ask for the specific basis of a sustained general objection • Make your record • Rise when make objection • Seek continuing objections when can

  23. When to Make Offer of Proof • Use Where Objection has Successfully Precluded Admission of Evidence • May convince the trial judge made a mistake • Create record for the reviewing court • See Rule 103

  24. How to Make Offer of Proof • Always outside presence of jury • Interrupt trial • Ask court for opportunity during recess • Two Methods • Lawyer tells court what proposed evidence would be • Examination of witness • Be sure offer conforms to applicable rules of evidence • Where exhibit make part of the record

  25. Other Times to Object • Jury Selection • Mentions insurance (411) • Discusses law • Other than to put question in context • Discusses facts • Other than to put question in context

  26. Other Times to Object (cont.) • Opening Statement • Argues law or instructions • Argues inferences to be drawn from evidence • Mentions inadmissible evidence • Mentions facts that cannot be proven • Gives personal opinions

  27. Other Times to Object (cont.) • Closing Argument • Misstates evidence • Misstates law • Including jury instructions • Gives personal opinion • Appeals to jury’s bias, prejudice, financial interest • Personal attack on opposition • Party or attorney • Prejudicial argument

  28. Specific Objections #1 • Relevance – 400 series rules • Is it relevant? (401, 402) • If relevant, is it prejudicial (403) • Do character trait factors apply (404, 405) • Do other act considerations apply (404b) • Do habit rules apply (406) • Do policy exclusions apply (407-412) • Consider insisting on offer of proof before evidence presented to jury

  29. Specific Objections #2 • Materiality – implicit in 400 series rules • Does evidence have a logical bearing on an issue in the case • Generally subsumed within the relevance objection

  30. Specific Objection #3 • Incompetence – 600 series rules • Not presumed competency (601) • Has witness taken oath (603) • Does witness have first hand knowledge (602) • Can witness be understood (604) • Incompetent for policy reasons: judges, jurors (605, 606)

  31. Specific Objections #4 • Privileged Communication (501) • Is there a privileged relationship • Has the privilege been waived • Expressly • Written • Oral • Implicitly • Issue in the case • By conduct • Disclosure to third party

  32. Specific Objections #5 • Best Evidence Rule (1001) • Is it a writing, recording or photograph • Is there a genuine dispute over authenticity of original document • Where duplicate offered is there a genuine dispute as to whether true duplicate

  33. Specific Objections #6 • Parol Evidence Rule • Is there extrinsic oral evidence • offered to modify or contradict a contractual instrument • that is complete and clear on its face • that was freely entered into by competent parties • Focus is on eliciting testimony to explain • What parties intended • What terms of contract mean to the parties

  34. Specific Objections #6 (cont.) • Is there an Exception to Parol Evidence Rule • Mistake • Incompleteness • Ambiguity • Other uncertainties of the contract • Should insist on offer of proof to establish that an exception applies

  35. Specific Objections #7 • Lack foundation • Does the witness have the necessary fund of information from which to offer the testimony • Is there sufficient factual information to establish that an exhibit is what it purports to be • Would it be better to leave foundation incomplete

  36. Specific Objections #8 • No authentication (901, 902) • Has the witness established that the exhibit is what the proponent purports it to be • Not that business records exception applies only to hearsay problem • Is the exhibit self-authenticating

  37. Specific Objections #9 • Hearsay (801-805) • Is the “statement” one made by the declarant outside of court (801) • Is the “statement” offered to prove the truth of the matter asserted (801) • Is the statement by definition “not hearsay” (801d) • Is there an applicable exception • Witness available (803) • Witness not available (804) • Is there hearsay within hearsay (805)

  38. Specific Objections #10 • Leading (611c) • Does the question which suggests its own answer • Is the question simply preliminary or positional • Can the leading nature of the question be easily remedied • Is there any substantive significance to the leading nature of the question

  39. Specific Objections #11 • Narrative (611a) • Does the question permit counsel the opportunity to make a timely objection • Applies to question and answer • Is the narrative productive or confusing

  40. Specific Objections #12 • Lay Opinion (701) • Is the testimony an inference or an observation • Is the inference reasonably drawn from facts actually perceived • Is the inference helpful to the jury • In understanding the testimony • In deciding a fact in issue

  41. Specific Objections #13 • Expert Opinions (702-705) • Is the person qualified as an expert (702) • Is the opinion based on scientific, technical or other specialized knowledge (702) • Is the opinion helpful to the jury (702) • In understanding the evidence • In determining a fact in issue

  42. Specific Objections #13 (cont.) • Is the opinion based on facts (703) • Perceived by the expert • Made known to the expert • Are the facts relied on of a type reasonably relied on by those in field • Have the underlying facts been disclosed • May limit objecting party to cross examination

  43. Specific Objections #14 • Repetitive (611a) • Has question previously been asked and answered • Is the cumulative nature of the testimony prejudicial • Does the cumulative nature of the testimony waste time • Even where question phrased differently does it call for an answer previously given • Note that there is no specific rule dealing with repetitive questions • Issue within scope of trial judge’s discretion

  44. Specific Objections #15 • Assumes facts not in evidence • Does question presume fact that is not in evidence • Especially applicable to cross examination • May apply to direct examination where assumes witness has knowledge that is not in evidence

  45. Specific Objections #16 • Misstates evidence or misquotes witness • Does question misstate substance of previously received evidence • Has attorney repeated this witness’ testimony inaccurately • Judge will often leave to the jury its recollection of the prior testimony

  46. Specific Objections #17 • Confusing, Misleading, Ambiguous, Vague, Unintelligible • Is question sufficiently clear for witness to focus on the information solicited by the question

  47. Specific Objections #18 • Speculative • Does question call on the witness to speculate or guess • But can the witness provide a reasonable estimate • Note that speculation often permitted with expert with respect to opinions offered or inferences drawn

  48. Specific Objections #19 • Compound • Does the question elicit information about two different facts • Is the answer to the question likely to be unclear about the fact in issue • Risk that counsel will try to use answer applicable to part of the question to infer the entire question

  49. Specific Objections #20 • Argumentative • Is the question arguing the fact to the jury • Does the question seek to elicit new information

  50. Specific Objections #21 • Improper Characterization • Does the question ask the witness to characterize a fact • Does the question ask the witness to label a party or witness or event

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