Transcript EVIDENCE - Cumberland School of Law

EVIDENCE
Some Basics
Spring 2009
Overview
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The cases you read involve facts and law
Most often appellate courts decide legal issues based
on the facts of a particular case
The parties decide which facts they want to present
The Judge determines whether the parties should be
allowed to place those facts before the judge or jury.
The rules of evidence inform the judge’s ruling.
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Substantive Law defines the claims, crimes and
defenses
Procedural Law
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Criminal Procedure/Civil Procedure
Evidence
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Evidence is important even before trial –
hearings and summary judgment motions
Evidence is important even if you are not going
to try cases
It is important to negotiation, mediation and
transactional law.
The Process in Civil Cases
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Complaint
Answer
Motion to Dismiss and others
Discovery
Motions for Summary Judgment
Motions in limine
Trial
The Process in Criminal Cases
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The Indictment
Plea – Guilty, not-guilty, nolo contendere
Motions to Dismiss and others
Some limited discovery
Motions to Suppress
Motions in limine
Trial
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Trial and Appeal – If you lose, you appeal – the
basis of the appeal must be in the record
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What is a record?
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Pleadings – Civil/Criminal
Transcript of the oral proceedings
Exhibits.
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The trial – who is there
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The Judge
A court clerk
A court reporter
A bailiff
The lawyers
The parties
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Who are the parties?
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What is transcribed
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The testimony of witnesses
Other proceedings in open court
If you need something in the record, make sure it is
transcribed
The motion to strike – does the testimony still appear
in the record?
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Some Points to Remember
1.The Rules of Evidence are not always clear – You
must persuade the judge
2. You must win the ruling at the trial level because
success on appeal is difficult since the standard of
review is abuse of discretion.
3. Some judges are not as good as others and may not
understand the rules of evidence – you must learn to
adapt.
The Steps in a trial
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Jury Selection
Opening Statement
Presentation of evidence
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Plaintiff/Government
Defendant
Rebuttal
Closing argument
Court’s Instruction
Jury Deliberation
Making the Record
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Objections
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You must object to preserve an issue for appeal and
get a ruling
The objection must be specific
It must all be in the record
Objection sustained – the evidence is not admitted
Objection overruled – the evidence is admitted
Motions in limine
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The Offer of Proof
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If the objection is sustained or the court otherwise will not let
the evidence in, you must show what the evidence would have
been
You make an offer of proof
Ways to make the Offer of Proof
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Written statement by the attorney
Actual testimony of the witness under oath
Statement of the lawyer
Presentation of the document
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Transcription Issues – Know the local culture
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Jury Selection
Side Bar and In-chambers conferences
The Need for Clarity
EXHIBITS
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Evidence is testimonial
Evidence also consists of exhibits – documents,
physical evidence (guns, knives).
There is a procedure for getting exhibits
admitted into evidence (Chapter 7 –
Foundational Requirements)
The Procedure for Exhibits
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Details in Chapter 7
An exhibit must be marked for identification by the
clerk – that makes it a part of the record and gives it an
identifier that you use throughout the trial
E.G. – a letter may have been marked as “Exhibit 10”
– When you refer to it, you refer to it as “The letter
which has been marked as plaintiff’s exhibit 10”
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It must be shown to opposing counsel if they have not
seen it.
It must actually be admitted into evidence
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Generally, this means that the exhibit is indeed what the offering
party claims it is.
This is called “authentication”
This often calls for foundational testimony from a witness
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Chain of Custody
Business Records
Some documents are self-authenticating.
Ethical Issues
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Rule 3.3 – Candor to the Tribunal
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(a) a Lawyer shall not knowingly
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Make a false statement of material fact or law to a tribunal
Fail to disclose a material fact to a tribunal when disclosure is
necessary to avoid assisting a criminal or fraudulent act by the
client
Offer evidence that the lawyer knows to be false. If a lawyer has
offered material evidence and comes to know of its falsity, the
lawyer shall take reasonable remedial measures
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Rule 3.4 – Fairness to Opposing Counsel
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A Lawyer shall not
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Unlawfully obstruct another party’s access to evidence
or unlawfully alter, destroy or conceal a document or
other material having potential evidentiary value. A
lawyer shall not counsel or assist another person to do
any such act
Falsify evidence, counsel or assist a witness to testify
falsely, or offer an inducement to a witness that is
prohibited by law
The Rule Making Process
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Advisory Committee on the Federal Rules of
Evidence
Standing Committee on the Rules of Practice &
Procedure
Public Comment Period
Advisory Committee
Standing Committee
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Judicial Conference
Supreme Court
Congress must affirmatively enact
The Rule 502 example
What is the difference in the process of
amending the Rules of Civil Procedure and the
Rules of Evidence