Transcript The Nuts and Bolts of Deposition Practice

Evidence on Trial: Effectively
Using the Rules of Evidence
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Ray Brown and Larry J. Cohen
Alaska Bar Association
Anchorage, Alaska
March 2, 2004
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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
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Program Content
• Evidence Principles Generally
• Objections in Practice
• Evidence Rules Analysis
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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
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Presentation Format
• Some Lecture
• Lots of Illustrations
– Invite your participation
• Lots of Discussion
– Starts with You
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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
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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
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The Rules of Evidence – All of Them!
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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
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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
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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
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Objections
• Best Made Before Trial
– Motion to Preclude Evidence
– Pretrial Memorandum
– Motions in Limine
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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
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Pretrial Motions (cont.)
• Content
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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
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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
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Advantage
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
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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
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Categories of Objections
• Objections to Questions
• Objections to Answers
• Objections to Exhibits
– Evidentiary
– Demonstrative
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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
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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
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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
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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
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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
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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
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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
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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
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Other Times to Object (cont.)
• Opening Statement
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Argues law or instructions
Argues inferences to be drawn from evidence
Mentions inadmissible evidence
Mentions facts that cannot be proven
Gives personal opinions
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
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Specific Objections #1
• Relevance – 400 series rules
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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
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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
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Specific Objection #3
• Incompetence – 600 series rules
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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)
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
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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
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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
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Specific Objections #6 (cont.)
• Is there an Exception to Parol Evidence
Rule
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Mistake
Incompleteness
Ambiguity
Other uncertainties of the contract
• Should insist on offer of proof to establish
that an exception applies
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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
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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
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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)
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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
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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
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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
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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
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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
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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
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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
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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
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Specific Objections #17
• Confusing, Misleading, Ambiguous,
Vague, Unintelligible
– Is question sufficiently clear for witness to
focus on the information solicited by the
question
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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
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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
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Specific Objections #20
• Argumentative
– Is the question arguing the fact to the jury
– Does the question seek to elicit new
information
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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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Specific Objections #22
• Unresponsive/Volunteered
– Does the scope of the answer exceed the target
of the question
• Historically most jurisdictions only allowed the
party asking the question to make this objection
• If the answer otherwise objectionable may be
challenged on those other grounds
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Specific Objections #23
• Prejudicial Effect Outweigh Probative
Value (403)
– Does prejudicial effect outweigh probative
value
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Specific Objections #24
• Cumulative (611, 403)
– Does the witness offer something that prior
witness or evidence has not covered
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Specific Objections #25
• Outside the scope (611b)
– Is the question asked on redirect directed to an issue
raised in cross examination
• Note that in federal court cross examination is limited by
direct examination
• Note that the objection can be made to rebuttal testimony
– Is the rebuttal directed to evidence offered by opposing party
• Note that may avoid objection by seeking to re-open the case
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Specific Objections #26
• Improper Impeachment (613)
– Is there a good faith basis for presenting the
impeaching evidence
• Note that either party may impeach witness (607)
– Is the evidence offered in fact impeaching
– Where impeach using extrinsic evidence of prior
inconsistent statement has the witness been given the
opportunity to admit, deny or explain the impeaching
matter
• May impeach where the witness denies or equivocates
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Specific Objections #26 (cont.)
– Has the impeaching party read impeaching
statement verbatim
– Has the impeaching party taken the statement
out of context
– Has the impeaching party given the witness
opportunity to confront impeaching statement
– Has the Impeaching party proven up
impeaching statement
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Court Proceedings Analysis –
100 Series
• Erroneous ruling not subject to appeal
unless involves substantial right and
– Where issue is as to improper admission
timely objection was made
– Where issue is as to improper exclusion offer
of proof
– Plain error regardless of whether brought to
attention of court
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Court Proceeding Analysis (cont.)
• Preliminary questions
– Scope
• Qualification to be a witness
• Existence of privilege
• Admissibility of evidence
– Issue for the court
• Court not bound by rules of evidence
– Except as to privilege
• Testimony by accused in criminal case on preliminary matter does
not expose to cross-examination as to other issues
– Not admissible at trial unless inconsistent with accused’s testimony at
trial
– Party not precluded from challenging weight and credibility
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Court Proceeding Analysis (cont.)
• Limiting instruction where admissible
– One purpose but not another
– One party but not another
• Remainders of writings and recordings
– Where one party offers partial
• Other party may offer other part or remainder
• Where fairness justifies doing so
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Judicial Notice Analysis – 200
Series
• Shortcut for Establishing Facts or Law
• When take notice
– Any time during proceeding
– May take notice whether requested or not
– Must take notice where requested by party
• Party furnishes information about fact
• Sufficient notice for parties to meet the request
• Give parties right to object
– Where insufficient notice may object after notice taken
– Court may consult any source in deciding whether to take judicial
notice
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Judicial Notice Analysis (cont.)
• Notice Taken of Adjudicative Facts
– Facts unique to the parties and litigation
– Not subject to reasonable dispute
• Known within jurisdiction
• Capable of accurate and ready determination by resort to sources of
unquestioned accuracy
• Notice Taken of Law
– Mandatory
– Optional broader
• Instruct Jury
– Facts
• Civil to accept fact as conclusive
• Criminal may, but need not accept
– Law accept as directed
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Presumptions Analysis – 300
Series
• Another Shortcut for Establishing Facts
• Procedural Device that Relates Two Factual Propositions
so that Proof of First Fact (basic fact) is Treated as Proof
of Second Fact (presumed fact)
– May be predicated on common experience
– May be predicated on statute as matter of public policy
• Shifts Burden of Production
– Proponent of presumption introduces evidence that basic fact is
true
– Opponent must produce evidence showing presumed fact not true
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Relevancy Analysis – 400 Series
• Does the Evidence Tend to Prove or Disprove
Fact of Consequence?
– If no, irrelevant
• Does the danger of unfair prejudice, confusion of
issues, undue delay, misleading jury or waste of
time outweigh the probative value of the
evidence outweighed
– If no, irrelevant
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Relevancy Analysis (cont.)
• Are there policy reasons for excluding the
evidence?
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Subsequent remedial measures?
Offers to compromise?
Offers to Pay/Payment of medical expenses?
Liability Insurance?
Withdrawn guilty plea/Offers to plea guilty?
Statements made during plea bargaining?
Character Evidence Analysis
• Is evidence of other crimes, wrongs or acts offered to
show action in conformity with character?
– If no, admissible to show (KIPPOMIAA)
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Knowledge
Identity
Preparation
Plan
Opportunity
Motive
Intent
Absence of mistake
Accident
Character Evidence Analysis (cont.)
• Character evidence offered to show action in
conformity therewith admissible where offered
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To show character or reputation when they are in issue
By criminal accused to show good character?
By criminal accused to show victim’s character
To reflect on credibility of witness
To support inference that committed a sex crime
Character v. Habit Illustrated
• Hurried Behavior
– Sally is always in a hurry - character
– Sally always takes two stairs at a time - habit
• Alcohol
– Bill is a drunk -character
– Bill stops at the tavern every night and has four beers -habit
• Prudence
– Susan is a careless driver -character
– Susan never slows for the yield sign -habit
• Cautiousness
– Steve is very conscientious about taking care of his brakes - character
– Steve checks the brakes every day before leaving for work - habit
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Privileges Analysis – 500 Series
• Privileges
– Recognized bases for privilege
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US Constitution
Alaska Constitution
Applicable statute
Applicable rule
Common law principles
– Where privileged may to extent of privilege
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Refuse to be witness
Disclose information
Produce object or writing
Prevent another from witness, disclose production
Privilege Analysis (cont.)
• Matters Subject to Privilege
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Reports privileged by statute
Lawyer client
Physician patient
Psychotherapist patient
Clerical penitent
Political vote
Trade secrets
Identity of informer
Privilege Analysis
• Waiver
– Express
– Implied
– But not where
• Compelled erroneously
• Made without opportunity to claim privilege
• No comment on exercise of privilege
– Where jury avoid disclosure of exercise of privilege
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Competency Analysis – 600
Series
• Are you a person capable of perceiving,
remembering and reporting
– Competent unless
• Judge
• Jury
• Interpreter
• Will you take oath of affirmation
– Competent unless will not
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Capacity Limitations
• Children
– Age limits
• May rebut by showing child capable of receiving impressions
of facts and testifying truthfully
• Mental deficiency
– Whether such deficiency that cannot perceive,
remember or relate event
• Defect in perceptive ability
– For jury as credibility or weight
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Impeachment Analysis
• Are you a witness?
– Then anyone can impeach you!
• What have you done?
– Opinion or reputation as to untruthful
character
– Opinion or reputation as to truthful character
where character for truthfulness attacked
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Impeachment Analysis (cont.)
• How have you done it?
– Other than conviction of crime specific
instances of conduct not permitted except on
cross examination to explore
• Character for truthfulness or untruthfulness of
– Testifying witness
– Another witness about who’s character present witness
has testified
• Note – 5th Amendment right preserved
– Other than religious belief or opinion
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Impeachment Analysis (cont.)
• Does probative value of criminal conduct outweigh
prejudicial effect?
• Is it an adult adjudication?
– Or criminal matter where character of witness other than accused
• Was it a crime committed or release from confinement
(later of which) within last ten years and
– Punishable by death or imprisonment for more than year
– Involve dishonesty or false statement
– Non-recidivist within past year who received pardon, annulment
or certificate of rehabilitation
• Was notice given to other party of intent to use crime
evidence?
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Examination Analysis
• Court can do what it wants!
– Control mode, order, length and examination of witnesses
– Call its own witnesses
– Examine your witnesses
• If you’re leading you’d better be
– On direct
• Doing something other than developing testimony
• Examining hostile witness
• Examining adverse party
– On cross
• Examine any relevant subject you want on cross
– Unless you are in federal court
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Writings Analysis
• Writings used before or during trial to refresh
witness’ memory
– Produced upon request to adverse party
– Subject to cross examination and admission
• Prior inconsistent statements
– Need not be shown to witness
– But must be shown to opposing counsel
• Extrinsic evidence of prior inconsistent statement
other than party admission allowed only where
– Witness given opportunity to explain or deny
– Opposing party has chance to examine witness
• You can kick out anyone, except
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– Person party
Opinion Evidence – 700 Series
• Rules not intended to make admissible
evidence which previously was
inadmissible
• Purpose of rules is to reduce use of
hypothetical
– Does not preclude objection as to foundation
– But may be allowed to offer opinion if court
satisfied that facts will be offered later
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Opinion Evidence Analysis
• With a Lay witness
– Opinions rationally based on what perceived
– Helpful
• Clear understanding of testimony
• Determine fact in issue
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Opinion Evidence Analysis (cont.)
• With an Expert Witness
– Type of knowledge on which may draw
• Scientific
• Technical
• Other specialized
– Witness qualified by
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Knowledge
Skill
Experience
Training
Education
– Helpful to jury in
• Understanding the evidence
• Determine a fact in issue
• Limited as to number of experts may call
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Opinion Evidence Analysis (cont.)
• Bases of Opinion
– Perceived by expert
– Made known to expert
• Facts or data need not be admissible
– But must be of kind reasonably relied on in field
– And may be excluded where
• Otherwise inadmissible
• On balance risk of improper use outweighs value in supporting opinion
• Opinion may extend to ultimate issues
• No prior disclosure of facts or bases needed
– Unless required by court
– Requested on cross examination
• Admissibility of opinion may be challenged before opinion offered
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Hearsay Analysis – 800 Series
• Is the evidence a statement?
– If no, not hearsay
• Is the statement one made out of court?
– If no, not hearsay
• Is the out of court statement offered for the
truth of the matter asserted
– If no, not hearsay
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Hearsay Analysis (cont.)
• Is the statement inconsistent with the declarant’s
testimony
– If yes, admissible
• Is the statement consistent with the declarant’s
testimony offered to rebut a charge of recent
fabrication or improper influence or motive?
– If yes, admissible
• If the statement made for purposes of
identification of person made after perceiving
that person
– If yes, admissible
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Hearsay Analysis (cont.)
• Is statement offered against a party
– Where party’s own statement in individual or represented
capacity
• If yes, admissible
– Where party manifested an adoption or belief in truth
• If yes, admissible
– Where agent was authorized to make the statement
• If yes, admissible
– Where agent made statement with scope of agency
• If yes, admissible
– Where co-conspirator during conspiracy
• If yes, admissible
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Hearsay Exceptions - Principles
• 803 exceptions (declarant available)
– Circumstances make out of court statements more
reliable than what would be available in court
• Concession to influence of on-going controversy on how
witnesses testify
• Even with cross-examination
• 804 exceptions (declarant unavailable)
– Out of court statements are better than nothing at all
• Assess why unavailable
• Indicia of trustworthiness suggested by criteria in exceptions
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Authentication Analysis – 900
Series
• Foundation for real evidence
– Relevant
– Is what it purports to be
• Through extrinsic evidence
– Generally admit where sufficient to show matter in question is what it
purports to be
– Exceptions
• Criminal
– Real evidence
» Not readily identifiable
» Subject to alteration
– Testimony about real evidence based on information acquired while in
control of prosecutor
• All cases where probative value of real evidence does not outweigh
prejudicial effect
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Authentication Analysis (cont.)
• No extrinsic evidence required (self authenticating)
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Domestic public documents
Foreign public documents
Certified copies of public records
Official publications
Newspapers or periodicals
Trade Inscriptions and the like
Acknowledged Documents
Commercial Paper and Related Documents
Presumptions created by law
Certified records of regularly conducted activity
Original Writing Analysis –
1000 Series
• Applies only to documents, writings and
recordings
– Original required to prove content unless
• Otherwise provided by statute
• Otherwise permitted by rules
– Duplicate unless
» Genuine issue as to authenticity
» Unfair to admit duplicate
– Original lost or destroyed
– Original not obtainable
– Original in possession of opponent
– Original related to collateral matter
– Public record not obtainable by reasonable diligence
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Original Writing Analysis (cont.)
• Summaries permitted
– Voluminous
– Not conveniently examined as such in court
– Originals available for review
» Court may order produced in court
• Content may be proven by testimony of adverse party
– Also declarant whose statements are attributable to party
• Dispute over admissibility
– Court – where issue is fulfillment of condition of fact
– Jury where issue is
• Whether document existed
• Whether document is original
• Where contents of document disputed
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