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EVIDENCE
PROFESSOR SHERMAN J. CLARK
UNIVERSITY OF MICHIGAN LAW SCHOOL
CHAPTER 1: PRESENTATION OF EVIDENCE (PART 1)—INTRODUCTION OF EVIDENCE
A. Role of Judge and Jury
1. In General o The jury decides questions of _______________; the judge decides questions of _______________. o The question of whether a piece of evidence gets in is a question of _______________. The ______________________ decides whether evidence is admissible. Includes whether there is a privilege or whether witnesses are qualified 2. Preliminary Questions
o Many evidentiary issues are decided prior to trial through motions in limine or preliminary hearings. o Sometimes preliminary questions of law hinge on factual questions. o The ___________________ decides fact questions that go to the admissibility of evidence. o For preliminary factual decisions, the court is ________________________________ by the Federal Rules of Evidence (FRE).
3. Preliminary Hearings
o Conducted _________________________ the presence of the jury in three circumstances:
When the issue is the admissibility of a ______________________________ in a criminal trial;
When the defendant in a criminal case is a ________________________ and makes that request; and
When the interests of ________________________ otherwise require (unfair prejudice to a party)
4. Weight and Credibility The _______________ decides the weight and credibility of the evidence.
B. Challenge to Evidence Ruling
1. Challenging on Appeal o Evidentiary ruling can be reversed on appeal only if:
- A substantial _____________ of a party has been affected (i.e., not harmless error); and
- The judge was __________________________ of the mistake at trial and given a chance to correct it
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o Notify court by ______________________________ or by offer of proof
2. Plain Error Rule o Plain error—error that was obvious on its face o Appellate court will sometimes reverse the case to prevent a miscarriage of justice, even if no objection or offer of proof was made at trial Note 1: You should not rely on the plain error rule. You should actively preserve the record for appeal. 3. Notifying the Court to Preserve it for Appeal a. Objection
If the court has admitted evidence that should have been excluded, must object and explain why the evidence should have been excluded
b. Offer of proof If the court refuses to admit evidence that should have been admitted, must make an offer of proof on the record Offer of proof—explain to the court what the evidence would have been and why it should have been admitted Not necessary if the substance and logic of the evidence is straightforward and clear on the surface
C. Limited Admissibility (Rule 105)
- Evidence may be admissible for ___________ purpose, but ______________________________ purpose.
- Upon request of the objecting party, the court will give the jury a _________________________ instruction o I.e., the evidence can only be used for one purpose, but not another illegitimate purpose Exam Tip 1: Pay attention not just to the type of evidence but the purpose for which the evidence is being used.
D. Rule of Completeness (Rule 106)
- If a party introduces part of a _____________________________ statement, the opposing party may introduce other portions of that statement that are necessary to put the admitted portion into perspective.
- Can be introduced immediately; no need to wait for the party’s turn to present its case
- Other portions may be introduced even if they might otherwise be _______________________.
E. Judicial Notice
- The court's acceptance of a fact as true without requiring formal proof
- It is about so-called _________________________________________ facts—facts that the jury would otherwise have to decide
- If not subject to reasonable ______________________, the court will instruct the jury to accept that fact as proven
- Facts that are not subject to reasonable dispute:
o Generally known within the territorial jurisdiction of the court; or
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o The document ________________________ become evidence and the witness __________ ___________ read from it o The opposing party is permitted to see and inspect the document, and even show it to the jury. Note 2: Contrast with Past Recollection Recorded (discussed later):
- Arises when the witness still cannot remember after trying to refresh their memory
- Permits the witness to read the notes into evidence under a hearsay exception
- Requires that the witness cannot remember, the record was made when it was fresh in their memory, and the record accurately reflects their memory 4. Cross-examination
o Courts limit the _________________ of cross-examination to the ____________________ of direct examination. o Courts are permitted to allow broader inquiry. o Allowed to use ______________________________ questions
5. Other Improper Questions a. Compound questions A question that asks for several answers Example 4: “Isn’t it true that you went to the bank and then you took out the money and then you went home and never did anything else?”
b. Facts not in evidence
A question that assume facts not in evidence Example 5: “Do you still hate your mother?”
c. Argumentative questions
Not really a question; just intended to bother or harass the witness Example 6: “What the heck makes you think you can get away with that?”
d. Questions calling for inappropriate conclusions
Call for a conclusion that the witness is not _________________________________ to make Example 7: “How did the executives in the company feel when they received your letter?”
e. Repetitive questions Have already been “asked and answered” A lawyer can continue to ask the question if the witness has not actually answered it.
6. Exclusion of Witnesses o Witnesses must be excluded from the courtroom upon the request of __________________ party to prevent the witness from hearing the testimony of others.
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Editor's Note 1: If a party requests exclusion or the court deems it necessary, the witness must be excluded, subject to the exceptions below.
o Some witnesses may not be excluded: A witness who is essential to the presentation of the case; A person, such as a crime victim, who is permitted by state rule to remain in the courtroom; or A party in the case
B. Burdens and Presumptions
1. Burden of Proof
a. Burden of _____________________________________________ A party must produce enough evidence to get the issue to the jury.
b. Burden of _____________________________________________ A party must convince the jury to decide the case in its favor.
c. Civil cases Usually, the standard is a _________________________________________ of the evidence. d. Criminal cases
____________________________________________________________ standard
2. Presumptions
a. Rebuttable presumption Shifts the burden of ______________________________ on a particular issue, but not the burden of ______________________________ Useful for things that are difficult to prove directly Example 8: The issue of whether someone received a letter. If you can show that you correctly mailed the letter, there is a presumption that the recipient received the letter. This shifts the burden of production to the other side to prove that they did not receive it.
If counterproof is introduced, the presumption is eliminated (the bubble bursts) and there is sufficient evidence for the jury to decide the issue. b. Destruction of evidence
If a party destroys evidence, there is a presumption that it would have been adverse to that party. c. Conclusive (or irrebuttable) presumption
Rules of _______________ that happen to use the language of presumption
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o Courts will simply admit the evidence on the condition that the jury will decide that preliminary fact later.
B. Character Evidence
1. In General o Rule about the _____________________________ argument or inference o Prohibits the argument that a person acted in conformity with a particular character trait o Prevents a party from proving a character trait in order to show action in conformity Example 11: The defendant started this fight because he’s a violent person. A violent person is much more likely to start a fight, so it’s likely he started this one. This is evidence of a character trait used to show action in conformity and is generally prohibited.
o Rationale—too prejudicial, not that probative of the current conduct, and it distracts the jury’s attention
2. Methods of Proving Character
o When admissible, can only be proved through ___________________________________ or ______________________________ testimony o Cannot be proved by specific bad acts
3. Other Relevant Use for Character Evidence o Character evidence cannot be used to prove propensity. o Can be used for some other relevant purpose (i.e., when character is at issue) o If character is an ___________________________________________________ in the case, then it can be proved Example 12: Character evidence may be permitted in a child custody case when there is a question about whether a parent is violent.
Example 13: Character evidence may be permitted in a negligent entrustment case to prove carelessness.
Note 4: Character is generally only at issue in civil cases.
CHAPTER 4: RELEVANCE (PART 2)—CHARACTER EVIDENCE (CONT’D) AND HABIT EVIDENCE
A. Character Evidence (cont’d)
- Impeachment (covered fully in later lecture chapters) Propensity argument can be made to impeach (e.g., the witness is a liar) 2. Civil Cases o Propensity argument can almost never be made. o Except: in a civil case involving child molestation or sexual assault, the plaintiff ___________ introduce evidence of the defendant’s _________________________________ of that sort. Note 5: Recall that in civil cases, if character is at issue, evidence of that trait is admissible to prove an essential element of the case (i.e., for a non-propensity purpose).
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3. Criminal Cases
a. Basic rule The prosecution ________________________ allowed to introduce the bad character of the defendant. b. Defendant’s good character
A defendant is permitted to introduce a ______________________________ trait of character. Example 14: If a defendant was accused of assault, the defendant is permitted to introduce evidence that he is a peaceful person.
Example 15: If a defendant was accused of embezzlement, the defendant could introduce evidence that he is an honest person.
Opens the door —prosecutor is free to _______________ the defendant's claims by attacking the defendant's character
- Prosecutor can cross-examine the defendant’s character witnesses with questions about _____________________________________________ from the past.
Defendant is limited to witnesses who will testify about _________________________ or _____________________________________
- Defendant ________________ permitted to bring ___________________________
- On cross-examination, prosecutor _______________ inquire about
Example 16: The defendant has his neighbor take the stand and say, “In my opinion, the defendant is not violent,” or “The defendant has a reputation for nonviolence.” The prosecution gets to cross-examine the neighbor and can ask the neighbor the following questions, if the prosecution has a reasonable basis for doing so: “Have you heard that the defendant started a fight last week?” “Did you know that the defendant beat up four kids on his block within the last two years?”
The prosecution cannot prove the incident; must accept the witness’s answer Example 17: The neighbor in the above example says, “No, I’ve never heard that.” The prosecution cannot introduce evidence about the earlier incident.
c. Victim’s character
A defendant may bring evidence about the ____________________________ character.
- May introduce evidence of a ______________________________ trait of the victim Note 6: As a practical matter, only happens in a homicide or assault case (violent cases) when the defendant is arguing that the victim started the altercation (self-defense).
Example 18: The defendant is on trial for assault. He claims that it was self- defense because the victim attacked him. The defendant can introduce evidence that the victim is a violent person.
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CHAPTER 5: REVIEW OF CHAPTERS 1–4: PRESENTATION OF EVIDENCE AND RELEVANCE
A. Presentation of Evidence
- ________________ decide questions of admissibility.
o Includes preliminary __________________ questions that go to admissibility Example 26: A statement might be admissible if the person who made the statement was an agent of a party. Admissibility under hearsay depends on a factual determination of whether the declarant was an agent.
o The court is not bound by the FRE in deciding preliminary questions of fact.
- Party can preserve an error for appeal by: o _______________________________ to evidence the party thinks should not have been admitted; or o Making an ______________________________________ with regard to evidence the party thinks should have been admitted
- Evidence is often admissible for one purpose, but not another; the court will give a limiting instruction upon a party’s request (FRE 105).
- Judicial notice—if question is not subject to __________________________________________ __________________, the court will not require evidence o Court will instruct the jury to find that fact; or o In a criminal case, instruct the jury that it may find that fact
- Leading questions are generally prohibited on __________________ examination, except:
o Preliminary information; o Witnesses that need help testifying; and o ___________________________ witnesses
- Cross-examination is supposed to be within the scope of _________________ examination; can and should use ______________________________ questions
- Other improper questions—assume facts not in evidence, call for an inappropriate or unsupported conclusion, compound, harassing or repetitive, argumentative
- Burden of proof—plaintiff in a civil case and prosecution in a criminal case o Burden of __________________________________ and burden of __________________________________ o Civil case—generally _____________________________________________ of the evidence o Criminal case—beyond a reasonable doubt
- Presumption—shifts the burden of __________________________________ on a particular fact
B. Relevance
- Evidence that makes a ______________________ fact __________________________________ than it would be without the evidence
o FRE 403 allows a court to exclude relevant evidence if certain risks—prejudice, confusion, misleading the jury, waste of time—_____________________________________ outweigh the probative value.
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- Character evidence—the propensity argument is generally prohibited
o Permitted in criminal cases if introduced by the defendant Opens the door—prosecutor can rebut the defendant’s evidence o Defendant can also offer a pertinent character trait of the ___________________ (violence)
Opens the door—prosecutor can rebut with evidence that the ________________ is not violent and also introduce evidence that the ____________________________ is violent
- Introducing evidence for some purpose other than propensity
o Civil case—character is an ____________________________________________ in the case o MIMIC evidence using prior bad acts
CHAPTER 6: WITNESSES (PART 1)—COMPETENCE AND IMPEACHMENT
A. Competence
- Anyone who has ___________________________________________________________ of the matter about which they are going to testify and is willing to make an _______________ to tell the truth is competent to testify. 1. State Rules on Competency
o Some states have particular competency requirements. Example 27: Minimum age for a child to testify
FRE—whether the child has personal knowledge and is mature enough to understand the obligation to tell the truth and is willing to promise to do so o Dead Man’s statute (not included in FRE)—limits the ability of witnesses to testify about __________________________________________ with people who are deceased Example 28: The decedent passed away and the next day, the neighbor says that the decedent promised to sell his car for $11. Courts may limit the neighbor’s ability to testify against the decedent’s estate.
o Federal courts using state law to decide a civil case will defer to state competency rules.
2. Judge as Witness A judge is ___________________ from being a witness in a trial over which she is sitting. 3. Juror as Witness o A juror may not testify as a witness in a trial in front of the jury in which he sits. o After the verdict or an indictment (grand jury), the parties might be tempted to ask the jurors to testify about what happened in the jury room in the context of a motion for a new trial or on appeal. o FRE 606(b): a juror ____________________ testify as a witness in an inquiry into the validity of a verdict or indictment as to:
Any statement made during _____________________________________________; Any incident that occurred during deliberations; or The effect of anything upon any juror's mind
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o Must be probative of untruthfulness o Only permitted to ask; must take the witness’s answer o Must have a _________________________________ basis for asking the question
3. Criminal Convictions (FRE 609) a. Crimes involving ______________________________ or ____________________________ ______________________________________ Example 31: perjury, fraud, embezzlement
b. Convicted of ______________________________
Crimes punishable by _______________ or more than ____________________ in prison Court will allow impeachment with the prior felony conviction unless the risk of prejudice _______________________________________________ the probative value Criminal defendant —evidence of a prior felony conviction is admissible only if its probative value ____________________________ the prejudicial effect (“reverse 403”)
c. Old convictions If more than ____________________ have elapsed since the conviction (or release from confinement, whichever is later), then evidence of the conviction is admissible only if:
- The probative value of the conviction, supported by specific facts, ________________________________________________ its prejudicial effect; and
- The proponent gives an adverse party reasonable advanced notice
d. Pardon A conviction ________________________ be used for impeachment if the witness has been pardoned or received a certificate of rehabilitation if the action was based on a finding of innocence or the witness has not been convicted of another felony.
B. Prior _______________________________________ Statements
Example 32: A witness takes the stand and says, “The car was blue.” You can cross-examine the witness and say, “Didn’t you tell your mother-in-law three weeks ago that the car was red?”
- Can be done with any kind of statement
- Can be proved by ______________________________ evidence, but only if the witness is given the opportunity to explain or deny the evidence
C. Impeachment of a Hearsay Declarant
- When an out-of-court statement comes in under a hearsay exception, the declarant (the person who made the statement) is acting like a ______________________ and can, therefore, be impeached.
- Impeachment may be made by any evidence that would be admissible if the declarant had testified as a witness.
D. Rehabilitation of a Witness
- Rehabilitation may be accomplished in one of three ways:
- Give the witness a chance to ________________________________________________;
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- Prior ______________________________ statement—if the witness has been accused of changing his or her story, or being bribed or pressured or having an improper motive, can be rehabilitated with a statement that the witness made before the alleged motive arose; or
- If the witness has been ______________________________ as having a bad character for truthfulness, then evidence can be introduced bolstering the witness’s character for truthfulness (either reputation or opinion evidence).
CHAPTER 8: WITNESSES (PART 3)—TESTIMONY
A. Lay Witnesses
- In general, we want _______________ and not __________________________ from witnesses.
- Old rule—prohibited lay witnesses (non-experts) from offering opinions or conclusions
- Opinions from lay witnesses are ______________________________ with respect to _____________________________________________ impressions, such as appearance, intoxication, speed, etc.
- To be admissible, a lay witness’s opinion must be:
o Based on the _______________________________________ of the witness; and o Helpful to a ____________________________________________________ of the witness’s testimony or the determination of a fact in the case.
- Implicit requirement—cannot be based on any ______________________________, technical, or specialized knowledge
B. Expert Witnesses
1. Subject Matter of Testimony o An expert witness may offer opinions or conclusions if:
The subject matter is scientific, technical, or other _______________________________ information; and It will help the trier of fact understand the evidence or determine a fact in issue. o Courts have generally rejected expert testimony about witness _________________________________________.
2. Daubert Test o Courts require that the expert:
Be qualified by knowledge, _______________, experience, _______________________, or education;
Base his testimony on sufficient _______________ or _______________;
Base his testimony on reliable principles and methods; and
Apply the principles and methods ________________________ to the facts of the case. Editor's Note 3: The Daubert test is a four-part test. The Professor mistakenly skipped the third requirement listed above.
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Introduce reputation and opinion testimony Inquire on cross-examination about prior acts Conviction of crimes
- Crimes involving _________________________ or ______________ statement; and
- Felonies
o Prior __________________________________ statement Extrinsic evidence permitted as long as witness is provided a chance to explain
- After impeachment, can attempt to rehabilitate the witness
o Allow the witness to ___________________________ or clarify o Introduce a prior ______________________________ statement o Introduce evidence of the witness’s good character for truthfulness if that character was attacked
C. Testimony
- A lay (non-expert) witness is permitted to testify as to her opinion when it is:
o Rationally based on the _________________________________ of the witness; and o Helpful to a clear understanding of the testimony or the determination of a fact in issue.
- Lay witnesses cannot offer opinions based on specialized, scientific, or technical knowledge.
- Expert testimony is scientific, technical, or specialized knowledge that will help the trier of fact
o Must be qualified o Must be based on sufficient facts and data and the methods must be applied reliably to the case o Expert opinion can be based on: ______________________________ knowledge; Witnesses or evidence made known at trial; or Other things, even if not admissible at trial, if they are the sorts of things that are reasonably relied upon by experts in that field
CHAPTER 10: TANGIBLE EVIDENCE (PART 1)—AUTHENTICATION
A. In General
- Includes documents and other physical items
- First step—must be _____________________________________________
- Must show evidence sufficient to support a finding that the thing is what the party claims it is o Does not mean that the court must find that the document or thing is authentic o The jury will decide this fact question
B. Real Evidence—Ways to Authenticate
- ______________________________________________________—testimony of a witness that recognizes and identifies the item
- Distinctive features or ______________________________
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- Chain of __________________________—technique accounting for the whereabouts of an item along an unbroken chain
C. Documentary Evidence—Ways to Authenticate
- By ______________________________________ of the parties
- Eyewitness testimony combined with distinctive features
- Ancient Documents o At least ____________________________ old; o In a condition unlikely to create ______________________________; and o Was found in a place where such documents would be if they were authentic
- Reply letter doctrine—authenticated by evidence that it was written in response to another letter
- Handwriting verification o _________________ or _______________ comparing it to a known sample; or o Lay witness with personal knowledge of the handwriting (from before the current litigation)
- Self-authenticating documents (FRE 902)—include: o Public documents bearing a government seal o Certified copies of public records o Official publications issued by public authority o Trade inscriptions o Notarized documents o Commercial paper
D. Oral Statements
- Voices and recordings may need to be authenticated as to the identity of the speaker. 1. Voice identification Can be authenticated by any person who has heard the voice at any time 2. Telephone conversations o Caller recognized the speaker’s voice o The speaker knew _______________ that only a particular person would know o The caller dialed the number believed to be the speaker’s and the speaker _____________________________________________________ upon answering the phone o The caller dialed a business and spoke with a person who answered questions about business regularly conducted over the phone
CHAPTER 11: TANGIBLE EVIDENCE (PART 2)—THE BEST EVIDENCE RULE AND PAROL EVIDENCE RULE
A. The Best Evidence Rule (Original Document Rule)
- Rule —No describing the documents instead of showing them, unless you really need to
- Limits the ability to present other evidence of the _________________________ of a document when the contents are ______________________________
- No witness testimony about the contents when you could just produce the actual document
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B. The Parol Evidence Rule
1. General Rule o Excludes evidence that, if introduced, would ____________________ the terms of a written contract o Many contracts are explicitly described as _________________________ integrations—they contain all of the terms of the agreement. o No __________________________ evidence that would change the terms may be admitted. Example 37: There is a contract that says you will paint the Professor’s house and he will pay you $400. The contract explicitly states that it is completely integrated. The parol evidence rule prevents the introduction of evidence that (before signing the contract) the Professor agreed to pay extra. 2. Partial Integration
o Excludes extrinsic evidence that would _________________________________ the terms of the agreement o Allows evidence that might ______________________________ the terms
3. Exceptions to the Parol Evidence Rule o Extrinsic evidence about a contract can be admitted to:
Clarify an ambiguity; Prove a ______________________ of trade or course of dealing; Show ________________, duress, mistake, or illegal purpose; or Show whether consideration has or has not been paid.
CHAPTER 12: REVIEW OF CHAPTERS 10–11: TANGIBLE EVIDENCE
A. Authentication
- Does not mean that the court must find that the document or thing is authentic.
- Court simply must find that there is evidence sufficient to support a finding that it is what the party claims.
- Ways to authenticate:
o _____________________________________ o Testimony of a witness—often coupled with distinctive features o Reply letter doctrine o Chain of custody o Ancient documents o _____________________________________ verification o Self-authenticating documents
B. Best Evidence Rule
- Relates to proving the ____________________ of documents
- If the contents are at issue, we want to see the actual document, not witness testimony about it
- Duplicates are fine, unless there is a reason to require the original.
- ______________________________ are appropriate if the originals are too voluminous.
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- If the document is lost or missing through no fault of the proponent, then a witness can testify as to the contents of the document.
- Courts will allow other evidence of the contents of a document on a _______________________ matter. Example 38: A witness says, “I was reading the newspaper about how the Yankees beat the Red Sox, and all of a sudden I looked up and there was a giant car accident.” The witness has described the contents of a document—the newspaper—but that is collateral. The case is about a car accident.
CHAPTER 13: PRIVILEGES (PART 1)
A. General Principles
- FRE—no specific, codified privilege provisions
- Federal courts are instructed to: o Defer to general principles of federal common law when it comes to most privileges; and o When deciding state law issues when sitting in diversity jurisdiction, apply _____________________ law regarding privileges.
B. Attorney-Client Privilege
1. Rule o Protects a ____________________________ communication between a client and a lawyer if the communication was for purposes of securing _________________________________ o Neither the lawyer nor the client can be forced to testify about the communication. 2. Confidential
o Client must have made reasonable efforts to keep the communication confidential o Communications made in the presence of unnecessary ______________________________ will not be privileged. o Presence of persons necessary to the communication (e.g., a translator or the lawyer’s assistant or agent) will not undercut the privilege o An unknown secret eavesdropper _____________________________ destroy the privilege.
3. Communication
o Only the communication is privileged; not underlying _________________ or evidence that the client has or knows Example 39: If the client was involved in some kind of civil fraud and tells a lawyer, “I was involved in this business transaction that may have been fraudulent and here is what we did. Am I in legal trouble?” This communication is privileged. If the client was later subpoenaed to testify about his conduct, he could not claim the privilege saying that he spoke to his lawyer about what happened. He could still be asked about what happened; not asking him to testify about the conversation with the lawyer, which would be privileged. The underlying facts are not protected.
o Does not protect pre-existing ______________________________ o Must have been made for purposes of securing ____________________________________
