Evidence

Kessler Summer 2010 Class Notes

May 17, 2010

New York has not adopted the Federal Rules of Evidence o However we will be studying the common law and NY has some of the common law What is evidence about o Rule of law limiting the amount of information that triers of fact are allowed oto consider when they decide the what happened part of the trial i.e. triable issues of fact o They exist to keep information away from jury Because if the jury were allowed to hear any fact there would be no rules of evidence i.e. the relevance rule which includes relevant evidence with the idea that all irrelevant information is excluded the reason is because we dont trust the jury why because they are not professionally trained professionals, who are neutral they will be influence by things that are inflammatory Also everyone is biased . If there is a piece of information that they are going to here, we cant trust them not to become emotionally irrational o i.e. gender, racial, ethnic etc biases or even background bias cant trust them to be o (1) not overwhelmed by emotion, (2) logical even if they are enflamed by emotion [they may not understand that facts that have nothing to do with case really dont matter and may decide on those facts] another reason is we dont trust the lawyers because they want to enflame the jury to win their case, they want to win the case the job is to fool them rather to present compelling case for client o deception that isnt lies o fair inference maybe facts are okay cant trust lawyers because they are hired guns and mouthpieces for clients o how come we trust the judges the judges decide what is admissible we trust the judges to a degree we still have the appeals o Why we have rules of evidence, what they achieve, why we dont trust the jury/lawyers etc it happens in trial as well as in expectation of a trial o 97% of litigation civil are disposed of before trial ( i.e. settlement) 92/93% something like that in criminal work o Litigation concept Before trial You have client charged with selling cocaine, to defend him you need to find out the facts first must identify the elements of the offense the statute that the prosecutor is saying was violated Each en every element must be proven beyond reasonable doubt Defense attack the credibility of witness o Theory of the Case Starts with the rules of law get judge to charge The facts you get the jury to believe Put them together and you can win o You get this theory before trial begins the Jury selection first thing in trial

Evidence Class Notes

Witness Direct o Cant ask what do you know about the robbery Narratives are no good uninterrupted narrative Cant trust the jury not to use useless information and also the lawyer will also put information in that is useless and dont know what is going to influence the jury Lawyers are risk averse and they put everything in and you will waste a lot o f time and so you are going to waste time with the witness saying everything and anything So narratives create the potential of wasting time Narrative creates also the potential the introduction of prejudicial information as well as taking away option of objecting o So there is a Q&A Can emphasis facts that would not happen with narrative This has a tendency to feel and create artificial way to tell the story But also helping with objections etc Rule 201. Judicial Notice of Adjudicative Facts o (a) Scope of rule. This rule governs only judicial notice of adjudicative facts. o (b) Kinds of facts. A judicially noticed fact must be one not subject to reasonable dispute in that it is either (1) generally known within the territorial jurisdiction of the trial court or (2) capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned. o (c) When discretionary. A court may take judicial notice, whether requested or not. o (d) When mandatory. A court shall take judicial notice if requested by a party and supplied with the necessary information. o (e) Opportunity to be heard. A party is entitled upon timely request to an opportunity to be heard as to the propriety of taking judicial notice and the tenor of the matter noticed. In the absence of prior notification, the request may be made after judicial notice has been taken. o (f) Time of taking notice. Judicial notice may be taken at any stage of the proceeding. o (g) Instructing jury. In a civil action or proceeding, the court shall instruct the jury to accept as conclusive any fact judicially noticed. In a criminal case, the court shall instruct the jury that it may, but is not required to, accept as conclusive any fact judicially noticed. Judicial Notice

Voir Dire the way you pick jury( other than MA NJ and Fed Ct) Law clerk picks jury and lawyers can ask questions and then you can kick them off if you dont like them Need to know the theory of the case Voir dire is a cross examination ( a set of questions which challenges whether they are suitable juror for this case) of the suitability as juror in this case You pick a jury based on your theory of the case and w hether that juror will be receptive to your theory of the case After you pick jury opening statement You get to talk to the jurors try and create a theme and theory o Theory legal combination and the facts o Theme what this case is about ( i.e. young man caught in this system and he was not the one poor defendant boo hoo) To get the verdict in your favor Then you start introducing witnesses

Evidence Class Notes

Page 1250 Varcoe v. Lee 1919 ct held that it was business district it was an issue of fact because it is simple and clear issue was what is the speed limit in the area, when there is no posted speed limit and at that time they said it was 30 mph in a business district What is a business district (???Tresnak case different) Now Fed R Evid 201 Information that is scientifically certain or that is generally known in the jurisdiction But they both(either) have to be so certain that they are not amenable to dispute What happens if something is subject to judicial notice It is an exception to the adversary proceeding where information is admissible through testimony or tangible objects o Testimonial proof and real proof o All evidence that jury hears is either Testimonial proof and real proof o Except for facts that jury hears through judicial notice So in this case we take the information out of the adversarial process where every fact is challenged o The judge has power to protect the integrity of the process about what everyone knows is true and this wont get challenged o The standard is quite high Another example Hempstead is in Nassau County this is for judicial notice Judicial notice prevents conflict over facts that are not amenable to reasonable dispute First is facts generally known in jurisdiction second is scientifically proven facts, scientific certainty (i.e. high tide, whether it was full moon,) o Also second (breathalyzer accuracy etc 702, 703, 704 and 705 this will come back brand new scientific evidence i.e. DNA) In re Marriage Tresnak This case exemplifies what happens in matrimonial law where trial judges rule the same way all the time he is a husband judge because he takes judicial notice that mom will have so much stress and time with law school etc... This an example of the kind of fact that should not be taken away from jury and be decided by judicial notice no basis Scientific evidence Page Examples of judicial notice okay for scientific knowledge The evidence information as examples high tide, full moon, dna People have dna common knowledge, Number of bones in human body, Judicial notice does not really happen often but is important For example with the DNA thing Much of what is being done in trial what is being attacked at tria l is even if lawyers know that witness is saying truth, but then still attack credibility etc That is what the lawyer does The exception is the judicial notice And this adversely thing raises issues of moral conduct and ethical conduct Ethical obligation to raise this issues and attack witness testimony even if you know they dont have merit because that is duty to client o There is personal conflict with this ethical obligation and that of your moral obligation to yourself The nature of the process is that we are attacking the witness and everything is false Misc

Evidence Class Notes

Competency, relevance and material = evidence to be admissible must be all three Reasons that jury doesnt get evidence means it is not one of the above Incompetent inherently unreliable o Competent means it does not have objective characteristics of unreliability o Example of incompetent evidence is coerced confession o Witness incompetent to testify they have mental disease or defect for example o People can be selectively incompetent for example if you were not there o Hearsay is inherently unreliable because someone else told you something, this is not reliable because you dont know if what the third person told you is true or not Relevant to prove a material fact > o Necessary to prove the theory of case o Relevant to prove material fact o In FRE there is not rule about materiality Materiality o It is a dicey word with a variety of meanings o Strong connection o The fact you want to introduce has to further the inquiry Witness Examination o The form of examination the way the information has to be created nothing to do with the answers but it is the question that has these rules o Most of these rules deal with direct examination, while with cross examination it is sort of anything goes with few exceptions o Hypo Red car went through red light and hit green car Green says red car went through red light and the green car has witness X There are restrictions on direct examination of X o Leading questions You are not allowed to ask leading questions on direct However you can ask is your name john smith? Because it is preliminary questioning that does not deal with issues in dispute So leading questions that are preliminary are allowed But you are not allowed to ask leading questions Allowed to ask leading question to lay the foundation (page 337) Laying a foundation is o Introducing tangible object into evidence real proof, cant do it i.e. a knife v. the knife how to introduce it the witness will have to say it is the knife o the foundation is all the witnesses saying that this knife is the knife another example is introducing a photo of the place where red car went through red light exhibit 1 > is a fair and accurate representation of that location as it appeared on that day so here you are allowed use leading question because the witness will not really say the thing verbatim as above what is left out so far what is a leading question and why cant we ask a leading question it is a question in the wrong form because o it calls for yes or no answer o it put words in witnesses mouth o starts with any version of the verb to be isnt this , werent you arent you etc now why are they prohibited what is not a leading question

Evidence Class Notes

where were you, what did you see etc who what where how why when direct your attention okay as well these are okay because back to why this Q&A is not about putting words in the witnesses mouth Putting words in witnesses mouths Jury is here to decide disputed issues of fact o Macro and micro facts o Its micro facts because it goes to the credibility of witness o So jurors decide what they believe from which witness and o What facts do the jury have The words coming out of witnesses mouth And they compare what the witnesses said They also have what he looks like and what they know about witness and how he says the words To decide the truth The evil of calling for yes no answer o Is not the agreeing, but the yes and no answer deprives the jury of the only information they have to make credibility determinations, the exact words the witness uses o And so you need to hear the actual answer from the witness o It is not the change in substantive testimony but the deprivation of information to jury of tone inflection, diction word choice etc It is your summation, your theory of case turned into testimony o The jury also doesnt get to see the words that the witness selects to express the idea And that is the problem of leading questions And that is why the two exceptions (preliminary and laying the foundation) are okay because those facts dont really matter to the issue of the case hostile witness you get to use leading questions they are not going to fully and fairly respond to questions so that it wont be a real direct to be hostile you would have to be part of opposite party, their witness others would have to demonstrate hostility and you are allowed to lead because you need to bring out the testimony of the witness because it is relevant so exception to leading Laying foundation, preliminary and hostile witness Are exceptions to leading questions Why are allowed to lead on cross The purpose of cross is different from direct In direct > the witness presents the information The purpose of cross > challenge the credibility of witness We dont want to see witnesses words, but challenge what they already said Few similarities between both direct and cross You are not allowed to ask double questions in either one o (two questions in one sentence) o Dont know what the witness is answering You are not allowed this on direct, but you are allowed to ask on cross

Evidence Class Notes

Rule 611. Mode and Order of Interrogation and Presentation (a) Control by court. The court shall exercise reasonable control over the mode and order of interrogating witnesses and presenting evidence so as to (1) make the interrogation and presentation effective for the ascertainment of the truth, (2) avoid needless consumption of time, and (3) protect witnesses from harassment or undue embarrassment. (b) Scope of cross-examination. Cross-examination should be limited to the subject matter of the direct examination and matters affecting the credibility of the witness. The court may, in the exercise of discretion, permit inquiry into additional matters as if on direct examination. (c) Leading questions. Leading questions should not be used on the direct examination of a witness except as may be necessary to develop the witness' testimony. Ordinarily leading questions should be permitted on cross-examination. When a party calls a hostile witness, an adverse party, or a witness identified with an adverse party, interrogation may be by leading questions. Witness Preparation o Preparing the witness is important talking to witness is not the only preparation Difference between interviewing witness and preparing the witness horse shedding the witness Training the witness when you prepare the witness Not telling them what to say how to present the facts he is going to tell the jury o People v. o One thing to dress and help witness and another to aggressively change her story o Memory and perception connect Memory can be altered It is very vulnerable to suggestion because the process The process of horse shedding witness can change memory as you retrieve it o Process of preparing the witness can help But it can hurt accuracy and helps changes the words the witness uses o

Evidence Class Notes

Evidence Class Notes