1. EVIDENCE Some Basics Spring 2009

2. Overview 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.

3. Substantive Law defines the claims, crimes and defenses Procedural Law Criminal Procedure/Civil Procedure Evidence

4. 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.

5. The Process in Civil Cases Complaint Answer Motion to Dismiss and others Discovery Motions for Summary Judgment Motions in limine Trial

6. The Process in Criminal Cases The Indictment Plea – Guilty, not-guilty, nolo contendere Motions to Dismiss and others Some limited discovery Motions to Suppress Motions in limine Trial

7. Trial and Appeal – If you lose, you appeal – the basis of the appeal must be in the record What is a record? Pleadings – Civil/Criminal Transcript of the oral proceedings Exhibits.

8. The trial – who is there The Judge A court clerk A court reporter A bailiff The lawyers The parties Who are the parties?

9. What is transcribed 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?

10. 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.

11. The Steps in a trial Jury Selection Opening Statement Presentation of evidence Plaintiff/Government Defendant Rebuttal Closing argument Court’s Instruction Jury Deliberation

12. Making the Record Objections 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

13. The Offer of Proof 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 Written statement by the attorney Actual testimony of the witness under oath Statement of the lawyer Presentation of the document

14. Transcription Issues – Know the local culture Jury Selection Side Bar and In-chambers conferences The Need for Clarity

15. EXHIBITS 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)

16. The Procedure for Exhibits 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”

17. It must be shown to opposing counsel if they have not seen it. It must actually be admitted into evidence 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 Chain of Custody Business Records Some documents are self-authenticating.

18. Ethical Issues Rule 3.3 – Candor to the Tribunal (a) a Lawyer shall not knowingly 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

19. Rule 3.4 – Fairness to Opposing Counsel A Lawyer shall not 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

20. The Rule Making Process Advisory Committee on the Federal Rules of Evidence Standing Committee on the Rules of Practice & Procedure Public Comment Period Advisory Committee Standing Committee

21. 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