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Evidence - Mueller 2005 - A

Evidence - Mueller 2005 - A - Evidence Outline Chapter One...

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Evidence Outline Chapter One: Evidence Law and the System W HY R ULES OF E VIDENCE ? o Why Evidence Law at All? Five reasons: Mistrust of juries o Along with other methods of limiting decisions by juries (summary jmt, JML, jury instructions), the rules of evidence allow the judge to micromanage the case o Examples: Hearsay doctrine – jury may not be skeptical enough about these statements; exclusion of character evidence – jury won’t properly appriase this information Instrinsic (related to the litigation) substantive policy o Burdens of proof and presumptions are believed to be substantive rules of law Extrinsic (unrelated to the litigation) substantive policy o Privileges – these are important public policies that don’t necessarily determine who wins the case Accurate fact-finding Control of the scope and duration of trials o The trial judge may exclude even relevant evidence for this reason H OW E VIDENCE IS A DMITTED OR E XCLUDED o Getting Evidence In: Foundation and Offer Testimonial Proof – Direct Examination Rule 611(c) – no leading questions The witness should be doing the testifying, not the lawyer Testimonial Proof – Cross-Examination The leading question is the main instrument of control Scope-of-direct rule: Cross examination is limited to matters explored during direct examination o BUT a court in its discretion may allow a question even if it is beyond the scope of direct o Why have this rule? So that the plaintiff can present the case he wants and control the order of presentation o Keeping Evidence Out The Objection Why do we require lawyers to object? o It helps the judge by putting the issue before him o It helps the opposing party fix the problem o It makes the system more effective – gives people many procedural chances, but not endless ones Rule 103 : Error may not be predicated upon a ruling which admits or excludes evidence unless a substantial right of the party is affected AND the opposing party objects o But, if a co-defendant/co-plaintiff/other representative party objects, there is no need for both to object and the non-objecting party may still appeal o The objection must be timely o The objection must include its ground o The objection must be specific and not general The Offer of Proof After one party objects, the other party must make an offer of proof IF the court rules to exclude the evidence (the judge might change his mind) 1
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Then even if the judge doesn’t change his ruling, the proof is on the record and the reviewing court can see it This can occur in a sidebar, but if the judge wants more, you could also put the witness on the stand, send the jury away and show the judge the testimony C ONSEQUENCES OF E VIDENTIAL E RROR o Rule 103 : The evidence error must have affected a “substantial right” – usually standard is whether the error probably affected the outcome o Types of error: Reversible error
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Evidence - Mueller 2005 - A - Evidence Outline Chapter One...

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