Lushing F05 Evidence - Outline

Lushing F05 Evidence - Outline - Evidence - Outline...

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Evidence - Outline www.swapnotes.com Page 1 of 37 Professor Lushing Fall 2005 rChapter 1-Evidence Law and the System A. Why Rules of Evidence? a. To prevent lawlessness- don’t want judges to decide individually what to allow i. But… 1. Trial judges don’t know evidence really well. 2. To the extent they know it, they need to make decisions instantly 3. Evidence rules are discretionary! Judge does what thinks is reasonable 4. Hard to get reversed on appeal claiming judge made evidence error b. Why evidence law at all ? i. Mistrust of juries -don’t trust juries to weigh evidence rationally ii. Serve substantive policies relating to matter being litigated Ex: burden of proof iii. Serve substantive policies unrelated to matter in litigation Ex: privileges iv. Ensure accurate fact-finding- should be #1 Ex: authentification, best evidence v. Control the scope and duration of trials -Discretionary. B. What Happens at Trial? a. Cases go to trial when triable issues of fact exist . i. If no triable issues of fact, fighting about law. ii. When are there triable issues of fact? 1. Criminal: when D pleads not guilty. 2. Civil: when answer denies material allegations in complaint b. Trial Process : 1. Jury Selection -more psychology than logic-verdicts depend on pp not law a. A jury is Required when: i. D has a right to a jury AND ii. A jury is demanded/not affirmatively waived b. 2 types of challenges : i. For cause challenges -unlimited number based on prejudice ii. Peremptory challenges- limited #, cant be racially motivated 2. Opening Stmt -The Story-facts-not law!, evidence bringing, objections allowed a. D doesn’t need to b/c don’t have burden of persuasion 3. Presentation of Proof a. P’s Case in Chief -P brings evidence proving all elements of the crime b. D’s Case in Chief -D can go even if seems obvious D is guilty/liable. i. D brings in affirmative defenses c. P’s Case in Rebuttal -limited to addressing stuff brought up by D d. D’s Case in Rejoinder e. Examination : Direct, Cross, Redirect, Re-cross etc. 4. Trial Motions- after D, both parties can move for judgment as a matter of law a. If granted, will usually be for D b/c D doesn’t have burden of proof! 5. Closing Arguments- Must stick to evidence, but can argue deductions for jury a. Law requires reasonable deductions only, but beyond that, law is fuzzy and left to judge’s discretion as to what is reasonable, so go for it! 6. Jury Charge/Instruction- a. charge error is common ground for reversal on appeal i. Bring it up during charge conference AND after charge given
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Evidence - Outline www.swapnotes.com Page 2 of 37 Professor Lushing Fall 2005 b. Curative Instructions -admonishment during trial that jury should disregard what they just heard. i.
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This note was uploaded on 02/14/2008 for the course LAW 7330 taught by Professor Lushing during the Fall '05 term at Yeshiva.

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Lushing F05 Evidence - Outline - Evidence - Outline...

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