Lushing F05 Evidence - Class Notes

Lushing F05 Evidence - Class Notes - Evidence Class Notes...

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Evidence - Class Notes Page 1 of 55 Professor Lushing Fall 2005 8/29/05 Professor Lushing Room 930 x268 [email protected] [email protected] Chapter 1-Evidence Law and the System A. Why Rules of Evidence? 1. Why have evidence law-why not let the judge decide what to allow and what not? 1) To prevent lawlessness-we don’t want judges to decide individually what to allow a) But… i) Trial judges don’t know evidence really well. ii) To the extent they know it, they need to make decisions instantly iii) Content of evidence rules is discretionary! Judge does what he thinks is reasonable iv) Hard to get reversed on Appeal on grounds that judge made evidence error b) So…want to prevent lawlessness, but still have issues even with evidence law. i) Who wins then if lawyers aren’t sure and the judge doesn’t know? The lawyer who sounds confident wins! 2) Rule : If evidence is relevant it is in—all law involves how to keep out evidence that is not relevant! a) The name of the game is objections, but there is the risk that the jury will think that you have something to hide. i) You have to decide when to waive valid objections b/c you will lose the faith of the jury. 3) Why evidence law at all ? (book) a) Mistrust of juries -we don’t trust juries to weigh the evidence rationally i) In life, we rely on hearsay all the time, so why is the rule “ hearsay is inadmissible” ? b/c in trial the stakes are higher b/c of the consequences to the person on trial (prison, bankruptcy) ii) So…we say hearsay is inadmissible b/c we don’t want juries to put too much into the hearsay or, usually, a past crime b) To serve substantive policies relating to the matter being litigated - i) Ex: depending on who you think should win, you put the burden of proof on the other party. (1) Ex: if you have a dead body, it could be homicide, suicide, or accident. The person who will prevail will be the side that doesn’t have the burden of proof b/c the explanation for why the body is there is unavailable. ii) You need to know policy in order to get the decision to be made in your favor. Ex: we have policy to protect the insured, so we would allocate the burden of proof to the other side. c) Extrinsic Substantive Policies-to further substantive policies unrelated to the matter in litigation
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Evidence - Class Notes Page 2 of 55 Professor Lushing Fall 2005 i) Ex: law of privilege—journalists serve policy of informing the public, so we will say they have privilege and will keep evidence out of a trial to serve the policy of keeping the public informed. d) To ensure accurate factfinding- this should be reason #1 e) To control the scope and duration of trials -housekeeping! This is discretionary, so you wont get this reversed on appeal. 2. Why Rules rather than common law?
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Lushing F05 Evidence - Class Notes - Evidence Class Notes...

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