Lushing F05 Evidence Outline

Lushing F05 Evidence Outline - 1 CH 1:...

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1 1 CH 1: WHY WE HAVE RULES OF EVIDENCE AND HOW THEY WORK IN AN ADVERSARY SYSTEM A. Why Rules of Evidence? 1. Mistrust of Juries: that they can’t properly evaluate statements made outside their presence (hearsay rule) 2. Serve Substantive Policies Related to Matter Being Litigated: In hopes they affect outcome/recovery Ex) Rules re burden of persuasion (preponderance) 3. Serve Substantive Policies Not Related to Matter Being Litigated: Affect behavior / quality of life outside the courtroom Ex) Spousal privileges 4. Ensure Accurate Fact Finding Ex) Rules re: authentication, and “Best Evidence” doctrine 5. Control Scope and Duration of Trials: Organize the dispute and increase efficiency. Ex) Judges right to exclude evidence that would take more time than it’s worth. 6. Federal Rules of Evidence contain 63 provisions that are easily accessible. 41 states use - NY does not. B. What Happens at Trial? Have a trial when there’s a Q of fact. Read Answer - if there’s no denials = no trial, if there are denials = trial. If Q law only, move for summary judgment. 1. Jury Selection Voir Dire : Interview prospective jurors. Lawyers attempt selection most favorable to their client, and start to sell case. In state courts, usually lawyers do this. In federal, and in some states, the judge does this (w/ requests from lawyers). 2 Types of Challenges: a. Exclude For Cause : Unlimited number based on prejudice b. Preemptory Challenge : Limited number (3-5) for any reason at all. Cannot be racially motivated 2. Opening Statement “The story.” Provide a roadmap of what’s to come . a. Sum up the facts, including background facts about the parties (humanizing / garnering sympathy). b. Discuss the evidence you intend to produce. c. Not a “legal” argument – but do try to persuade. d. May not cause jurors to draw inferences e. Objections are allowed f. Push envelope of gray areas g. D’s opening = canned speech (if nothing much else to do) 3. Presentations of Proof a. Depositions : Only in civil cases b. Order of Proof : Party bearing the burden of proof goes 1st (usually P) i. Initially, P presents “Case In Chief” – establishes everything must prove in order to prevail. Call all witnesses by direct examination, present all tangible evidence (things, records)
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2 2 P rests ii. Next D presents his “Case In Chief.” D attacks P’s evidence and credibility of witnesses. Brings in “affirmative defenses”. D rests iii. P presents “Case in Rebuttal.” Limited to addressing stuff brought up by D (P can’t redo stuff brought up in his “Case In Chief”). P may challenge affirmative defenses. iv. D presents “Case in Rejoinder” ( “Case in Rebuttal) v. Each side presents further “Cases in Rebuttal.” c. Order of Examination : i. Direct examination by the calling party ii. Cross-examination by the adverse party iii. Redirect examination by the calling party:
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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 - 1 CH 1:...

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