Tillers Sp04 Evidence Notes

Tillers Sp04 Evidence Notes - www.swapnotes.com Evidence...

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1 Evidence Outline I. Introduction to Trial Procedure and the Trial Process: A. Procedure that is Used to Prove Facts: $ Three Processes of Proof: 1. Substantive Procedure: How the Crime is defined by Law. 2. Procedural Dimension/Chronological Dimension: How the crime plays out. 3. Evidentiary: Rule of Evidence which determines what sort of matters the Trier of Fact can hear about, learn about and see. B. Procedural Dimensions of the Trial: Opening State, P. case in chief, D. case in chief, Closing, Jury instruction: $ Opening statement: $ This is a road map. The defendant can choose to either do it after the plaintiff = s opening, or at the conclusion of his case. $ Closing Arguments: $ The lawyers now advocate their interpretation of the evidence (no arguments in the opening statement. C. Traditional Domain of Trial Evidence: $ Sequence of Witnesses Introduction : ( FRE Article VI: Witnesses ) $ Witness takes stand, takes oath and affirms (FRE 603), Provides background knowledge ( Rule 602: Witness Needs first hand knowledge ): D. Offer: $ Offer of Evidence: Χ Tangible Evidence: You would actually say this is what we are going to offer. If you fail to make an offer of evidence, you cannot later come back and complain that the evidence was not introduced. a. Good Offer: Need to let the court know what the nature of the evidence is you are trying to offer. b. How: Hand the piece of evidence to the judge so that he can make a ruling. the judge needs to see the evidence in order to Rule on it. c. Relevance: In addition to offering the evidence, you need to let him know what the relevance is. ( Rule 403 ) $ Offer of Proof: FRE 103(a)(2) 1. Denial of Evidence: Need to make an offer of proof once the piece of evidence is denied: Need to get it on the record, do this for the favor of the appeals court. $ A I would like the record to show that if allowed, the witness would have testified that ... @ The jury will not be present for this process. $ Formal Offer: Actually asking a question of the witness and have the witness answer $ Rule: have the right to make an offer of evidence unless its purpose is so obvious. a. Refusal of Right: If the judge refuses to allow you to make an offer, one can immediately appeal. (Both in CL and FRE) 2. Why it is so Crucial: If the trial judge knows what h is refusing to allow, the appeals court will be able to determine error. a. HYPO: Lawyer 1 is asking a witness what she heard, Lawyer 2 www.swapnotes.com
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2 objects on hearsay grounds, an objection which is sustained, Lawyer 1 then sits down: Result: Would lose on appeal b/c no offer of proof about what the witness would have said was put into the record. b. Two Grounds: Need to tender evidence, but one also needs to tell the judge what the evidence would have been and why it should have been admissible. $ HYPO: L1 calls W to stand, lays foundation and then asks W what one of the victims said to him. Objection on hearsay grounds; sustained. The lawyers then agree to make an offer of evidence at the end of the trial for the record: If it turns out that the evidence would have fit in under an exception to te hearsay Rule
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