EVIDENCE I. Introduction and Overview: 1-49. FRE 101-104, 401-403, 611. Problems 1A. 1. Definition of evidence the information that goes to the fact-finder upon which the judgment decision is made2. Policies behind the evidence rules why have rules of evidence? Mistrust of juries Related substantive policieso Rules that set and allocate the burdens of persuasion Unrelated substantive policies (extrinsic substantive policies)o Typically rules that seek to affect behavior or quality of life outside the courtroomo Ex: privileges Accurate fact-findingo Ex: authentication and best evidence To control the scope and duration of the trial process Benefits of rules over common law accessibility, easily read, freely availableo Though that doesnt mean easy to interpret or applyo Esp important since this is an outcome determinative body of law like substantive and procedural The law that governs what the finder of fact gets to hear3. Stages of the Jury Trial Jury selection “voir dire” of jurors Opening statement of plaintiff or prosecutor Opening statement of defendant Case-in-chief of plaintiff or prosecutor Case-in-chief of defendant Case-in-rebuttal of plaintiff or prosecutor Case-in-rebuttal of defendant (sometimes called case-in-rejonder) Closing argument of plaintiff or prosecutor Closing argument of defendant Rebuttal argument of plaintiff or prosecutor Jury Instruction Jury deliberation Verdict and entry of judgment Post-trial motions Appellate Review4. Admitting and Excluding Evidence how evidence is actually presented Forms of Evidenceo Testimonial proofDIRECT EXAMINATION: bring out background info, lay the foundation for testimony to follow, ask substantive questions Generally cant be leadingthe W, not the attorney, should do the testifying Limits on who can testify participatory counsel, minors (generally) Limits on what can be testified to hearsay, personal knowledge requirement Questions must be based on realistic grounds cant just make shot in dark attempts to get info Need a good faith basis for all questions asked Can use Rule 612 to refresh a witnesss recollections to then have them testifyRule 612. Writing Used to Refresh Memory.Except as otherwise provided in criminal proceedings by section 3500 of title 18, United States Code, if a witness uses a writing to refresh memory for the purpose of testifying, either(1) while testifying, or(2) before testifying, if the court in its discretion determines it is necessary in the interests of justice,an adverse party is entitled to have the writing produced at the hearing, to inspect it, to cross-examine the witness thereon, and to introduce in evidence those portions which relate to the testimony of the witness. If it is claimed that the writing contains matters not related to the subject matter of the testimony the court shall examine the writing in camera, excise any portions not so related, and order delivery of the remainder to the party entitled thereto. Any portion withheld over objections shall be preserved and made available to the appellate court in the event of an appeal. If a writing is not produced or delivered pursuant to order under this rule, the court shall make any order justice requires, except that in criminal cases when the prosecution elects not to comply, the order shall be one striking the testimony or, if the court in its discretion determines that the interests of justice so require, declaring a mistrial. Use the document to refresh recollection and then question the witness as usual Record is not introduced itself unless the other side offers it Ex: Offering a packing list to the witness, wanting the witness to testify what was in the boxo For ID purposes, the list was marked as exhibit 5. Ps attorney shows it to the witnesso Witness cant read the refreshing document to the jury if its shown simply for the purpose of refreshing, then ask the witness whether she remembers what was in the boxo If it refreshes, the witness can then fully testify to substantive evidence, offered for the truth, etc.o If the witness reads it to herself, still claims to not remember what was in the box, the document can potentially be admitted under 803(5). Try to prove the requirements of the exception Needs insufficient recollection, needs to have once had the information, Needs to have made or adopted the document, and done so when the events were fresh in the mind of the witnesso Testimonial proofCROSS EXAMINATION controlling the W w/out appearing to Leading OK. Scope Of Direct Rulelimited to matters explored on direct Rationale: parties have control over when to introduce their own evidence Critiques: administration difficulties; impediment to the truth.o Too flexible depends on how scope/subject matter is defined But knowing the substantive law in