Evidence

Week of 1-19-09

21 January

Consider maybe getting the WI rules of evidence.
The three things that evidence is about:
1. Relevance: the foundation for the rules. If something isn't relevant, it's not admitted. The first question is always whether something is relevant.
2. Reliability: can we give this thing weight? Once we know something is relevant, can we trust it?
3. Policy: even some relevant and reliable evidence may be excluded if some policy confers greater benefit than hearing the evidence. Examples: rape shield, or attorney-client privilege. So a confession to an attorney might be relevant and reliable, but we don't allow that attorney to be a witness to it.
Really that's all the rules are about. Today we'll have an overview of the rules and the trial process. Evidence is neither substance nor procedure-- it's a tool for the courtroom. Sort of different, in that sense, from our other courses. What we're learning here is a tool that we'll have to put to use one day.
Statistically, most lawyers will never set foot in a courtroom, and most who do won't be there to do a trial. So why learn this information? Other than to pass the bar. All of us will have a client at some point who will wind up in a courtroom, and someone else will be trying the case. If we don't understand how our work (contracts, real estate, etc.) will fit into a courtroom, we do our clients a disservice. It's about thinking ahead and foreclosing issues even before a dispute arises.
The rules of evidence were developed at common law, mostly in English law. Judges compared notes as they went along, but there wasn't a uniform, equitably applied body of rules. We brought those rules, such as they were, over to the young US. In 1942, ALI came up with the Model Code of Evidence. This was an attempt to make a coherent set of best practices out of the tangle of little rules. This wasn't mandatory, of course. Then in 1953, there was a national conference that came up with the Uniform Rules of Evidence. That, too, was not mandatory, but served to consolidate things. Finally, in 1975, FRE were adopted. They've been amended, but not very substantially. And after that, the states started adopting nearly identical sets of rules.
We'll cover WI rules to the extent that they differ from Federal ones. Protip: These differences are worth paying attention to. WI rules are in chapter 900. As a general rule, you can take a FRE number, and put 90 in front of it. So FRE 401 more or less equals WI 904.01.
The rules aren't really rules. They're guidelines: the appellate standard of review is "abuse of discretion" (or "misuse of discretion," if we want to be more polite to the trial court). So the burden is quite high when we want to appeal on the basis of an evidentiary question. Appellate courts are reluctant to second-guess trial judges who were actually there. Because the standard is so high, the decision to admit or not is one of discretion.
For this reason, it's important to understand the policies underlying the rules-- this is what will allow us to apply them to the facts of a case and persuade a judge to rule in our favor. Either ruling would be correct on appeal.
The rules are structured around what they cover. The pattern is this:
- Tell them what you're going to tell them (opening)
- The case (telling them)
- Tell them what you told them (closing arguments)
CH 1: General provisions. The scope of the rules. Basically anything that goes on in court, but there are a few exceptions in Chapter 11.
CH 11: Miscellaneous rules. Many of these duplicate the general provisions. These "repeats" deserve particular attention, because they are the things that the drafters especially wanted to emphasize.
The rules don't apply to a "preliminary quesion of fact." Say we're in court, and I want to get an item into evidence. I show this document to a witness and say "do you know what this is?" The other side objects: irrelevant! So the judge doesn't yet know all about the case (it's rare for them to look at a case file prior to the trial unless there's something they need to decide prior to the trial; sometimes there will have been motions about discovery or summary judgment, but usually not). So the judge doesn't yet know whether something is relevant or not. So: the rules of evidence do not apply to a ruling on evidence. In other words, you can walk up to the bench and have a bench conference, and say "here's what this document is and why it is relevant." And the other side can say "no no no it's not that at all." So now the judge can make a ruling: if we applied the rules of evidence to rulings on evidence, we'd never get anywhere. So we don't have to abide by the rules of evidence when giving information to the court. Protip: don't ever give a judge inaccurate information; it will haunt you forever.
The rules also don't apply to grand jury proceedings, and also not to miscellaneous procedings: rendition, bail, and so on. A nice list.
Generally, the chapter of rules begins with a definition. See chapter 4 (limits of relevancy): 401 defines "relevant evidence." After the definition, you get the basic rule: 402 says all relevant evidence is admissible, unless there is some law saying otherwise. Then we get exceptions and illustrations of specific applications. Sometimes it's hard to know which is which.
Do rules of evidence apply to depositions? Technically they are court proceedings: they get a case caption, etc. So they do apply, technically, but they are often overridden by a different concern. But "relevant" at a deposition is different: it's relevant here if it is reasonably calculated to lead to the discovery of admissible evidence. So "relevant" is broadened for depositions. And this means we can do away with all kinds of objections at a discovery deposition.
But wait: there are evidentiary depositions as well as discovery depositions. Those have the narrow definition again.
But wait again: there are privileges (attorney/client, etc.) that can affect the admissibility of evidence. These can (and must) be asserted at deposition. And we want our objections on the record.
The structure of a trial. This is the course that will ruin courtroom movies for us, by the way.
- Opening statement. The judge (and jury if there is one) don't know much about the case yet, so this is designed to give an overview of what evidence the jury will hear. That's tough: this is a statement, not an argument. You're not permitted to make a pitch to the jury; you're not allowed to interpret the evidence. Of course, the art here is to be able to argue without arguing.
  Anyway, each side gets to tell the fact finder: this is what we think the evidence will show. Events occur chronologically, but evidence doesn't always come in chronologically. A witness will testify only once, usually, and they'll have to say all the relevant things they know, whether this comports with the timeline or not.
  The opening statement gives the framework into which the various pieces of evidence will fit. It frames the picture that the evidence should paint.
  If someone starts making an argument, you can object: argumentative! There's no rule that defines this objection, incidentally. There are many objections not reflected in the rules themselves. Some rules are still common-law, in other words.
- Then the proponent (the one who carries the burden) goes first in presenting the case. They put on their witnesses, and when they are through, they rest. Now the defense goes: they may or may not put on witnesses.
- Now the plaintiff is permitted a rebuttal, but it's confined to addressing new things and issues raised by the defendant. This is a policy of economy, in other words. All the players are presumed to be able to put their cases on at the beginning. Having a trial is a burden, and we don't want to make the jurors sit longer than necessary.
- Now the judge can permit a sur-rebuttal. This is rare, and the defense is not entitled to it. If the defence can convince the judge that the rebuttal in turn introduced something new, the judge has the discretion to allow the sur-rebuttal.
- Closing arguments: here's what you heard, and this is what I think it means within the framework of the rules of the law. Usually jurors will get instructions to take with them into the jury room, and sometimes they get instructions before closing arguments. That's not a rule, though: the judge has the discretion to decide when to give the instructions. Sometimes (increasingly), the judge will even give some instruction prior to opening statements, so the jury knows what they're dealing with. This is still somewhat uncommon, but there's a trend in that direction.

Read §§ 2.6, 2.7 in Lilly.
The person who calls a witness must ask "direct" questions. "Direct" means pretty much "not leading." In other words, you can't ask questions that suggest their own answers. There used to be a distinction between leading questions and suggestive questions. That distinction is gone now, though.
- Direct: "what color was the sky?"
- Leading: "The sky was blue, wasn't it?
Why do we make this distinction even in cases where the information elicited would be the same? Because answers to leading questions are perceived as less reliable than answers to direct questions. We make the proponent ask direct questions because a trial is about telling the truth (even though people will lie like crazy), and we want the trier of fact to hear what their words are.
Cross-examination, by contrast, is about testing the witness and the reliability of the witness's statements. Do they know what they said, or did they assume? How clear was their perception? My Cousin Vinny: did the witnesses actually see what they thought they saw? Pretty great film from an evidence perspective.
For this reason, we let the cross-examiner ask leading questions: they are seens as a useful tool in testing the reliability of the witness's testimony. The cross-examiner wants result X, and uses leading questions to establish the many inconsequential factors that distinguish X from Y (to which the witness testified on direct), until it's possible to ask about X directly with confidence.
State vs. Fed difference: The federal rule says that the scope of cross is limited to direct. If the defense wants a witness to testify about something not covered in direct, they have to present that witness as part of their own case. Wisconsin differs: the cross-examiner can ask about any fact that is relevant, regardless of the scope of direct examination. Why? Efficiency, and not being super-burdensome to witnesses trumps the plaintiff's control over the presentation of evidence. This eliminates gamesmanship, somewhat. Even in federal court, we're seeing increasing leeway here: the rule will still be formally applied, on request, but it's a double-edged sword.
A good objection is explained in just one word: "Objection, non-responsive, I ask that the answer be stricken." Common legal fiction: juries ignore things that the judge tells them to. At common law, the "non-responsive" objection was allowed only to the questioner, but now either party can raise it. Also: "Objection, scope" is short for "beyond the scope of direct."
Witnesses testify about that which they perceived through their five senses, generally. They usually don't tell about what someone else perceived. What they may testify about has to be rationally based on what they perceived. Sometimes (rarely) witnesses are called upon to testify about things they did not experience. Jurors are told that they are "allowed to weigh the evidence in light of their common experiences." Experts are exempt from the rules of competence: they don't have to testify on the basis of their direct perceptions.
What about opinion testimony? "How fast was the car going?" How did we convict people of drunk driving before there were breathalyzers? Conclusions are allowed, in limited contexts, even though they mingle the witness's thought processes with perception. Opinions are allowed, by non-experts, when they are within the ken of ordinary experience. The car was going very fast, the guy sure seemed drunk, she was very angry. And so on.
Direct examination techniques. You select based on what the witness is like, and what the testimony should be. You can mix.
1. Open narrative: establish the basics (who the witness is, etc.). Then just say "tell the jury what you saw," and let them go. No specific quesion is asked-- just an invitation to tell the truth without interference. This gives the response a great deal of weight. Of course, there is danger, as well: the witness might wind up telling opinions, making assumptions, not shutting up, boring the jury, saying things that are irrelevant and/or prejudicial, etc. So there's the ring of truth, but there are landmines as well.
2. Specific question and answer: at 3pm, where were you? did you see a car? What color was it? did you see the person who was driving? can you describe that person? This slows down the pace of the trial, and can diminish credibility just a bit (because it sounds rehearsed), but there is control.
The one true objection: objection, boring! Of course, you don't say this directly, usually. You just let the person go on a little too long, and then just say "objection." And the judge will cut it off.
Goals of the questioner. We want the witness to be:
1. Understood.
2. Believed.
3. Remembered.
"Remembered" can be based both on what the testimony was, but also on HOW the testimony was given. Strategy: find what makes your witness cry, and use that to emphasize a single point.
Compound question is not an objection in the rules, but it is still real. Answering "yes" to "the sky was blue and the light was green" doesn't tell the factfinder which question got answered. It's actually hard to ask questions that only cover one subject matter.
Questions have to be in a logical organization, well-paced, etc. At the end, you sit down. Lawyers have a hard time keeping their mouths shut.
Sometimes, a direct examiner can ask a leading question: a preliminary or non-consequential matter. "Your name is Steve Hurley and you're a lawyer, yes?" You can ask leading questions of an adverse witness or a hostile witness. An adverse witness is someone who is adverse to me in this proceeding: they have an interest in the outcome of the proceeding different from mine. A hostile witness is one who may not have an interest in the outcome of the proceeding, but who is so biased that they are filled with disdain for you or your client. When you encounter this, you ask for permission to proceed by using leading questions.
In WI, for example, there's a statute defining a hostile witness in a criminal case: when a witness makes statements inconsistent with prior statements. Also defendants can treat LEOs who seized evidence as hostile, if they're challenging the seizure (even though they're not parties to the case).
Asking leading questions can create side issues: mischaracterizing the evidence in propounding the question (the question hurts the other side: objection, mischaracterizing!). The objection signals to the jury that the other side is tricking. This objection can be abused, and abuse gets a ruling from the judge that the question accurately characterized the evidence.
A perfectly good question can become argumentative on the basis of the tone in which it was asked. Cross-examination does not empower the attorney to have an argument with the witness.