Evidence

26 January

• More than two absences requires notification.
• Strang had Lilly for Evidence. Has done criminal defense since 1988.
• The course is a self-contained universe: a completely integrated, relatively well-thought-out code. It's cohesive, not an elusive set of principles.
• Well, it seems that way, but when you get down to it, it is quite a bit hairier than it appeared at first. Codification didn't happen until 1975 (efforts to codify had begun earlier, of course-- there was a general effort to rationalize the common law).
• Evidence was actually about the last thing to get codified. In fact, there are still a handful of states that do not have codified rules of evidence-- still just common law. And even where there is a code, it's a little bit superficial: the rules are just starting points, and much of the law is still to be found in cases, treatises, and the literature of jurispridence (Bentham, e.g., or HLA Hart: 18th and 19th century).
• Also, there are splitsof authority about what some rules mean. Still, mastery of the rules will take you far: past 90% of practicing lawyers, it seems. And 95% of the judges.
• Participation will be 10% of the grade. Sections this small are rare.
• Again with My Cousin Vinnie.
• We might experiment with witness examination: we try to catch him on evidentiary arguments.
• Exam will be true-false. 90% of the grade. Probably no essay portion, but that's not 100% decided. Closed book.
• The class is built around the framework of the FRE. There aren't many variations between WI and Fed, except with respect to experts.
• There are 11 articles, but we're not just going to go in order; in fact some will get very little attention.
• The Gianelli book (Understanding Evidence) is just suggested: Lilly is all we have to use. The interesting thing about Gianelli is that it's from a criminal defense perspective, which is more or less unique. You see prosecutorial foci and also pure civil ones, but criminal defense is quite rare. Oddly, he also has a Plaintiff's bent on civil issues: sort of a champion of the underdog, it seems.
• Lilly has very little discernable bias. A very academic approach. Also, he's a good accessible writer.
• There will also be cases to read: we look them up. He tries to pick short ones where possible. Important SCOTUS decisions are the obvious exception, but we might not always have to read dissents/concurrances. There are a few WI cases as well, and these focus on departures from the federal rules.
• Things with an asterisk are required; other things are good for us, but not required.
• We'll see US v. Zapata several times. 7th Cir. is important to us, obviously, but we'll see everything (except 9th Cir.: too huge-- i.e., internally inconsistent-- and too ideologically fractured, plus also not a great deal of good writing about evidence).
• 10th and 6th are sort of intellectual wastelands, so we don't see them either.
• 8th Cir. has the largest "Indian Country" caseloads (that's a real term: a dozen or so reservations have opted for federal jurisdiction, like the Menominee nation). This is important because crimes that would otherwise be state crimes get treated in federal court: aggravated battery, rape, child sexual assault, homicide, etc. This makes for interesting evidentiary questions.
• The cases we read probably have a slight criminal bent.

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• So. Zapata. It's a good vehicle for several points. Strang's mentor was the defendant's lawyer (Jim Shellow, who is now 82 and still practices a bit).
• The syllabus is an outline, but doesn't have dates on it. So, every Wednesday, he'll say where we'll be by the following Wednesday, so we can play ahead.
• Depositions: expanded relevance. A question need not go directly to something relevant, but is permissible if it's calculated to lead to the discovery of relevant information. Also, in depositions, you generally don't have a judge directly involved. Sometimes you can get the judge on the phone when a bad dispute arises about whether a line of inquiry is proper: you can argue and get a ruling from the court. Judges don't really like this, but a lot of litigators freak out when they are forced to defend their strategy. Sparingly used, this can be a good tactic. Otherwise, you can just object and file a motion for a protective order (FRCP 26 or 37).
• If you've got objections to the form of questions in a deposition, they are waived unless they are raised in the deposition itself.
• Article 8 is hearsay, incidentally. The out-of-court statement of an opposing party may be offered. One side can not offer the deposition of its own witness at trial: you can only offer the deposition of an opposing party (or one of the hearsay exceptions: because the witness is unavailable, e.g.).. Anyway, the point is that excerpts from deposition testimony may make it into the trial. And at trial, it's too late for the witness's lawyer to object to the form of the questions (unless the objections are already made on the record at the deposition). Why? Because most objections to form are insignificant, relatively. Likewise, the opposing lawyer should have the chance to re-frame the question.
• More substantial objections (substantive admissibility: inadmissible expert testimony, etc.) can be raised later at trial.
• The point is that the rules of evidence are important not just at trial. They apply to depositions and affidavits (written assertions of fact, sworn on oath). Affidavits are critical in civil litigation, because of FRCP 56 cross-motions for summary judgment. Almost invariably, excerpts from deposition and affidavits are sumbitted by each side. Just like at trial, an affidavit must be admissible (based on personal knowledge, reporting allowable hearsay, admissible expert opinion, etc.). You can't offer in an affidavit assertions that would not be admissible at trial.
• Article 7 is experts, by the way.
• Most of what we do in this course deals with stuff that goes on in court, but it's important to remember that the rules apply beyond just court. And, in fact, this is mostly where they apply, hours-wise.
• In most trials, there's just the plaintiff's case in chief and then the defendant's case in chief: often plaintiffs don't harrangue the jury with a rebuttal. In criminal cases, there's often not even a defendant's case in chief: the defense will just rest after the prosecution's case in chief, and argue that the prosecutor hasn't met the burden of proof. That doesn't really work in a civil case (you can't rely on the plaintiff's failyre to prove, because the standard is just a preponderance of the evidence: basically the defendant in civil court has the same kind of burden as the plaintiff.
• So, we want to have objections that explain the grounds for review by the appellate court. Ideally, that reason would be a single word or a rule number (of course, 95% of the judges won't understand evidence as well as we). So: objection, cumulative! objection, leading! and so on...
• Many judges don't want evidentiary arguments (grandstanding) in front of the jury. Some allow it, so it's worth knowing the judge. But basically, you announce that you're objecting, and you state some grounds.
• Most judges also don't want to hear responses to objections argued in front of the jury either.
• Often a judge will just decide, but you can ask to approach and have a little conference (with the court reporter) out of earshot of the jury. In crummy modern courtrooms, there may not be a place you can go where the judge can hear you and the jury can't, so you may have to excuse the jury.
• So articles 1 and 11 (the first and last). Rule 1101 is the only one that matters in article 11. It tells the scope of the rules: where they apply and what they cover.
  • Trials (anything where there's a jury)
  • Preliminary hearings in WI (deciding whether there's probable cause to go forward), unless there's a statutory exception on some point
  • Pre-trial evidentiary hearings
  But not everyplace, see 1101(d): sentencing, etc. Why not sentencing? Partly because there's already been a verdict. Partly because we want community members to be able to state their opinions. Partly because we want to look at the defendant's character. Also, there's no jury: the judge is presumed to be able to decide what to weigh, what's redundant/inflammatory, etc. Also, partly, this is the illusion of codification: the rules of evidence don't apply at sentencing because they never have. For much of English law, sentences were mandatory, not discretionary, and the procedure was just a formality: the judge's only duty was to announce the punishment (i.e., set a date for your hanging).
• Anyway, if you want to know whether the rules apply to whatever you are doing, look at FRE 1101.
• Article 1 (and 2) defining the mechanics of the rule, and the judicial role. Article 1: the judge decides what comes in, the fact-finder decides what to make of it. Admissibility vs. weight, in other words. There's more to it, of course, but that's a decent thumbnail.
• Article 2: judicial notice (legislative facts and adjudicative facts). Article 2 doesn't often come into real play.

28 January

• We may get as far as Old Chief : III.D
• Today, the mechanics of using the laws of evidence, then back into the basic structure and articles 11 and 1. Maybe 2 also. We might introduce the concept of relevance.
• Rule 103. You're in trial, your opponent offers an exhibit that you don't like. You object, as soon as you think there's an issue. "Objection, your honor" "Objection, if the court please" "I Object!" You don't wait until three questions later-- you need to be quick on your feet. And literally, on your feet is best (this often isn't literally a requirement, but it can be, and it shows respect... especially in Federal court, a judge might say "I can't hear you").
• So standing to object is a good idea. It asserts control of a space: this is my courtroom (everyone else is seated, and therefore I command attention). Also, your voice will project better. And it's tradition to be respectful in this manner. Also a good plan when examining a witness.
• There's conflict in our culture about lawyers, and much of the public doesn't hold them in great esteem. When we walk into a courtroom, we have a choice to make. We can borrow from whatever residual dignity the profession retains, or you can lend dignity back to the profession. By doing the things that suggest respect for the process, we do good things.
• How do we know we need grounds? 103(a)(1). This is required because the court needs something to rule on: the judge needs context to understand what you're objecting to. There are layers of reasons for objections:
  • This hurts my client's case
  • I think this is improper
  • Preserve an appellate record
• When I stand up and say "object, irrelevant!" the court reporter (or recording system) preserves that. If my client loses, I'll order a transcript of the proceedings (maybe I even do this each day at the end of the day, although getting "daily copy" is rare nowadays; or maybe I get just excerpts). Now I can begin crafting an argument that the judge's ruling (in my opponent's favor) was a prejudicial error.
• So objecting, and stating a reason, is potentially very important. Appellate courts look for ways to duck issues: waiving/forfeiting an issue by failing to object (and thereby failing to give the trial judge a chance to get the question right) is the main one.
• You can (and must!) object on more than one ground, if there is more than one, or else you waive whatever ones you omitted. Frequently there are multiple grounds for objecting, and you can't expect a judge to help you here: they will not rule for you on bases that you haven't suggested. So in a criminal case, almost every time you're objecting on hearsay, you're also objecting on confrontation grounds (6A right to confront and cross-examine accusers). Also, irrelevant (rule 402) and alternatively fails the balancing test under rule 403 (probative value outweighed by its prejudicial value, or it's a waste of time, or it's confusing).
• Don't burn up your credibility with frivolous grounds, of course, but if you have multiple grounds, you want to raise them.
• Plain error reversals usually come down to either lawyer incompetence, or a change in the law between the time of the trial and the time of the appeal.
• Responses to objections: I'm the proponent of the evidence, and an objection has been made. The judge may wish to hear your response (a counter-argument). This means you need to understand what the judge will want, in terms of argument in the presence of the jury: 103(c) and 104(c). It's really none of the jury's business: the judge decides what they get to hear, and they get to decide what to make of it, so this means they should not hear the competing arguments about why this or that thing should be admitted. This may require a sidebar, or an argument out of the jury's presence.
• What do you do once you've lost the objection? (i.e., the objection is sustained, and the witness is not going to be allowed to answer the question). You might be able to re-phrase the question (if the objection was to the form). But really, you want to make clear to the judge what you expect the evidence to be, and demonstrate that it's proper. Sometimes this will be obvious, but what if it's not? We want to preserve a record of this as well: we ask the judge if we can make an offer of proof. Most lawyers are stumped by this concept. "Your honor, if I am permitted to ask this question, I expect the witness to say X. I will follow it up by eliciting Y and Z." (this, by the way, will be on the record, but not in the jury's presence). An offer of proof is the opposite of an objection: it's an explanation of why something should be admitted, and an objection is about keeping evidence out.
• An offer of proof can be more elaborate: it might involve actually examining the witness without the jury present, so that the judge can learn what the witness really will say. If it's an exhibit, you describe why it's important and relevant. At times, you might want to hold back aspects of your theory of the case, but we definitely must put enough in the record to persuade the judge and support an appeal. You can also ask to have it marked as an exhibit, and offer it as a court's exhibit (i.e., make the exhibit itself a part of the record that will go to the appellate court).

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• A court could decline to admit something as a court's exhibit, but in theory, one can offer anything (unless it's a hazmat or something). That would be rare and obnoxious, but you can file a motion with the court of appeals to supplement the trial record (such motions get filed all the time, if something gets lost or mis-filed). For this reason, when you file something with the court, you ask to get a file-stamped copy back for your records. That way you can prove you offered it. You get the clerk to stamp a copy for you, in other words.
• In federal court, you're mostly e-filing things nowadays (the ECF system). You get a notice of electronic filing right away.
• Somewhere along the line, there's a judge who will do just about any crazy thing you can think of. They're out there. The average judge is fully functional, though.
• Why go through all that Q & A outside the jury's presence? Perhaps the judge questions the integrity of the witness, or even the proponent. The judge may want the witness to testify under oath in order to be assured that it's truthful: that's tenuous, because the judge is essentially saying that the lawyer may be offering some un-credible evidence. Another reason might be that the witness is hostile, and you haven't had the opportunity to prepare the witness, and it's hazardous/impossible to predict exactly what the answers will be. This is maybe a bit of a strategy point: you might want to examine the witness out of the jury's earshot.
• A "proffer" is the same as an offer of proof. I'd like to proffer this evidence.
• Sometimes we can anticipate an objection-- and maybe the issue is actually complex (a split of authority on how to apply a hearsay exception, etc.). We can make a motion in limine: ask the court to admit or exclude some evidence because the rules of evidence either allow or disallow it. Basically we ask for a ruling in advance and give the judge a chance to consider the evidentiary problem. A conscientious judge will appreciate that you're not springing this issue in open court, and risk botching the trial by exposing the jury to things they ought not to hear. It also allows the judge to schedule a hearing, so that the trial flows smoothly and the jury's time is not wasted. We can use motions in limine either for offers of proof or for objections, and they're sometimes a better way of persuading a judge (of course, you have to know about the issue in advance).
• You can file motions pretty much at any point for whatever reason: it's basically just a request for the judge to do something.
• Rulings on evidence often relate directly to what the jury eventually should be doing. The judge makes the rulings on evidence (Article 1), it is often the case that the jury should be told something about why a thing has been admitted and how it can be used. This can happen in opening and closing arguments. Juries are required to follow a judge's instructions on the law, but lawyer remarks are not evidence and are not binding. So, if a confession comes in, say, in a burglary case, and the defendant argues that he was coerced and the statement shouldn't be given credence, you seek jury instructions about how to weigh it. (in deciding what weight to give the defendant's confession, you can consider all of the factors surrounding how that statement was taken: the defendant's education, whether he had a lawyer, blablabla). Jury instructions and the rules of evidence are integrally related.
• Rule 105: a recognition that sometimes you have to have a jury instruction acompanying a decision to admit some evidence. "Limited admissibility:" something is admissible for one purpose/party but not another. Say Moe gives a statement, but Curly gives no statement. The prosecution wants to offer Moe's statement at the trial of State v. Curly and Moe. Moe's statement is admissible against Moe, but not against Curly. Why? Curly can't cross-examine Moe-- that would be compelling him to testify against himself. The statement is admitted, but the jury is instructed that it can't be weighed in considering Curly's guilt or innocence.
• Likewise, evidence of past convictions is admissible only for certain limited purposes: a pattern of behavior, for example. The judge will instruct that the defendant is not on trial for those previous acts, and that these are not evidence of his bad character-- they are to be considered only with respect to a pattern and identity of the defendant.
• Strategically, sometimes you don't want a limiting instruction: it calls attention to the evidence, and gives it the court's imprimatur. That's a strategic decision, but if you want a limiting instruction, you're entitled to have one. Note also that a limiting instruction may not have any real effect on the jury: they're going to use the evidence for the impermissible purpose anyhow.
• Civil cases are less predictable than criminal ones: more complex substantive law, fewer recurring fact patterns, and trials less likely (and therefore less trial-seasoned lawyers).
• So, jury instructions get integrated with rulings on evidence, and a creative litigator looks for ways to translate rulings on evidence into jury instructions. Try to propose very specific jury instructions, and then you can point to the judge on closing and say "the judge will instruct you that you should consider that Moe has an IQ of 68 when considering whether his confession should be taken as true, and that if you find that it was coerced, you are free to disregard it." That kind of thing.
• And you handle jury instructions much like you handle evidence: you propose yours, and you object to the other side's. Be specific in your arguments, state the grounds, get it on the record.
• So that was the mechanics. Let's look at reality. Mostly, lawyers are not good at evidence, or at least not adept at making objections or responding to them. Most judges aren't much better than most lawyers: they are just lawyers who have risen to the bench (at a certain point, for example, your pay as a DA maxes out, and the only way to get a raise is to become a judge). Putting on a robe doesn't make you any better at evidence. A whole lot of what lawyers and judges think of as the law of evidence is really the law of the building: every courthouse has its own common law. People in the building have their own interpretation of the rules of evidence (what is required, and what's prohibited). A culture of common understanding that may or may not comport to the reality.