#13111 - Witness Examination And Rulings On Evidence - Evidence (Duke Beskind)

1. Making a record - Rule 103. Rulings on Evidence

(a) Preserving a Claim of Error. A party may claim error in a ruling to admit or exclude evidence only if the error affects a substantial right of the party and:

(1) if the ruling admits evidence, a party, on the record:

(A) timely objects or moves to strike; and

(B) states the specific ground, unless it was apparent from the context; or

(2) if the ruling excludes evidence, a party informs the court of its substance by an offer of proof, unless the substance was apparent from the context. [if the answer is allowed, the witness would have said XYZ]

(b) Not Needing to Renew an Objection or Offer of Proof. Once the court rules definitively on the record — either before or at trial — a party need not renew an objection or offer of proof to preserve a claim of error for appeal. [no need to object again in trial if ruling already made in motion in limine]

(c) Court’s Statement About the Ruling; Directing an Offer of Proof. The court may make any statement about the character or form of the evidence, the objection made, and the ruling. The court may direct that an offer of proof be made in question-and-answer form.

(d) Preventing the Jury from Hearing Inadmissible Evidence. To the extent practicable, the court must conduct a jury trial so that inadmissible evidence is not suggested to the jury by any means. [Motion in limine]

(e) Taking Notice of Plain Error. A court may take notice of a plain error affecting a substantial right, even if the claim of error was not properly preserved.

2. timely:

   1. to a question before an answer is given

   2. to an answer before the next question is asked

   3. to an exhibit at the time it is offered

   4. To a witness (competence), before the oath or immediately thereafter

3. Offer of proof:

   1. Testimony is excluded

   2. Witnesses are rejected

      1. Shouldn’t be necessary for exhibits

4. Substantial right

   1. An error affecting a substantial right of a party is an error which had a substantial influence on the outcome or leaves one in grave doubt as to whether it had such effect.

5. If the answer is objectionable:

   1. Object

   2. If sustained

      1. Move to strike

      2. Request a cautionary instruction

   3. Request a mistrial? It must be discussed with a client

6. Motions in limine: many judges defer motions in limine until the trial, so the judge hasn’t made a definitive ruling, and therefore you need to object on trial.

   1. You can request that no one mentions the subject of the motion in limine until the judge makes a ruling.

7. Rule 105. Limiting Evidence That Is Not Admissible Against Other Parties or for Other Purposes. If the court admits evidence that is admissible against a party or for a purpose — but not against another party or for another purpose — the court, on timely request, must restrict the evidence to its proper scope and instruct the jury accordingly.

8. Rule 106. [Rule of completeness] Remainder of or Related Writings or Recorded Statements. If a party introduces all or part of a writing or recorded statement, an adverse party may require the introduction, at that time, of any other part — or any other writing or recorded statement — that in fairness ought to be considered at the same time.

9. Interrogation of witness- Rule 611. Mode and Order of Examining Witnesses and Presenting Evidence

(a) Control by the Court; Purposes. The court should exercise reasonable control over the mode and order of examining witnesses and presenting evidence so as to:

(1) make those procedures effective for determining the truth;

(2) avoid wasting time; and

(3) protect witnesses from harassment or undue embarrassment.

(b) Scope of Cross-Examination. Cross-examination should not go beyond the subject matter of the direct examination and matters affecting the witness’s credibility. The court may allow inquiry into additional matters as if on direct examination.

(c) Leading Questions. Leading questions should not be used on direct examination except as necessary to develop the witness’s testimony. (to refresh memory, to help a child testify, etc.). Ordinarily, the court should allow leading questions:

(1) on cross-examination; and

(2) when a party calls a hostile witness, an adverse party, or a witness identified with an adverse party.

10. Rule 614. Court’s Calling or Examining a Witness

(a) Calling. The court may call a witness on its own or at a party’s request. Each party is entitled to cross-examine the witness.

(b) Examining. The court may examine a witness regardless of who calls the witness.

(c) Objections. A party may object to the court’s calling or examining a witness either at that time or at the next opportunity when the jury is not present.

11. Rule 615. Excluding Witnesses

At a party’s request, the court must order witnesses excluded so that they cannot hear other witnesses’ testimony. Or the court may do so on its own. But this rule does not authorize excluding:

(a) a party who is a natural person;

(b) an officer or employee of a party that is not a natural person, after being designated as the party’s representative by its attorney;

(c) a person whose presence a party shows to be essential to presenting the party’s claim or defense; (paralegal, expert witness) or

(d) a person authorized by statute to be present

12. Objections:

    1. Leading question

    2. Assumes a fact not in evidence

    3. Misquoting the testimony

    4. Ambiguous

    5. Compound question

    6. Asked and answered/ 403 cumulative

    7. Narrative

    8. Unresponsive

    9. Argumentative

13. 95. Joe testifies in his case in chief. The transcript of part of his cross by the defense reads:

Q: How did your first wife die?

Defense counsel; Objection

Judge: Overruled. Answer the question.

A: She died from a gunshot wound to the chest.

Joe is convicted. May he successfully appeal from the judge’s ruling allowing this evidence in?

1. No reason for objection stated.

14. 96. The prosecution during its case in chief calls a Place Theater usher who testifies without objection that she heard Washington say to Joe, “What have you done to Leslie? Why don’t you leave her alone? She is afraid of you.” The prosecution’s next witness is Washington who is asked the same question. A hearsay objection is overruled [assume it was hearsay not within an exception]. Joe is convicted. Can he successfully appeal from the error in admitting Washington’s testimony?

    1. When the first time the question is asked, you didn’t object. The second time the question is asked, you object.

    2. Continuing objection

15. 97. During the defense’s case in chief, Easterfield’s lawyer calls a lay witness who testifies without objection that in her opinion Jesse tended to thievery, particularly from her benefactors. In her rebuttal case, Jesse calls a fellow worker from the Home and asks her if she ever say Jesse take anything from anyone at the Home. [Her answer will be no.] For the defense, prepare to object and argue. For the plaintiff prepare to respond.

    1. Defense: 608(b) specific acts not admissible

    2. Plaintiff: ?

16. 98. Brooke testifies for the prosecution. On cross, Joe’s counsel asks whether she ever used a gun to shoot one of her tenants. The prosecutor objects on as to relevance and character evidence. When asked to respond, the defense counsel says he wants to show Brooke’s violent character. The objection is sustained. On appeal can Joe argue that he evidence was admissible under 404(b) to show her knowledge of the use of firearms?

    1. The judgment should be affirmed. Counsel did not timely state the reason for admission.

17. 99. Jesse is asked in her case in chief if Kelly told her that she, Kelly, had just found the brooch in the library. Defendant makes a Best Evidence Rule objection. Despite Jesse’s correct argument that the rule is only for documents, the objection is sustained. The proper objection was hearsay, but the present sense impression exception probably covers the evidence. What are Jesse’s chances on this issue on appeal?

    1. Probably, because the objection was correct and timely made. Rule 103

18. 100. Defense counsel is cross-examining Brooke Thompson. Defense counsel asks: “What did you do with Leslie’s possessions after her death?” The prosecution’s relevance objection is sustained. For the defense, do what is necessary to...