There are two types of evidence rules --substantive rules concerning the admissibility of evidence and procedural rules governing how evidence is to be offered at trial.
The substantive rules can be divided into seven categories, all of which we will cover in this course.
1. Relevancy
2. Competency
3. The personal knowledge rule
4. Impeachment
5. The opinion rule
6. The hearsay rule
7. Privilege
The procedural rules cover:
8. Demonstrative evidence, and
9. The form of questions and answers
Plus:
10. Procedural rules for making proper objections
Each item of evidence must run the gauntlet of all 10 categories to be admitted. It must be relevant and offered by a competent witness who has personal knowledge of the facts. It must pass
muster under the rules governing impeachment, opinion, and hearsay. It must not be privileged. All evidence must also be presented in proper form.
What is an "item" of evidence? It is a piece of information presented to the jury. There are four kinds. The first three require a witness:
1) A question and answer together. See, for example, the transcript on page 5. The question "Who's Jimmy?" is not evidence because it gives the jury no information. The answer "He
used to work at Bill's" is not an item of evidence because it is incomprehensible to the jury without the question. The item of evidence is both the question and answer together.
2) A single item can also be more than one question and answer, e.g.,
Q. Who's Jimmy?
A. What do you mean? I know several Jimmy's.
Q. You just mentioned you had seen Jimmy that night.
A. Oh, okay. You mean Jimmy Johnson.
Q. Right. Who is he?
A. He used to work at Bill's.
3) An exhibit. See, for example, the list of items found at the scene of a murder in Problem 1-2, on page 5. All of these items are exhibits if offered at trial.
4) A demonstration. In the same problem, suppose Clousseau is called as a witness and testifies that he saw the maid put something in her pocket furtively. If the prosecutor asked him to show the jury what he meant, and he acted out the furtive gesture, that's a demonstration. Again, the item of evidence is both the directions of the attorney and the acting of the witness.
5) Although not mentioned in your book at this point, you can have evidence without a witness on the stand. An attorney or the judge may read a statement to the jury that will constitute evidence. For example, "The parties have stipulated that if Dr. Knowles were called as a witness, she would testify that the victim was unconscious when brought into the emergency room."
STEP ONE: An attorney "offers" an item of evidence in one of three ways -- posing a question to a witness, asking the judge to admit an exhibit and show or read it to the jury, or requesting that the judge permit someone to conduct a demonstration. The attorney offering the evidence doesn't want to look like fool in front of jury. It does serious damage to your credibility with the jury if the judge rules that your evidence is not admissible. It is even worse if the judge looks at you incredulously and inquires "Counsel, did you actually take an evidence course in law school?" Some attorneys are also ethical and believe it is wrong to try to get inadmissible evidence in front of the jury. For these reasons, most evidence only gets offered at trial if an attorney thinks that it is admissible under the rules. The judge dozes gently on the bench, paying little attention.
STEP TWO: The offered evidence must run the gauntlet of all the rules. It can be knocked out if it violates any one of the rules of evidence, even if it complies with all the others. The gauntlet is under the control of the opposing attorney, who makes 2 decisions
1) Is the evidence important enough to worry about? In litigation, you pick your battles. If evidence is unimportant, you let it through the gauntlet even if you think it is not admissible.
2) If the evidence is important, is there a rule that might knock it out? There are 9 categories, so you have to think through a lot of rules pretty quickly and decide which rule or rules give you the greatest chance of stopping the item of evidence from getting through the gauntlet. The objecting attorney also wants to avoid looking like fool and to behave as ethically as possible, and so invokes only rules he or she thinks have arguably been violated. The usual procedure for invoking a rule is making an objection. An objection serves three purposes. It stops the testimony so no further damage is done, wakes up the dozing judge, and presents your argument as to why the item of evidence should not be admitted.
STEP THREE: After an objection is made, the attorneys squabble about it. They argue back and forth in rules of evidence sound bites until the judge's patience wears out and ....
STEP FOUR: The judge ends the debate by ruling on whether the item of evidence will be admitted or not. Judges sometimes rule correctly, sometimes incorrectly, and sometimes at random. It is critical that you understand this. The trial judge gets to decide whether the jury may hear the evidence, and the judge has almost totally unreviewable absolute discretion to admit or exclude evidence. The judge doesn't even have to follow the rules if the judge doesn't want to. Go back to page 1 in the book and look at the evidence rules reprinted there.
Rule 102 says "these rules shall be construed to secure fairness ... to the end that the truth may be ascertained and proceedings justly determined."
Truth? Justice? Fairness? These are hardly concrete concepts, and they leave a lot of room for judicial discretion.
STEP FIVE: There is no step five. Once the trial judge has ruled, that's it. For all practical purposes, evidentiary rulings are not appealable. Why not? Look at Rule 103 on page 29, part (a): "Error may not be predicated upon a ruling which admits or excludes evidence unless a substantial right of the party is affected." In a long trial with lots of witnesses and 100 hours of testimony, it is highly unlikely that any erroneous evidence ruling by itself can be said to have affected a substantial right of a party.
Don't be fooled by occasional appellate cases reversing a trial judge's evidence rulings. Sure, there are a few, but for every one of those there are 10,000 cases in which the judge's evidence ruling was affirmed.
The fact that judicial control over the evidence process is unlimited and unreviewable does not mean that trials are total anarchy. The evidence rules play an important role most of the
time. Most judges believe that following the rules is part of the concept of fairness and justice, and will genuinely try to enforce the rules correctly most of the time. Your job is to make a
good legal argument that reminds the judge of the rule and explains your position. It's kind of like a law school exam. If you make a good legal argument on an exam, you will get credit for
it most of the time, but not all of the time. Sometimes you and the professor will disagree concerning the merits of your argument -- you think you're right, the professor thinks you're
wrong. In these cases, you lose, and there is no meaningful avenue of appeal. Same with trial judges and evidence
Any questions? E-mail me at tanford@indiana.edu and include the reference 201.
The first problem is problem 3-4 on page 49. Assume you are the prosecutor trying to get all 10 items into evidence but the defense objects to each as irrelevant. For each of the 10 items,
make an argument that it is relevant. I suggest you actually write down a one-sentence argument for each. When done, click here to continue.