LexisNexis公司原版簡明美國法律教程全九本word精校版之一證據(jù)法

1、Note: Numbers in brackets refer to the printed pages of HYPERLINK :/bookstore.lexis /bookstore/catalog?action=product&prod_id=44073 t _blank Understanding Evidence by Paul C. Giannelli where the topic is discussed.LexisNexis Area of Law SummaryEvidence SEQ CHAPTER h r 1Chapter 1OVERVIEW 1.01Introduc

2、tion 1The rules of evidence govern how we go about the task of attempting to determine at trial what occurred in the past, often under circumstances of uncertainty. 1.02Proof at Trial 1-4In the common law system, proof typically comes in the form of witness testimony testimonial proof. Proof may als

3、o consist of documentary evidence (e.g., written contract) or “real” evidence (e.g., murder weapon). Photographs, models, blackboards, and charts may be used to illustrate testimony demonstrative evidence. In some cases, a witness may exhibit a scar or amputated arm to show the jury the result of an

4、 accident (in-court exhibition), or, perhaps show how she can no longer walk without a limp (in-court demonstration). 1.03Law of Evidence 4-8Evidence law may be divided into three major categories: (1) rules governing the substantive content of evidence, (2) rules governing witnesses, and (3) substi

5、tutes for evidence.ARules Governing the Content of Evidence 1Relevance RulesCharacter evidence Other acts evidenceHabit evidence Insurance evidence2Competence RulesaRules Based on Reliability ConcernsHearsay rule“Best evidence” rulebRules Based on External PoliciesPrivileges (e.g., attorney-client)Q

6、uasi privileges (e.g., subsequent remedial measures)BRules Governing Witnesses1Competency of Witnesses2Examination of Witnesses3Types of Witnesses aLay WitnessesbExpert Witnesses4Credibility of WitnessesCSubstitutes For EvidenceJudicial notice of factStipulations of fact 1.04Federal Rules of Evidenc

7、e 8-10 The Federal Rules of Evidence were enacted in 1975. As a federal statute not intended to preempt state law, the Federal Rules are not binding on the states. 1.05State Adoptions of the Federal Rules 10Over forty jurisdictions, including the military, have rules patterned on the Federal Rules.

8、1.06Interpreting the Federal Rules: The “Plain Meaning” Debate 11-13The Supreme Court has often, but not always, espoused an almost mechanical “plain meaning” approach in construing the Rules of Evidence, treating the Federal Rules as any other statute. In one case, the Court wrote: “We interpret th

9、e legislatively enacted Federal Rules of Evidence as we would any statute.” Daubert v. Merrell Dow Pharmaceuticals, Inc., HYPERLINK 509 U.S. 579, 587 (1993). 1.07Themes in the Federal Rules 13-14The paramount goal of a trial is truth-seeking, but that is not the only goal. The law of privileges, for

10、 example, precludes the admissibility of evidence that may be both relevant and reliable. Moreover, even when the ascertainment of truth is the goal, how to achieve that goal is often a matter about which reasonable people may disagree. Here, the federal drafters adopted several guiding principles.

11、First, the Federal Rules are biased in favor of admissibility, which implicitly endorses jury competence. Another theme is judicial discretion. Although many trial lawyers prefer fixed rules, which they argue are predictable, the drafters believed that too many issues arise that cannot be anticipate

12、d, and therefore the trial judge must be given some leeway to shape the rules of evidence to deal with such contingencies. 1.08Criminal & Civil Trials 14-15The Rules of Evidence apply to both criminal and civil cases. Nevertheless, a number of rules recognize a distinction between civil and criminal

13、 trials explicitly or by implication. Similarly, a number of rules, due to their subject matter, apply only in civil cases for example, HYPERLINK Rule 407 (subsequent remedial measures) and HYPERLINK Rule 411 (liability insurance). Further differences in applicability in criminal and civil proceedin

14、gs arise because the Rules of Evidence generally do not codify constitutional principles.Chapter 2ROLES OF JUDGE & JURY: HYPERLINK FRE 614 2.01Introduction 17The allocation of responsibilities between judge and jury is a central part of the law of evidence. The judge decides the admissibility of evi

15、dence, the jury decides its “weight,” which includes the credibility of witnesses. 2.02Role of the Judge 17-18“In a trial by jury in a federal court, the judge is not a mere moderator, but is the governor of the trial.” Quercia v. United States, HYPERLINK 289 U.S. 466, 469 (1933). 2.03Court-called W

16、itnesses 18-19 HYPERLINK Rule 614(a) recognizes the authority of the trial court to call witnesses on its own motion or at the behest of one of the parties. The authority to call witnesses includes the authority to appoint expert witnesses ( HYPERLINK Rule 706). 2.04Court Questioning of Witnesses 19

17、-20 HYPERLINK Rule 614(b) recognizes the trial courts authority to question witnesses. It permits the judge to examine witnesses in order to develop facts germane to the issues and to clear up doubts that may arise from the testimony. An impartiality requirement is implicit in the federal rule. HYPE

18、RLINK Rule 614(c) provides that objections to the questioning of witnesses by the court may be made at the time the witness is questioned or at the next available opportunity that the jury is absent. 2.05Commenting on Evidence 20-21Unlike most state judges, federal trial judges have long had the aut

19、hority to comment on the evidence. The judge “may not assume the role of a witness. He may analyze and dissect the evidence, but he may not either distort it or add to it. . This court has accordingly emphasized the duty of the trial judge to use great care that an expression of opinion upon the evi

20、dence should be so given as not to mislead, and especially that it should not be one-sided; that deductions and theories not warranted by the evidence should be studiously avoided.” Quercia v. United States, HYPERLINK 289 U.S. 466, 470 (1933) (citations omitted). 2.06Jury Questioning of Witnesses 21

21、-22There is no Federal Rule on questioning by jurors, but the cases recognize the trial courts discretion on this issue. There are a number of dangers in the practice. If jury questioning is permitted, jurors should be required to submit written questions so that the judge has the opportunity to rev

22、iew the propriety of questions. If a question is unobjectionable, the judge puts it to the witness.PART A: PROCEDURAL FRAMEWORK OF TRIALChapter 3STAGES OF TRIAL 3.01Introduction 23Most students have taken a course in civil procedure before they take the evidence course. The same cannot be said for c

23、riminal procedure. Thus, this chapter briefly summarizes some of the initial steps before trial, with more background information provided for criminal litigation. 3.02Pretrial Stages in Civil Cases 23-29A civil suit commences with the filing of a complaint. A summons along with the complaint is the

24、n served on the defendant, who is required to respond with an answer. The party must either admit or deny the averments in the complaint, unless unsure. Failure to deny may result in an admission. Affirmative defenses must also be set forth in the answer. Once the pleadings are closed, a party may m

25、ove for a judgment on the pleadings. 3.03Pretrial Stages in Criminal Cases 29-34ACharging InstrumentsCriminal cases may commence with the filing of a complaint or an arrest, which then is followed by a complaint. The process may also start with a grand jury indictment or in some jurisdictions, with

26、the filing of a prosecutors information. BPreliminary HearingThe preliminary hearing is a screening device, much the same as the grand jury is a screening device, designed to insure that persons are not made to stand trial for a felony in the absence of “substantial credible evidence.” Unlike a gran

27、d jury, a preliminary hearing is an adversarial proceeding. CGrand Jury ProceedingsState law generally governs indictment issues. Indeed, approximately two-thirds of the states do not require grand jury indictments for felonies. The rules of evidence, constitutional or otherwise, are generally inapp

28、licable to grand jury proceedings. 3.04 Jury Selection & Voir Dire34-35The examination of prospective jurors (voir dire) is conducted to determine whether challenges are warranted. There are two types of challenges: (1) for cause and (2) peremptory. Challenges for cause are typically based on statut

29、ory provisions that contain age, citizenship, and other disqualifications such as a felony conviction or some relationship with one of the parties. The impartiality of jurors, of course, is required. Thus, evidence of personal bias is grounds for challenge. A peremptory challenge can be exercised fo

30、r any reason except peremptory strikes may not be based on race or gender, a rule that also applies in civil cases. 3.05Order of Proceedings at Trial 35-41The trial begins with opening statements. Evidence is first presented in the plaintiffs (prosecutions) case-in-chief, which is followed by the de

31、fense case-in-chief, plaintiff rebuttal, and defense surrebutal. The trial ends with closing arguments by counsel and jury instructions. The judge has the discretionary authority to alter this scheme. 3.06Jury Deliberations, Verdicts & Posttrial Motions 41-42AExhibits in the Jury RoomReal and docume

32、ntary evidence admitted at trial usually goes with the jury to the deliberation room. In contrast, pedagogic devices, such as models, do not go to the deliberation room. BPost-Verdict Hearings & MotionsWhen the jury returns its verdict and it is read in open court, losing counsel may ask for the jur

33、y to be polled. If there is a conviction in a criminal case, a sentencing hearing is scheduled after a presentence investigation and report is completed. A motion for a directed verdict may also be made at this time, as well as a motion for a new trial.Chapter 4BURDENS OF PROOF 4.01Introduction 43Th

34、e term “burden of proof” is often confusing because there are two distinct burdens of proof: (1) the “burden of persuasion” and (2) the “burden of production.” 4.02Allocation of Burdens 43-44In every case these two burdens are allocated, at least initially, to one of the parties on every issue in th

35、e case. These two burdens, however, do not have to be allocated to the same party, even on the same issue. For example, in some jurisdictions the burden of production on self-defense in a criminal case is allocated to the accused, but once that burden is satisfied, the burden of persuasion rests wit

36、h the prosecution to disprove self-defense. 4.03Burden of Persuasion 44-49The burden of persuasion refers to the convincing force of the evidence. Technically, it is the “risk of nonpersuasion.” Three common standards of proof are used to define the legally required persuasive force of the evidence:

37、 (1) “proof beyond a reasonable doubt” (the highest standard); (2) “clear and convincing evidence” (an intermediate standard); and (3) “preponderance of evidence” (more probable than not). 4.04Burden of Production 49-52The burden of production, sometimes called the “burden of going forward with evid

38、ence,” refers to a partys responsibility to introduce evidence at trial. Technically, it is the risk of nonproduction. The judge (never the jury) determines whether this burden has been satisfied. There are two possible adverse consequences if a party fails to satisfy its burden of production: (1) t

39、he party may suffer a directed verdict, or (2) in the case of an affirmative defense, the jury may not be instructed on the defense. Both consequences take the issue away from the jury. Chapter 5PRESUMPTIONS & INFERENCES: HYPERLINK FRE 301 5.01Introduction 53 HYPERLINK Rule 301 covers rebuttable pre

40、sumptions in civil cases. There is no rule dealing with criminal presumptions in the Rules of Evidence. HYPERLINK Rule 301 does not create any presumptions; it merely governs their effect. The rule further limits its own reach by explicitly recognizing legislative authority over the effect of presum

41、ptions. 5.02Definitions of Presumptions & Inferences 53-54Conclusive presumptions. HYPERLINK Rule 301 governs only rebuttable presumptions. Conclusive or irrebuttable presumptions are actually substantive rules of law and are therefore beyond the scope of the Rules of Evidence. Rebuttable presumptio

42、ns. A presumption, as that term is used in HYPERLINK Rule 301, is a procedural rule that defines the relationship between two facts a basic fact and a presumed fact. If the basic fact is proved, the presumed fact must be accepted as established unless and until rebutted. Inferences. A presumption is

43、 mandatory. In contrast, an inference, which also involves a relationship between two facts, is permissive. For example, the doctrine of res ipsa loquitur involves an inference of negligence. Establishment of the basic facts permits, but does not compel, a conclusion of negligence. 5.03Rationale for

44、 Presumptions 54-55Presumptions are created for a number of reasons: (1) policy, (2) fairness (possession of evidence), and (3) probability. 5.04Effect of Presumptions 55-57There are two principal views on the effect of presumptions in civil cases: (1) Professor Thayers theory, and (2) Professor Mor

45、gans theory. The difference concerns the quantum of proof necessary to rebut. Under the Morgan approach, a presumption shifts the burden of persuasion as well as the burden of production. 5.05 HYPERLINK Federal Rule 301 57-58 HYPERLINK Rule 301 follows the Thayer approach. 5.06Conflicting Presumptio

46、ns 58Under a pure Thayerian view, the presumptions would disappear if rebutted, and the evidence would be considered for its worth by the jury; often the basic fact would be circumstantial proof of the presumed fact. Another approach would look to the underlying rationale for the two presumptions, a

47、nd the presumption with the stronger policy basis would trump the other presumption. 5.07State Presumptions in Federal Civil Cases 58-59Federal HYPERLINK Rule 302 provides: “In civil actions and proceedings, the effect of a presumption respecting a fact which is an element of a claim or defense as t

48、o which State law supplies the rule of decision is determined in accordance with State law.” 5.08Selected Presumptions 59-60 5.09Criminal Presumptions 60-65Neither HYPERLINK Rule 301 nor any other rule of evidence governs presumptions in criminal cases. As with presumptions in civil cases, confusing

49、 terminology is responsible for many of the problems in this context. For example, the presumption of innocence is not a true presumption; the accused is not required to prove any basic fact in order to trigger the presumption of innocence. Rather, the “presumption of innocence” is the traditional w

50、ay of stating that the burden of persuasion is on the prosecution. Civil-criminal distinction. Although the term “presumption” is used in both criminal and civil cases, a presumption operates differently in the criminal context than in a civil case. The difference arises from constitutional limitati

51、ons. In a criminal case, an accused cannot constitutionally suffer a directed verdict. Thus, although the term presumption is often used in criminal cases, the effect of such a presumption generally is only that of an inference.Chapter 6OBJECTIONS & OFFERS OF PROOF: HYPERLINK FRE 103 6.01Introductio

52、n 67An objection or motion to strike is used to exclude evidence an attorney believes is inadmissible. In contrast, when an attorneys proffer of evidence has been excluded by a trial judges ruling, an offer of proof is required to preserve the issue for appeal. 6.02Objections: HYPERLINK FRE 103(a)(1

53、) 67-72Failure to make a timely and specific objection forfeits the right to raise the issue on appeal. Another consequence of failing to object is that the admitted evidence becomes part of the trial record and may be considered by the jury in its deliberations, by the trial court in ruling on moti

54、ons (i.e., directed verdicts), and by a reviewing court determining the sufficiency of the evidence.ASpecificity: Grounds HYPERLINK Rule 103 requires specific objections i.e., a statement of the grounds upon which the objection is based must accompany the objection unless the grounds are apparent fr

55、om the context. For instance, “objection, hearsay” is a specific objection. An objection that is not sufficiently specific is called a general objection. BSpecificity: Parts of DocumentsAlthough not explicitly stated in HYPERLINK Rule 103, the specificity requirement further demands that counsel ind

56、icate which particular portion of evidence is objectionable.C“Continuing” or “Running” ObjectionsMany jurisdictions recognize “continuing objections,” which remove the need to object repeatedly to a line of testimony after an adverse ruling on an earlier objection based on the same issue. DTimelines

57、s of Objections1Motions to StrikeIn some instances, a witness may answer before counsel can object, or a questions tendency to elicit an objectionable response will not become apparent until the response is given. If a motion to strike is granted, the court should instruct the jury to disregard the

58、evidence. Even though the jury has heard the answer, it is nevertheless important to ask the trial judge to strike the response because such a ruling precludes opposing counsel from referring to the stricken material in closing argument. 6.03Offers of Proof: HYPERLINK FRE 103(a)(2) 72-74When evidenc

59、e has been excluded by a trial court ruling, HYPERLINK Rule 103(a)(2) requires an offer of proof to preserve the issue for appeal. Without an offer of proof in the trial record, an appellate court cannot review the trial courts ruling to determine whether or not the action of the trial court is harm

60、less error.AForm of Offer of ProofAn offer of proof may take several forms. First, an offer of testimonial evidence often takes the form of a statement by counsel as to the expected content of the excluded testimony. Second, the trial court may require or be asked to take the “offer” by an examinati