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Preview the evidence
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“The evidence will show”
Introduce theme
Briefly describe the issues, factual contentions

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Rule 401:
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“Relevant evidence” means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.

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Rule 402
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All relevant evidence is admissible, EXCEPT as otherwise provided in the Constitution of the
United States, by Act of Congress, by these rules, or by other rules prescribed by the
Supreme Court pursuant to statutory authority.
Evidence which is not relevant is not admissible.

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Rule 403
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Although relevant , evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.

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The word “foundation” is applicable in various contexts to describe prerequisites for the admission of evidence.
Generally, to show that evidence is admissible, counsel must first lay a foundation

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Personal Knowledge
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A fact witness must have personal knowledge as to any matter to which she testifies. (Rule
602)

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Authenticity
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Real exhibits and other physical evidence must be authentic;
Rule 901: the requirement of authentication, or identification, is satisfied by “evidence sufficient to support a finding that the matter in question is what is proponent claims”

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Hearsay Exceptions and Exclusions
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Establishing the requirements necessary for applicability of hearsay exceptions

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Privileged Information
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Circumstances giving rise to the privilege

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Out-of-court statement offered to prove the truth of the matter asserted

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Rule 801(a)
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A statement is
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(1) an oral or written assertion OR
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(2) nonverbal conduct of a person if it is intended by the person as an assertion
Rule 801(b)
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A “declarant” is a person who makes a statement.
Rule 801(c)
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“Hearsay” is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted

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Myriad of Hearsay Exceptions
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Roughly 30

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Availability of Declarant Irrelevant
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Party Opponent Admissions--FRE 801(d)(2)
Prior Inconsistent statements--FRE 801 (d)(1))
Regularly Kept Records—FRE 803(6),(7)
Present Sense impression--FRE 803(1)
Then-existing mental, emotional, or physical condition--FRE 803(3)
Excited Utterances--FRE 803(2)
Recorded Recollection--FRE 803(5)
Reputation—FRE 803(19), (20), and (21)

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Unavailability Required (FRE 804— describes what unavailable means)
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Former Testimony--FRE 804((b)(1)
Statement Against Interest—FRE 804(b)(3)

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Generally, witnesses on direct are friendly and want to be helpful
Basic opportunity to make your case
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Emphasize your theme
Select and emphasize favorable points
Refute opposing side’s theory

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Generally cannot ask leading questions on direct (FRE 611)
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A leading question is one that suggests the answer (“The light was green, wasn’t it”?)
Ask “Who,” “What,” “When,” “Where,”
“Why,” “How?” questions
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How were you dressed?
What were the lighting conditions?

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Leading
Calls for narrative
Assumes facts not in evidence
Counsel “testifying”
Asked and answered
Calls for speculation (“If he had provided the material, what would you have done?”)

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Limited to
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Subjects covered during direct
Matters affecting the witness’ credibility
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Such as bias or motive to lie
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FRE 611
Should ask leading questions on cross
(FRE 611 permits leading questions)

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Impeachment with prior inconsistent statement (like deposition)
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Ask witness about the point (“The light was green, wasn’t it?”); if witness lies . . .
Ask the witness if she recalls giving prior testimony (“You recall giving your deposition, under oath, in my office, don’t you”?)
Read prior statement, citing the page number for opposing counsel.
Ask witness to admit making statement.

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If witness admits, impeachment complete
If witness denies, show her the statement to get him to agree
If she still denies, ask to have deposition introduced into evidence (authenticity should be stipulated to)

Common Objections to Cross-
Examination
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Outside the scope of direct examination
Argumentative
“Testifying” by counsel
Compound question
Assumes facts not in evidence or misleading—asking a question based on a premise that has not been established
Asked and Answered
Calls for Speculation

Moving “Real Exhibits” Into
Evidence
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Foundation requirement: A showing sufficient to support a finding that the document is what the proponent claims it is (FRE 901(a))
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E.g., “This is the letter that I sent Mary on
September 23, 2005”

Moving “Real Exhibits” Into
Evidence
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Mark the Exhibit
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Usually pre-marked
Just say for the record: “This document has been marked, for identification purposes, as
Plaintiff’s Exhibit 1”
Show to opposing counsel (if he does not have copy already)
Ask permission to approach witness

Moving “Real Exhibits” Into
Evidence
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Ask witness to identify the exhibit
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Might say: “Can you tell us what this exhibit is?”
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This is where foundation is laid
Offer the exhibit
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Might say: I offer the exhibit as Plaintiff’s Exhibit 1”
Court ordinarily asks if there’s an objection
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If opposing side does not think that proper foundation was laid, can object before it is admitted and crossexamine the witness on foundation
May want to object for some other reasons—relevance, hearsay, etc.

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Federal rules don’t deal with these
(usually admitted if accurate and relevant)
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Foundation: the exhibit is a reasonably accurate depiction
Must help the trier of fact understand the relevant facts
Examples: Models, maps, diagrams, charts
Technically not admitted because they are not evidence—used for illustrative purposes

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Mark the exhibit
Show it to opposing counsel
Ask permission to approach witness
Ask witness if exhibit is accurate depiction
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Might say: “How does this scene compare to the scene that you observed at Washington & Nelson?” Witness:
“It looks like the same.”
Offer the exhibit
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“Your honor, I would like to offer this as an accurate illustration of the scene at Washington & Nelson”
Use the exhibit

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Argue
Reinforce Theme