Diagrams: Proof Procedure
Peter Tillers – Fall 2005
JJ at
left = Jane Jones
C = “call” at beginning of the witness testimony time line.
JJ C --------------------------------->
time
“O” = oath
JJ C
O----------------------------------->
time
“I” = question and answer about the witness’ identity.
JJ C---- O ---— I
------------------------------>
------->
time
“B” = background facts
JJ C--I-- O — B
------------------------------------>
------->
time
Q. What is your name?
A. Jane Jones.
Q. Are you married?
A. No.
Q. At 10:00 p.m. on the night of June
1, 2002, did you see David Defendant’s car recklessly rocket through a red
light at the corner of 5th Avenue and Twelfth Street and then
violently and ferociously slam into Peter Plaintiff?
The last question = “PLQ” = the punch line question
JJ C — I— O — B --------- PLQ
-------------->
----->
time
JJ C---I---O---B — ****
--> PLQ ------------>
------->
time
where F = foundation
JJ C — I— O — B — F —> PLQ —>
—>
time
where TrJ = trial judge
TrJ
JJ C--I-- O — B — {F ----> PLQ} ----->
------->
time
Important proposition:
If and only if the TrJ
believes that F satisfies the requirements of the rules of evidence that
apply to the situation will the trial judge allow the proponent of the
testimonial evidence proceed to “PLQ” and then to “PLA” [punch line answers or
answers]:
TrJ
JJ C – I–-- O — B— {F —> PLQ}—>PLA —>
—>
time
Jy = jury
TrJ
JJ C -- I -- O—B— {F ------> PLQ}
----->PLA -------->
Jy
------->
time
Relationship between
Rules of Evidence
and
Foundations
The duty to lay a foundation is extracted from rules of
evidence.
Each exclusionary rule has its own
set of requirements for admissibility.
The kind of
foundation that has to be laid depends on the kind of evidence that
is being offered and on the rules of evidence that apply to that kind of evidence.
Example:
The law of evidence has something
called the hearsay rule. The hearsay rule proclaims that hearsay evidence is
inadmissible. See FRE 801.
However, like practically every legal rule, the hearsay rule has is
subject to exceptions. Indeed, the hearsay rule is subject to a very large
number of exceptions. See FRE 803 & 804.
One of those exceptions is the
exception for dying declarations. This exception allows a party to
introduce a hearsay statement for consideration by the trier of fact if:
(1) the hearsay statement was about the speaker’s own death,
(2) the out-of-court speaker (the “declarant”) thought that his
or her death was imminent, and
(3) the speaker – the declarant – is unavailable to testify at the trial; e.g., if
the declarant is dead
Suppose that you are a party in a
lawsuit and you want to take advantage of this exception, the exception for
dying declarations. To do that you have to lay a foundation that shows
that you are entitled to take advantage of this exception. You
must establish that there are facts that make the dying declaration
exception applicable. You must introduce some evidence that shows or
suggests that the factual requirements for the application of the exception are
satisfied.
Example from Imwinkelried’s book Evidentiary Foundations:
[insert
copy here]
Change this episode. Suppose the
testimony during the laying of the foundation had gone this way:
Q. Doctor, where is Ms. Shafer now?
A. I have no idea. The last time I
saw her was when the ambulance took her to the hospital.
Q. What is anything did she say about
the cause of her death?
As nearly as I can figure out – to the best of my knowledge – all exclusionary rules work the way that the dying declarations exception does: all exclusionary rules contain, or set forth, certain requirements for admissibility. We call those requirements “essential elements” because the absence of any one of those requirements makes the proffered punch line evidence inadmissible. Most of those essential elements are factual requirements, or conditions. This is why the trial judge must be given evidence that the requirements for admissibility have been satisfied. It is generally the job of the proponent of evidence intended for the jury to produce evidence of compliance with such “preliminary conditions” (as they are sometimes called).
·
The requirements for admissibility are called “preliminary conditions”
both because
(i) evidence
of such matters (ordinarily) precedes the submission of punch line evidence to
the jury
and because
(ii) the judge
determines whether the factual requirements for admissibility have been
satisfied.
***
offers
The law proclaims that a party that
wants to get evidence before the trier of fact must make an offer of evidence.
Cf. FRE 103(a)(2). The law also proclaims that
the proponent of evidence must make an adequate offer of evidence. See
my handout and see the assigned readings. Part of what such rules or principles
assert is that the proponent of punch line evidence must make the sort of
showing, produce the sort of preliminary or foundational evidence, that appears
during the process that you have just witnessed, the process of the laying of
the foundation; i.e., when it is said that the proponent must make an adequate
offer of evidence, part of what is being asserted is that the proponent (the
offeror) of evidence that is intended for the eyes and sense of the jury must
provide the trial judge with evidence of compliance with the factual
requirements for admissibility.
objections
Once a party has made an offer of
evidence by, for example, asking a question, something else can happen: an
opponent can object to the admission of the evidence that the proponent
offers, an opponent can object to the submission of the proffered evidence –
the punch line evidence – to the jury.
TrJ
JJ C__I__O__B__F------->OFF
(e.g., PLQ) __OBJ__?____SUBMIT
(e.g., PLA) -------->
Jy
------->
time
Some rules about objections:
1. necessity
of objection.
FRE 103(a)(1); cf. FRE 103(d) (plain
error rule; rarely applied in civil litigation; in criminal cases only in favor
the accused, and courts say the error must be palpable and (particularly
egregious)
2. Timeliness
This
picture shows the ordinary timing of an objection to testimonial evidence:
[OB J = objection]
TrJ
JJ C__I__O__B___ F----->OFF (e.g., PLQ) __OBJ__***? ___SUBMIT (e.g., PLA)
Jy
------->
time
Not
too early:
OBJ only after interval F and only after point PLQ:
TrJ
here!
|
JJ C__I__O__B__F---->OFF
(e.g., PLQ) __OBJ__SUBMIT
(e.g., PLA)__
Jy
------->
time
Not too late:
TrJ
{here, now [be quick!]:}
|-----------------------------------------|
JJ C__I__O__B__F---->OFF
(e.g., PLQ) __OBJ__SUBMIT (e.g., PLA)
|-----------------------------------------|
... (s)he who hesitates is
lost!..
Jy
------->
time
A
special case:
You
are the lawyer for David Driver. He is the defendant in an automobile accident
case. Peter Plaintiff’s complaint avers that Plaintiff was injured on June 1,
2001, as a result of Driver’s negligent driving. You have denied everything:
your answer says (a) Driver didn’t do it; Driver didn’t drive through the
intersection or against the red light; and (b) Driver was forced to do it; he
was forced by Perky Passenger
to drive through the intersection at an excessive rate of speed
and against the red light).
This case goes to trial. Peter
Plaintiff calls Wally Witness as his first witness. Wally takes the oath. (See FRE 603.) Then this happens: >>>
Q. What is your name?
A. Wally Witness.
Q. What is your occupation?
A. On June
1, 2001, David Driver ran a red light at the intersection of Main and North
Streets. Driver was traveling from west to east on Main Street at a rate of
approximately 100 miles an hour. After running the red light, Driver ran into
Peter Plaintiff’s car. It was just an awful, bloody mess. Peter was thrown to
the top of a tree at the southeast corner of the intersection.
Driver’s lawyer, who was
unsuccessfully trying to get the judge’s and witness’ attention by waving his
hands, then finally blurts out:
Your Honor, we move to strike the
answer of the witness. No foundation. No showing of personal knowledge.
Judge: Are you objecting counsel?
D’s counsel: Yes we are, your Honor.
P’s counsel: Your Honor, D’s objection comes too late, it
is not timely. He should have objected before the witness answered. He didn’t
do that. Hence, he has forfeited his right to object.
The trial judge will very,
very probably reply:
Come, come, counsel. The general
rule is as you describe it: the objection must be made before the witness
answers. But there is an exception for unresponsive answers. The reason is
obvious. Opposing counsel cannot anticipate an unresponsive answer and, thus,
cannot object before the answer is given. That’s what happened here. You asked
for the witness’ occupation. There was nothing objectionable about your
question or the expected answer. But the witness gave an unexpected answer. So
I will sustain Defendant’s objection. Proceed.
In sum, the law sometimes does allow
an opponent of an offer of evidence to make an objection after a witness
has answered a punch line question:
TrJ
{here:
à}
|-----------------------------------------|
JJ C__I__O__B__F---->OFF
(e.g., PLQ) __OBJ__SUBMIT (e.g., PLA)
|-----------------------------------------|
... (s)he
who hesitates is not always lost..
Jy
------->
time
Diagram regarding the making of an
adequate offer of evidence:
TrJ
HERE
\|/
JJ C__I__O__B__F---->OFF
(e.g., PLQ) __OBJ__SUBMIT (e.g., PLA)
|-----------------------------------------|
Jy
------->
time
Story #1
The
first story involves Wally Witness. He is your witness in an automobile
accident case. You want him to testify that he saw the Defendant’s car rocket
through a red light and slam into your client. So you carefully lay a
foundation for his expected punch line, you show that he was in a position to
see the events at the intersection of 5th Avenue & 12 Street at 10:00 p.m.
on June 1, 2001. You then ask your PLQ,
Q.
What did you see?
Your
opponent says,
Objection. Hearsay.
You
mutter and splutter. And then you finally say,
Your Honor, there is no hearsay problem here. There can’t be. I’m
not asking Wally to recount what anyone said. I’m asking Wally to recount what
he saw. And, your Honor, I assure that Wally’s testimony will not involve any
claims by Wally that he saw any writings or other symbols. It can’t be
hearsay.”
The
trial judge replies:
Well, I sustain the objection.
You
mutter and splutter some more. And then you say,
Your
Honor, I think this is an outrage. But you have ruled. And so I will just take
an exception to your ruling, your Honor and, if I lose
at trial, I will just have to take my chances on appeal. In view of your ruling
you Honor, I have no more questions for this witness, Wally Witness.
The
trial goes on. You call additional witnesses. But your heart is not in the
effort: you have lost your chief witness. Eventually the trial ends. And it
ends badly. The jury returns a verdict for the defendant. Judgment is entered
on the verdict.
But you
appeal! (Hope springs eternal.) Your sole assignment of error on appeal is the
trial court’s ruling excluding the punch line testimony of Wally Witness.
You
argue on appeal that the trial court erred in sustaining your opponent’s
hearsay objection. And you carefully explain to the appellate court that you
carefully explained to the trial court why the hearsay objection was bad.
So you
say, in effect: “I did my job! I gave the trial court the information it needed
to make an informed ruling on the hearsay objection.”
And you
are correct in saying that the hearsay objection
was bad.
But -- despite
all of this -- you will almost certainly lose your appeal.
Why?
Answer:
Your failure to make an offer of proof.
If a trial court excludes evidence
and the content of the excluded evidence is not apparent, the unsuccessful
proponent of the evidence must make an offer of proof.
C_ O_ I_ B_ F
—> PLQ __ OBJ __ R (exclude!) __ OoP
This
------------------------------------------------------------------------
-- this – after PLQ,
OBJ & R(exclude!) -- is where you are now.
Now – being here --, having failed in
your attempt, you
must make an offer of proof.
Story #2
P sues D
for injuries allegedly sustained as a result of D's negligent driving.
The
collision occurred at Smith and Main Streets at 2:30 p.m. on June 1, 2000.
F was a
passenger in D's car at the time of the collision.
P calls
W.
She asks
W if she was at Smith and Main Streets at 2:30 p.m. on June 1, 2000.
P asks
if W saw the collision.
W replies that he didn't because he
was turned in the opposite direction at the time of the collision. However, W
testifies that he heard a loud noise,
turned out, and saw two wrecked cars in the intersection, P's and D's
and that he then rushed up to D's car to offer his help. He testifies that he
first saw F lying in the passenger seat of D's car.
P asks W
what happened then.
W: I asked him what happened.
Q. What
did he say?
D'S
ATTORNEY: OBJECTION, HEARSAY
P'S
ATTORNEY:
Your
Honor, the out of court statement falls within an exception to the hearsay
rule.
COURT: Which exception is that?
P's
ATTORNEY:
W's answer will make that plain, your Honor.
COURT: Might I be enlightened on how?
P'S ATTORNEY: I can't help you, your Honor.
COURT:
If you
can't help me, I can't help you. OBJECTION SUSTAINED.
P's
ATTORNEY:
Your
Honor, I would like to make an offer of proof.
COURT:
Fine, I wouldn’t want to prejudice
your right to appeal, God forbid.
P’s COUNSEL:
But, your Honor, may I say one more thing?
COURT: Well, what is it?
P’s COUNSEL:
I’d like to make the offer of proof
after all the evidence is in. That way we won’t have to interrupt these
proceedings to remove the jury. Moreover, I might yet decide that an offer of
proof is unnecessary.
COURT:
Well,
this procedure is a bit irregular. But I see no harm in it. O.K. here’s my
ruling: you can make your offer of proof after the jury retires to deliberate.
P’s
COUNSEL: Thank you, your Honor.
COURT:
Don’t thank me. I’m just doing my job.
There is further testimony, both for
the plaintiff and the defendant, both sides rest, the attorneys make their
closing arguments, the judge instructs the jury, and the jury retires to
deliberate.
P then
makes her offer of proof:
i.e.,
W retakes the stand and testifies
that in response to his question, W's question, F said, "I guess it was
because of crack. Just before the accident D and I were using it. Just then,
the car ran through the intersection and collided with P's car."
P's counsel asks W where F is now.
W replies that F is dead: "After
F answered my question, his head fell off and rolled into the street."
P's attorney then states, "Your
Honor, the statement of F is relevant and it is a declaration against interest
because F admitted the commission of a crime and he is now plainly unavailable.
This satisfies the requirements of FRE 804(b)(3)."
P's attorney is correct about this.
W's testimony is relevant and it is a declaration or statement against interest
and it therefore is not barred by the hearsay rule.
P's attorney then states,
Your Honor, I move for a mistrial. You
obviously made an error by excluding W's testimony and your error is likely to
affect the outcome of the trial. In the alternative, I move that the jury be
recalled so that it can hear W’s testimony about F’s statement.
The
judge denies P's motions.
A few
minutes later the jury troops back into the courtroom and
announces that its verdict is for D.
P moves for a new trial, again on the
ground that the trial court erred in excluding W's testimony.
The trial judge also denies this
motion.
Judgment is entered for D, and P
appeals. The ground of her appeal is the trial judge's refusal to allow W to
testify.
During the oral argument on appeal a
member of the appellate court asks P whether P preserved her claim of error for
appeal. She responds that she did, saying,
Your Honor, I made an offer of proof.
Moreover, I explained the legal basis for the admissibility of W's testimony.
A few months later, however, the
appellate court disposes of the appeal on the basis that D did not make an
adequate offer of evidence. It states,
Although P made an offer of proof,
she did not provide a timely description of the thrust and purpose of the
evidence that she was offered and she did not explain why the evidence was not
barred by the hearsay rule. The offer of proof satisfies our interests
but P's lawyer did not consider the needs of the trial judge. Her offer
of evidence came too late. The judgment below is affirmed.
COMPARE:
(i) The offer of proof requirement:
C_ O_ I_ B_ F —> PLQ __ OBJ __ R (exclude!) __ OoP
C = call the witness, get the witness on the stand
O = oath or affirmation
I = witness identifies himself or herself
B = background evidence (about the witness)
F = foundation
PLQ = punch line question
OBJ = objection
R(exclude!) = trial court ruling – “objection sustained”
– excluding the offered evidence
OoP = offer of proof
(ii) The offer of evidence
requirement:
C_ O_ I_ B_ F —>
PLQ __ OBJ __ OoE
___ R
Where OoE = offer
of evidence
A bank brings a civil action against
a defendant to recover money that it claims the defendant took from it during a
robbery on
Your Honor, this evidence shows that the defendant has an
inclination to rob banks.
The trial judge sustains the
defendant’s objection to the evidence about the prior bank robbery.
Verdict and judgment are for DD.
The bank appeals.
On appeal the bank argues that while
the evidence was not admissible to show defendant’s general propensity to rob
banks – this because of a rule known as the character evidence rule or the
propensity rule – the evidence was admissible on the issue of the identity of
the perpetrator of the second bank robbery because both robberies were
committed by the use of Doberman Pinschers and the fact that the defendant
committed the prior bank robbery with a Doberman is good evidence that he was
the fellow who committed the other bank robbery with a Doberman.
This theory, as it happens, is
probably a good one; evidence when offered in this way is not barred by the character evidence rule.
Will the bank therefore win on appeal
if the excluded evidence probably would have led to a different verdict, one in
the bank's favor?
In an automobile accident case P offers to have W testify that he heard an eyewitness to the accident say that D ran the red light and struck the plaintiff.
D’s counsel states:
Objection. The evidence is irrelevant.
COURT:
Counsel for P, do you have anything to say?
P’s counsel:
No, your Honor. The purpose and relevance of my offer are obvious.
COURT:
Objection overruled.
V & J for P.
D appeals.
On appeal D’s counsel argues that the testimony of W – the testimony that the trial court admitted – was hearsay evidence and that the trial court therefore erred in admitting it.
The appellate court agrees that W’s testimony was about hearsay. But it refuses to disturb the verdict and judgment for the plaintiff.
The
appellate court might well explain its ruling by quoting from
A specific objection overruled will be effective to the extent of the grounds specified and no further. An objection overruled, therefore, naming a ground which is untenable, cannot be availed of [even if] there was another tenable ground which might have been named but was not.
This result squares with the treatment of general objections.
“A general objection overruled will not avail the objector on appeal.” Thus spake the august Wigmore – and many, many appellate courts as well.
Specificity and Accuracy of
Offers and Objections
The following stipulation applies to
the six problems that follow:
"A general offer
of evidence" is one in which the offeror does not explain the relevance or
purpose of the evidence, and "a specific offer" is one in which the
nature of the proffered evidence is made apparent to the trial court and the
offeror does give a specific explanation (whether accurate or inaccurate) of
the relevance and purpose of the evidence.
1.
PP makes a general offer of evidence.
DD makes a general objection.
The trial court sustains the objection.
For example:
P asks W, “What did you see?”
D states, “I object.”
Court: {addressing P:} What’s
purpose of this evidence, counsel?
P: I think the relevance and purpose of this evidence are
obvious.
Court: Objection sustained.
Verdict and judgment are for DD.
PP appeals.
Who wins?
Does it matter whether PP's evidence was admissible?
Answer: P will lose. The appellate court will say that P failed
to make an adequate offer of evidence because he failed to explain the
relevance and purpose of the evidence. It matters not whether the evidence was
or was not admissible. The appellate court will invoke and apply the rule that
a general offer that is rejected will not avail the offeror on appeal.
(Countless decisions affirm this principle.)
2.
PP makes a general offer of evidence.
DD makes a general objection.
The trial court overrules the objection.
For example:
P asks W, “What did you see?”
D states, “I object.”
Court: {addressing D:} What’s
basis of the objection, counsel?
D: I think the defect in the question is obvious.
Court: Objection overruled.
Verdict and judgment are for PP.
DD appeals.
Who wins?
Does it matter whether PP's evidence was admissible?
Answer:
D will lose. The appellate court will say that D made a general objection and
it will invoke the maxim that a general objection overruled will not avail the
objector on appeal. It matters not whether the evidence was or was not
admissible. The opponent of the evidence failed to give the trial court the
information it needed and wanted.
3.
PP makes a specific offer of evidence.
But PP's explanation of the relevance and purpose of the evidence is incorrect.
DD makes a general objection.
In a negligence action – for negligent loss of entrusted
property – P offers to show that D once embezzled money from his employer. P
argues that this evidence is admissible as a prior similar fact. However, that
explanation is incorrect; the prior act is not very similar. But, as it
happens, the embezzlement can be used to attack the credibility of D. But P
fails to mention this last point.
The trial court sustains the objection.
V & J are for DD.
PP appeals.
Who wins?
Does it matter whether PP's evidence was admissible?
Answer: DD wins. As you already know, because Judge
Weinstein told you so, the proponent of admissible evidence must give the trial
court a correct explanation of the relevance and purpose of the
evidence. (An explanation not tendered to the trial court will not avail the
offeror on appeal if the trial court rejects the offer.) Theory: The wrong
explanation is of no help to the trial court. Bottom line in this situation: It
matters not that the evidence offered was in fact admissible.
4.
PP makes a specific offer of evidence.
But PP's explanation of the relevance and purpose of the evidence is incorrect.
DD makes a general objection.
The trial court overrules the objection.
V & J for PP.
DD appeals.
Who wins?
Does it matter whether PP's evidence was admissible?
(I think the answer to these questions is unclear. After
class, see if you can explain why given what you will shortly find out about
problem #6. [I believe that this problem is the mirror image of problem #6. See
if you agree with me.])
5.
PP makes a general offer of evidence.
DD makes a specific objection.
But DD's specific objection is incorrect.
The trial court overrules DD's objection.
For example:
P offers a document. D objects to the document as hearsay.
It is not hearsay. But it is possible that the document violates the character
evidence rule and it is possible that the document has not been adequately
authenticated. D, however, did not mention these last two points; he objected
on the incorrect ground of hearsay, and the trial court overruled the
objection.
V & J for PP.
DD appeals.
Who wins?
Does it matter whether PP's evidence was admissible?
Answer: On appeal PP wins and DD loses. The wrong specific
objection overruled does not avail the objector on appeal; a specific objection
preserves objections only on grounds enumerated by the objecting party when the
evidence is offered, and if the enumerated reasons for exclusions were
incorrect, the objector loses on appeal. It matters not that the evidence was
in fact inadmissible; it is immaterial that there was in fact a defect in the
offer.
6.
PP makes a general offer of evidence.
DD makes a specific objection.
But DD's specific objection is incorrect.
The trial court sustains DD's [incorrect] objection.
V & J for DD.
PP appeals.
Who wins?
Does it matter whether PP's evidence was admissible?
For example:
PI
Case:
Question to Wanda Witness:
Q. Didn’t you see the defendant’s car rocket through the intersection?
Objection:
Hearsay, your Honor.
· In point of fact (or law): The answer sought is not hearsay. Reason: No attempt is being made to elicit testimony about an out-of-court statement. So the testimony cannot be evidence of hearsay. The trial judge nevertheless states:
Objection sustained.
PP makes an offer of proof.
J & V for DD.
PP appeals.
Will PP win or lose?
Answer: It depends; the answer depends on which if two rules applies in the jurisdiction in which the trial takes place.
In some jurisdictions the appellate court will invoke the rule that if the evidence was inadmissible for any reason, the ruling excluding the evidence will be upheld on appeal.
In other jurisdictions appellate courts would entertain the appeal and would order a new trial in this situation because in these jurisdictions appellate courts follow the alternative principle that when the wrong specific objection is sustained a new trial may be granted if (i) there is a substantial possibility that the excluded evidence might have led a different result and (ii) the defect in the objected-to evidence is curable.
· Here
a new trial would be granted because the excluded evidence is plainly important
and the evidentiary defect -- the asking of a leading question -- is plainly
curable (though the harm has been done, yes?!).
Problem #4 again
PP makes a specific offer of evidence.
The evidence is admissible. But PP's explanation of why the evidence is admissible
is incorrect.
DD objects to the evidence.
The trial court overrules DD's objection – perhaps because
the trial court sees that the evidence is admissible for a reason and purpose
not stated by PP {e.g., DD’s wrongful act is admissible to impeach DD even
though it is not admissible as a prior similar reckless act as circumstantial
evidence of the alleged reckless act by DD at issue in the lawsuit
}.
V & J for PP.
DD appeals.
Who wins?
Homework: Consider this question in light of our discussion of problem #6.