I waited to take practical, non-caselaw classes until my third year of law school, which actually worked out pretty well for me. It was a little weird to take evidence while I was taking my other trial-related classes, but evidence is a pretty straightforward topic, so it wasn’t terrible. Evidence basically teaches you how to run a trial. It is like director school for attorneys – what you can put on stage and what you can’t. How to object. And objecting is actually pretty fun in trial, so I liked practicing it.
As a final for another class, I had to put on a mock trial, which turned out to be really fun. I had a partner, and we were the defense. Then, we were set against co-attorneys for a plaintiff. We were really nervous at first because one of the guys we were up against is this terrible, terrible dude. He’s very swagger and flash, which usually means an attorney who is willing to waste everyone’s time just to be sleazy. So annoying. My partner was in a small group with him in our class, and we had two-hour-long classes every Monday night to practice techniques. This terrible guy, who we nicknamed Cowduck for reasons I will not go into here, would make their two-hour class go three hours almost every week just doing things that wasted everyone’s time.
(I should note, as an aside, that Cowduck’s partner was really wonderful to work with.)
Anyway, we were nervous about our mock trial, but it ended up being my favorite thing that has happened in law school. It turns out that Cowduck probably wastes everyone’s time to distract from the fact that he doesn’t really get what is going on.
So, in this review, I’m going to go through the Federal Rules of Evidence (FRE) and use my trial as an example of them. My mock trial was a civil trial where a woman who had breast cancer sued a radiologist saying that the radiologist should have called her directly with the results of her mammogram. Have fun!
As a preliminary, there are civil and criminal trials – civil is when two people sue each other for money or some other form of damages, and criminal is when the state sues a citizen for breaking the law and to send the citizen to jail.
Also, the three overall tests for whether evidence can be admitted are whether it is
. It is relevant if it has any tendency to make a fact more or less probable. FRE 401. Even if it is relevant, it is not admissible if its prejudicial nature substantially out ways its probative value. FRE 403. But, the default is that anything relevant is admissible.
. There are tons of rules about reliability of evidence, like, hearsay (the FRE 800s), best evidence rule (the FRE 1000s), etc.
. Even after you’ve considered the other factors, there are still policies that exclude evidence because of fairness (the FRE 400s and 500s). This is where attorney-client, doctor-patient, spousal, and other privileges come in. (As a side note, "privilege" and "confidentiality" are different in that "privilege" only means something can't be evidence in court, and "confidentiality" means the person plans not to tell people but that might be admissible in court.)Pre-Trial Conferences
So, especially if there is a jury, a trial is a lot like a play, but the first time the parties get to put the play on in its entirety is when the trial actually happens - no dress rehearsal and hopefully
no do-overs, though mistrials happen more than anyone would like. But, the parties usually have a plan as to all of the evidence that will come in and stay out before trial happens. They have a conference with the judge (an FRE 104(a)) conference, and the judge decides to exclude or include any evidence the parties can’t agree on. Sometimes, a judge will admit evidence as conditional (FRE 104(b)), so a party needs to prove one thing in order to be able to use certain evidence.
Like, say a party had a videotape of a robbery of 711 two years ago, but the robbers had masks on, and you couldn’t tell who they were. So, you’re at trial for a bank robbery, and the prosecution wants to bring in the videotape of the 711 robbery to show that the mask is part of the defendant’s modus operandi. But, the judge might say, “Okay, you can bring in the videotape of the 711, but you have to first show that the bank robbers used the same masks and that the masks are somehow linked to the defendant.” So, the video would be conditionally admissible under FRE 104(b).
It is the judge’s job to admit the evidence and the jury’s job to weigh the evidence (FRE 611), so the judge doesn’t consider whether s/he believes the evidence when admitting it, the judge only considers whether it falls under the rules.
For example, in our trial, I tried to argue that the jury, in weighing all of the plaintiff’s evidence in her favor, a jury could not find that our radiologist should have diagnosed her with cancer, so I tried to keep Cowduck and his partner from even arguing that at trial. The judge, though, said that there was some actual dispute among the parties, so he let them argue it.
Otherwise, we had most of our evidence negotiated and agreed on, actually, before we even met with the judge. We had a negotiation conference, and I was really nervous about it because of Cowduck, but he didn’t show up until an hour after we were supposed to meet, so we got everything negotiated in the first ten minutes of meeting without him. Hangovers are a bitch.Opening
Usually, jury trials start out with jury selection, but the rules for that are not really covered by the FRE, and our trial didn’t have jury selection, so I’m not going to go into it here. We had volunteer jury members coming out of the woodworks because they wanted to be on a jury that voted against Cowduck. I would feel sorry for him for being so universally disliked if he didn’t obviously try so hard at it. Anyway, the judge reads instructions, blabla, and then you get to opening statements.
Openings are supposed to give the jury an idea of the facts of the case and the laws they will have to use, but it’s not supposed to overshoot on what you think the jury will see. So, in opening, you can’t talk about inadmissible evidence, argue your case at all, give personal opinion, or talk about your opponent’s case. So, you can’t do most of the things they do in movies in opening statements. For example, we watched the opening statements in Philadelphia
in class, and they are pretty objectionable.
In my trial, they talked about punitive damages. We were arguing that they couldn’t ask for punitive damages at all, but they still talked about it in their opening statement. So, we probably could have objected to that, but we didn’t because we knew we would have to object the whole time otherwise. You end up looking kind of like a bitch to lay people for objecting during a whole trial, but it’s actually just a normal thing. Still, you want to be the least amount bitchy.Trial
During the evidence presentation part of the trial, you’ve got your direct and cross examination of lay witnesses and experts and you’ve got your presentation of exhibits. On direct examination of witnesses, you’re not allowed to ask leading questions. So the four basic types of questions are the following:
1. Closed questions, like, “Do you have a favorite book?” (closed because you answer yes or no)
2. Open-ended questions, like, “What is your favorite book?” (open because you answer however you want)
3. Why questions, like, “Why is that your favorite?” (obvious)
4. Leading questions, like, “But, Gods of the Jungle Planet is actually your favorite book, right?” (leading because it tells you the answer)
You ask open-ended questions on direct and leading questions on cross (FRE 611). But, Cowduck has the theory that it’s a good idea to break the rules, so he asked a ton of leading questions on direct. We didn’t object right away, partly because the questions he was asking were not that important, and partly because we knew we were going to have to object a ton throughout, and partly because I was not paying attention to the form of the questions. Anyway, the judge was looking at us like, “WTF! Object!” And then after a while, I stood up and said, “Your honor, I’m going to object because this line of questioning has been leading for sometime.” The judge was like, “I agree! Sustained!” And Cowduck got all flustered.
There were many wonderful things that happened during the trial, but my definite favorite part happened when he was cross-examining my witness. (We had friends playing our fake witnesses and fake jury members, so it was a courtroom full of law students and attorneys.)
So, cross-examination usually takes like five minutes because you don’t want the other side’s witnesses to talk for a long time, but he cross-examined this witness for around a half an hour. On cross-examination, you can use leading questions (FRE 611), so you want to do that because it keeps the witness from telling their story and looking more sympathetic. So, Cowduck was being SO BORING, and asking the same questions over and over, so I was objecting the whole time, like, “Argumentative, calling for speculation, asked and answered, etc.” And the judge was sustaining most of my objections. So, I got on this roll objecting to everything he asked.
He was obviously trying to get the witness (who was the defendant, my client) to confess, but he would ask these open-ended questions of her, and it just let her talk and tell her side for so long. You felt kind of bad for him, but it was still really annoying. So, then he asked, “Wouldn’t you agree that a regular doctor couldn’t read your radiology report?” And she answered, “No, I would not agree, and I know for a fact that this doctor can
read my reports because I’ve worked with her for years –“ And then Cowduck objected to his own question! He was like, “Objection! . . . oh, I’m not on that side right now.” And the whole room was laughing. I had to put my head down. It was really awesome.
There is lay and expert testimony. Lay people can testify to anything they’ve actually observed. FRE 602. Experts have to be approved as experts, and that’s just a procedure under FRE 702 and some cases. I won’t go into it. An out-of-court statement offered for the truth of the matter is hearsay. FRE 801. It is not hearsay, though, if it is a statement of one of the parties or under a couple of other circumstances. FRE 801(d). Hearsay isn’t admissible (FRE 802) unless it falls under an exception in FRE 803 or 804. I won’t go into those, but there are a ton of them. A lot of out-of-court statements are not hearsay or fall under an exception.
You have to “lay a foundation” for exhibits to show that they are what you say they are. You do that through witnesses. Exhibits are under the FRE 900s and 1000s. So, in my mock trial for example, Cowduck, wanted to offer this statute as an exhibit and I objected because it was confusing as an exhibit. I said I was fine with the witness testifying to it, but I didn’t want it to be an exhibit because it was confusing and irrelevant. The judge said to Cowduck, “Why is it relevant,” and Cowduck said, “Well, it was passed by Congress!” And then he proceeded to bring it up about fifteen more times during the trial, but each time, he wouldn’t describe what the statute said, he would just say, “We have this act, and it was passed by Congress,” “So, there’s this act that was passed by Congress,” etc. It was really awesome. He was really impressed that it was passed by Congress.Closing
Closing is where you argue. You still can’t give your own opinion, and you can never do things like ask the jury to put themselves in a party’s shoes or appeal unfairly to prejudice or passion (like, I haven’t seen or read it in a long time, but I guess Atticus’s closing in To Kill A Mockingbird is very objectionable). You can’t talk about evidence that hasn’t been admitted. Things like that.
Okay, so that’s my summary of evidence, and that concludes my legal instruction of all y’all. Thanks for listening.