April 03, 2011
(1) In determining testimony, documents, and tangible objects, the judge or jury will rely on the Federal Rules of Evidence and/or applicable state rules of evidence. There are eleven specific functions, qualifications, and categories of evidence that make up the Federal Rules of Evidence. These eleven sections cover the following: 1. General provisions
2. Judicial notice
3. Presumptions in civil actions and proceedings
4. Relevancy and its limits
7. Opinions and expert testimony
9. Authentication and identifications
10. Contents of writings, recordings, and photographs
11. Miscellaneous rules.
Congress enacted the Federal Rules of Evidence (FRE) in 1975 for the purpose of promoting truth and fairness, in practical terms. They apply to civil and criminal judicial proceedings in the federal court system, but many states have adopted similar rules which help promote uniformity in the laws and procedures nationwide.
As stated by Thayer J., (1889)“Evidence is any matter of fact which is furnished to a legal tribunal, otherwise than by reasoning or a reference to what is noticed without proof, as the basis of inference in ascertaining some other matter of fact.” Admissible evidence is relevant. Testimony that is direct personal knowledge or observation and that if true proves a fact without inference or presumption. Documentary evidence (e.g., a written contract, a deed) must be authenticated before the evidence is admissible unless, there is no question on the authenticity or the originals are lost, destroyed or made unattainable. Secondary evidence should be notarized to offer authenticity of the original document if needed. Tangible evidence is physical evidence that is either real (e.g. a murder weapon) or demonstrative (e.g. showing the type of motion used when striking a victim), or illustrative (e.g. models or charts).
Paralegals should obtain evidence by categorizing it according to Rules 901 and 902 and focus attention on evidence that requires additional investigation and support. They should begin the examination by looking at three types of evidence: (1) the client’s statement (2) witness interviews, and (3) the factual components of the existing evidence. By breaking it down to potential evidence, circumstantial evidence, and inductive reasoning the paralegal will lay the foundation to their investigation. The attorney has the authority to admit evidence. Opposing counsel may object and explain to the court why they believe it should not be admitted as evidence. The judge will make the decision and the process continues. 2.) The purpose of gathering information from a client or witness is to gain factual information that may be used later for the client’s case. It is also important to gather their knowledge and insight into a subject or topic. This will able the paralegal to prepare for their case, and build the relationship. Interaction with the client or witness, will gain insight to their personal feelings and attitudes which is beneficial. There are many purposes for interviewing your client or potential witnesses. Documents and tangible items may be referenced to the Federal Rules of Evidence and protected by the work doctrine. With potential evidence the paralegal can develop a building process that may expand the investigation and prove the cause of action or defense. Evidence gathered from the interviews may also be used to narrow down the investigation. To expedite the process of connecting inferences and evidence, the paralegal may use an analysis chart. Using an evidence chart in the order of chronology, client’s existing affirmative evidence, adversary’s existing affirmative evidence, client’s potential affirmative evidence and the client’s potential rebuttal evidence eliminates repetitive work. 3.1) I am aware that the CEO of the nearby...