Evidence Outline

REVELVANCE AND MATERIALITY

I. RULE 401 - Relevant Evidence = evidence having any tendency to make the existence of
any fact that is of consequence to the determination of the action more or less probable
than it would be without the evidence. (very low threshold).
a. Facts of consequence include:
i. An element of the cause of action, claim or defense.
ii. The credibility of the witnesses.
iii. Background fact (helpful facts filling in the evidence).
II. Conditional relevance = when the relevance of evidence depends on the existence of a
fact. RULE 104(b) gives judges the discretion to conditionally admit evidence so long as
the “missing link” of that evidence will be “connected up” by proof of the missing fact.
a. This evidence will be admitted if a reasonable jury could find by the preponderance
of the evidence that fact exists.
b. The judge determines whether there is sufficient evidence for the jury to find the
existence of the fact.
c.

PREJUDICE AND PROBATIVENESS

I. RULE 402 – Relevant Evidence Generally Admissible; Irrelevant Evidence Not =

All relevant evidence is admissible, except as otherwise provided. Irrelevant evidence is
not admissible.
II. RULE 403 – Exclusion of Relevant Evidence on Grounds of Prejudice, Confusion or
Waste of Time = although relevant, evidence may be excluded if its probative value is
substantially outweighed by the danger of 1) unfair prejudice, 2) confusion of the issues,
3) misleading the jury, 4) by considerations of undue delay, 5) waste of time, or 6)
needless presentation of cumulative evidence.
a. Unfair prejudice = when evidence has an undue tendency to suggest decision on an
improper basis, commonly, though not necessarily, an emotional one.
b. Under the federal rule, the need for relevant evidence often is considered greater than
the potential harm that could result from the admission of such evidence.
c. Exclusion should occur only after the judge has determined that a limiting instruction
is insufficient.
d. Other forms of improper basis = appeals to the sympathies of the jury, appeals to
juries sense of horror, appeals to the juries instinct to punish.

III. Old Chief v. U.S. = The recognition that the prosecution with its burden of persuasion
needs evidentiary depth to tell a continuous story has no application when the point at
issue is defendant’s legal status. (Prosecution refused to stipulate to the fact that Old
Chief was a felon so that they could tell the somewhat gruesome details of his crime)
a. When a court considers whether to exclude on grounds of unfair prejudice, the
availability of other means of proof may be an appropriate factor.
CHARACTER EVIDENCE: THE PROPENSITY RULE AND CHARACTER AT ISSUE

I. RULE 404 – Character Evidence Not Admissible to Prove Conduct; Exceptions; Other
Crimes.
a. 404(a) = Evidence of a person’s character or a trait of character is not admissible for
the purpose of proving action in conformity therewith on a particular occasion.
i. Character evidence is of slight probative value and may be very prejudicial. It
tends to distract the trier of fact from the main question of what actually happened
on a particular occasion. It allows them to reward the good and punish the bad.
ii. Character is a generalized description of one’s disposition, or of one’s
disposition
in respect to a general trait, such as honesty, temperance, or peacefulness.
iii. Only extends to “act propensity evidence” not “mental propensity evidence.”
b. There are two broad purposes for which character evidence may be offered.
i. Propensity uses: arguing that, because someone acted or thought a certain way
in
the past, they have a character that makes it more likely that they acted or thought
that way again.
ii. Non-Propensity uses: offering character evidence for any other reason.
iii. Three types of character evidence = reputation, opinion and specific acts.
iv. If character is offered to prove that a person thought, rather than acted, a
certain
way on a particular occasion, the general rules on character evidence probably do
not apply.

II. RULE 404(a)(1), 1st clause – Character of Accused. In a criminal case, evidence of a
pertinent trait of character offered by an accused, or by the prosecution to rebut the same.
a. Pertinent = those involved in the event charged.
b. The rule refers to a “specific trait” of character and not character generally. This
suggests that testimony of an accused as being honest might be admissible but not
that he has a “good character.”
c. This is the “mercy rule” and applies only in criminal cases.

1. RULE 404(a)(1), 2nd clause – Character of Accused. In a criminal case,…if evidence

of a trait of character of the alleged victim of the crime is offered by an accused and
admitted under Rule 404(a)(2), evidence of the same trait of character of the accused
offered by the prosecution.
A. When the defense offers evidence about the victim’s violent character, the
prosecution becomes free also to present evidence of the defendant’s violent
nature to prove that he, not the victim, was indeed the first aggressor.
NOTE: Remember if the accused attacks the victim’s character the prosecution can
respond with both an attack on the accused’s character and a defense of the victim’s
character.

III. RULE 404(a)(2), 1st clause – Character of Alleged Victim. In a criminal case, and subject
to the limitations imposed by rule 412, evidence of a pertinent trait of character of the
alleged victim of the crime offered by an accused, or by the prosecution to rebut the
same…
a. Example = the victim’s violent nature would be pertinent to a self-defense claim.

1. RULE 404(a)(2), 2nd clause – Character of Alleged Victim. In a criminal case,…

evidence of a character trait of peacefulness of the alleged victim offered by the
prosecution in a homicide case to rebut evidence that the victim was the first
aggressor.
A. Only applies to criminal homicide, doesn’t apply to even attempted homicide.
B. Prosecution could offer this even if the defense offered no evidence regarding this
trait. (along as their defense put forth the victim as the first aggressor).

IV. RULE 404(b) – Specific Acts Offered for Non-Character Uses or Mental Propensity Uses
= Other Crimes Wrongs or Acts: Evidence of other crimes, wrongs, or acts, is not
admissible to prove the character of a person in order to show action in conformity
therewith. It may, however, be admissible for other purposes, such as proof of motive,
opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or
accident, provided that upon request by the accused, the prosecution in a criminal case
shall provide reasonable notice in advance of trial, or during trial if the court excuses
pretrial notice on good cause shown, of the general nature of any such evidence it intends
to introduce at trial.
a. Sanctions mental propensity evidence.
b. The list is illustrative and not exhaustive.
c. A propensity use is deemed “non-character” when showing the prior acts helps to
prove the current conduct without making the intermediate inference that the act
shows a person’s character. In other words, the prior acts itself, and not any character
trait, tends to prove an aspect of the current case at trial.

1. Proof of Specific Acts – The most common use of 404(b) = justification for
introducing a criminal defendant’s prior misconduct to prove matters such as
intent, knowledge or identity.
2. Acts occurring after the event are also includable.
3. The specific act must be shown by a preponderance of the evidence. I.E. mere
fact of arrest not sufficient, however, a crime that was acquitted could be proved
by preponderance.

d. Motive – specific acts admissible to prove this.

i. Difficult to distinguish motive from character.
ii. Need for workable guidelines separating admissible motive evidence from
inadmissible character propensity evidence.
 1) If the reason why a suspect acted is offered to prove that the action was done
with a particular mental state, not to prove that the suspect committed the
criminal act in the first place, the evidence addresses mental propensity and
can be considered evidence of motive.
2) The more specific the evidence is to the relationship between the defendant
and the victim, the less severe is the RULE 403 danger that the jury will use
the evidence for generalized character inferences, and the more willing we
should be to accept the “motive” label.

e. Opportunity – specific acts admissible to prove this. Opportunity = access to or

presence at the scene of a crime, or having distinctive or unusual skills or abilities
employed in the commission of the crime charged.
i. I.E. contortionist breaking into house with barred windows.

f. Identity – specific acts admissible to prove this. Identity = “modus operandi,”

criminal method of operating.
i. Uses the argument that the pattern and characteristics of the crimes are so
unusual
and distinctive as to be like a signature.
ii. The crimes cannot be just of the same general type, i.e. burglary, they must
involve some sufficiently unusual pattern or tool.

g. Intent or Knowledge – specific acts admissible to prove this. Evidence of similar acts
may help to establish that a defendant did not “act mistakenly or accidentally” but
rather with the intent or knowledge required by the elements of the crime or tort.
i. Doctrine of “objective chances:” the repeated occurrence of certain unusual
events is so unlikely as to render improbable the claim that any one of those
events happened mistakenly or accidentally.

h. Common Plan, Scheme, or Design – specific acts admissible to prove this. To prove
the existence of a larger plan, scheme, or conspiracy, of which the crime on trial is a
part…Each crime should be an integral part of an over-arching plan explicitly
conceived and executed by the defendant or his confederates. This will be relevant to
showing motive, and hence the doing of the criminal act, the identity of the actor, or
his intention.
a. Acts pursuant to a common scheme also become admissible if the actors are
charged with a conspiracy.

i. Preparation – specific acts admissible to prove this. I.E. a man buys explosives one
week before a building is blown up.

V. RULE 405(a) – Methods of Proving Character = reputation or opinion. In all cases in

which evidence of character or a trait of character of a person is admissible, proof
may be made by testimony as to reputation or by testimony in the form of opinion.
On cross-examination, inquiry is allowable into relevant specific instances of
conduct.
 a. The last sentence concerns any relevant character trait.
b. The person about whose character the character witness vouches need not
have been a witness for Rule 405(a) last sentence to apply.
c. On cross inquiry is allowable into relevant specific instances of conduct, but
only intrinsically.
1. Therefore, the cross-examiner may not call another witness or
produce extrinsic evidence of the specific act.

VI. Rule 405(b) = In cases in which character or a trait of character is an essential element of
a charge, claim, or defense, proof may also be made of specific instances of conduct.
d. Defamation, Negligent Hiring, Negligent Entrustment.
e. This is a non-propensity use of character evidence.

HABIT

I. RULE 406 – Habit; Routine practice = Evidence of the habit of a person or of the routine
practice of an organization, whether corroborated or not regardless of the presence of
eyewitnesses, is relevant to prove that the conduct of the person or organization on a
particular occasion was in conformity with the habit or routine practice.
a. Habit describes one’s regular response to a repeated situation. Habit is a person’s
regular response of meeting a particular kind of situation with a specific type of
conduct. I.E. going down a particular stairway two stairs at a time. Someone acting a
particular way to a narrow, specific situation. Or “psychological theory,” frequently
repeated, specific behavioral response to a narrow set of circumstances that is
unconsciously mechanical.
b. Some courts define it as “semi-automatic, almost involuntary and invariably specific
response to fairly specific stimuli.

EVIDENCE OF CHARACTER AND CONDUCT OF A WITNESS

I. RULE 608(a) – Evidence of Character and Conduct of a Witness = opinion and

reputation. The credibility of a witness may be attacked or supported by evidence
in the form of opinion or reputation, but subject to these limitation: (1) the
evidence may refer only to character for truthfulness or untruthfulness, and (2)
evidence of the truthful character of a witness is admissible only after the
character of the witness for truthfulness has been attacked by opinion or
reputation evidence or otherwise.
a. Theft does not count as an untruthful act.
b. Impeachment by a prior inconsistent statement is not an attack on the
witness’s character for truthfulness.
c. However, an inconsistency raising an inference of an untruthful nature may
meet the “or otherwise” requirement.
 d. Generally, mere contradicting evidence offered by an opponent, or even
showings of interest, bias, or coercion, do not constitute attacks on the
witness’s truthfulness.
e. Bottom Line = merely suggesting that a witness is lying or mistaken is not the
same thing as suggesting that the falsehood or error stemmed from an
untruthful character.
f. Whether an impeachment technique not overtly involving character in fact
constitutes an attack on character for truthfulness is a case specific inquiry and
may turn on the egregiousness and nature of the inconsistency.

II. RULE 608(b) = specific instances of conduct. Specific instances of conduct of a

witness, for the purpose of attacking or supporting the witness’ character for
truthfulness, other than conviction of a crime as provided under rule 609, may not
be proved by extrinsic evidence. They may however, at the discretion of the
court, if probative of truthfulness or untruthfulness, be inquired into on cross-
examination of the witness (1) concerning the witness’ character for truthfulness
or untruthfulness or (2) concerning the character for truthfulness or untruthfulness
of another witness as to which character the witness being cross-examined has
testified.
a. Specific acts can be used to impeach character, but only if those acts are
elicited “intrinsically,” (from the mouth of the witness).
b. If the witness lies the cross-examiner cannot call another witness to rebut te
testimony unless the testimony has some additional relevance.
c. The absolute prohibition on extrinsic evidence applies only when the sole
reason for proffering that evidence is to attack or support the witness’
character for truthfulness.
The Rule 608(b) extrinsic evidence prohibition does not apply when it is
offered for a purpose other than proving the witness’s character for
veracity.
d. Rule 608(b) does not automatically bar extrinsic evidence about specific acts
concerning a witness’ character for truthfulness or untruthfulness if those acts
are also relevant to impeaching by showing bias, limited competence,
contradiction, prior inconsistent statements, or mental incapacity.
e. The extrinsic evidence bar also bars any reference to the consequences that a
witness might have suffered as a result of the bad act.

1. Rule 608(b) also applies “concerning the character for truthfulness or

untruthfulness of another witness as to which character the witness
being cross-examined has testified.” In other words, on cross-
examining a witness who has testified about the character of another
witness, the witness being cross-examined may be questioned about
acts relating to that other witness’ character for truthfulness.
2. Rule 608(b) governs only where a character witness has first testified
to another witness’s character.
 3. Additionally, rule 608(b) is limited to authorizing questions about
only one relevant character trait: a character for truthfulness or
untruthfulness.

III. RULE 609(a)(1) = Impeachment by Evidence of Conviction of a Crime. For the

purpose of attacking the character for truthfulness of a witness, (1) evidence that a
witness other than an accused has been convicted of a crime shall be admitted,
subject to rule 403, if the crime was punishable by death or imprisonment in
excess of one year under the law under which the witness was convicted; and
evidence that an accused has been convicted of such a crime shall be admitted if
the court determines that the probative value of admitting this evidence outweighs
its prejudicial effect to the accused.
a. There are two balancing tests here: 1) is the test for a normal witness and this
test is rule 403 (whether the probative value is substantially outweighed by the
prejudicial effect), 2) is the test for the criminal defendant witness (whether
the probative value outweighs the prejudicial effect).
b. Factors that come into play concerning when determining whether the
probative value outweighs the prejudicial effect for the accused witness:
1. The degree to which the crime reflects on credibility.
2. The nearness or remoteness of the prior conviction.
3. The similarity between the prior offense and the one charged (the more
similar the prior crime the more it weighs against admissibility).
4. The extent to which the defendant’s testimony is needed for fair
adjudication of the trial.
5. Whether the defendant’s credibility is central to the case.
c. If the witness can be impeached convincingly by other means besides prior
criminal convictions than (i.e. bias, prior inconsistent statements) the
existence of such alternative means is a factor weighing against allowing use
of the prior conviction.
d. Rule 609 does not apply at all if a conviction is offered to impeach the witness
(challenge the credibility) on grounds other than that the conviction suggests
that witness has a poor character for truthfulness.

IV. RULE 609(a)(2) = evidence that any witness has been convicted of a crime shall
be admitted regardless of the punishment, if it readily can be determined that
establishing the elements of the crime required proof or an admission of
dishonesty or false statement by the witness.
a. Under this circumstance the judge has no discretion weigh prejudice against
probative value.
1. Nevertheless, exclusion is still possible if one of the limitations in rule
609(b), (c), or (d) apply.
b. By the phrase dishonesty and false statement the statute means crimes such as
perjury, false statement, criminal fraud, embezzlement, or false pretense, or
any other criminally false offense, commission of which involves some
element of deceit, untruthfulness, or falsification bearing on the accused’s
propensity to testify truthfully.
 1. Stealing is generally excluded.
2. If the witness made a false statement or deceived someone during the
course of a crime which did not have as one of its elements a requirement
that the perpetrator commit dishonesty or make a false statement the
conviction is inadmissible.
3. Very narrow view of dishonesty = offenses classified as crimen falsi have
included only those crimes in which the ultimate criminal act was itself an
act of deceit.
c. Readily determined = ready proof that the conviction required the fact finder
to find, or the defendant to admit, an act of dishonesty or false statement.

V. RULE 609 Special Qualifications

a. 609(b) = evidence of a conviction more than 10 years old is not admissible
unless the court determines, in the interest of justice, that “the probative value
of the conviction, supported by specific facts and circumstances, substantially
outweighs its prejudicial effect” and the proponent has given the adverse party
sufficient advance written notice of the intent to use such evidence to give the
adverse party a fair opportunity to contest its admissibility.
1. Time period computed from date of conviction or the date of release from
confinement imposed from conviction, whichever is later.
2. The balancing test strongly favors exclusion.
3. Impeachment by pardoned conviction will be permitted if the pardon was
not based on a finding of innocence and the offender was convicted of a
subsequent felony.
4. Juvenile convictions can be used if the trial court finds impeachment
necessary for the fair determination of guilt or innocence.
b. Pendency of appeal has no effect on conviction.
c. An impeacher may seek to inquire into details in finding a substantive
character theory to rely on instead of an impeachment theory, a substantive
theory requiring further detail.

CATEGORICAL RULES OF EXCLUSION

I. RULE 407 – Subsequent Remedial Measure = When, after an injury or harm

allegedly caused by an event, measures are taken that, if taken previously, would
have made the injury or harm less likely to occur, evidence of the subsequent
measures is not admissible to prove negligence, culpable conduct, a defect in a
product, a defect in a product’s design, or a need for a warning or instruction.
This rule does not require the exclusion of evidence of subsequent measures when
offered for another purpose, such as proving ownership, control, or feasibility of
precautionary measures, if controverted, or impeachment.
a. There must be a real controversy about one of the listed issues to justify
admissibility.
b. The rule applies only to changes made after the occurrence that produced the
damages giving rise to the action.
 1. Evidence of measure taken by the defendant prior to the “event” do not
fall within the exclusionary scope of rule 407 even if they occurred after
the manufacture or design of the product.

II. RULE 408 – Compromise and Offers to Compromise = (a) prohibited uses.
Evidence of the following is not admissible on behalf of any party, when offered
to prove liability for, invalidity of, or amount of a claim that was disputed as to
validity or amount, or to impeach through a prior inconsistent statement or
contradiction:
(1) Furnishing or offering to furnish, - or accepting or offering to accept – a
valuable consideration in compromising or attempting to compromise the claim;
and

(2) Conduct or statements made in compromise negotiations regarding the claim,

except when offered in a criminal case and negotiations related to a claim by a
public office or agency in the exercise of regulatory, investigative, or enforcement
authority.

(B) This rule does not require exclusion if the evidence is offered for a purpose
not prohibited by subdivision (a). Examples of permissible purposes include
proving a witnesses bias or prejudice, negating a contention of undue delay; and
proving an effort to obstruct criminal investigation or prosecution.

a. Rule 408 applies only to compromise offers concerning a claim that is

“disputed as to either validity or amount.”
b. Civil settlements, offers, and statements during compromise negotiations are
not excluded by rule 408 if offered for any purpose other than proving the
validity or liability of the claim then in dispute.
c. The rule expressly declares that the use of compromise evidence for “proving
bias or prejudice of a witness, negating a contention of undue delay, or
proving an effort to obstruct a criminal investigation or prosecution” does “not
require exclusion.”
d. Includes conversations with any person involved in the case.

III. RULE 409 – Payment of Medical and Similar Expenses = Evidence of furnishing
or offering or promising to pay medical, hospital, or similar expenses occasioned
by an injury is not admissible to prove liability for the injury.
a. No dispute is necessary for rule 409 to apply.
b. The offer need not be made directly to the injured party; it can be made to
anyone can accept.
c. The rule’s prohibition is only against using the evidence to prove “liability for
the injury.”

IV. RULE 410 – Plea Bargains and Related Statements in Criminal Cases = Except as
otherwise provided in this rule, evidence of the following is not, in any civil or
criminal proceeding, admissible against the defendant who made the plea or was a
 participant in the plea discussions: (1) a plea of guilty that was later withdrawn;
(2) a plea of nolo contendere; (3) any statement made in the course of any
proceeding under rule 11 of the F.R. of criminal procedure (judge/defendant
colloquy) or comparable state procedure regarding wither of the foregoing pleas;
or (4) any statements made in the course of plea discussions with an attorney for
the prosecuting authority which do not result in a plea of guilty or which results in
a plea of guilty later withdrawn.
However, such a statement is admissible (i) in any proceeding wherein
another statement made in the course of the same plea or discussions has been
introduced and the statement ought, in fairness, be considered
contemporaneously with it, or (ii) in a criminal proceeding for perjury or false
statement if the statement was made by the defendant under oath, on the
record and in the presence of counsel.

a. RULE 410 - discussions must at least involve an attempted plea negotiation.

b. RULE 410(4)(i) – the rationale for this is so that when evidence of statements
made in the course of or as a consequence of a certain plea or plea discussion
are introduced, other statements relating to the same plea or plea discussion
may also be admitted when relevant to the matter at issue.
c. RULE 410(4)(ii) – this exception permits a perjury prosecution based on the
defendant’s lies under oath in a guilty plea colloquy.
d. Rule 410 – unwritten rule - A defendant may waive his right to the rules
protection if the prosecutor insists on such a waiver as a precondition to the
plea negotiations (U.S. Supreme Court).

V. RULE 411 – Liability Insurance – Evidence that a person was or was not insured
against liability is not admissible upon the issue of whether the person acted
negligently or otherwise wrongfully. This rule does not require the exclusion of
evidence of insurance liability when offered for another purpose, such as proof of
agency, ownership, or control, or bias or prejudice of a witness.
a. The rule is not limited to evidence that the defendant was insured against
liability; it was broadly drafted “so as to include contributory negligence or
other fault of a plaintiff as well as fault of a defendant.”
b. The rule does not prohibit using the evidence for purposes other than proving
negligence or wrongful conduct.

PURPOSE OF CROSS-EXAMINATION, COMPETENCY OF WITNESS, FORM AND

SCOPE OF EXAMINATION OF WITNESSES

I. RULE 601- General Rule of Competency – Every person is competent to be a

witness except as otherwise provided in these rules. However, in civil actions and
proceedings, with respect to an element of a claim or defense as to which state
law supplies the rule of decision, the competency of the witness shall be
determined in accordance with state law.
a. Foundational requirement for witness testimony = able to tell the truth.
b. Child witnesses of particular concern.
 II. RULE 602 – Lack of Personal Knowledge – A witness may not testify to a matter
unless evidence is produced sufficient to support a finding that the witness has
personal knowledge of the matter. Evidence to prove personal knowledge may,
but need not, consist of the witness’ own testimony. This rule is subject to the
provisions of rule 703, relating to opinion testimony by expert witnesses.
a. Experts may testify without personal knowledge.
b. A lay witness may offer opinions or inferences if the opinions “are (a)
rationally based on the perception of the witness and (b) helpful to a clear
understanding of the witness’ testimony or the determination of a fact in issue.
III. RULE 603 – Oath or Affirmation – Before testifying, every witness shall be
required to declare that the witness will testify truthfully, by oath or affirmation
administered in a form calculated to awaken the witness’ conscience and impress
the witness’ mind with the duty to do so.

IV. RULE 604 – Interpreters – An interpreter is subject to the provisions of these

rules relating to qualification as an expert and the administration of an oath or
affirmation to make a true translation.

V. RULE 610 – Religious Beliefs or Opinions – Evidence of the beliefs or opinions

of a witness on matters of religion is not admissible for the purpose of showing
that by reason of their nature the witness’ credibility is impaired or enhanced.

VI. RULE 611 – Mode and Order of Interrogation and Presentation – (a) control by
court. The court shall exercise reasonable control over the mode and order of
interrogating witness and presenting evidence so as to (1) make the interrogation
and presentation effective for the ascertainment of truth, (2) avoid needless
consumption of time, and (3) protect witnesses from harassment or undue
embarrassment.
611(b) – Scope of Cross-Examination – Cross-examination should be
limited to the subject matter of the direct examination and matters
affecting the credibility of the witness. The court may, in the exercise of
discretion, permit inquiry into additional matters as if on direct
examination.
611(c) – Leading Questions – Leading questions should not be used on the
direct examination of a witness except as may be necessary to develop the
witness’ testimony. Ordinarily leading questions should be permitted on
cross-examination. When a party calls a hostile witness, an adverse party,
or a witness identified with an adverse party, interrogation may be by
leading questions.

OBJECTIONS CONCERNING WITNESS TESTIMONY

1. Leading question: questions that suggest an answer

2. Asked and answered questions
 3. Compound questions: questions that incorporate two or more questions in a single
sentence.
4. Questions assuming facts not in evidence: questions that assume the existence of facts
not yet testified to by a witness or otherwise introduced into evidence.
5. Argumentative questions: questions that don’t really seek information but to engage
the witness in improper argument.
6. Questions calling for speculation: questions asking for information beyond the
witness’ personal knowledge or questions asking the witness to provide an
inadmissible opinion. In such cases the witness has either no knowledge or
insufficient information about the subject matter of the testimony.
7. Non-responsive answers: answers by witnesses that do not respond to the examiner’s
particular question.
8. Narrative answers: answers that exceed the scope of the question. A party can object
to a vague or overbroad question that would likely result in an objectionable answer,
the objection would be called “phrased as narrative.”
9. Improper opinion evidence.

DIRECT EXAMINATION

1. Three parts: background, scene, and action.

a. Background: establishes the witness as a 3 dimensional person and not merely as
a blank conduit for information.
b. Scene: usually the locus or place in which the action occurs.
c. Action: readily identifiable, usually the focal point of the testimony.