Evidence Outline—Barnes 2006
I. Introduction to Evidence
a. Rule 101. Scope
i. The rules govern federal courts (bankruptcy, district courts, etc.)
b. Rule 102. Purpose and Construction
i. The rules are meant to ensure:
1. Fairness in administration
2. Elimination of unnecessary expense and delay
3. Promotion of the truth
ii. Courts shall exercise discretion to promote the ascertainment of the truth
iii. We have these because we mistrust juries, want to ensure accuracy and control the scope and duration of trials
c. Rule 106. Remainder of or Related Writings or Recorded Statements
i. When a writing or recording or any part thereof is introduced, an adverse party may require at that time any other part of the writing or recording which in fairness should be considered contemporaneously
ii. The adverse party can introduce other parts of the writing or other related writings—makes things complete—fairness requires this (includes statements that are entered for limited purposes (ex. Impeachment)
iii. Oral statements are not included—the remainder of oral statements may be introduced on cross-examination
iv. *Avoids mistaken or misleading first impressions (statements taken out of context); avoids the inadequate remedy of introducing it after the jury already has the misinformation in their minds
v. *Must explain, modify, qualify or otherwise shed light on the writing or recorded statement introduced
II. The Roles of the Judge, Jury and Attorneys at Trial
a. Rule 103. Rulings on Evidence
i. (a) Effect of Erroneous Ruling: Error may not be predicated on an evidentiary ruling (at any stage of a case before or at trial) unless a substantial right of the party is affected; the objection need not be renewed to preserve a claim for error on appeal
ii. The appeals court is only asked to judge if the error was brought to the attention of the court and the court nevertheless persisted—mere technical violations are not sufficient for reversal
iii. Appeals court bases decisions on abuse of discretion (clear error of judgment)
iv. Substantial Right: Had a material affect on the outcome of the trial, substantially swayed the deliberations of the jury
1. Objection: If the ruling is one admitting evidence, a timely objection appears on the record, stating the specific ground for objection if the ground was not apparent from the context
a. Can’t raise an objection later unless made at trial or plain error existed
b. Objection must be specific—if it is only a portion of the evidence the objections needs to be specifically targeted
c. Must specifically request a continuing appeal on that line of inquiry if you want it to last during the questioning
d. Objection must be made as soon as the evidence is presented (before answer); if the grounds for objection are not apparent until after the answer, a motion to strike is appropriate
e. Once one enters evidence, they cannot later object to its admission, the door is then open, invited error (only on that issue)
f. A failure to object is a waiver to the error
2. Offer of Proof: If it is one excluding evidence, the substance of the evidence was made known to the court by offer or was apparent from the context (Proffer)
a. To save the right to appeal, you must offer proof of the nature of the evidence so the judge can determine if they want to correct their ruling and so reviewing court can determine if it affected substantial right—failure to offer precludes raising question on appeal
b. If it is obvious from the context you need not offer proof, but that is risky
c. Preserves a full record for appeal
d. Can use testimony of a witness or enter object as proof of error-out of reach of jury
v. (b) Record of Offer and Ruling: The court may add further statements which shows the character of evidence, the form of it, the objection made and the ruling thereon
1. Offer of proof includes explaining the substance of anticipated answers of a witness; document added to the record; the purpose of the evidence should be stated
vi. (c) Hearing of Jury: Proceedings should be conducted so as to prevent inadmissible evidence from being suggested to the jury as best as possible
1. The parties should ask objectionable questions and settle disputes behind closed doors or at the bench so the jury does not hear them; can also ask in advance of trial to get a ruling (motion in limine)—shields the trier of fact from the inadmissible evidence
2. If the court’s objection is not definitive, the objection must be renewed each time evidence comes up and the court may change its mind once the evidence comes up at trial
vii. (d) Plain Error: Nothing precludes taking notice of plain error affecting substantial rights even if they are not brought to the attention of the court.
1. If an error so affects a substantial right, even if a proper objection was not made, then the court may review it—do not rely on it because it is rare
2. Usually an obvious error that seriously affects the fairness and integrity of judicial proceedings
b. Rule 104. Preliminary Questions
i. (a) Questions of Admissibility Generally: Preliminary questions concerning the qualification of a person to be a witness, the existence of privilege, or the admissibility of evidence is to be determined by the court
1. Not submitting factual disputes to the jury during the trial saves time, money and confusion; also prevents juries from hearing evidence to make a decision and then being forced to forget it
2. The court can look an inadmissible things, except privilege, to make its decision
ii. (b) Conditional Relevance: When the relevance of evidence depends on another condition of fact, the court shall admit it upon the introduction of evidence sufficient to fulfill that condition
1. In order to admit evidence that is conditioned on fact, the offeror must demonstrate a prima facie existence of the fact and it must only consider the evidence the jury will have before evidence is admitted—the jury will then see the evidence and the supporting facts together
2. Can promise to show connecting facts after entering the evidence as well; if that link is not shown then evidence will subject to exclusion
3. There must be evidence to fulfill the condition—sufficiency is a low standard
iii. (c) Hearing in the Presence of Jury: Hearings on admissibility of confessions to be conducted away from jury; hearings on other preliminary matters shall be out of the hearing of the jury when the interests of justice so require
1. The court decides if it will be within the hearing of the jury (it can be in the presence—say a sidebar—just not in “hearing”)
2. In determining whether to do it in the hearing of the jury, the court must consider the potential for prejudice derived from the jury’s hearing
3. If the hearing is to determine the admissibility of confession it must be conducted outside the hearing
iv. (d) Testimony by Accused: If the accused testifies at a pretrial hearing, he is not subject to cross-examination as to other issues
1. The testimony may not be used against him as evidence in chief at trial, but it may be used to impeach him
III. Relevance
a. Rule 401. Relevant Evidence: Evidence having any tendency to make the existence of any fact that is of consequence to the determination more probable or less probable
i. Relevance is a minimal threshold, if it is not relevant it is not getting in; admissibility of relevant information turns on the purpose for which it is offered
ii. It is about relationships—chain of inferences
iii. A fact of consequence=material fact
1. Direct evidence
2. Circumstantial
3. Evidence that bears circumstantially upon the evaluation of the probative value given other evidence (creditability, demeanor, impeachment, background, etc.)
iv. Evidence which is essentially background in nature may be admitted if it helps understanding
v. Types of evidence
1. Real—physical, tangible evidence or the thing itself
2. Representative (Demonstrative): evidence that represents something else (diagram, chart, photo, x-ray)
3. Testimonial—comes from witnesses by voice
vi. Probative Value: “More probable or less probable than it would be without the evidence”
vii. R. 410 questions:
1. What is the issue in the case?
2. To what fact is this potential evidence addressed?
3. Is that a fact of consequence to the issues in the case (Materiality question, does it help us out?)
4. Does this evidence make the fact more or less probable?
b. Rule 402. Relevant Evidence Admissible, Irrelevant Evidence Inadmissible: All relevant evidence is admissible except as otherwise provided. Evidence which is not relevant is inadmissible
i. Rules 404, 405 and 407-412 show situations in which relevant evidence is inadmissible
ii. Sometimes inadmissible because of risk of misleading, confusion or prejudice
IV. Relevant but Inadmissible; Unfairly Prejudicial Evidence
a. Rule 403. Exclusion of Relevant Evidence on Grounds of Prejudice, Confusion or Waste of Time: Relevant evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues ,misleading the jury, undue delay and waste of time
i. There is a presumption that relevant evidence is admissible, need to prove that it prejudice substantially outweighs the probative value
ii. Avoids decisions on purely emotional basis, wasting time
iii. Unfair prejudice means that it has an undue tendency to suggest a decision on an improper basis (usually an emotional basis)—all evidence prejudices, we need unfair prejudice
1. Old Chief: Probative value should be determined by comparing the evidentiary alternatives to the item—is something is similarly probative but less prejudicial, admit it
iv. Favors admitting relevant evidence in all but the most grievous situations; should be applied sparingly and the counsel should be given the chance to present it in another manner
v. The court should consider the importance of the fact of consequence the evidence supports, the alternative proof, potential for a limiting instruction.
vi. The more it looks like propensity, the greater the prejudice
vii. Classic 403 Problems
1. Probability—statistics showing that it is probable a person did it (DNA is an example that is usually allowed, but often problematic because it will prejudice or mislead)—only in criminal
2. Graphic Descriptions: Things that make the jury physically ill—must be very bad to overcome probative value, but can argue there is alternative evidence—lose your lunch
3. Reenactments: They must be substantially similar to the event
4. Similar Happenings: They must be substantially similar to the event in question; common uses include 1) Accidents or defective products; 2) Sales of property or services; 3) Prior course of dealings between the parties; 4) Prior custom or usage in industry
5. Scientific evidence
6. Prior dealings
V. Authentication, Identification and the “Best Evidence” Rule
a. Authentication may be obtained through a pleading, by a request to admit, by deposition, interrogatory, or as a result of a pretrial agreement; or it can be introduced at court
b. Even if authenticated, the evidence may not be admissible if it does not meet 403, a hearsay exception or is not relevant
c. Samples must be representative of the mass if it is to be entered
d. Must show that a thing is what it is said to be, this is very low—jury just needs sufficient evidence (can include testimony of a witness who is then cross-examined)
e. Rule 901. Requirement of Authentication or Identification: Authentication is satisfied by evidence sufficient to support a finding that the matter is what its proponent claims—(once you have authenticated, you have established 104(b) foundation)—contrary evidence goes to weight jury should give evidence, not admissibility ; examples include:
i. Testimony of a witness with knowledge: Testimony proving it is what they claim—must be personal knowledge acquired by any of the five senses
1. If the evidence is distinctive, someone can testify to it, but if it is not (ex. narcotics) you must hear from each individual who saw it and they must say it remained in essentially the same condition
ii. Non-expert opinion on handwriting: Verifies a person’s handwriting based upon familiarity with it not acquired for purposes of litigation (they see it a lot)
1. Ex. Must prove that a letter was actually written by the defendant
2. Can acquire knowledge by watching a person write or by conducting correspondence with them
3. Need an assertion of familiarity and description of the situation in which knowledge was acquired
4. Can testify in less than absolute terms (ex. “I believe”) and the jury will weigh it
5. Cannot testify rely upon familiarity developed for the purpose of litigation
6. Where a genuine issue is raised about the validity of a document, an expert will be required since a layperson is unfamiliar with the subtleties of handwriting analysis
iii. Comparison by trier or expert witness: Comparison with other previously authenticated items
1. Comparing two things side by side to show that they have similar enough characteristics that (Ex. ballistics, handwriting, fingerprints)
2. Can be done by the trier of fact alone or with help from an expert
3. Once the authenticated sample is admitted, counsel can present it in modified form (blown up) to demonstrate graphically the similarities or differences of the disputed item
iv. Distinctive characteristics: Appearances, contents, substances taken in conjunction with the circumstances
1. Ex. A letter may be admitted without handwriting analysis if it contains information that people other than the sender are not likely to possess
2. If something is proven to be a reply to a letter, call, etc. can be authenticated based on its contents
v. Voice Identification: Identification of first hand or through mechanical transmission based upon hearing it at any time under circumstances connecting it with the speaker
1. A witness who is familiar with a voice from before or after the transmission can testify to it