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Charleston School of Law
Lund, Paul E.


First Half of Semester

Day 1


Federal Rules of Evidence adopted in 1975

Adopted rules based on Federal in 44 states and Puerto Rico

Not adopted in: California; DC; Kansas; Massachusetts; Virginia; Missouri; NewYork; Virgin Islands

Still many states have variations

Federal Rules are on the BAR exam

History of the Federal Rules

-there weren’t evidence codes that were adopted widely prior to 1975

-before then, most evidence rules were common law rules, with scattered statutes

-1975-largely codified the common law rules

Steps in rule adoption/amendment

-advisory committee (judges, attorneys, limited amount of professors)

-recently restyling project rewrote the whole set of rules (Dec. 1, 2011)

-any proposed change of the rules goes to the Supreme Court (who can reject but rarely do)

-then goes to Congress for approval-becomes law unless Congress moves to oppose

Every rule has advisory committee notes-legislative history/intent of writers

Applicability of federal rules

Only apply to federal courts

When do the evidence rules apply? During trial…period.

Purpose is to govern what evidence is admissible at trial.

Issues can come up before trial. E.g. In Discovery an issue can arise asking if an item can be admissible.

Motions to exclude evidence can be made before trial. Motions in Limine

Rules of Federal Evidence apply to both Civil and Criminal trials with occasional variations.

Apply equally to both jury trials and bench trials

In a bench trial if a judge excludes evidence…he has already seen the evidence!!!

Typically less than 5% of civil cases go to trial and most criminal cases plead out and do not make it to trial

But just because you may not get to trial…you need to know what will be admissible or not.

For purposes of bargaining with the other side

And transactional lawyers still have a duty to preserve evidence

Types of Evidence

Testimonial Evidence -testimony provided by a witness-what they saw, smelled etc. May be presented through live witness in court, or through hearsay.

There is a threshold requirement that has to be met for any witness that they have personal knowledge of what they are speaking about. Rule 602.

Real Evidence- tangible things, paper, weapons, drugs etc. Item is marked as an exhibit for identification. Before the item is admitted into evidence, it must be authenticated (must show that it is what you claim it to be).

Demonstrative Evidence- charts, diagrams that are used to illustrate and explain other evidence in the case

Direct vs. Circumstantial Evidence

Direct evidence-evidence which, if true, directly proves a fact without inference or presumption

Circumstantial evidence- evidence that requires the fact-finder to draw an inference in order to reach a factual conclusion

Questioning of Witnesses

-Direct examination-conducted first by the side that calls the witness

-cross-examination- other side gets a chance after direct examination is over

(limited to scope of matters asked on direct exam Rule 611(b))- if you want to ask questions outside of the scope you can then call them as your own witness

-redirect examination-limited to matters covered on the cross-examination


Objections and Offers of Proof

-party making objection to evidence must promptly state the objection and make the grounds clear

-promptly so the judge has adequate time and information to make correct ruling

-if not promptly objected to then it is entered into evidence

-if the objection is sustained (the evidenc

Evidence is relevant if:

a) it has any tendency to make a fact more or less probable than it would be without the evidence; and

b) the fact is of consequence in determining the action.

Two parts to this definition

Materiality- must relate to a “fact that is of consequence in determining the action.” Under the Common Law called “materiality”.

Probative- must have a “tendency to make that fact more or less probable than it would be without the evidence.” Logical relativeness or probativeness. More or less probable.

Evidence is excluded as irrelevant if it fails to meet either one of these requirements.

It is actually not a very heavy burden-low threshold

Under Common Law-relevancy and materiality were distinct and separate

Under the Federal Rules they have been combined

First steps to figuring out if evidence can be admitted:

Before the test for relevance; there are three questions to ask

-First, what am I trying to prove? What fact or proposition is the evidence being used to prove?

-Second, is that proposition provable in the case? (Is it material?)

-Third, does the evidence help in proving or disproving the proposition? (Is it probative?)

Key point: Relevance cannot be determined in the abstract

-relevancy exists only as a relation between an item of evidence and a proposition sought to be proved. (Relevance is relational)

-eg. The example given in book regarding testimony as to the decedent’s salary.