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Elon University School of Law
Exum, James G.

Evidence Outline – Fall 2011 – Judge Exum
I.       Introduction
A.    Overview of Rules
                                                              i.      FRE 100 – Scope, Purpose
1.      101 – rules apply in
a.      United States Courts
b.      Magistrate Courts
c.       Bankruptcy Courts
d.      Exceptions in 1101
2.      102 – gives rationale for rules which are good to argue.
a.      Construed to promote:
                                                                                                                                      i.      Fairness
                                                                                                                                    ii.      Elimination of unjustifiable expense & delay
                                                                                                                                  iii.      Development of law
                                                                                                                                  iv.      Truth & justice
                                                            ii.      FRE 200 – Judicial notice
                                                          iii.      FRE 300 – Presumptions – when state law applies
                                                          iv.      FRE 400 – Relevancy and its limits
                                                            v.      FRE 500 – Privileges
                                                          vi.      FRE 600 – Witnesses
                                                        vii.      FRE 700 – Expert Witness
                                                      viii.      FRE 800 – Hearsay
                                                          ix.      FRE 900 – Authentication of Documents
                                                            x.      FRE 1000 – Documents
                                                          xi.      FRE 1100 – Applicability and amendments
B.     Purpose of Evidence:
1.      To prove a case
2.      To impeach a witness
C.    Categories of Evidence
                                                              i.      Real – physical, tangible (i.e. gun, tree trunk)
                                                            ii.      Representative – that represents another thing (i.e. blue print, photo)
                                                          iii.      Testimonial – comes from witnesses viva voce (by voice) (i.e. neighbor telling XYZ)
                                                          iv.      Direct – evidence tends to prove a fact without any inferences; evidence which if believed resolves the issue
                                                            v.      Circumstantial  – inference must be drawn for evidence to be relevant; if the circumstances are accepted as true, additional reasoning is required to reach the desired conclusion
The first ? to ask is what is the evidence seeking to prove?
D.    Objections – Rule 103
                                                              i.      Federal Rules
Be sure to object stating your specific grounds b/c on appeal you can’t change your grounds
1.      if evidence is admitted à counsel must object, move to strike stating the specific ground
2.      if evidence is excluded à counsel must make offer of proof or “proffer” (tells the court you are doing this for the record) of substance evidence (no need to continue to object or make proffer if the court makes a “definitive ruling” before or during trial)
                                                            ii.      North Carolina
1.      no particular form required if objection or motion “clearly presented alleged error to the trial court”
E.     How to keep inadmissible evidence from the jury
                                                              i.      Bench conference
                                                            ii.      Voir dire w/ jury excused
                                                          iii.      Chambers conference
                                                          iv.      Motion in Limine – motion made before trial usually to keep evidence out
1.      For NC, counsel must also object or make proffer at trial (different from FR)
F.     Standard of Review on Appeal
                                                              i.      Federal
1.      When objection is raised at trial
a.      2 Part Test – evidence must affect:
                                                                                                                                      i.      A substantial right of a party, AND
                                                                                                                                    ii.      Be an abuse of discretion (could not have been the result of a reasoned decision; totally unsupported by reason)
2.      When NO objection is raised at trial – Plain Error (FRE 103(d)
4 Elements
a.      Error
b.      Clear & obvious under current law
c.       Affects substantial right
d.      Seriously affects fairness, integrity or judiciary’s reputation left uncorrected
                                                            ii.      North Carolina
1.      When No objection is raised at trial – Plain Error
a.      103(d): “Appellate court may review errors affecting substantial rights if it determines, in the interest of justice, it is appropriate to do so”; case law: “a fundamental error, so basic, so prejudicial that justice cannot have been done and had a probable impact on jury’s finding)
b.      Not applied in civil cases
G.    Who Decides?
II.    Functions of Judge/Jury/Attorney at Trial
A.    Federal – FRE 104 – purpose is to allocate the functions between judge & jury
Huddleston v. US, p. 100 (D was charged with sale of stolen video tapes.  D argued that he received the tapes from someone else and he was not aware that the tapes were stolen.  Prosecution present a witness who testified that he had bought stolen TV sets from D.  Also, an undercover agent testified that D had agreed to sell stolen merchandise to him. D was not charged and convicted for these previous crimes.  D claims that before such evidence can be used, the prosecution must prove by preponderance of the evidence that the other crimes did in fact take place. D argues 104(a) that before the prosecution can offer the evidence, the trial court must decide even if it happened as a matter of law during a preliminary hearing. The court found that it was a 104(b) issue, that it wasn’t a legal matter but rather for the jury to decide
                                                              i.      FRE 104(a) – when admissibility rests on some preliminary legal question (i.e. witness qualification, existence of privilege, proper foundation) the judge alone decides and except for rules relating to privileges, the rules of evidence do not apply
                                                            ii.      FRE 104(b) – deals with factual questions
1.      Conditional relevance – relevance of item of evidence offered depends on additional facts
a.      When evidence conditionally relevant is offered, a court may admit the evidence to later fact(s), however the evidence must be sufficient to support a jury’s determination that additional fact(s) are true.
b.      The judge decides the sufficiency
c.       The evidence must be admissible under the rules of evidence
d.      The jury ultimately determines the truth of the additional facts
                                                          iii.      FRE 104(c)
1.      Hearings on the admissibility of confessions must be conducted out of the hearing of the jury
2.      Hearings on other preliminary matters should be conducted out of the hearing of the jury “when the interests of justice require, or when an accused is a witness and so requests”
B.     North Carolina
                                                              i.      NCRE 104 – All motions to suppress in criminal cases must be heard outside of the jury’s presence
III. Relevance (FRE 400’s)
A.    Defined in FRE 401– probative of a fact of consequence
                                                              i.      Probative = evidence must tend to make some fact more or less probable
                                                            ii.      Fact of consequence = something to do with the issues that are being tried; make a difference in the case
B.     Miscellaneous Notes

erators involved, you must be careful
Old Chief v. US, p. 69 – ∆ was charged w/ possession of a firearm while a felon; prosecution offered evidence of ∆’s prior conviction; the court held that this was an error because of the danger that the jury would consider the evidence as evidence of propensity to commit crime and reason that oenwith such propensity is more likely to commit the crime charged. RULE: Propensity as evidence of guilt is an improper basis for conviction
State v. Hennis (BlackBoard) (NC 1988) – prosecution offered 35 excessive & repetitive photographs of autopsy and other photos when the ∆ had already stipulated to the cause of death. The court found this was a reversible error
Note: In NC, hypnotically refreshed testimony isn’t allowed
B.     Character – *Be sure to use rule number & section numbers on exam; *Also, review slide from #6 (character evidence review)
                                                              i.      What is admissible?  (FRE 404)
1.      Propensity character evidence – evidence of character or character trait, offered to prove that a party acted in conformity therewith on a particular occasion à NOT ADMISSIBLE (FRE 404(a))
a.      Marginally relevant – faulty inference that people act consistently w/ their traits, but people change
b.      Public policy – we want parties’ conduct to be determined on basis of what they did or didn’t do, not on who they are
c.       Great potential for unfair prejudice – balancing test comes out greatly in favor of exclusion
2.      Exception:
a.      In a criminal case, a ∆ may offer evidence of a “pertinent trait” of character (404(a)(1))
                                                                                                                                      i.      Pertinent trait = relevant to the crime charged
                                                                                                                                    ii.      ∆ can show his or the accuser’s character
b.      Only then can the prosecution offer character evidence to rebut the same (404(a)(2))
c.       In a homicide case, if ∆ offers evidence that deceased was the aggressor, prosecution can rebut with evidence that deceased had a character trait of peacefulness (404(a)(2))
3.      404(b) Other crimes, wrongs or acts are admissible to prove any other fact of consequence at issue (i.e. motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident, and guilty knowledge)
4.      North Carolina
                                                                                                                                      i.      404 – “rule of exclusion” State v. McCoy, 317 NC 519 (1986)
                                                                                                                                    ii.      404(b) – “rule of inclusion) State v. Coffey, 326 NC 268 (1990) & NC “
                                                            ii.      Methods of Proof (FRE 405) – providing the character is admissible under 404, 405 provides the only method of proof
1.      Testimony as to reputation or opinion and then on cross, the inquiry into specific instances of conduct 405(a)
2.      In cases in which character or a trait is an essential element of a charge, claim or defense, proof may be made by opinion, reputation OR specific instances/acts of that person’s conduct (405(b))