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Elon University School of Law
Exum, James G.

FALL 2013
Evidence – is proof of facts, which are what on can observe and relate through the senses of sight, hearing, touch, or smell, or which one can calculate, and through opinions, from either an expert or a lay witness.
Admissible evidence – generally, to be admissible, evidence must be both relevant to a claim or defense or credibility of a witness, and not otherwise excludable under the rules.
Evidence includes preliminary stages prior to the formal filing of suit, the pre-trial process, trial, and then post-trial issues on appeal.
Evidence can be offered in each party’s case-in-chief or in the parties’ rebuttal cases.
Evidence is used to prove the elements of a claim, cause of action, or defense.
Applicable Rules
·         FRE 101.  Scope; Definitions
o    (a) Scope.  These rules apply to proceedings in the United States courts.  The specific courts and proceedings, to which the rules apply, along with exceptions, are set out in FRE 1011.
o    (b) Definitions.  In these rules:
§  (1) “civil case” means a civil action or proceeding;
§  (2) “criminal case” includes a criminal proceeding;
§  (3) “public office” includes a public agency;
§  (4) “record” includes a memorandum, report, or data compilation;
§  (5) a “rule prescribed by the Supreme Court” means a rule adopted by the Supreme Court under statutory authority; and
§  (6) a reference to any kind of written material or any other medium includes electronically stored information.
·         FRE 102.  Purpose
o    These rules should be construed so as to administer every proceeding fairly, eliminate unjustifiable expense and delay, and promote the development of evidence law, to the end of ascertaining the truth and securing a just determination.
Meanings and Uses of Evidence
·         The term evidence is given special meaning by the FRE and takes on greater significance to mean “the admissible proof” or “the proof that can be properly considered by the trier of fact.”
·         Evidence is generally offered at trial to prove a party’s case, meaning the elements of that party’s claim, cause of action, or defense.
·         Evidence can be offered for other purposes as well, particularly the credibility of witnesses.
·         Some evidence has the dual function of attacking a witness’s truthfulness and proving the case.
·         Not all evidence a party might offer will be admitted for consideration by the trier of fact.  Some evidence, deemed irrelevant, is not useful to the jury’s determination of the issue in the case.
·         There are at least three different commonly used definitions of the term “evidence.”
o    Proof of a cause of action, claim, or defense.
o    The rules governing the admissibility and exclusion of proof at trial.
o    The things that jurors can take back with them to the jury room for the process of deliberations that have been admitted in evidence.
Types of Evidence
·         One useful way to classify evidence is to categorize it as:
o    Real evidence – is physical, tangible evidence – the thing itself.
o    Representative evidence – is evidence that represents another thing – a diagram, chart, photograph, x-ray, etc.
o    Testimonial evidence – comes from the witness’s viva voce, meaning voice.
·         Evidence can also be categorized as either:
o    Direct evidence – proves a fact – generally an important fact – without requiring any inferences.
o    Circumstantial evidence – does not itself address a fact in issue; such evidence is relevant if an inference to be drawn from it bears on the fact in issue.
§  Thus, circumstantial evidence is used indirectly.
The judge, jury, and attorneys create the basic framework of the adversary trial system in the United States. 
The roles of judge, jury, and attorneys can vary, depending on the nature and purpose of the hearing.
Prominent among their responsibilities are the gathering, offering, objecting to, and admission of evidence.
Applicable Rules
·         FRE 103.  Rulings on Evidence
o    (a) Preserving a Claim of Error.  A party may claim error in a ruling to admit or exclude evidence only if the error affects a substantial right of the party and:
§  (1) if the ruling admits evidence, a party, on the record:
·         (A) timely objects or moves to strike; and
·         (B) states the specific ground, unless it was apparent from the context; or
§  (2) if the ruling excludes evidence, a party informs the court of its substance by an offer of proof, unless the substance was apparent from the context.
o    (b) Not Needing to Renew an Objection or Offer of Proof.  Once the court rules definitively on the record – either before or at trial – a party need not renew an objection or offer of proof to preserve a claim of error for appeal.
o    (c) Court’s Statement About the Ruling; Directing an Offer of Proof.  The court may make any statement about the character or form of the evidence, the objection made, and the ruling.  The court may direct that an offer of proof be made in question-and-answer form.
o    (d) Preventing the Jury from Hearing Inadmissible Evidence.  To the extent practicable, the court must conduct a jury trial so that inadmissible evidence is not suggested to the jury by any means.
o    (e) Taking Notice of Plain Error.  A court may take notice of plain error affecting a substantial right, even if the claim of error was not properly preserved.
·         FRE 104.  Preliminary Questions
o    (a) In General.  The court must decide preliminary questions about whether a witness is qualified, a privilege exists, or evidence is admissible.  In so deciding, the court is not bound by evidence rules, except those on privilege.
o    (b) Relevance that Depends on Fact.  What the relevancy of evidence depends upon whether a fact exists, proof must be introduced sufficient to support a finding that the fact does exist.  The court may admit the proposed evidence on the condition that the proof is introduced later.
o    (c) Conducting a Hearing So That the Jury Cannot Hear It.  The court must conduct any hearing on a preliminary question so that the jury cannot hear it if:
§  (1) the hearing involves the admissibility of a confession;
§  (2) a defendant in a criminal case is a witness and so requests; or
§  (3) justice so requires.
o    (d) Cross-Examining a Defendant in a Criminal Case.  By testifying on a preliminary question, a defendant in a criminal case does not become subject to cross-examination on other issues in the case.
o    (e) Evidence Relevant to Weight and Credibility.  This rule does not limit a party’s right to introduce before the jury evidence that is relevant to the weight or credibility of other evidence.
·         FRE 105.  Limiting Evidence That Is Not Admissible Against Other Parties of for Other Purposes
o    If the court admits evidence that is admissible against a party of for a purpose – but not against another party or for another purpose – the court on timely request, must restrict the evidence to its proper scope and instruct the jury accordingly.
·         FRE 106.  Remainder of or Related Writings or Recorded Statements
o    If a party introduces all or parts of a writing or recorded statement, an adverse party may require the intro

ce generally relates to what happened in the lawsuit – whether the gun was party of the robbery, a person was present at a meeting, or another person left a party at a certain time.
o    Such conditional evidence will be admitted by the judge if there is sufficient evidence for a reasonable jury to find by preponderance of the evidence that the fact in question exists.
·         Conditionally relevant evidence is like a chain with one or more of its links missing.  The missing link signifies the omitted but necessary separate fact.  When evidence is conditionally admitted, this means that counsel promises to supply the missing fact or facts at a later time in the party’s case-in-chief.
·         The admissibility of conditionally relevant evidence provides needed flexibility to attorneys in presenting their case.  It allows the attorneys to control what evidence to present an in what order.
Not all relevant evidence is admissible.
Applicable Rule
·         FRE 403.  Excluding Relevant Evidence for Prejudice, Confusion, Waste of Time, or Other Reasons
o    The court may exclude relevant evidence if its probative value is substantially outweighed by a danger of one or more of the following:  unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence.
·         Under 403, the court must administer a weighted balancing test (favoring admissibility) and decide whether the probative value of the evidence is substantially outweighed by one or more of the abovementioned forms of prejudice.
·         Unfair prejudice – evidence creates “unfair prejudice” when it has an undue tendency to suggest a decision on an improper basis, commonly, though not necessarily, an emotional one. 
o    Thus, the risk of unfair prejudice is that the jury may not be able to properly assess or evaluate the evidence. 
o    Not all evidence that poses a danger of unfair prejudice is excluded under this rule.
§  Under the FRE, the need for relevant evidence often is considered greater than the potential harm that could result from the admission of such evidence.
·         Thus, evidence that poses a danger of unfair prejudice is excluded only if the danger of unfair prejudice “substantially outweighs” the probative value of the evidence. 
·         Excluding evidence because it is unfairly prejudicial should be a last resort, occurring only after the judge has determined that a limiting instruction to the jury would be insufficient to offset any prejudice.
·         Common types of exclusion under FRE 403 include the following:
o    Probability evidence of guilt (specifically, the likelihood of another person with the same characteristics committing the crime charged);
o    Evidence depicting violence in a manner that is physically revolting;
o    Novel scientific evidence; and
o    Similar events, happenings, or occurrences.