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Evidence
Elon University School of Law
Friedland, Steven I.

Evidence Outline
Fall 2007
I. Organization of the Trial
A. Flow of the case: in the usual case, the Π presents first, followed by the Δ. This is because the Π has the burden of proof and is given the compensating advantage of presenting his case to the jury.
1. Motions in Limine: alerts the court before the trial as to things you think might be unfairly prejudicial or otherwise inadmissible
a. When deciding admissibility, the judge is not bound by the FRE and may consider inadmissible evidence, such as hearsay, in making his determination.
b. Conducted out of the hearing of the jury
c. A criminal Δ who testifies about a preliminary matter does not become subject to cross examination as to other issues in the case
2. Opening Statement: the Π makes his opening statement first. Then the Δ may make his opening statement (thought many courts allow him to reserve his opening statement until the end of the Π)
3. Π case: the Π puts on his case in chief, which means s/he presents the witnesses, as well as documents and other tangible evidence, to establish the facts needed for him to prevail.
4. Δ Case: after the Π rests, the Δ presents witnesses or documents to disprove the elements of the Π case and/or establish affirmative defenses.
5. Π Rebuttal: after the Δ rests, the Π gets a chance to rebut—s/he may call additional witnesses, recall former witnesses, or present new evidence, but this may be done only to rebut the Δ evidence, not to foster his own case in chief.
6. Δ Rejoinder: he may rebut evidence brought out in the Π rebuttal
7. Closing Arguments: the Π generally goes first, then the Δ, then the Π gets a chance to rebut the Δ closing remarks.
8. Instructions: judge will explain to the jury the applicable law.
B. Roles of the Judge and Jury:
1. Judge: the role of the judge is to determine whether evidence is to be admitted or excluded
a. Questions of Admissibility: judges must decide whether to sustain or overrule objections.
i. The determination should be based on a preponderance of the evidence and the judge may consider outside, inadmissible evidence except privilege
b. The Standard of Review on Appeal: an appellate judge does not re-try the case, but must take the record “as is.”
i. The standard of review varies, depending on the nature of the issue.
a) Variables include the type of error, and whether the error occurred in a criminal or civil trial.
b) The standards of review include review for abuse of discretion, review de novo and review for plain error.
ii. Reversible error cannot generally be found in an evidentiary ruling unless the error caused harm that rendered the trial process unfair.
c) The FRE state that the error must affect a substantial right of the aggrieved party.
2. Jury: the triers of fact, the jury weighs the evidence, reaches a decision about what the facts are, and decides how the law applies to those facts.
3. Attorneys: are responsible for offering evidence and persuading the trier of fact about how the evidence supports their clients’ arguments.
a. If counsel fails to create an accurate and specific record of objections—unless the error is evident and satisfies the plain error rule—or does not make a proffer about what excluded evidence would have shown had it been admitted, the appellate court may properly refuse to hear the issue on appeal.
b. If the evidence is excluded, the attorney must make a proffer (see page 4 below)
II. What is Evidence?
A. “That which the trier of fact considers”
1. Definitions of Evidence
a. Proof of a cause of action, claim, or defense
i. The “stuff” offered by the parties at trial to prove the elements of the claim, it is offered through marked tangible material called exhibits and oral testimony by witnesses
ii. Evidence is either admitted or excluded
b. The rules governing the admissibility and exclusion of proof at trial
i. Designed to guide how a judge conducts a trial, the rules contain numerous evidentiary “foundations”—procedures and judicial findings that are prerequisites to the admissibility of evidence at trial
c. The things that jurors can take back with them to the jury room for the process of deliberations that have been admitted in evidence
i. Refers to the special proof the jury can take into the jury room during deliberations
2. Types of Evidence
a. Direct Evidence– evidence which, if believed, automatically resolves the issue. It proves a fact—generally an important fact—without requiring any inferences.
i. Example: “I saw Joe strangle Bob.”
b. Circumstantial – evidence which, even if believed, does not resolve the issue unless additional reasoning is used. It is relevant if an inference to be drawn from it bears on the fact in issue.
i. Sometimes called “Indirect evidence” – meaning at least one inference is to be drawn.
ii. Example: “I saw Joe running from the place where the body was found.”
c. Testimonial – arises when witness makes assertions in court. The fact-finder must rely on witness’s interpretation of witness’s sensory data, memory, etc.
i. Kinsler – defined as in-court or out-of-court assertions by humans offered for the truth of the matter asserted.
ii. Comes from the witnesses viva voice (by voice)
d. Real Evidence– is the physical, tangible thing itself
i. Ex) a weapon, a document, or other tangible item.
ii. Kinsler – objects that had a direct or indirect part in the event at issue in the litigation, such as a murder weapon, piece of exploding bottle, or article of clothing. It also includes the exhibition of injured parts of the body. Real evidence provides the trier of fact with an opportunity to draw a relevant first hand impression.
e. Demonstrative/Representative – is a tangible item that illustrates some material proposition; it represents something else
i. Ex) a chart, map, summary, picture.
ii. Kinsler – Documentary Evidence: all writings (whether handwritten, typed, or printed), photographs, x-rays, videotapes, motion pictures, tape recordings, telegrams, and other tangible forms of expression. This evidence includes both originals and copies.
f. Expert Evidence – also referred to as “expert testimony” is defined as evidence concerning a scientific, technical, or professional issue given by a person qualified to testify because of familiarity with the subject or special training in the field.
g. Judicial Notice – defined as a court’s acceptance, for purposes of convenience and without requiring a party’s proof, of a well-known and indisputable fact.
III. Federal Rules of Evidence
A. Purpose
1. Promote fairness by providing an equal playing field for the parties in the courtroom
2. Promote efficiency by excluding evidence that is irrelevant, evidence that might cause unfair prejudice, and evidence such as subsequent remedial measures, offers to compromise, offers to pay medical expenses, etc.
3. Advance uniformity by telling judges what types of convictions can be sued to impeach a witness and when character evidence is permissible
B. Importance
1. Enacted by Congress, these rules apply to all trials in federal courts
2. 42 states have adopted them (either in whole or in part), including NC

in question happened.
iii. “A brick is not a wall”
a) it is not necessary that the evidence render the fact more probable than not, but it is necessary that the evidence make it more probable than it would be without the evidence
b) “it is not to be supposed that every witness can make a home run”—notes to FRE 401
iv. Proposition can remain improbable, just not impossible
a) Any tendency to make it more probable than not
i) If it involves other people, places, or times, it is less probative
b. A fact of consequence to the determination of the action
i. The evidence can be properly provable in a case.
ii. These are facts that relate to the elements of a claim, cause of action, or defense to the credibility of a witness, or to helpful background information.
4. Conditional Relevance: when relevance of evidence depends upon the existence of a separate fact, the evidence is considered “conditionally relevant.”
a. Will be admitted by the judge if there is sufficient evidence for a reasonable jury to find by a preponderance of the evidence that the fact in question exists.
i. Rule 104(b) attempts to limit the judge’s fact-finding role in this area to screening out allegations that clearly could not rise to the level of acceptable facts (meaning rumor and innuendo are insufficient) and would therefore waste the time of the jury
a) Rule 104(b) gives judges discretion to conditionally admit evidence so long as the evidence will be “connected up” at a later time by proof of the missing fact.
b. A type of competency requirement, it demands that evidence have minimum level of connection to the facts of the case.
i. Without a sufficient showing of a connection, the evidence is incompetent an ineligible for consideration by a jury
c. Provides flexibility to attorneys in controlling what evidence to present and in what order
d. Rule 104(b) gives judges discretion to conditionally admit evidence so long as the evidence will be “connected up” at a later time by proof of the missing fact.
5. Test of Relevancy
a. “Materiality” inquires whether there is any rational relationship or pertinence of the offered evidence to any provable or controlling fact issue in dispute
i. Material Relationship: the evidence must be material, so there must be a link (direct or inferential) between the claim and the evidence presented
b. “Relevancy” inquires whether the offered evidence has probative value tending to establish the presence or absence, truth or falsity, of a fact
c. Test: is it material? If not, exclude. If yes, and only in that event, is it relevant? If not, exclude; if yes, admit.
6. Limited Relevance: when evidence is admissible for one party or purpose but not for another, the judge shall, upon request, restrict the evidence to its proper scope and instruct the jury accordingly.
B. Relevant but Inadmissible (FRE 403 and 404)