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Faulkner Law - Thomas Goode Jones School of Law
Lester, Joseph L.

Lester                                                Evidence                                           Fall 2011
There are at least 3 commonly used definitions of “evidence” 
Proof of a cause of action, claim, or defense
The rules governing the admissibility and exclusion of proof at trial, and
What is in evidence, that is, the things that jurors can take back with them to the jury room for the process of deliberations 
Another way to classify evidence is as: 
Real–physical, tangible evidence, the thing itself
Representative–evidence which represents another thing–diagram, chart, photo, x-ray
Testimonial–comes from witnesses by voice (viva voce) 
Another distinction is: 
Direct–does not require an inference to be drawn from it to be relevant. Proves a fact, generally a material fact, without requiring any deductions.
Circumstantial–requires an inference to be drawn for the evidence to be relevant
Requirement of Authentication 
All evidence admitted at trial must first be authenticated.  
Authentication requires a basic showing that evidence is relevant to the case and reliable–that the evidence is what it purports to be. 
The Federal Evidence Rules on the subject are 
                    901           and             902 
The party offers the evidence as self-authenticating under Rule 902 
Procedures for Authentication 
Rule 102
To secure fairness
Elimination of unjustifiable expense and delay
Promotion of growth and development of the law of evidence 
After evidence is marked, identified, and shown to opposing counsel, there are three traditional questions to ask a witness for authentication purposes: 
Do you recognize prosecution/plaintiff/defendant's Exhibit #1 for identification purposes?
What is Exhibit # 1 for identification purposes?
How do you recognize it? 
A fourth question is sometimes needed for real or documentary evidence to ensure that it has not changed in such a way as to make it unfairly prejudicial. 
Witness, is Exhibit # 1 for identification purposes in substantially the same condition as it was when you last saw it? 
For representative evidence (photos) of something that could change over time, another question may be required: 
(Representative evidence) Is Exhibit # 1 for identification purposes a fair and accurate representation of what it depicts as of a particular time and date (when the incident in question occurred)? 
Practice Tip: 
Make sure the jury has an unobstructed view.
Pg. 878   Authentication Questions 
Testimonial Evidence
 Were you there?
Did you see anything?
What did you see? 
In some cases a chain of custody for the evidence must be shown. This is to ensure that no one from the source to the trial has been permitted to alter or tamper with the evidence. 
If evidence is authenticated it may be offered by a party “into evidence”–usually while witness is on witness stand. 
If evidence is admitted, it is the offering party's responsibility to request that it be “published” (shown) to the jury.
Burden of Proof 
Burden of Production (quantity)
–must satisfy ALL elements 
Burden of Persuasion (quality)
–as long as jury can find evidence persuasive, goes in
**Burden falls on moving party**
Making Objections
·         Objection to evidence must be timely–preferably before jury hears it
·         Objection must state specific grounds–using rules
Rule 103(b)
–Once the court rules 'definitely'
   –meaning if there is not a definite ruling, person should con

toward a fact of consequence.
RULE 402
Rules of evidence only limited by:
1.    Constitution
2.    Federal Statute
3.    Other rules proscribed by Supreme Court
·         Courts cannot make rule of evidence
·         No common law can limit Rules of Evidence
·         If conflict between common law rule and RoE, rules win.
RULE 403
The court may exclude relevant evidence if its probative value is substantially outweighed by a danger of one or more of the following:
1.    Unfair prejudice
2.    Confusing the issues
3.    Misleading the jury
4.    Undue delay
5.    Waisting time
6.    Needlessly presenting cumulative evidence
·         Can use limiting instruction or try to separate probative from prejudicial in one piece of evidence
RULE 404
·         Offer character trait of a person to prove they acted in accordance with their character at the time.
Rule 404(a)  Character Evidence
·         Evidence of a person’s character or character trait is not admissible to prove that on a particular occasion the person acted in accordance with the character or trait.
·         In criminal case, DEF may offer evidence of the DEF’s pertinent trait, and if the evidence is admitted, prosecutor may offer evidence to rebut it.
·         DEF may offer evidence of an alleged crime victim’s pertinent trait, and if the evidence is admitted, the prosecutor may:
–offer evidence to rebut