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

EVIDENCE OUTLINE
Fall 2006 – Lester

I. Purpose and Construction of Evidence Rules
a. Rule 102: These rules shall be construed to secure
i. Fairness in administration
ii. Elimination of unjustifiable expense and delay
iii. Promotion of growth and development of the law of evidence
iv. So the truth can be ascertained
b. Generally
i. Look to the principles of Rule 102 when stumped
ii. Types and forms of evidence
A. Real: the thing itself (hammer, teeth, letter)
B. Representative: Similar to, description of (map diagram).
C. Testimonial: (words) where most of the evidence comes from in trial
D. Direct: on point, needs no extrinsic evidence
E. Circumstantial: requires an inference, needs extrinsic evidence (where evidence becomes an issue).
iii. Authentication: Process of getting stuff in
A. What? (Is information to be entered
B. Who? (Is trying to offer the information).
C. When? (They are trying to offer).
D. Why? (They are trying to offer).

II. Rulings on Evidence
c. Rule 103
i. (a) Effect of erroneous ruling: error may not be predicated upon a ruling unless a substantial right of the party is affected, and
A. Admitting evidence: If the ruling is one admitting evidence, then a timely objection or motion to strike
a. Appears of the record
b. Stating the specific grounds of the objection if not apparent
B. Excluding evidence: If the ruling is one excluding evidence, the substance of the evidence was made known to the court by offer, or was apparent from the context of the questions.
ii. (b) Record of offer and ruling: the court can add anything else to the record that shows
A. Character of evidence
B. Form which it was offered
C. Objections made
D. And ruling
iii. (c) Hearing of a Jury: conduct proceedings so jury does not hear inadmissible evidence
iv. (d) Plain Error: nothing precludes taking notice of error that effects a substantial right of a party even if they were not brought to the attention of the court.

d. Generally
i. Make sure you file a timely objection when the court is admitting evidence to make a record for a appeal
ii. Make offer of proof when the court is excluding evidence to make record for appeal
iii. Once these are made, no reason to object again or make another offer of proof on the same subject
iv. Standard of Appeal
A. Judge made wrong decision: kept something out that should have been let in and vice versa
B. The ruling affected a substantial right of a party (verdict hinged on the error); involves a “but for” analysis where it would have changed in the other direction had the ruling been different
C. Harmless Error Rule: if the error is one that was just a bad break, and regardless of what the court would have done it would not have made a difference in the outcome, then there will be no reversible error.
v. Appellate courts give tremendous deference to the trial jury, so likelihood of winning an appeal is slight
vi. Rule 103 (b) just says don’t present inadmissible evidence to the jury, use sidebar or something like that, because you could face a mistrial
vii. Rule 103 (d) just says if something absolutely atrocious happens in the courtroom (D throws birthday party for one of the jurors), then it can be taken on appeal.
viii. Roles of the players in court:
A. Judge:
a. Keeper of law
b. Gatekeeper in deterring what comes in
c. Evidence will be presumed as admissible unless another party objects to it because the judge is passive
B. Lawyers: Must represent your client zealously but must represent while upholding ethical standards. Must go thought the judge to get evidence in
C. Role of Jury: Finder of fact. What they hear and the judge determines how they perceive.

III. Preliminary Questions
e. Rule 104:
i. Generally: the court will determine preliminary questions while at the same time, will not be bound by the rules of evidence except to those based on privileges:
A. Qualifications of witnesses
B. Existence of a privilege
C. Admissibility of evidence
ii. Relevancy conditioned on a fact: The court can admit evidence that depends on a condition of fact if it will be entered later. However, if the conditioned fact is not entered later, the existing evidence can be tossed.
iii. Hearing of a Jury: admissibility of confessions will be heard by a jury, but other questions of preliminary matters will be conducted as justice requires
iv. Testimony by accused: The accused will not become subject to cross of other matters when testifying on a subject
v. Weight and Credibility: No limit to the right of a party to introduce relevant evidence to weight and credibility to a jury
f. Generally
i. Reasonable Jury Standard: In determining the credibility of evidence, the judge can only look to see whether a reasonable juror could make an inference that the evidence is credible.
ii. Burden of Proof: If you don’t hold your burden of proof, then you face a motion for directed verdict
A. Production: must meet the evidence quantity required. Generally, the moving party always has the burden of Production
B. Persuasion: Must meet the evidence quality to persuade the jury that the evidence is sufficient to uphold a verdict. Must meet this to sustain preponderance of the evidence or reasonable doubt.
iii. In determining whether something is relevant, the court can consider all types of information to forward even if it will probably not be admitted.

IV. LIMITED ADMISSIBILITY
g. Rule 105: the court, upon request, should limit the use of evidence to its proper scope when that evidence has previously been determined as admissible for one purpose and not another.
h. Generally: This occurs when evidence is entered to support Fact 1 (motive), but they try to use it to support fact 2, 3, 4, or 5 (Like for its truth, state of mind, or something else).

V. REMAINDER OF OR RELATED WRITINGS OR RECORDED STATEMENTS
i. Rule 106: When a writing or recorded statement is entered, opposing party can enter into the record related materials to put it into context.
j. Example: P offers photograph, D offers report that talks about photograph.

VI. ARTICLE 4 – RELEVANCE
k. Rule 401
i. Definition: Relevant evidence means
A. Evidence
B. Having any tendency
C. To make the existence of any fact of consequence
D. To the determination of the action
E. More probable or less probable
ii. Generally
A. To meet 401 relevance, you need to explain how a reasonable person can lead to a particular conclusion more or less probable
B. If you can explain that the information is a fact of consequence, then it will be for a jury to decide, NOT A JUDGE
C. Remember Rule 104, where if the evidence is conditioned on another fact that will be entered later, you c

by the prosecution
i. These are Generally Not Propensity:
1. Motive: This explains the reason why, but the identity of the assailant cannot be in question. Can only be shown as to why the already named defendant did what he did.
a. Be aware of when the Defendant says “It wasn’t me.” See problem 5-70
2. Opportunity: Means special access or present at the scene of the crime or possessing unusual skills or traits.
3. Intent: Show that person had knowledge as to what they were doing
a. Doctrine of Objective Chance: The repeated occurrence of unusual events shows there is no mistake, and that their mental state was very clear as to what was happening
b. Example: Max Grabelsky’s constant acts to keep the OCTF uniformed shows his knowledge of what he was doing and his intent to commit conspiracy. Were not just one thing, but also several?
4. Preparation
5. Common Plan, Scheme, or Design: have to show very specific instances to put the plan or scheme together
a. Very rare instance
b. Has to be very specific facts that point to Common Scheme.
c. Good Answer to one of these is that you don’t have enough information to draw whether there was a common plan.
6. Knowledge: Person knew what they were doing when they did it. This is much like Intent.
7. Identity: Requires something so unusual and distinctive that it is like a signature. This is used to identify the assailant.
a. Example: The wet bandits on Home Alone.
b. Have to show all the unique factors.
c. Look at problem 5-66; it is a place where you could make the argument either way for propensity or identity.
8. Absence of mistake or accident
9. Rule 406 Habit: Means that the person’s character trait is so strong that it is a specific response to a specific circumstance. Generally, habit happens automatically without even thinking.
a. Individuals: Very difficult to prove habit of an individual
b. Business or Industry: Are very lax with the rules and will be accepted at face value as habit.
ii. Other for 404(b)
1. There is a notice requirement for this, so take note
2. These are so close to propensity that there will always be a 403 projection.
B. Generally for 404
a. Character evidence rules are designed to be a shield, but the rules allow for one to let his shield down (dumbass), and then the opposing side can bring in evidence against them.
b. Propensity Evidence
i. Definition: You have done these things before, so you probably did it this time
ii. Generally not allowed because it is unfairly prejudicial
c. The character trait offered has to relate to the charge at hand – it must be pertinent. Examples of when it is not:
i. He is a drug dealer so he is peaceful – not