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Faulkner Law - Thomas Goode Jones School of Law
Yates, Sharon

Yates Evidence Fall 2015


The Federal Rules of Evidence apply in ALL civil and criminal cases, including bankruptcy, EXCEPT in:

Preliminary determinations of fact by a judge
Grand jury proceedings
Probation and sentencing hearings
Obtaining a warrant
Bail proceedings
Other proceedings that Congress has exempted from the FRE

Rulings on Evidence 103

Under appeal, a court will only reverse based upon whether the trial court admitted or excluded evidence and the existence of prejudicial error.

MUST have been prejudicial error, AND
Proper objection or an offer of proof made ON THE RECORD.

It is not the judges job to object for the attorneys
Timely objection is an objection that happens right after the question is asked. If the witness has already answered, then the objecting counsel should make a motion to strike that testimony from the record.
EVEN if an objection was not made, if the issue is obvious and affects a substantial right of the defendant, i.e. is highly prejudicial, then the court can base it’s reversal on this.
A proper objection must state the precise legal grounds upon which which the objection is based.

If the judge admits the evidence over a valid object, that is sufficient to preserve an issue for appeal.
If the judge excludes evidence based on valid objection, a proffer must be made for the record in order to preserve the issue for appeal.

Preliminary Questions (104)

The party admitting the evidence has the burden to establish the preliminary facts (competency, qualifications of witnesses, unavailability, or privilege) by a preponderance of the evidence.
The judge make preliminary determination on admissibility

The judge is NOT bound by FRE except in regards to privilege.

The jury determines the weight and credibility.
The judge can give jury instructions.

If a judge finds that evidence depends on a finding of fact by the jury, he can (if he think a reasonable juror would find as such) admit the evidence and instruct the jury to only consider the evidence of they find the required fact.

Judge can excuse the jury when making preliminary determinations
By testifying on a preliminary issue, the accused is not waiving his 5th Amendment privilege against self-incrimination.
If evidence is admissible for one thing and not another, the judge must instruct the jury accordingly (105)

Counsel must request a limiting instruction.

Rule of completeness 106 : if one party admits part of a writing or recording, the other party can require/request the rest of the writing or recording to be admitted in order to prevent misleading the jury about the content of the writing or recording.

Judicial Notice

The court can accept certain matters as true without the requirement of formal proof, on its own or by request, if:

It is generally known with the trial court’s territorial jurisdiction, OR
Can accurately and readily be determined from sources whose accuracy cannot be reasonably questioned.

Judge CANNOT take judicial notice just because he has knowledge of something.
Judge MUST take judicial notice if a party requests it IF the court is supplied with the necessary information.
Court MUST take judicial notice w/o request of either party when the issue is

Federal and state law (constitution, case law, procedural rules, etc.)
Indisputable facts and scientific propositions

Once a fact is judicially noticed, no contradictory evidence is permitted on that issue.

Civil: MUST accept any judicially noticed fact as conclusive
Criminal: MAY, but not required to, accept a judicially noticed fact as conclusive.


The party having the burden of persuasion general has the initial burden of producing legally sufficient evidence as to each element of a claim or defense that a reasonable trier of fact could infer proof of the facts alleged.

Preponderance of the Evidence
Clear and Convincing Evidence
Beyond a reasonable doubt

A presumption is a procedural device that shifts the burden of going forward to the opposing party.

An inference that may be drawn when one set of facts (basic facts) establishes a very high probability of the existence of another set of facts (ultimate or presumed facts) absent a contrary showing. Upon introduction of this contrary evidence, under the bursting bubble theory, the presumption disappears at this point and the jury determines the weight and credibility of the evidence.
Example: proof that a l

is NOT grounds for exclusion

Commonly excluded Evidence:

Statistical evidence or probability of guilt in a criminal trial

Ex. The likelihood of another person w/ same characteristics committing the crime charged

Evidence depicting physically revolting violence (“lose your lunch” rule)
Novel Scientific Evidence
Similar events, happenings, or occurrences

Ex. Accidents to show causation, prior course of dealings between parties, prior industry customs (LOOK INTO THIS MORE)

Policy Based Exclusions:

Settlement Negotiations
Plea negotiations and Withdrawal of plea
Subsequent Remedial Measures
Offers to pay medical expenses of injured party

Character Evidence

General rule: evidence of a person ’s character or character trait is inadmissible to prove that on a particular occasion he acted in accordance w/ that character trait. 404 a1
In a criminal case, the defendant CAN introduce evidence if character traits inconsistent with the crime charged (i.e. honesty, peacefulness)

Once the accused opens the door to his character, the prosecution can rebut that evidence with character evidence of their own.
Character offered by the accused MUST be pertinent to the charge at hand.
where an accused offers evidence that he is a non-violent person in a criminal fraud case, the evidence would be inadmissible bc criminal fraud is not a violent crime, so the accused’s character for nonviolence is not pertinent.

Types of Character Evidence include: Opinion, Reputation, and Specific Acts
Evidence NOT admissible to show propensity acts. But is will be admissible to show for other purposes.

Where the person’s character is an ultimate-issue (an essential element of a claim, defense, or cause of action)