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



LexisNexis, Sixth Edition


Fall 2015


FRE 101: Scope. These rules govern proceedings in the courts of the U.S. with few exceptions.

Rules of evidence apply only in the federal court system.

FRE 102: Purpose. These rules shall be construed to secure fairness in administration, elimination of unjustifiable expense and delay, and the promotion of growth and development of the law of evidence to the end that the truth may be ascertained and proceedings justly determined.
FRE 106: Remainder of or Related Writings or Recorded Statements. If a party introduces all or part of a writing or recorded statement, an adverse party may require the introduction, at that time, of any other part—or any other writing or recorded statement—that in fairness ought to be considered at the same time.
The rules of evidence apply in both civil and criminal cases. While the application of the rules is generally uniform, at times they are specifically tailored to assist the differing functions of the criminal and civil justice systems.
The rules primary apply to the trial stage of a lawsuit.

However, the sometimes reach pre-trial and post-trial matters, such as depositions, the discovery of relevant information, some pre-trial motions, and post-trial proceedings.

Different Meanings of Evidence

of a cause of action;

Proof refers to what is offered by the parties at trial to meet the legal requirements for showing the elements of the claim, cause of action, or defense.
Proof takes a variety of forms.

The rules governing the admissibility and exclusion of proof at trial; and

The rules not only provide for the focus of this course but also guide how a judge conducts a trial.

What is in evidence, e.g., the things that jurors can take back with them for the purposes of deliberations.

This type of evidence is distinguished from mere demonstrative evidence, which is used only to illustrate a point, usually during testimony.

Categories of Evidence

Real evidence is physical, tangible evidence, the thing itself.
Representative evidence is evidence that represents another thing: a diagram, chart, photograph, x-ray, etc.
Testimonial evidence comes from witnesses.
Circumstantial evidence requires an inference to be drawn for the evidence to be relevant.
Direct evidence does NOT require an inference to be drawn from it to relevant.

It provides a fact—generally a material fact—without requiring any deductions.


Evidence is information. Only information that passes through the rules is admissible at trial. Control the information and control the result.
Authentication is the process of getting evidence in; everything must be authenticated.
Problem analysis: (1) What is being offered?; (2) Who offered it?; (3) When was it introduced?; and (4) WHY is it being offered?


Authentication analysis is correlated with relevance. In a sense all evidence admitted at trial must first be authenticated, including witnesses. Authentication involves laying a foundation showing that evidence is relevant, and to a certain extent reliable (that the evidence is what it is purported to be).
Four foundational questions: (1) Do you recognize X for identification purposes?; (2) What is X?; (3) How do you recognize X?; and (4) Is X in substantially the same condition as it was when you last saw it?
A chain of custody for the evidence must be shown as well.

A chain of custody means that the evidence is traced from its source, such as the crime scene in a criminal case or the accident scene in a personal injury action, all the way to the courtroom.

If evidence is authenticated, it may then be offered by a party “into evidence” at any time during the party’s case.

If evidence is admitted, it is the offering party’s responsibility to request that it be “published” to the jury.

FRE 901: Authenticating or Identifying Evidence. (a) To satisfy authentication or identification, the proponent must produce evidence sufficient to support the item is what it purports to be. (b) Examples [not a complete list]: Testimony that an item is what it is claimed to be; Non-expert opinion on handwriting; Comparisons by the trier of fact or by an expert with specimens have been authenticated; Distinctive characteristics of the item taken together with all the circumstances; Other methods: voice identification, telephone conversations, public records or reports, ancient documents, process or systems, and methods provided by statute.

A writing that has been in existence for a number of years will frequently be difficult to authenticate by direct evidence. The frequent necessity of authenticating ancient writings by circumstantial evidence has thus given rise to the ancient document rule.

Under this rule, a document or data compilation is sufficiently authenticated as an ancient document if the party who offers it satisfies the judge that the evidence:

is in a condition that creates no suspicion about its authenticity;
was in a place where, if authentic, it would likely be; and
is at least 20 years old when offered.

FRE 902: Evidence That Is Self-Authenticating. Require no extrinsic evidence of authenticity: Domestic public documents under seal; Domestic public documents not under seal but signed and certified; Foreign public documents; Certified copies of public records; Official publications; Newspapers and periodicals; Trade inscriptions; Acknowledged documents; Commercial paper and related documents; Presumptions under federal statute; Certified domestic records of a regularly conducted activity; and Certified foreign records of a regularly conducted activity.
FRE 1001: Definitions That Apply to This Article. “Writings” and “recordings” consist of letters, words, or numbers, or their equivalent, set down in any form; “Photographs” include still photographs, x-rays, videotapes, and motion pictures; An “original”: writing or recording itself or any counterpart intended to have the same effect by a person executing or issuing it, photograph includes the negative or any print therefrom, electronically stored information is the printout or other output readable by sight, shown to reflect the data accurately; A “duplicate” means counterpart produced by a mechanical, photographic, chemical, electronic, or other equivalent process.
FRE 1002: Requirement of Original. An original is required to prove its content unless these rules or federal statute provides otherwise.
FRE 1003: Admissibility of Duplicates. A duplicate is admissible to the same extent as an original unless (1) a genuine question is raised as to the authenticity of the original or (2) in the circumstances it would be unfair to admit the duplicate in lieu of the original.
FRE 1004: Admissibility of Other Evidence of Content. The original is not required, and other evidence of the content is admissible if (a) All originals are lost or have been destroyed, unless the proponent lost or destroyed them in bad faith; (b) No original can be obtained by any available judicial process; (c) At a time when an original was under the control of the party against whom offered, that party was put on notice, by the pleadings or otherwise, that the contents would be a subject of proof at the hearing, and that party does not produce the original at the hearing; or (d) The writing, recording, or photograph is not closely related to a controlling issue.
FRE 1005: Copies of Public Records to Prove Content. The proponent may use a copy to prove the content of an official record if: the record or document is otherwise admissible; copy is certified as correct under 902(4); or is tested to be correct by a witness who compared it. If no copy can be obtained, the proponent may use other evidence to prove the content.
FRE 1006: Summaries to Prove Content. Proponent may use summaries, charts, or calculations to prove the content of voluminous writings, recordings, or photographs that cannot be conveniently examined in court. The originals, or duplicates, shall be made available for examination or copying, or both, by other parties at reasonable time and place. The court may order that they be produced in court.
FRE 1007: Testimony or Statement of a Party to Prove Content. Contents of writings, recordings, or photographs may be proved by the testimony or deposition of the party against whom offered. Proponent need not account for the original.
The “Best Evidence” Rule

Also known as the “Original Document” Rule
Only implicated when the document itself is the source of the information, and not merely a corroboration of something you already know.

Applies to “writings,” “recordings,” and “photographs.” Also can include x-rays, motion pictures, and videotapes.

There are a number of exceptions. These include those listed in Rules 1004-1007.


FRE 103: Rulings on Evidence. (a) Preserving a Claim of Error. Error may not be predicated upon a ruling, which admits or excludes evidence unless a substantial right of the party is affected, AND (1) If the ruling is one admitting evidence, a timely objection or motion to strike appears on the record, stating the specific ground of objection, if the specific ground was not apparent from the context, OR (2) If the ruling excludes evidence, the substance of the evidence was made known to the court by offer or was apparent from the context. (b) Once the court makes a definitive ruling, a party need not renew the objection or offer of proof to preserve the claim for appeal. (c) Court may direct that an offer of proof be in question-and-answer form. (e) Court may take notice of plain error affecting a substantial right, even if not properly preserved.
FRE 104: Preliminary Questions. (a) The court must decide questions on witness qualification, privilege, or evidence admissibility; (b) When relevance depends on fact, proof must be introduced


It is the threshold through which evidence must pass; ALL evidence must be relevant to be admissible.

However, all relevant evidence is NOT admissible. Relevant evidence still must overcome other exclusionary obstacles to qualify for admission, such as those concerning character, hearsay, privilege, and improper impeachment, among others.

FRE 401: Test for Relevant Evidence. Evidence having any tendency to make a fact more or less probable than without the evidence and the fact is of consequence in determining the action.

“Fact of consequence to the determination of the action”: fact helpful to resolving the suit

These include: (1) an element of the cause of action, claim, or defense; (2) the credibility of the witnesses; and (3) background facts.
“Fact of consequence” = “material fact”

This is the “logical evidence” rule. This is the threshold question asked first in problems.If you can make a chain of inferences then 401 is satisfied.
Logical Evidence Test: Evidence is relevant if it is (1) probative (makes something more or less likely) of (2) a fact of consequence to the determination of the action.
Conditional Relevance: relevance of the evidence depends on the existence of a separate fact. Conditionally relevant evidence will be admitted if there is sufficient evidence for a reasonable juror to find by a preponderance of the evidence that the fact in question exists.

FRE 402: General Admissibility of Relevant Evidence. Relevant evidence is admissible unless the Constitution, federal statute, these rules, or other rules prescribed by the Supreme Court say otherwise. Irrelevant = Inadmissible
Relevant But Inadmissible—Unfairly Prejudicial Evidence

FRE 403: Excluding Relevant Evidence for Prejudice, Confusion, Waste of Time or Other Reasons. Evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.

Balancing Test: If the probative value substantially outweighs the prejudice then the evidence comes in. VERY significant burden.

This weighted balancing test favors admissibility by exhibiting a preference for relevant evidence, even if the relevant evidence presents a risk of prejudice.

Statistical evidence is routinely admitted at trial to assist the jury.

One type of statistical evidence is particularly misleading and is generally excluded. This type of evidence, “probability evidence of identity,” is specifically offered to show the unlikelihood of another person with the same characteristics as the defendant committing the crime charged.

Evidence showing the results of violence is a routine part of many trials, particularly in criminal homicide cases.

Rule 403 imposes some limitations, specifically, it is improper to offer evidence that so blinds a jury to the facts of the case that the jury makes an emotional determination à “lose its lunch” limitation.

Scientific experiments that seek to replicate or simulate the events on which a lawsuit is based have the potential to be both highly probative and highly misleading.

Consequently, experimental scientific evidence will likely be excluded as unfairly prejudicial, unless it is “substantially similar” to what it intends to recreate.

The court now allows trial courts to consider multiple factors, which include:

Whether the subject matter was “scientific knowledge”;
Whether the theory or technique can be or has been tested;
Whether the theory or technique has been subjected to peer review and publication;
Whether the technique has a known or potential rate of error;
Whether standards controlling the techniques operation exist and are maintained;
The Frye test of general acceptance on the particular field. Daubert v. Merrell Dow Pharmaceuticals