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

I.      Purpose
A.     FRE 101: Scope: These rules govern proceedings in the courts of the US with few exceptions.
1.      Rules of evidence apply only in federal courts at the trial level.
B.    FRE 102: Purpose and Construction: 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 ascertained and proceedings justly determined.
1.      Purpose of rules is just decisions: Fairness, unjustifiable expense or delay, and ascertaining the truth.
C.    FRE 103: Rulings on Evidence: (a) Effect on erroneous rulings. Error may not be predicated upon a ruling which admits or excludes evidence unless a substantial right of the party is affected, AND (1) Objection. In case 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) Offer of proof. in case 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 within which the questions were asked. 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) hearing of jury. (d) Plain error: Nothing in this rule precludes taking notice of plain errors affecting substantial rights although they were not brought to the attention of the court.
D.    Notes:
1.      Evidence is information; only information that passes through the rules and is admissible at trial. Control the information and control the result.
2.      Authentication: the process of getting evidence in, everything must be authenticated.
3.      Problem analysis: (1) What is being offered? (2) Who offered it? (3) When was it introduced? and (4) Why is it being offered?
II.   Relevance
A.     FRE 401: Relevant Evidence means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more or less probable than it would be without the evidence.
1.      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.
2.      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.
3.      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.
B.    FRE 402: All evidence is admissible unless its not.
C.    FRE 403: Exclusion of Relevant Evidence on Grounds of Prejudice, Confusion, or Wast of Time. Although relevant, 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.
1.      Balancing test: if the probative value substantially outweighs the prejudice then the evidence comes in. Very significant burden.
2.      Examples of commonly excluded evidence under 403:
a)     Probability of evidence of guilt in a criminal case. Statistical evidence is routinely admitted at trial, however, such evidence offered as probable evidence of guilt is excluded because of its potential to exert extreme influence over a jury. Example: the likelihood of another person with the same characteristics committing the crime charged.
b)     Evidence depicting violence in a manner that is physically revolting. This evidence is improper if it so blinds the jury ti the facts of the case that the jury makes an emotional determination. Lose your lunch rule.
c)     Novel Scientific Evidence. Recreations of events must be “substantially similar” the events they were intended to recreate. These issues must also pass FRE 702.
d)     Similar events, happenings, or occurrences. Similarities or dissimilarities have great potential for unfair prejudice and are therefore usually excluded. Examples: accidents (to show causation or the dangerousness of the instrumentality); sales of property or services (to show value); prior course of dealings between the parties (to show meaning of contract provisions); prior industry customs (to show the meaning of an action or document).
III.Character and Habit Evidence
A.     FRE 404(a): Character evidence generally. Evidence of a persons character or a trait of character is not admissible for the purpose of proving action in conformity therewith on a particular occasion.
1.      Character evidence is generally not admissible if proffered for propensity purposes to prove an action.
2.      Character is a generalized description of a person’s disposition or one’s disposition in respect to a general trait, such as honesty, temperance, or peacefulness. These rules only apply to parties and victims. Witnesses are treated differently under the 60 series of the rules.
3.      Character evidence is usually offered to (1) indirectly show that because the a person has a propensity to act in a particular manner, that the person more likely acted in conformity with the propensity on a specific occasion; directly prove a person’s character trait when it is an element of a cause of action, claim or defense; or (3) for purposes other than to show a person’s character trait, such as to prove motive, intent, plan, common scheme, absence of mistake, or identity.
4.      Analysis: Must be offered in by the right party, at the right time, and in the right form.
5.      Types of character evidence: Opinion,

stances to rebut on cross.
b)     Specific acts are not permitted for use against a criminal defendant because of the risk of unfair prejudice.
2.      FRE 405(b): Specific Instances of Conduct: In cases in which character or a trait of character of a person is an essential element of a charge, claim, or defense, proof may also be made of specific instances of that person’s conduct.
a)     This rule is very rarely used.
b)     Four Types: (1) in a criminal seduction case (showing that he victim was of chaste character); (2) to prove entrapment; (3) in a negligent entrustment or negligent hiring action; or (4) in a defamation case (determining whether the plaintiff’s reputation was defamed. All forms of character evidence can be used here; opinion, reputation, or specific acts.
D.    FRE 406: Habit; Routine Practice. Evidence of the habit of a person or the routine practice of an organization, whether corroborated or not and regardless of the presence of eyewitnesses, is relevant to prove that the conduct of the person or organization on a particular occasion was in conformity with the habit or routine practice.
1.      Can be offered for propensity purposes. It is important to distinguish habits between simple personality traits.
2.      Habit: a regular response to a repeated specific stimulus. Two types: (1) Personal: a regular response to a particular stimulus. (ie: Pavlov’s dog). Almost has to be instinct. (2) Corporate: lessor standard. If it is corporate policy or standard practice then it comes in as habit evidence. Does not have to be corroborated.
3.      With Habit evidence you have to be certain that every time a person is presented with a stimulus they act in conformity therewith; therefore, there propensity is okay.
E.     Res Gestae: other acts so closely connected to the act at issue so that to exclude the other acts would impede the trier’s ability to determine the facts. Literally means “to complete the story.”
IV.   Other Exclusions of Relevant Evidence: Policy Rules: all very narrow exclusionary policy rules.
FRE 407: Subsequent Remedial Measures. When, after an injury or harm allegedly caused by an event, measures are taken that, if taken previously, would have made the injury or harm less likely to occur, evidence of the subsequent measures is not admissible to prove negligence, culpable conduct, a defect in a