Select Page

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

INTRO
·         Rule 101- Scope
·         Rule 102- guiding principle
·         There is always a truth
·         What is EVIDENCE?
o   Proof
o   Rules
o   Things jurors take back into the jury room
o   **Information that can persuade and consider
·         If you can control the info, can’t you control the outcome? This info can be used offensively & defensively
·         Evidence comes in different forms
·         Categories:
o   Type:
§ DIRECT- part of the crime; actually involved’ value is A LOT certain of the truth
§ CIRCUMSTANTIAL- not actually involved; value could go either way
o   Kinds:
§ REAL- the thing itself
§ REPRESENTATIVE- a representative of the thing; ex. Picture or map
§ TESTIMONIAL- testimony
·         **Rule 900- Authentification
o   901A- condition precedent
o   **YOU HAVE TO PROVE THRU WITNESS HOW, WHAT THEY KNOW BEFORE THEY CAN TELL WHAT THEY KNOW
·         Procedures for Authentification
o   Questions on page 448
o   Authentification requires that you must authenticate
·         The rules of evidence apply AT TRIAL, not pre-trial
·         When working the problems, the first thing you need to do is figure out where you are in the trial process
·         Opening statements DO NOT go into evidence
o   P gets to go first
o   Call witness (direct examination)
o   Then Cross exam
§ Use leading questions
o   Judge acts as Umpire; Only involved as much as they are called on
·         Timeline for Trial
o   P’S CASE IN CHIEF- Opening Statement to after D’s cross
o   **After P’s case in chief, D has to ask for a MOTION FOR DIRECTED VERDICT
o   D’S CASE IN CHIEF- D’s Direct to after P’s cross
·         If you don’t think info (evidence) goes in the box, object Rule 103
·         You MUST state specific objection to preserve for appeal
·         When will an appellant court overrule evidentiary issue?
o   HAS TO BE A MISTAKE (Rule 103a) that effected substantial right of party
§ What right? Having a fair trial
§ It has to question the result of the trial
§ This is a very high standard
o   VIOLATE SUBSTANTIVE RIGHT OF THE PARTY
§ Harmless error wouldn’t have changed the outcome
§ It hurt but didn’t kill you
§ You have to get everything in trial level bc it won’t get in appeal
·         Two Circumstances:
o   MAKE OBJECTION:
§  before info is about to get put in
§ “Timely”
§ **Rule 103a is not in AL- you have to object EVERYTIME or you waive
o   MAKE OFFER OF PROOF
§ If you want to put in evidence in for appeal have to offer proof
·         103C- doesn’t contaminate the jury; sidebar; excuse jury
·         Judge can object SUS SUSPANTE (why are you wasting my time?)
·         Judge has to make definite ruling on objection
o   What if he says “move along”
o   You kind of have to press them for the ruling
·         After P’s case in chief, D has to ask for a MOTION FOR DIRECTED VERDICT
o   Objection based on sufficiency of evidence
o   JUDGMENT AS A MATTER OF LAW
o   “they have not met the burden of prima facia case”
o   If D does not make motion, appeal could say you waived
o   P doesn’t want to do this at this time because D hasn’t had chance
·         After D’s case in chief BOTH parties motion
·         Right before closing motion can be made again
·         103D- PLAIN ERROR; Objection should have been made; but even in Plain Error; outcome is in doubt
·         BURDER OF PROOF:
o   **BURDEN OF PRODUCTION:
§ producing enough evidence
§ do we have enough?
o   **BURDEN OF PERSUASION
§ Beyond a reasonable doubt, preponderance, clear & convincing
o   Do not confuse the two
o   Persuasion comes in at closing
o   Could a reasonable juror believe that it is helpful to the case?
o   Persuasion is proper only at the END
o   You never want the burden
·         Rule 104- PRIVILEGED EVIDENCE
o   Judge makes call on evidentiary issues
o   Judge can consider inadmissible things to determine if something is admissible
o   Judges must make essentially 2 different kinds of admissibility decisions:
§ Whether an attorney has offered enough evidence to meet the requisites of a rule (104a ) and
§ Whether under 104b an attorney has offered sufficient evidence for a jury to believe a fact relevant t othe case exists
o   The 104a ruling is about whether foundations have been met
o   The 104b ruling is about whether counsel have enough support to argue that certain facts exist
o   Thus the judge not only decides if the rules of evidence has been met under 104a, but also acts as a screener of the facts under 104b
o   SUA SPONTE – “on his or her own motion”
o   104B- CONDITIONAL RELEVANCE
§ You ask to admit evidence conditionally that other evidence will come into put everything together
o   104D
§ Usually deals with search & seizure issues
§ You don’t want to ask your client SELF-INCRIMINATING questions
§ Deals more with criminal cases
§ “ACCUSED” is criminal word

consequence can be background info and credibility and elements
o   Is credibility & believability same thing?
·         Conditional Relevance
o   You will have to show something further
·         Review
o   401 LOGICAL RELEVANCE: makes a fact of consequence MORE or LESS LIKELY
o   For something to be relevant you have to make a chain
o   Is it something a reasonable juror could believe?
o   402: if something fits 401 then it’s admissible unless it violates constitutional right
·         403: LEGAL RELEVANCE/ relevance objection
o   Evidence creates “unfair prejudice” when it has “an undue tendency to suggest decision on an improper basis, such as emotions
o   The risk of unfair prejudice arises when admission of the evidence would be perceived as unfair, or when the evidence would adversely affect the fairness of the trial process
o   Irrelevant because legal policy says “we have concerns”
o   Comes down to BALANCING TEST
o   6 different ways to exclude evidence:
§ Substantially outweighed by the danger of unfair prejudice
§ Confusion of the issues
§ Misleading the jury
§ Considerations of undue delay
§ Waste of time
§ Needless presentation of cumulative evidence
§ 403 goes at the bottom of the funnel because it’s not so clear  
 
D
B
66^
PV
PV
6
C
PV
6
A
6^
PVV
 
 
 
 
 
 
o   6 = Prejudicial Value
o   PV = Probative Value
o   C represents 403
o   D means that the probative value SUBSTANITALLY OUTWEIGHS the prejudicial value
o   403 applies to exclude PREJUDICIAL VALUE SUBSTANTIALLY OUTWEIGHS the PROBATIVE VALUE
o   Substantially means SUBSTANTIALLY. Needs to be a ration of about 20 to 1 or more
o   Ratio needs to be significant
o   There’s needs to be A LOT of PREJUDICIAL
o   There needs to be a LITTLE of PROBATIVE
If there’s a lot of probative value it will be very difficult to substantially