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Faulkner Law - Thomas Goode Jones School of Law
Harrison, Dennis

I. General Provisions
a. Rulings on Evidence
i. Objections—F.R. 103: Where a trial court admits evidence, a timely and specific objection to the admission of such evidence must be made in order to preserve that issue for appeal, unless plain error is involved.
1. Objections should be made before the witness answers
ii. Offers of Proof: Deals with the exclusion of evidence—Where the trial court excuses evidence, no error on appeal may be established unless an offer of proof was made or the reason was apparent from the context
1. The method of the offer of proof may be either a written or oral explanation, or a question and answer format
b. Preliminary Questions—Role of Judge and Jury
i. Questions are to be determined by the trial judge as a matter of law. Includes areas such as qualifications of witnesses, existence of a privilege, unavailability. Both affidavits and hearsay are allowed. Trial courts are not bound by the F.R. at preliminary questions.
c. Conditional Relevancy—Rule 104: Where the relevancy of proffered evidence depends on the existence of another fact, such evidence is admissible subject to introduction of evidence sufficient to sustain a finding as to the existence of the additional conditioned facts. This means that condition relevancy covers situations where the relevancy of one fact is conditioned on the existence of another fact.
d. Hearings on Objections—Any hearing as to the admissibility of evidence, is done outside the presence of the jury. In a criminal case, hearings on admissibility of confessions must be outside the hearing of the jury. Testimony by the criminal defendant as to a preliminary issue does not constitute a 5th amendment waiver as to other issues.
e. Limited Admissibility—Rule 105: Upon request, the court may restrict the admissibility of evidence by allowing it for one party or one purpose, but excluding it as to another party or for another purpose.
f. Introduction of parts of a writing—Rule 106: Once a party introduces part of a writing, or a recorded statement, the adverse party may immediately require the admission of any other part of that writing. If one part of a writing is admitted, the other party has an immediate right to introduce any other part of that writing. The other party may wait until cross examination, or a presentation of her own direct testimony to bring it in. Writings do not have to be admitted in their entirety.
II. Judicial Notice—A substitute for proof, where by the court will accept certain facts as true, and thus dispense with the need with formal presentation of evidence. The court will do this based on notions of accuracy. Two kinds of facts which come under judicial notice:
a. Legislative Facts—Facts, which have relevance to legal reasoning and the law making process.
i. Ex: Whether or not one spouse is permitted to recover tort damages against another spouse.
ii. They are not recognized under the Federal Rules
b. Adjudicative Facts—Underlying facts involved in a particular case which aid the fact finder in its adjudication.
i. Rule 201B—Defines judicial notice—A judicially noticed fact must be one that is not subject to reasonable dispute, because either:
1. It is generally known within the territorial jurisdiction of the court
a. Ex: Court in LA may take judicial notice that Wilshire Blvd. runs East and West
2. It is capable of accurate and ready determination that resort to sources whose accuracy cannot be questioned
a. Ex: Christmas Day 1985 was on a Wednesday, Sunrise on a particular day
ii. Two Types of Judicial Notice
1. Mandatory—the court must take judicial notice in the 2 situations
a. State and federal law
b. Indisputable scientific facts (blood test, ballistic tests, radar), but not a lie detector test
2. Discretionary—On its own motion, a state or federal court may take judicial notice of the following types of facts
a. Laws of foreign countries
b. Laws of sister states
c. Municipal ordinances
d. Regulation of public or private agencies
e. Matters of local geography
iii. Judicial Notice may also be taken where requested by a party. For both generally known facts and facts capable of ready determination, the court must take mandatory judicial notice if requested by a party and supplied with the necessary information.
1. The party against whom judicial notice is taken, has an opportunity to be heard. Timing: Such a request may be made either before or after the judicial notice has been taken.
a. In general, judicial notice may be taken at any state of the proceeding.
iv. Procedural affect of judicially noticed facts: Rule 201G
1. Civil Cases: Judicially noticed facts are indisputable. The rule says that a civil jury must accept as conclusive any fact judicially noticed.
2. Criminal Cases: Based on the 6th amendment right, the jury is to be instructed that it may, but is not required, to accept any fact judicially noticed
v. As an approach, there are two steps
1. Determine whether judicial notice is mandatory or discretionary
2. Determine if it is a civil or criminal case
III. Presumptions
a. Burdens (Production and Persuasion)
b. Burden of Production (The burden of going forward)
i. Placed on a party to introduce initial evidence on a particular issue or risk a directed verdict against her.
ii. The allocation of this burden is generally on the plaintiff.
iii. In criminal cases, a directed verdict for the prosecution is unconstitutional.
c. Burden of Persuasion (the degree to which the party must convince the trier of fact)
i. In a civil case, the burden of persuasion is proof by the plaintiff to establish each element of the case by a preponderance of the evidence.
ii. In a criminal case, the prosecution must prove its case beyond a reasonable doubt.
iii. An intermediate standard applies in certain criminally related civil case (fraud), a clear and convincing standard of proof.
d. Affirma

accidents to establish due care. What is required:
a. Substantial identity of material circumstances
b. The defendant must show that if an accident had occurred, it would have been observed
3. Prior Tort claims—May be admissible to show a common scheme
4. Prior sale of land—may be used circumstantially to prove value of piece of property
b. Legal Relevancy—the term used for public policy considerations, to exclude otherwise relevant evidence. The area includes not only specific rules as to subsequent remedial repair. Also includes character evidence.
i. Rule 403: 6 reasons why otherwise relevant evidence may be excluded. Relevant evidence may be excluded if its probative value is substantially outweighed by danger of:
1. Unfair prejudice
2. Confusion of the issues
3. Misleading of the jury, by consideration of
4. Undue delay
5. Waste of time
6. Needless waste of time of cumulative evidence
ii. Exclusions 1-3 may be focused on during appeal, however for evidence under 4-6 are not likely to be heard on appeal.
iii. Rule 403 is the balancing test which is used so often to determine whether the probative value of the evidence outweighs its relevant effect.
V. Character Evidence—generalized description of a persons disposition
a. General Approach
i. Determine the form of the character evidence: Three Forms
1. Reputation—always community reputation
2. Opinion—personal opinion
3. Specific Instances of Conduct—referred to as specific acts
ii. Determine the type of case: Civil or Criminal
iii. Determine the purpose for which the evidence is being offered
b. Character Evidence in Civil Cases Rule 404 A 1
i. Character evidence is inadmissible to prove conduct in conformity therewith on a particular occasion. (Ex: In a negligence action, evidence that the person had a reputation as a careful person, would be inadmissible)
ii. Exceptions where it is admissible in civil cases
1. Where character is an essential element of a claim, defense or cause of action, character evidence will be admitted. (Ex: Defamation, child custody cases)
2. Where knowledge of the character of another is an issue (Ex: self-defense, negligent entrustment, negligent hiring)
iii. Rule 405—Where character evidence is admissible, all three forms of character evidence may be used as proof of character. Beware of the use of specific acts.