EVIDENCE OUTLINE
Three Rs of Evidence
Is the Evidence –
ü Relevant?
o Rule 401
o Rule 402
ü Reliable?
o Rule 801 – hearsay
o Rule 803 – hearsay exceptions
o Rule 807
o Rule 901
o Rule 902
o Rule 1002
o Rule 1004
o Rule 1005
o Rule 1006
o Rule 1007
ü Right? – legally right
o Rule 403
o Rule 404
o Rule 501
o Rule 802
Titles of Federal Rules of Evidence
I. General Provisions
a. FRE 101
i. Scope
ii. Governs the courts of the US and bankruptcy judges and US magistrate judges.
b. FRE 102
i. Purpose and Construction of the Rules
c. FRE 103
i. FRE 103(a) – Effect of Erroneous Ruling
1. FRE 103(a)(1)
a. Objection – Provides that an objection need not be renewed at trial if the judge makes a “definitive ruling” on a pretrial motion.
b. To be timely, an objection or motion to strike must be made as soon as the ground of it is known, or reasonably should be known, to the objector.
c. A continuing objection, if requested and granted, will preserve error with regard to a series of similar or connected questions or offers of evidence, to the extent that the continuing objection is adequately specific and unambiguous.
2. FRE 103(a)(2)
a. Offer of Proof – A lawyer must be ready to present his evidence when the objection is made and must make its “substance” known to the court.
3. Errors
a. “Reversible” error
i. The kind of mistake that probably did affect the judgment
b. “Harmless” error
i. The kind of mistake that probably did not affect the judgment; the court has found that the appellant has not shown that a ruling affected the verdict.
c. “Plain” error
i. The kind that in the estimation of the reviewing court warrants relief on appeal even though appellant failed at trial to take the steps usually necessary to preserve its rights.
d. “Constitutional” error
i. Criminal cases – a mistake by the trial court in admitting evidence for the prosecution that should have been excluded under the Constitution.
ii. 4th Amendment – search and seizure
iii. 5th Amendment – self incrimination
iv. 6th Amendment – Confrontation Clause
e. Distinguishing between “harmless” and “reversible”
i. Three Doctrines
1. “Cumulative Evidence” – supports affirmance despite errors by the trial court both in admitting and in excluding. Question: Whether evidence erroneously admitted probably affected outcome or whether evidence erroneously excluded probably would have affected outcome.
Judicial Notice
a. Introduction
i. Definition
1. The process by which a court determines certain matters without need of formal proof.
2. Includes adjudicative facts (FRE 201), evaluative facts, legislative facts, and law.
3. Decisions are made by a judge without following rules of evidence.
ii. Types
1. Adjudicative Facts – FRE 201
a. ACN to FRE – “Facts that normally go to a jury in a jury case.”
b. Those that would have to be proved by evidence if notice were not taken.
c. Requires a jury instruction that notice has been taken and an explanation (FRE 201(g)).
d. Deals with:
i. Facts that can be described with precision (specifics).
ii. Information that is not central to the case.
e. Must be:
i. Beyond reasonable controversy (ACN to FRE 201(b))
ii. Matters of common knowledge easily ascertained.
Judge’s personal knowledge does not qualify.
