Evidence Outline

Evidence outline
 
Objecting
–          must object whenever you can and articulate the objection for judge (specify the grounds of objection)
–          if not made with specification, objection is lost for purposes of appeal
–          FRE 103(a) – objection must be timely and specific or can’t be relied upon for appeal
–          Can have a pretrial motion to exclude or for permission of evidence so that trial goes smoothly and don’t have to worry about unringing any bells
o   Want to feel secure with having evidence allowed in during trial, but balance it with the “sneak in” aspect
§ Don’t want to be too sneaky because want to keep a good rep with the judge.
§ Also ethical obligation
§ Also don’t want D to move for mistrial
§ Motion in limine = motion to exclude
–          FRE 103(a)(2)
o   “Once the court makes a definitive ruling on the record admitting or excluding evidence, either at or before a trial, a party NEED NOT renew an objection or offer of proof to preserve a claim of error for appeal.”
 
Relevancy
–          if relevant, admissible, but not if judge disagrees
–          Relevant defined by FRE 401
o   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 that it would be without the evidence.
o   Don’t have to prove the standard, but goes to the story of the case and def or relevance
o   Relevance = relationship btwn item of evidence and what you are trying to prove
o   Fact of consequence can be
§ the guilt of the defendant
§ the believability of a witness
·         jurors evaluate this (look to all surrounding circumstances like whether witness is in prison)
§ judge decides things to make it easier for jury to decide but is JUST a gatekeeper (will go to it is more probable or not that the witness is more likely to lie) to determine whether or not it should be allowed to go to the jury
o   2 requirements
§ must make it more or less probable
§ must be consequential to the determination of the action
–          Initially can be a matter of logic/experience
o   Look for peculiarities/human reactions/3rd party voluntary presence
o   Many times depends on arguments of lawyers. Should be sufficient enough to case to incorporate it into closing argument
§ Jurors decide what story version is correct
 
 
 
–          have the story of the case, corroborating evidence (can help jury decide on verdict), determine if evidence has ANY tendency to make fact of consequence more/less probable
o   judge can have out of ct hearing to hear facts and then decide whether or not to let in evid
–          evidence is not inherent in a piece of evidence – goes to what it’s being offered for
o   must be conversant in what the law is
o   each side can look for different ways to find it relevant. 
§ Find different facts of consequence and open doors for evidence
·         Remember US. v. James case – D’s state of mind was fact of consequence, not whether ogden actually committed past crimes.
o   If not relevant, not admissible
o   Credibility of witness can make it relevant, though. Credibility of witness can be central to case  
o   Credibility is ALWAYS a fact of consequence
§ After testimony
o   Hurdle is: does it have ANY tendency to make it more prob with the evid.
§ Is a low standard, j