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Rutgers University, Camden School of Law
Lore, Jonathan C.


Professor Lore

Spring 2013

Introduction to Evidence

FRE 102: Purpose:

– To ensure a just determination.

The Trial System:

– There is a dispute and the facts are disputed. The trial is about trying to find the absolute truth (or as close to it as possible).

– Juries render the verdict of truth.

– Trial lawyers tell a story, each piece of evidence is a part of that story.

– Each witness tells a slightly different part of the theory.

Case Theory:

– The story you tell at trial to support your case.

• Two Components:

– Factual Theory

• Telling the story.

• How does a piece of Evidence supports a story?

– Legal Theory

• Why do you win according to the law.

• What is the first step?

– Lay out the elements you need to prove (know the law).

– How does this piece of evidence help me tell my story, establish the law.

Kinds of Evidence

– Direct evidence: Direct evidence is evidence which, if believed, automatically resolves the issue.

• Example: W says, “I saw D strangle V.” This is direct evidence on whether D strangled V.

– Circumstantial: Circumstantial evidence is evidence which, even if believed, does not resolve the issue unless additional reasoning is used.

• Example: W says, “I saw D running from the place where V’s body was found, and I found a stocking in D’s pocket.” This is only circumstantial evidence of whether D strangled V.

– Probative value: The probative value of direct evidence is not necessarily higher than circumstantial evidence, but it will sometimes be more readily admitted by the judge.

The Federal Rules of Evidence

– Drafted in 1969 and revised in 1971. Promulgated by the SCOTUS in 1972 and Congress passed their form of the Rules in 1975.

– Can be amended by an act of Congress and promulgation by SCOTUS through its statutory rulemaking authority (subject to review by Congress).

I. Relevance

1. Introduction to Relevance

FRE 401: Definition of “Relevant Evidence”

Evidence is relevant if:

a. It has any tendency to make a fact more or less probable than it would be without the evidence; AND

b. The fact is of consequence in determining the action.

· 401 (A): Logical Relevancy. Evidence that has any tendency to make a fact more or less probable than it would be without the evidence.

o Very low threshold.

· 401 (B): Material Relevancy. Is the fact is of consequence in determining the action?

o Materiality: Facts of Consequence

· Elements of a charged crime; cause of action; or defense

· Episode or Fact within the theory of the case, such as

o Motive

o Identity of other perpetrators/defendant

· Credibility of a witness

· Background Facts

à In order for a piece of evidence to be relevant, it must satisfy both A and B.

à This rule has logical relevance. If A is logically relevant, then B must be material as well. (Must be probable and the fact must be material to the case at hand)

à Every piece of evidence must be relevant.

à For something to pass the RULE 401 relevance, it has a very low threshold


· 1. What is the evidence being offered to prove?

o A Relational Concept.

· 2. Is that fact provable in this case?

o This is “Materiality”

· 3. Does the evidence help establish that fact?

o This is “Logical Relevancy.”

Relevancy and Materiality

· Relevancy: describes the relationship between an item of evidence and the proposition it is offered to prove.

· Materiality: describes the relationship between that proposition and the issues in the case- i.e. the consequential or material facts.


· Relevance is the central concept of evidence.

· Must establish the relevance of all pieces of evidence.

o Start with “This evidence is relevant to prove…”

· We care about relevance because we do not want to flood the court with evidence.

· Narrows the topics that parties have to develop in preparation for trial.

o Increases the perceived legitimacy of trials by ensuring that outcomes will be based on data most people would believe have something to do with the controversy.

FRE Rule 402: General Admissibility of Relevant Evidence

Relevant evidence is admissible unless any of the following provides otherwise:

– The United States Constitution

– A federal statute;

– These rules; or other rules prescribed by the Supreme Court.

à Irrelevant evidence is not admissible.

à A Brick is not a wall: Relevance does not necessarily mean sufficiency.

FRE Rule 403: Excluding Relevant Evidence for Prejudice, Confusion, Waste of Time, or Other Reasons

The court may exclude relevant evidence if its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudiced, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence.

à Rule 403: 3 Step Process

· 1. Determine the probative value of the proffered evidence.

· 2. Identify the presence of any enumerated dangers or efficiency considerations.

o Enumerated Dangers

§ Unfair

tuation, the propensity inference is explicitly allowed.

o A criminal defendant is allowed to introduce evidence about the pertinent character trait of a particular victim.

o However, once a criminal defendant does this, the prosecution may introduce rebuttal evidence about the defendant’s character.

· “The defendant must open the door…”

o The Mercy Rule: defense gets the option of establishing character for policy reasons.

· We don’t want prosecutor’s establishing character in their case in chief.

c. In a homicide case, the prosecutor may offer evidence of the alleged victim’s trait of peacefulness to rebut evidence that the victim was the first aggressor.

· Any evidence offered in furtherance of the defendant’s claim in a homicide case that the victim was the first aggressor opens the door for the prosecution to rebut by offering evidence of the victim’s character for peacefulness.

o It doesn’t matter if D did not try to prove V’s actions by using character. The rule only requires that D try to prove V was first aggressor.

3. Exceptions for a witness. Evidence of a witness’s character may be admitted under Rules 607, 608, and 609 (impeachment).

· Impeachment only for the credibility of the witness (truthfulness).

Notes on 404(a):

– 404(a) is not admissible in civil cases:

· ONLY relates to criminal cases.

· ONLY talks about the defendant and the victim.

· Unlike the criminal defendant, who is always permitted to offer character evidence to prove that he did not commit the crime, the civil defendant (or plaintiff) is rarely allowed to do so.

à Exception in Rules 413, 414, 415 reject this traditional analysis.

Two Questions: Character Evidence

· When can you use character evidence to prove “propensity?”

o Rule 404(a)

§ Character of the Defendant

§ Character of the Victim

This only deals with character evidence when it is used as circumstantial evidence.

You cannot use propensity evidence to show they acted in a similar fashion in the past.

You can’t infer: “Once a thief, always a thief.”