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Rutgers University, Newark School of Law
Raveson, Louis

Evidence                                                                                                           Raveson Fall 2008

Taking Evidence

Preconditions to Testimony
Personal Knowledge and the Lay Opinion Rule
i.      FRE 602: A witness may not testify to a matter unless evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter. Evidence to prove personal knowledge may, but need not, consist of the witness’ own testimony. This rule is subject to the provisions of 703, relating to opinion testimony of expert witnesses.
1.       Exceptions: 1) admissions- by opposing party may be used in evidence and 2) FRE 703 which relates to expert witness opinion testimony, exempt from personal knowledge rule.
FRE 611 Mode and Order of Interrogation and Presentation
i.      (a) Control of the Ct: The ct shall exercise reasonable control over the mode and order of interrogating witnesses and presenting evidence so as to (1) make the interrogation and presentation effective for the ascertainment of the truth, (2) avoid needless consumption of time and (3) protect witnesses from harassment or undue embarrassment.
ii.      (b) Scope of Cross Exam: Cross examination should be limited to the subject matter of the direct examination and matters affecting the credibility of the witness. The ct may in the exercise of discretion, permit, inquiry into additional matters as if on de.


I.                    Aspects of evidence
a.       The Basic Policy
i.      FRE 402
1.       2 basic principles
a.       If evidence is not relevant it is not admissible.
b.       Relevant evidence should be admitted unless some other rule, statute, ECT prohibits its admission
2.      Relevance Rule- evidence that isn’t relevant isn’t admissible- relevant evidence should be admitted unless another provision makes it inadmissible
ii.      FRE 403
1.       Probative value can exclude relevant evidence
2.      Balancing- close calls weigh in favor of admissibility- if the probative value is substantially outweighed by counter factors it wont be let it- this rule never lets evidence in, it only excludes otherwise admissible evidence
iii.      FRE 401
1.       Defines what relevant evidence is:
a.       relevance – If a piece of evidence has a tendency to make a fact of consequence more or less probable than that evidence is relevant
i.      More or less probable does not mean that it makes the fact more probable or not
2.       Evidence having any tendency to make the existence of any fact that is (of consequence to the determination of the action) more probable or less probable than it would be without the evidence.
b.       Materiality
i.      def. – evidence that relates to a fact of consequence in the litigation
ii.      Relates to the fact that the evidence is used to prove a legal issue
1.       The part of the def of relevance that says “consequence to the action”
iii.      Evidence that does not bear on a fact that is no consequence to a legal action because it does not relate to a matter in issue
iv.      Probative value – quantitative measure of how much more likely does the piece of evidence make the fact; does the evi make it more likely than not in proving the proposition it stands for
1.      Probative value- does the evidence make it more likely than not for proving the proposition it stands for- how much the evidence increase the value of the fact
v.      Materiality- evidence that relates to a legal issue—rule 401 “consequence to the determination of the action”—look to the substantive law to see what is of consequences—care not just about what happened, but why it happened (Explanatory Evidence)- explaining the party’s motivation-
c.       Circumstantial Evidence
i.      Serves as a basis for which the trier of fact may make reasonable inferences about a matter in issue
ii.      When you ask the fact finder to draw any inference based on the evidence
1.       There are further inference beyond simply believing the witness
i.      You look at the evidence and say that this is likely “unless what?”
1.       The more exceptions that you can find the less probative the evidence is
2.       Also gives you good ideas what to ask on cross to show to the jury – help undercut the probative evidence
2.       Circumstantial evidence has no INHERENT PROBATIVE VALUE – probative value derives from the premise or proposition
a.       Only has probative value to the extent that you can explain that the evidence explains your theory
b.       completely dependent on what your theory that the circumstantial evidence proves.
3.       Most evidence in cases is circumstantial
4.       Who decides what evidence is relevant – “can a reasonable jury conclude that this evidence makes a situation more or less likely”
a.       The level or more or less likely is based on the appropriate relevance standard for the case
d.       Direct Evidence
i.      Testimonial evidence which, if believed, resolves a matter in issue
1.       The only inference you are asking the jury to draw from the evidence to the proof of the proposition is that you have to believe that the witness is telling the truth
e.       Conditional Relevance
i.      FRE 104 (b)
1.       You can put in all evidence subject to bringing in other evidence later on to show that the original evidence really is relevant to the case
2.       If the evidence promised to connect the prior evidence the opponent to the evidence must make sure to object and move to strike the original evidence from the record
a.       If you don’t do that you have waived this objection
b.       Escape clause – if it is an important piece of evidence that substantially effects the rights of the π or ∆ and it was a very plain error some courts will allow you to predicate this error
3.       Offer of proof – allows you to show the judge/jury what your theory of the case is – you can use this opportunity to educate the jury and the judge about what is going on in the case
ii.      Two Concerns of Conditional Relevance
1.       Does evidence of the conditioning fact greatly increase the probative value of the item of evidence that is being offered?
2.       Is good evidence of the factual condition likely to be available?
II.                  FRE 403
a.       Balancing
i.      Judge must weigh the probative value against the counter factors for each piece of evidence before admitting it
1.       Counter factors include
a.       Prejudice
b.       Confusion
c.       Waste of time
d.       Needlessly Cumulative
e.       Misleading the jury
f.        Undue Delay
ii.      Always consider:
1.        The importance of limiting instructions
2.       Are there other means of proof that say the same thing
b.    Old Chief v. United States
i.      Facts: ∆ was charged with assault with a dangerous weapon and using a firearm in the commission of a crime, but also with viola

ered to show that another event occurred in a particular way is scrutinized carefully to assure that the two events are sufficiently similar to support the intended inference
b.       Above 8 inadmissible for certain purposes but not for others
i.      Can allow evidence in for permissible reasons but not others.
ii.      105 v. 403 issue à every time evidence comes in under one of these rules
1.       Every time the same piece of evidence is inadmissible for one purpose and admissible for another the court needs to weigh admissible v. inadmissible counter factors
2.       Is the probative value on the admissible purpose large enough to outweigh by a lot the inadmissible prejudice
c.       Policy Reasons for “Relevance Rules”
i.      rules generally exclude evidence that is not very probative
ii.      respond to misestimation problems: ex. ∆ plead to lesser offense
iii.      avoid extended litigation on collateral issues
1.       ex: a tort plaintiff wants to present evidence that the d caused another accident. A jury hearing on this argument may distract the jury from evidence that bears directly on the accident
II.                  Subsequent Remedial Measures
a.       FRE 407 – When, after an injury or harm allegedly caused by an event, measures are taken which, if taken previously, would have made the injury or harm less likely to occur, evidence of the subsequent measures is not admissible to prove negligence, culpable conduct, defect in a product, a defect in a product design, or need for a warning instruction. This rule does not require the exclusion of evidence of subsequent measures when offered for another purpose, such as proving ownership, control, or feasibility of precautionary measures, if controverted or impeachment.
1.       Issue must be controverted to get in for one of the exceptions
2.       Reasons:
a.       Little probative value
b.       Admitting the evidence might deter people from taking socially beneficial post accident precautions
3.       If admitting for feasibility in negligence case
a.       More probative value
b.       Can use feasibility to impeach a witness à show condition could be safer
4.       A majority of state courts have refused to apply the subsequent repair rule to strict liability suits, thus indirectly limiting the rule’s application when corporations take remedial steps.  
5.       Evidence that a person or an entity made a remedial issue is not admissible to show:
a.       To prove negligence, defect in product, product design or need for warning
6.       403/105 comparison
a.       You need to compare the permissible use with the impermissible purpose
b.       There tends to be high counter factors
7.       Ault Case – subsequent remedial issues should be allowed to show negligence in a product liability case
a.       Probative value is different because you have experts making the changes to determine whether the change will alleviate the specific type of injuries
b.       CONTRARY TO THE FEDERAL RULES – state court decision!!!!!
c.       Open issues