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Seton Hall Unversity School of Law
Freamon, Bernard K.

a. FREs are applicable in ALL civil and criminal cases.
i. For the most part, the FREs have codified well-established principles of evidence law.
ii. Where the FREs depart from the traditional rules of evidence, the adopted FREs is likely to represent an important modern trend, which the states are likely to follow as they revise and codify existing law.
iii. FRE 102—Purpose and Construction
1. These rules shall be construed to secure fairness in administration, elimination of unjustifiable expense and delay, and promotion of growth and development of het law of evidence to the end that the truth may be ascertained and proceeding justly determined.
iv. FRE 103—Rulings on Evidence
1. Effect of Erroneous Ruling—error may not be predicated upon a ruling which admits or excludes evidence unless a substantial right of the party is affected, and
a. Objection. In case the ruling is one admitting evidence a timely objection or motion to strike appears of record, stating the specific ground of objection, if the specific ground was not apparent from the context; or
b. Offer of proof….a party need not renew an objection or offer of proof to preserve a claim of error for appeal.
2. Record of Offer and Ruling. The court may add any other or further statement which shows the character of the evidence, the form in which it was offered, the objection made, and the ruling thereon.
3. Hearing of jury. In jury cases, proceedings shall be conducted, to the extent practicable, so as to prevent inadmissible evidence from being suggested to the jury by any means, such as making statements or offers of proof or asking question in the hearing of the jury.
4. Plain Error. Nothing in this rule precludes taking notice of plain errors affecting substantial rights although they were not brought to the attention of the court.
v. FRE 105—Limited Admissibility
1. When evidence which is admissible as to one party or for one purpose but not admissible as to another party or for another purpose is admitted, the court, upon request, shall restrict the evidence to its proper scope and instruct the jury accordingly.
b. Threshold Admissibility IssuesàMATERIAL, RELEVANT, COMPETENT.
i. Materiality—the Proposition to Be Proved
1. Materiality exists when the proffered evidence relates to one of the substantive legal issues in the case.
a. What issue is the evidence offered to prove?
b. Is that legal issue material to the substantive cause of action or defense in the case?
ii. Relevance—Probativeness: the Link Between Proof and Proposition
1. Probative evidence contributes to proving or disproving a material issues.
2. Does the evidence tend to make the material proposition (issue) more probably true or untrue than it would be without the evidence?
3. Example—evidence that the defendant drove recklessly on a prior occasion is material because it speaks to the question of his negligence. However, it is not sufficiently probative of the issue of negligence on this particular occasion, and is therefore not relevant.

FRE 401 combines materiality and relevance into one rule providing, “relevant evidence means evidence tending to make the existence of any fact of consequence to the determination of the action (materiality) more or less probable than it would be without the evidence (probativeness).” Ask yourself: 1) whether the fact sought to be proved is itself in issue under the pleadings and the substantive law, and also 2) whether the evidence helps to prove the fact for which it is offered.

iii. Competence
1. Evidence is competent if it does not violate an exclusionary rule.
c. Evidence Classifications:
i. Real Evidence—the “real thing”
1. Direct Evidence—Relies on Actual Knowledge
a. Evidence is direct when the very facts in dispute are communicated by those who have actual knowledge by means of their senses
b. Example—on the issue of whether anyone had recently crossed a snow-covered bridge, the testimony of a witness that he saw a man crossing would be direct evidence.
2. Circumstantial Evidence—Relied on Inference
a. It is evidence of a subsidiary or collateral fact from which, alone or in conjunction with a cluster of other facts, the existence of the material issue can be inferred.
b. Example—on the issue of whether anyone had recently crossed a snow-covered bridge, the testimony of a witness that he saw human footprints in the snow on the bridge would be circumstantial.
ii. Demonstrative Evidence—tangible material used for explanatory or illustrative purposes only (visual aids, etc.)

a. FREs have three main relevancy provisions:
i. FRE 402—all relevant evidence is admissible, except as otherwise provided by the Constitution of the United States, by Act of Congress, by these rules, or by other rules prescribed by the Supreme Court pursuant to statutory authority. Evidence which is not relevant is not admissible.
ii. FRE 401—“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 probable or less probable than it would be without the evidence.

iii. FRE 403—Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.

1. Old Chief v. United States—it is an abuse of discretion to admit the record of the prior conviction when an admission is available. Unfair prejudice in a criminal case means an undue tendency to suggest decision on an improper basis.
a. In determining admissibility of relevance evidence, the court should consider:
i. FRE 401—a party’s concession of the point.
ii. FRE 403—the availability of alternative means of proof when deciding whether to exclude eon grounds of unfair prejudice.
iii. FRE 404—the dual nature of le

f Character Evidence):
a. Evidence of other crimes, wrongs, or acts to prove the character of a person in order to show action in conformity therewithàNOT Admissible
b. Evidence of other crimes, wrongs, or acts to other purposesàMay be Admissible
i. Motive
ii. Opportunity
iii. Intent
iv. Preparation
v. Plan
vi. Knowledge
vii. Identity
viii. Absence of mistake or accident
c. Non-character Rationale:
i. Kidnapping case—evidence that defendant had been convicted in the past for buying narcoticsàshows motive to demand ransom because money is needed to support a drug habit.
ii. Bank robbery case—evidence that a person stole a car might be admissible if the car was used to commit the robbery.
5. Method allowed for proof of character
a. Testimony about the person’s reputation or about a witness’s opinion of the person is always allowed.
b. In specific cases, evidence about actual instances of past conduct is allowed to support inference about a person’s character.
ii. EXCEPTIONS #1 and # 2—Character of the Accused and Victim
1. A defendant is allowed to introduce evidence of his or her own character to support the inference that he or she did not commit a charged crime.
a. Defendant must do this through testimony of witnesses (state an opinion of character or reputation; no specific instances allowed )
b. Prosecution can cross-examine character witness
i. FRE 405(a)—prosecution is allowed to “inquire into” any “relevant specific instances of conduct.”
c. Prosecution can then respond with its own witnesses about defendant’s character.

EXCEPTION # 1 (to FRE 404(a))

FRE 404(a)(1): Character of Accused—In a criminal case, evidence of a pertinent trait of character offered by an accused, or by the prosecution to rebut the same, or if evidence

Character Evidence—Three Concerns:
1. The purpose for which evidence of character is offered
2. The method to be used to prove character
3. The kind of case, civil or criminal

Excluded if:
Probative value < prejudicial effect