Evidence
Tom Stewart
Fall 2014
Analyzing an Evidentiary Question
· Criminal or Civil?
· Does it matter? (FRE 401) If yes –>
o BUT requirement as to relevance is the lowest standard: any piece of evidence that tends to make the assertion more or less true
o EF probative of the fact sought to be true? Is it material to an EE in the case?
o FRE favor admissibility
· Is it real? (FRE 601) If yes –>
o Does it have a foundation to show that the evidence is real?
· Policy to exclude? If no –>
o There are lots of relevant evidence that we have policies to exclude
o Subsequent remedial measure
o Offers to settle
o Offers to pay medical bills
o Liability insurance
o Plea-bargaining discussions
· Does it cost too much? (FRE (403) If no –>
o Time? The more evidence introduced the more time it takes to do it
o Confusion cost
o Prejudicial cost to the other side – if the evidence is unfairly prejudicial, it will be excluded
· Received
Types of Evidence
· Direct evidence
o Ex: videotapes, eyewitness testimony
· Circumstantial evidence
o Requires an inference
o Ex: I saw someone running down an alley with a pistol in his hand around the time of the murder
Types of Witnesses
· Fact-related witnesses
· Expert witnesses
· Client witness: atty-client privilege prevents other side from discovering how client witnesses were prepared
FRE 103: Rule 103. Rulings on Evidence
(a) 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
(1) 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
(2) Offer of proof. – In case the ruling is one excluding evidence, the substance of the evidence was made known to the court by offer or was apparent from the context within which questions were asked.
Once the court makes a definitive ruling on the record admitting or excluding evidence, either at or before trial, a party need not renew an objection or offer of proof to preserve a claim of error for appeal.
(b) 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. It may direct the making of an offer in question and answer form.
(c) 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 questions in the hearing of the jury.
(d) 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.
OBJECTIONS
Purpose of objections:
· (1) increase chance of winning by excluding harmful evidence
· (2) preserve appeal for your argument that the evidence should have been excluded
2 types of objections:
· Objection to the improper form of a question
o Intended to regulate the mode of questioning and the behavior of the examiner
· Objection to the admissibility of the answer
o When this happens, proper response is a motion to strike the offending testimony
Rulings:
· Sustained
· Overruled
· Limiting instruction:
We often tell juries that they can only use a piece of evidence for a particular purpose, but that is a bit of a legal fiction; no jury can really parse that
Instructing the jury to disregard
Similar to the effect of a limiting instruction – no real way to purge the mind of evidence/testimony to be disregarded
Motions i
The Basic Concept of Relevancy:
· 2 fundamental conceptions:
o without any exception, nothing which is not, or is not supposed to be, logically relevant is admissible
subject to many exceptions and qualifications, whatever is logically relevant is admissible
No real test for relevancy; it’s about logic, and the general experience of the judge to determine if its relevant
The presumption is that we want the jury to consider relevant evidence
401 Interpretation:
· Focus is on the reasonable juror
o Could a reasonable juror find that this evidence has any tendency to make a fact more or less true?
o Judge could disbelieve the evidence personally, but the judge's focus is on the reasonable juror, not him or herself
o Something might seem relevant to the trial atty, but maybe it’s not relevant at all to a juror (Stewart's meth example of trial in Steelville)
· Extremely low standard – “any tendency”
o If the evidence “advances the ball ever so slightly down the field” it's admissible
o Doesn’t matter if its weak
2 Step Relevancy Process:
· Is it probative?
o The relationship of the evidence to a fact sought to be proved
o Does the evidence tend to help establish the TF?
· Is it material?
o The relationship of the fact sought to be proved to a legal theory
o A proposition of fact is “of consequence” if it matters to the legal resolution of the legal dispute; if it can be connected through inferential reasoning to one of the essential legal elements of the substantive law that governs the case
