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Stetson University School of Law
Flowers, Roberta K.

Evidence Outline – Flowers – Fall 2011

3 most important areas:

Character Evidence



Always begin each essay answer with a discussion of why a particular piece of evidence is or is not relevant.

Evidence Articles:

I. General Provisions—rulings, objections, admissibility, exclusion of evidence, preliminary questions of admissibility

II. Judicial Notice

III. Presumptions

IV. ***Relevancy***—both logical AND legal relevancy; character evidence

V. Privileges

VI. ***Witnesses***—competency, impeachment

VII. Opinion—both lay AND expert opinion

VIII. ***Hearsay and Hearsay exceptions***

IX. Authentication and Identification

X. Contents of Writings

Article I:


Deal with the admission of evidence at trial

When a trial court admits evidence, a timely (before the witness answers, unless the need to object is not readily apparent—instead a ‘motion to strike’ is proper here) and specific objection must be made in order to preserve an issue for appeal to a higher courtàUNLESS “plain/prejudicial/reversible error” is involved; parties do not need to make a timely & specific objection for error to be reviewable

2 part test in trying to correct a problem; basis for an appeal

1. The ruling must affect a substantial right—arguably would have affected the outcome of the case

2. If believed inadmissible and is allowed in must make a timely/contemporaneous objection; if believed admissible and not allowed in there must be a proffer (“must say on record what the jury would have heard, or enter into the record the document or recording); necessary for the appellate review

Hearings on Objections to admissibility of evidence: usually done by judge outside the presence of the jury

Hearings on Admissibility of Confessions in a criminal case MUST be conducted outside the presence of the jury

Rule 103: Offers of Proof:

Deal with the exclusion of evidence at trial

Where trial court excludes evidence no error on appeal may be established, UNLESS there was (1) an offer of proof made—oral or written—or (2) the reason was apparent from the context

Rule 103: If a case is brought in state court, state law governs

Preliminary questions of admissibility: Rule 104(a)

Determined by the trial judge as a matter of law (affidavits and hearsay are includable at this pre-trial stage)

Qualification of witnesses

Existence of a privilege

Unavailability of a witness

Admissibility—including relevance—of evidence

As to the weight and credibility of the specific evidence is a question of fact; the fact finder/jury is primary

Conditional Relevance: Rule 104(b)—relevance of evidence on one fact (if it relies on another fact) will be admitted only upon admission of relevant evidence on the other subject (classic example is forgery—admission of evidence that defendant purportedly forged checks will be conditioned on the authentication of defendant’s handwriting)

Rule 104 (d): Accused’s testimony on one matter/at earlier trial does not make that testimony self-incriminating

Limited Admissibility—Rule 105: the court may restrict the admissibility of evidence by allowing it for one party/purpose, but excluding it as to the other party/other purpose

A piece of evidence that is inadmissible for one reason may still be admissible for another, separate reason

Ex. Subsequent Remedial Measures: lack of a handrail on a slippery set of stairs is NOT admissible for the proof of negligence, but CAN show that it was feasible to have one

Ex: Evidence that a retailer received a letter from a customer complaining about a defective sofa that caused injury may be used to show defendant’s notice or knowledgeàmay not be used to prove defendant’s negligence in a subsequent lawsuit who purchased a similar sofa and also suffered injury

Introduction of parts of a writing—Rule 106—if a party introduces part of a writing/recorded statement, the other party can immediately require introduction of any other part of the writing/recorded statement (“rule of completeness”)

If you get in a portion of piece of evidence (ex. a document or photograph), the other side can bring in ALL of it (subject to other rules—like privilege—of course)

Or, the adverse party can elect to wait until cross-examination to exercise its right

Or , the adverse party can elect to wait until presentation of its own direct testimony/presentation of evidence

Conversations: the adverse party MUST wait until cross/own direct testimony to introduce other parts of a conversation

THERE IS NO RULE REQUIRING writings to be admitted in their entirety

Article II: Judicial Notice is a substitute/shortcut for proof in order to bypass the need for formal presentation of evidence

Court accepts certain facts as true—do not need formal presentation of evidence—b/c of assumptions of certainty and accuracy

R. 201: Cannot argue something that has not come into evidence, but a judge can take judicial notice/allow in things not specifically entered b/c it is generally known to people in the community (a road map, words in a dictionary).

“Would you agree that Oak St. is south of Patterson St?”

Rule 201(b): The fact is “not subject to reasonable dispute because either (1) it is generally known w/in the territorial jurisdiction of the court, or (2) it is capable of accurate and ready determination by resort to sources whose accuracy cannot be questioned.”

May be taken at any stage of the proceeding

Article III:

Burden of Production

Usually on the plaintiff

Equivalent to the burden of going forward

Must produce evidence as to

from repairing deficiencies

o Offers for settlement are not admissible for public policy reasons: want to encourage discussion among parties concerning settlement

Direct Evidence:

Does not rely on an inference

Usually involves an eyewitness account of the ultimate, consequential facts (“I saw, I heard, etc.)

On its face, speaks to the elements of the crime

Raises only issues of credibility of the testifying witness

Indirect/Circumstantial Evidence:

Relies on an inference to prove facts—consists of proving facts to which other, connected facts are established

Raises issues of witness credibility AND an assessment of the inference connecting the evidence with the consequential fact

Do not directly involve the elements of the crime—merely helps direct evidence

Specific problems of logical relevance:

1. Similar Accidents: evidence of other prior accidents may be admissible by a plaintiff to prove a dangerous situation existed or to prove that the defendant was aware of a dangerous condition, IF the plaintiff establishes a “substantial identity of material circumstances”

Otherwise, NOT admissible

Ex: Plaintiff offers evidence of other accidents at a particular RR crossing to show the dangerous nature of the crossing

Will these be admissible? It depends on proving substantial identity of material circumstances:

Similar time of day

Similar speed

Similar weather conditions

2. Absence of Similar Accidents: courts are even more reluctant to admit this evidence than the evidence of Similar Accidents

Courts are much more reluctant to admit evidence where there is an absence of similar accidents

The defendant would offer this evidence to establish due care on his part

Requirements: need both of these for absence of similar accidents to be admitted

1. Substantial Identity of Material Circumstances

2. Defendant must show that if an accident would have occurred, it would have been witnessed/reported

Example: plaintiff sues the defendant city after an accident at an intersection. Defendant offers to prove that over the past 14 years, the intersection has remained the same and that no accidents have been reportedàthis WILL BE ADMISSIBLE