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Stetson University School of Law
Rose, Charles H.

Spring 2015

·         Two types of evidence
·   Circumstantial
·   Direct
·         Main evidence issues
·   Relevancy / admissibility – (court determines)
·   Weight (jury determines)
·   Sufficiency (jury determines)
·         Logical Relevancy (401)
·   tendency to prove or disprove some fact of consequence that makes the act more or less probable than it would be without evidence
·         Legal Relevancy (403)
·   Probative value
·   Substantially outweighed
·   Danger of unfair prejudice…

·         Rule 401: Relevant if it makes a fact more or less probable than it would be without evidence AND a fact is the consequence in determine the action
·   401 is logical relevancy
·   Basically everything is allowed under 401 alone—low threshold
·   “fact that is consequence in determining action” just means material fact….that evidence makes material fact more or less probable
·         Rule 402: 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. [includes fed rules of crim or civil pro, bankruptcy laws, etc.)
·   Irrelevant evidence is not admissible.
·   402 In other words, if there is no rule to exclude it, its admissible
·         Rule 403 /  Excluding Relevant Evidence for Prejudice, Confusion, Waste of Time, or Other Reasons
·   Aka Legal relevancy (Florida is every similar to 403)
o Relevant evidence May excluded if:
Probative value of evidence
Is Substantially outweighed
By danger of:
§  Unfair prejudice [means undue tenancy to suggest decision on improper basis …usually an emotional decision] ·         [idea is that the emotion felt by jury from evidence could confusion or distract jury on the issues] §  Confusion if issues
§  Misleading jury
§  undue delay
§  Waste of time
§  Needless presentation of cumulative evidence
NOTE: judges worry about appellate  issues when deciding issues under 403.

·         Rule 103. Rulings on Evidence:
(a) Preserving a Claim of Error. A party may claim error in a ruling to admit or exclude evidence only if the error affects a substantial right of the party and:
(1) if the ruling admits evidence, a party, on the record: 
(A) timely objects or moves to strike; and 
(B) states the specific ground, unless apparent from the context; or
(2) if the ruling excludes evidence, a party informs the court of its substance by an offer of proof, unless the substance was apparent from the context
·         (b) once the court rules definitively on an objection (either at trail or before), the party need not renew the objection or offer of proof to preserve the claim of error for appeal
·         Issues re Rule 103
·         Rule 103 waiver provision – You  cannot object to evidence if you invited the error or opened the door
·         If court objects to your evidence, (in other words, the court made a ruling) you can make an offer of proof to preserve the objections for trial
·         Rule 104. Preliminary Questions
(a) In General. The court must decide any preliminary question about whether a witness is qualified, a privilege exists, or evidence is admissible. In so deciding, the court is not bound by evidence rules, except those with respect to privilege.
·         In other words, judge decides:
§  If witness is qualified to be a witness
§  The existence of privilege
§  Admissibility of evidence
(b) Relevance That Depends on a Fact. When the relevance of evidence depends on whether a fact exists, proof must be introduced sufficient to support a finding that the fact does exist. The court may admit the proposed evidence on the condition that the proof be introduced later.
NOTE: in making its determination it is NOT BOUND by the rules of evidence  EXCEPT those with respect to privilege
§  Means, judge can consider inadmissible evidence when determining admissibility of evidence in question
·         (C) Hearing of Jury – hearings on admissibility of confessions shall in all cases be conducted out of the hearing of the jury.
·         Issues re Rule 104
·         Appellate court reviews using “harmless error” standard. In other words, they determine after the fact whether a mistake ruling re admission if evidence affected a substantial right of the convicted person
o    In other words, whether error effected outcome of case/trial  (not to what degree of proof was available to court/jury)
·         FRE 104(b) says that jury has responsibility of deciding whether a condition of facts has been fulfilled when determining the relevancy of that piece of evidence

·         FRE 105: Limiting Evidence – If the court admits evidence that is admissible against a party or for a purpose — but not against another party or for another purpose — the court, on timely request, must restrict the evidence to its proper scope and instruct the jury accordingly.
·   Florida Rule 107 re limiting evidence
·   Atty must ask for limiting instruction
·         FRE 106: Rule of completeness –  If a party introduces all or part of a writing or recorded statement, an adverse party may require the introduction, at that time, of any other part — or any other writing or recorded statement — that in fairness ought to be considered at the same time.
·         Applies to corps. And individuals. If a piece of dep for example is admitted because witness makes inconsistent statement on stand from dep, then all of dep may be admitted per rule 106 (not just part of dep re what witness was taking about when impeached

·         FRE 201 Judicial Notice
·   Establishes existence of fact without formal means of evidentiary proof.
Used for facts generally known and not at controversy between parties (like Chicago is in IL…or it was dark at 2am)
In other words, facts “not subject to reasonable dispute” are allowed via judicial notice
They are usually Adjudicative facts which are facts that usually go to jury to assist in making determination…e.g. who, what, where, when, motive/intent
·   atty must request judicial notice and judge has discretion in deciding whether to take notice
·   FRE 201 (d) says that in some cases, the judge can take judicial notice without atty request
·   Requests for notice must be timely and oral or written request 
·   Fed Courts take judicial notice of constitution, federal statues, federal case law, as well as constitution, statues, and case law from every state of the union
·   In FL, courts take judicial notice of rules of court having statewide application…including FL rules of civ pro and FL crim Pro rules (Florida rule 202?)
·         Character 404, 405
·   Aka propensity evidence —a person's propensity to do or not do something
·   Must be a pertinent character trait
·   404 is substantive test re character evidence admissibility (initial test)
·   405 is the procedural standard if evidence is admissible under 404.
·   404(a) character trait of the:
Character for truthfulness re when the vic's or accused's truthfulness is at issue
o    No bolstering
o    Character for truthfulness of witness is under FRE 608, 608 and 609.
·   Character evidence is generally not admissible in civil cases unless its part of the cause of action or the def has raised the issue
·   Def must bring-up issue of character first. However, if def attacks vics character with evidence, plf may use evidence re defs character (404(a))
D opens door to character via atty…if D's atty calls witnesses or has accused testify re character. Or if D's atty asks another witness about a pertinent character trait on cross exam of prosecutions witness
·   It must still be relevant to cases…e.g. cant use past evidence of just being a good citizen in general
·   Three exceptions under 404(a)
404(a)(1)Criminal def is allowed to present evidence of a “pertinent” trait of character
·         Plf can uses character witnesses to rebut defs character evidence under 404(a)(1)
404(a)(2) criminal def can introduce evidence of a “pertinent” trait of a crime victim…such as vic was inclined towards violence in an effort to argue that vic was first aggressor
·         Plf can rebut with character witnesses for vic
·         FRE 412 limits vic character evidence for sexual offenses
404(a)(3) prohibits character evidence used to prove action in conformity of character on a particular occasion
·         Applies to party and non-party witness and civil or crim cases
·         e.g. character witness to show that def is telling truth about issue in case
·   You can impeach a witness who as felony relating to dishonesty or fa

esn’t care as much…they let more in re witnesses character/prior acts
o    Cant tell jury in closing to put themselves in the vic shoes – may create a mistrial
If you are prosc. And you want to let jury know def prior bad acts or conviction, you should try to ask def about prior acts and convictions. If he answers and atty doesn’t object, if he lies, you can admit prior acts/ convictions for purpose to prove that he is lying in stand —judge must pre-determine that prior act is legal relevant
·         If def is going to testify, at pre-trial hearing attys will layout what prior acts/conduct can be admitted
o    If witness/def lies about prior conduct, he opens door to different legal relevancy …impeachment
o    It should be discussed at pre-trial but it can come up in trial
·         Need to know whats admissible before trial for drafting opening statements
·         405 Opinion and Reputation Testimony (controls form of testimony at trial…not its admissibility (see 608 and 405(b) for admissibility rules)
o    405 allows character ev in:
·         Under reputation or opinion testimony
·         Cross examination – (if def opened door???)
·         ??? (see slide)
o    FRE 405 has 3 forms of character ev…..reputation, opinion and specific instance of conduct
o    Fl only has reputation and specific instance of conduct (no opinion character ev. In Fla)
o    In Fla., If def calls witness to testify re def's reputation, on cross, the plf can question witness re their knowledge of specific acts of violence from def. The reason is that it allows plf to test the knowledge of the witness re def's reputation…not just what def has witness say
o    i.e. on cross you can ask def's witness who testified re def's reputation, if that witness knew def had a prior conviction
·         Proper inquiry is to ask …”have you heard that……?”
§  Not “did you know that…?”
o    The difference between opinion testimony and reputation testimony is the legal relevancy requirement under 403 needed for each
·         Reputation testimony doesn’t require witness to have first-hand knowledge of accused/ victim/ witness…just that witness is part of a community and may make statement about reputation
·         Opinion requires more. (see above)
o    Before a Witness may state his opinion testimony, counsel must elicit testimony that:
·         Witness is personally acquainted with the accused/ victim/ witness
·         That witness knows the accused/ victim/ witness well enough to have formed a reliable opinion
·         The witness has an opinion
·         And, establishes a nexus between the character trait and the charged offenses
o    Before a witness may testify about accused/ victim/ witness reputation, counsel must elicit:
·         The witness is a member of a particular group (social, professional, residential, etc.)
·         The accused/ victim/ witness is a member of the same group
·         The accused/ victim/ witness has a reputation within that group
·         The witness has been a member of that group long enough to have learned of the accused/ victim/ witness reputation within that group
·         The witness knows of that reputation
·         And establishes a nexus between the trait offered by reputation and the charged offenses
o    Must establish relevance, offer evidence once the door has been opened and use the correct terminology (see above)
·         Relevancy of opinion is showing a connection between proffered trait and the charged offense or defense