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Stetson University School of Law
Flowers, Roberta K.


Rules of Evidence

Trial is a way to recreate an outside occurrence as if they were there.

1) The rules of evidence can affect what facts can come in.

Flowers say they shouldn’t be called rules: but a series of arguments to be made.

Rule of exclusion—arguments to keep evidence out

Rules of inclusion- these can come in.

In between these two, we have the trial.

2) Also the theory of the case affects what happened and this causes them to say judge you need to / should not take away the child from the parents.

· Evidence has to satisfy the 3 R’s

· Relevant

· Real

· Reliable

Level 1- Relevancy Rules

Relevancy is found in the 400 series. The entire class could be called relevance. Every single class we will talk about how a piece of evidence is relevant.

401-Defenition (has to have some tendency to prove a material issue)

· Circumstantial relevancy- does not go directly to material issue but can be inferred. ex) johnny is seen running from bank as soon as its robbed. You would have to infer that he is running away because he just robbed the bank.

· Direct relevancy: Evidence goes directly to material issue without any inferences. Ex) prove johnny robbed the bank-eyewitness says johnny put gun in my face and robbed the bank-this is direct

IN NITA case- Brooke Thompsons testimony that she saw Joe shoot leslie-direct. The fact that Joe picked up his gun-circumstantial. (requires us to argue the inferences that lead to that piece of evidence to the material relevant

402- relevant evidence that is admissible

403-(Unfair Prejudice)- relevant but inadmissible

407-411 (policy) Subsequent Remedial Measures anything you do to fix your product after the fact-wont be used against you

500 series (Privilege Rules)-certain relationships- husband-wife / atty-client. Discussion and open communication is very important to those relationships. This is not admitted even though it is relevant.

What about 404-406?? Habit and Character evidence (this fits between Prejudice and Policy)

Character evidence (404)-you acted a certain way in the past and that says you are certain type of person- this creates conflicts because we are concerned with relevant we are concerned on how they acted today and not in the past.

Court in 405-limits how you can do it.

406-distinguishes habit from character.

Just know these wont talk about (not on exam)

412-rape-shield statute

413, 414, 415: child abuse, sexual abuse etc.

The kind of rule it is determines who has the burden of persuasion-

· Rules of Inclusion –rule that defines what evidence is admissible

(401 & 402, 406)- Proponent of the evidence has BOP.

· Rules of exclusion-rules that say no this evidence is excluded.

(403 & 407-411)- Opponent to the evidence has the BOP.

The kind of rule it is determines who has the burden of persuasion-

Rules of Privilege are rules of exclusion- opponent must prove they have a privilege and therefore it is not allowed in.

What tools can you use to get the evidence in or out?

Level 2: Reliability Rules

(rules with regard to hearsay) (800 series)

801- defines hearsay

802-says hearsay is no good (exclusion) (opponent must bring in evidence under 801 and therefore inadmissible)

803 &804- exceptions to hearsay-rule of inclusion –BOP on proponent

805- hearsay within hearsay ie. (mark told him and he told me)

806- impeachment rule

807- catch all


Someone said something out of court and we want to say it and bring the statement into court. We are concerned because we don’t know the reliability of hearsay.

Statement that are made by people not under oath or seen or cross examined are inherently less reliable then statements made in court room (our system says)

However, there are exceptions.

Most of the time hearsay is less reliable but sometimes they are as or more reliable.

Ex) Circumstances can make a statement as reliable or more reliable.

Difficult part about hearsay: *** DEF: Hearsay is a statement –someone made an assertion outside of court. Or they wrote something or did some gesture and intended to assert something. We want this person to come into court and say the facts.

1) an assertion of some kind (a pain question is not an assertion what is your name? Commands- “stop falling asleep”-this is not an assertion under hearsa

s- how this thing works

· 104-talks about distribution of authority of judge and jury-who decides what

· 105-limiting instruction rule (when to ask judge to tell jury only use evidence for a certain area)

· 106- rule of completeness (need to see the whole writing in order to judge etc)


· 104,105, 106

· 401** 402, 403, 404, 405, 406, 407, 408, 409, 410, 411

· 501

· 601, 602, 607, 608, 609, 610(kinda), 612, 613

· 701-705

· 801-807 (hearsay rules)

· 901, 902 (exhibits- authentication rules)

· 1001-1005

6th Amendment- Defendant is entitled to confront the witnesses against him. Confrontation clause. If a statement of a declarant is entered in evidence and they don’t come into court, you could have a confrontation clause issue.

Stipulations- a stipulation is an agreement between the parties that a certain fact exists. They agree this is fact and told to the jury. Ex) stipulated that the package contained marijuana.

Direct Examination- Open ended questions. No Leading questions absolutely tells the witness what it is. Re-direct (only open ended questions as well)

Impeachment by omission- Negative Impeachment- “don’t believe this witness. For some reason you shouldn’t believe him. Ex) police officer did not right it on his report.



For relevancy-“objection: Irrelevant”

With relevancy objection you must ask to approach the bench bec discussing facts that may not come into evidence and if not we don’t want jury to hear.

Proving Relevancy:

Prosecution makes argument that the evidence is too remote: Happened 4 years before the shooting that her income went down.

1) Ambiguous

2) Other reasonable explanation

3) Evidence too Remote