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Stetson University School of Law
Henderson, Carol

Evidence Henderson Spring 2016

I.Chapter 1 Introduction to Evidence: FRE didn’t exist until 1975
A.Relevant Evidence Rule
1.FRE 101: Scope; Definition
a.Scope: These rule apply to US courts.
i.Civil Case: civil action
ii.Criminal: criminal proceedings
iii.Public office: includes public agency
iv.Record: includes memorandum, data compilation, reports.
v.Rule prescribed by the supreme court is a rule adopted by the supreme court.
vi.Reference to any kind of written material includes electronically stored data.
2.FRE 102. Purpose
a.These rules are to ensure proceedings are administered fairly and efficiently to ascertain the truth and just determination.
B.Meanings and Uses of Evidence
a.Evidence: admissible proof or proof that can be properly considered by the trier of facts. Three different commonly used definitions of the term are (1) proof (2) the rules governing admissibility (3) the stuff jurors can take back with them.
b.Proof: the stuff offered by the parties at trial to prove the elements of a claim, cause of action, or defense. Is offered through marked tangible material called “exhibits” and oral testimony.
c.Rules: Rules contain numerous evidentiary “foundations” – procedures and judicial findings that are prerequisites to the admissibility of evidence at trial.
i.*Florida allows for depositions in Criminal cases
d.Evidence the Jury can take back to the jury room: usually is a large portion of the tangible proof offered at trial. However, does not include Demonstrative evidence which is used only to illustrate a witness’ point in court. This cannot go back with the jury.
C.Types of Evidence
e.Real, representative, or testimonial
i.Real – is physical, tangible evidence, the thing-itself. Gun, fender, original contract. 
ii.Representative – evidence that represents another thing. Diagram, chart, photograph, x-ray.
iii.Testimonial – comes from witness’ viva voce, meaning by voice. Usually sworn statement only.
f.Direct or Circumstantial
i.Direct – proves a fact, usually an important one, without requiring any inferences. An eyewitness testifying, she saw the defendant fire the gun and kill the victim.
ii.Circumstantial – does not itself address a fact in issue, such evidence is relevant if an inference to be drawn from it bears in some way on a fact in issue.
D.Lawsuit Process
g.Filing and Charging – starting action
1.Indictments (by grand juries)
2.Informations (by prosecutors)
1.Well-pleaded complaints
1.Motions to dismiss
2.Extensions of time
3.Summary judgement
4.Change of venue
5.Recusal of a judge
1.Plea bargaining
i.Voir Dire (“to tell the truth”)
ii.Opening statements
iv.Rebuttal cases
v.Closing arguments
ii.Release (criminal)
II.Chapter 2: Functions of Judge Jury and Attorneys at Trial
A.Relevant rules:
1.FRE 103 Rulings on Evidence
a.Preserving a claim for error: a party may only claim error in a ruling to admit or exclude evidence only if the error affects a substantial right of the party and;
i.If the ruling admits evidence a part on the record:
1.Timely objects or moves to strike and
2.States the specific ground unless it was apparent from the context. Or
ii.If the ruling excludes evidence a party informs that court of its substance by an offer of proof unless the substance was apparent from the context.
b.Not needing to renew an objection or offer of proof: once the court rules definitively on the record either before or during trial a party need not renew an objection or offer proof to preserve the claim of error for appeal.
c.The court may make any statement about the character or form of the evidence, the objection made, and the ruling. The court may require that an offer of proof be in question and answer form.
d.Preventing the Jury from hearing inadmissible evidence: the court must conduct a trial so that inadmissible evidence is not suggested to the jury by any means.
e.The court may take notice of plain error affecting a substantial right even if the claim of error was not promptly preserved.
2.FRE 104 Preliminary Questions
f.The court must decide preliminary questions about whether a witness is qualified, a privilege exists, or evidence is admissible. In so doing the court is not bound by rules except those on privilege.
i.Henderson’s Two prongs; (1) is there enough evidence to set up a foundation and (2) is there sufficient evidence to support the facts.
g.Conditional relevance: relevance that depends on Fact – when relevancy of evidence depends on whether a fact exits, proof must be introduced sufficient to support a finding that the fact does indeed exist. The court may admit the proposed evidence on the condition that the proof is introduced later.
h.The court must conduct any hearing on a preliminary question so that the jury cannot hear it if:
i.The hearing involves the admissibility of a confession
ii.The defendant in a criminal case is a witness and so requests
iii.Justice so requires.
i.By testifying on a preliminary question, the defendant in a criminal case does not become subject to cross-examination on other issues in the case.
j.This rule does not limit a party’s right to introduce evidence before the jury that goes to the weight and/or credibility of other evidence.
3.FRE 105 Limiting Evidence that is not admissible against other parties or for other purposes
k.If the court admits evidence that is admissible against a party or for a purpose – but isn’t admissible 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.
4.FRE 106 Remainder of or related writings or recorded statements
l.If a party introduces part of a written statement or recording the adverse party may require at that time the introduction of any other part writing or recordings that in fairness ought to be considered at the same time.
B.Judge: supposed to be objectively neutral
a.Judge manages the trial, chief operating officer. Umpire of disputes and air traffic controller.
b.He rules on evidentiary objections and on the admissibility of evidence
c.When asked to rule on questions of relevancy they base the ruling on reason and experience.

st pass.
a.Relevance is also considered in the assessment of admissibility of hearsay, impeachment, and other forms of evidence.
b.Not all relevant evidence is admissible as it must comply with other exclusionary rules such as character, hearsay, privilege, and improper impeachment.
2.The key to relevance is understanding that it describes how one thing relates to another thing if at all.
C.Defining Relevance
1.Evidence is relevant if:
a.Probative (making something more or less likely even only a tiny bit more or less) of
i.Meaning a chain of inferences can be constructed that connects evidence to issues in the case. Does not matter if the evidence may also yield inferences that do not relate to the case is not significant. Only need a chain of inference that bears on the case at hand.
ii.Does not need to make a fact more probable just more or less likely.
b.A fact of consequence to the determination of the case
i.A fact that is properly provable in a case. Facts that relate to: elements that relate to a legal claim or defense; the credibility of a witness; or helpful background information.
ii.“Material fact” – was abandoned and replaced by “fact of Consequence”
3.Facts of Consequence – three kinds
c.Elements of a claim or defense
e.Background information
i.Commuter case/subway vigilante case pg 50: Establishing a reasonable belief required background information as the test was subjective (use of deadly force). A determination of reasonableness must be based on the circumstances facing the defendant. These encompass any prior experiences he had.
D.Defining Conditional relevance
1.Relevance of evidence (X’s testimony) depends on missing evidence (Y’s testimony). Counsel promises to supply missing evidence (Y’s testimony) later.
4.Such conditional evidence will be admitted by the judge I there is sufficient evidence for a reasonable jury to find by preponderance of the evidence that the fact in question exists.
5.Conditional relevance poses a type of competency requirement because it demands that evidence have a minimum level of connection to the facts in the case.
6.From another perspective, conditionally relevant evidence is like a chain with one or more of links missing. The missing link represents the omitted but necessary separate fact.
7.Example: Jorge was charged with shooting to death his girlfriend. A gun was found outside the house where the girlfriend was killed. The gun may be conditionally relevant if additional evidence shows that it was this particular gun used in the shooting.