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Stetson University School of Law
Flowers, Roberta K.

Flowers Spring 2011

Opening Statement: lays out the entire trial for a jury
Direct Examination:
·         Who what when where how
·         Open ended questions
·         If witness is hostile—you can ask leading questions on your own witness
Proponent of Evidence: the person putting the evidence on through direct and cross or exhibits
Opponent of Evidence: the person who is opposing the evidence

If the Rule of Evidence is a rule of Inclusion, the proponent has the burden of persuasion that the evidence can come in.

Rule of Exclusion, the opponent has the burden of persuasion that the evidence should not come in.

Foundation: you have, as the proponent of the evidence, proven that it has satisfied the rules surrounding that evidence can come in.

Impeaching: Putting on testimony that will make the judge and jury doubt the credibility of the witness
·         Bias
·         Contradictory/inconsistent statement
·         State of mind/body

Foundation Questions: question required to allow things like a phone conversation come in—authentication

Case in Chief: the case in which the advocate is doing direct examination

Confrontation clause: 6th Amendment—if you are on trial in a criminal case, you have the right to confront the witnesses against you. Only applies when you are putting on evidence of someone that is not in court. Only in criminal cases when it is given against the defendant.

Stipulation: agreement between the parties that a piece of evidence is what they agree it is

Impeachment by Omission (Negative Impeachment): i.e. when the police officer omitted something that he is now saying in court, which makes him not credible

Prior bad acts: to show that they are not credible—i.e. liar

There are 13 core rules
THREE “R”s of Evidence:
1.       Relevant 401, 402
·   Every piece of evidence must be relevant
·   Has to have some materiality and proved value
·   Directly relevant (evidence itself proves the element directly) or circumstantially relevant (reasonable inferences “bumps”)
·   Inadmissible for 3 reasons:
·         Prejudice—unfair prejudice is inadmissible… 403, 404, 405
Policy—i.e. jeep example-want to encourage jeep to fix cars so won’t let them be suit; negotiation is encouraged so doesn’t allow statements made in negotiations used in court (407-413)
·         Opponent has burden to show that evidence should be excluded
·         Privileges—even if evidence may be highly relevant, it will be excluded from court to encourage that relationship and will exclude communications made in those relationships (spouses, priest, attorney-client and etc)
2.       Reliable
·   The issue of hearsay 800s
·   Someone heard a statement out of court, and now they are saying that statement in court
·   Doesn’t matter who did the talking—things that the person said can be hearsay even if they are the ones repeating it—i.e. “I told the police…”
·   Inadmissible IF the statement is being used for the truth of the matter being asserted
·   Declarant—whoever made the statement out of court
·   Exclusion:
·         Admission by a party opponent: anything that the opposing party said, gets to be introduced
3.       Real
·   That the evidence is really what the witnesses say it is
·   600s—impeachments
·         601 is competency
·         602 personal knowledge
·         607 impeachment
·         608 impeachment by prior bad act
·         609 credibility
·         610 can’t use religion
·         612 refreshing recollection
·         613 impeachment by prior inconsistent statements
·         615 sequestration
·         611 direct has to be open, cross can be leading
·   900s and 1000s—exhibits, authentications
·         901 authentication
·   700—opinions; is this person really an expert
·         701
·         703-705 expert witnesses

RULE 401
Definition of “Relevant Evidence”
Relevant evidence means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.
FRE 401—requires only that evidence have any tendency to make the existence of a fact that is of consequence to the determination or the action more probable or less probable than it would be without the evidence
·         “weight” described the persuasive force assigned to the evidence by the trier of fact once it has been admitted
·         “Sufficiency” refers to the quantum and persuasive force of evidence necessary to take on issue to the jury
·         Common law terms—“materiality” and “probative value”
·         Relevancy is a rule of Inclusion : relevant evidence is permissible and the proponent needs to argue that it should be allowed in
·         Materiality: needs to go to some fact that is of consequence
o   Three categories of materiality:
§  The piece of evidence goes to an element of the case (substantive law—cause of action or defense)
§  General Background
§  Credibility—of witnesses
·         Probative Value: Any tendency to make the existence of the fact more probable or less probable than if that fact did not exist
o   Ties the direct evidence to materiality
o   Doesn’t have to have the tendency to proof beyond a reasonable doubt, it just needs to have some tendency to prove the case
o   How to argue that something has no probative value: (used for circumstantial evidence)
§  Evidence is ambiguous
§  Too many inferences
§  Inferences are weak at best
§  Other explanations
o   Defense—“It goes to the weight, not the admissibility”—the jury should decide
Logical Relevance
·         FRE 401—“Relevant evidence” means evidence having any tendency to m

as ZERO or little probative value
·         Proponent wants to argue that it has GREAT probative value
·         Discretionary Exclusion
o   Judge has discretion
o   Judge may consider additional factors such as centrality of the point to be proved, the need for particular evidence, the availability of alternative source of proof, and likelihood that the jury will understand and follow a limiting instruction
o   Evidence may NOT be excluded under FRE 403 merely because the trial judge does not find the evidence to be credible although the court may consider the probative value of the evidence in undertaking the required balancing
Unfair Prejudice, Confusion, Delay, Collateral
·         Unfair Prejudice—the Rule expects courts to distinguish between prejudice resulting from excessive emotional or irrational effects that could distort the accuracy and integrity of the fact-finding process
o   Substantially outweighs—either side can argue
o   Excessive emotions—causes jury to base decisions based on emotions instead of reason
§  Bad guy evidence—makes you not like the person not because of the evidence BUT because of something else
o   Misuse of evidence—improper purpose
o   Limited Purpose—FRE 105-suggest limiting instructions
§  Opponent could try to get a stipulation—“well agree to everything this picture and therefore it should be excluded because it has no further probative value”
o   Can argue that the evidence is too dissimilar to have probative value—i.e. shaking maids and calling people thieves
o   There is a less prejudicial way: that proves the same thing
·         Appeal to emotion—courts may exclude evidence that is found to be “inflammatory”, “shocking” or “sensational”
·         Limiting emotional impact—the court has authority under FRE 403 and 611(a) to minimize the emotional impact of such evidence—i.e. limiting photos, black and white vs color, drawing instead of photo etc

·         Materiality + probative value = relevancy
·         The opponent must show that one of those two are missing, therefore not relevant
Four ways the court can exclude evidence EVEN if it has materiality & probative value
·         (1) if probative value is outweighed by unfair prejudice
·         (2) it is impermissible character evidence
·         (3) policy
·         (4) Privilege