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Temple University School of Law
Ramji-Nogales, Jaya

EVIDENCE OUTLINE – Ramji-Nogales – Fall 2013

I. Introduction – Sources and Interpretation of the FRE

a. FRE are about the limits we place on the information juries hear. Why limit?

i. Trials have to end

ii. Some evidence is obtained in violation of the constitution

iii. To protect the privacy of certain individuals (spouses; attorney/client)

iv. Rules of relevance: seek to focus the parties and the jury on the issues at hand (fairness and efficiency)

v. Rules of reliability: seek to ensure that the evidence the jury hears is as good as it purports to be, or at least that its defects are apparent to the jury (truth)

vi. Other societal interests: justice (due process, confrontation rights, etc.)

b. FRE 102 – Purpose (Goals)

i. Fairness

ii. Efficiency

iii. Ascertaining the truth

iv. Securing a just determination


a. FRE 401 – Test for Relevant Evidence

i. (a) Probativeness: tendency to make a fact more or less probable than it would be without the evidence; AND

ii. (b) Materiality: fact is of consequence in determining the action

b. FRE 402 – General Admissibility of Relevant Evidence

i. Relevant evidence is admissible unless any of the following says otherwise:

1. US Constitution

2. Federal statute

3. The rules

4. Other rules prescribed by the Supreme Court

ii. Irrelevant evidence is not admissible

c. FRE 104 – Preliminary Questions

i. (a) – In General: Court must decide any prelim. Question about whether a witness is qualified, a privilege exists, or evidence is admissible. When deciding, the court is not bound by evidence rules, except those on privilege

ii. (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. Court may admit the proposed evidence on the condition that the proof is introduced later.

1. Conditional relevance!

2. Judge makes a preliminary determination whether the foundation evidence is sufficient to support a finding of fulfillment of the condition. If so, admit it!

3. If after all the evidence on the issue is in, pro and con, the jury could reasonably conclude that fulfillment of the condition is established, the issue is for them. If the evidence is not such as to allow a finding, the judge withdraws the matter from their consideration.

d. FRE 105 – Limiting Evidence that is not Admissible Against Other Parties or for Other Purposes (Request limiting jury instruction)

i. 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, w/ a timely request, must restrict the evidence to its proper scope and instruct the jury accordingly

e. FRE 403 – Excluding Relevant Evidence for Prejudice, Confusion, Waste of Time, etc.

i. The court may exclude relevant evidence if its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence

1. Discretionary!

2. Probative value = relevance + probative worth

3. Substantially outweighed: liberal standard

ii. Test

1. Determine probative value

2. Determine risk of unfair prejudice or other dangers

3. Balance probative value against dangers

a. Dangers must substantially outweigh probative value

b. May: excluding the evidence is at the discretion of the court

iii. How can a party limit unfair prejudice?

1. Present evidence in a less prejudicial form

2. Alternate forms of proof

3. Stipulation (stipulate the facts; prosecution won’t like this because they lose the opp. to tell the story)

4. Cautionary jury instruction (Rule 105?)


a. FRE 404 – Character Evidence; Crimes and Other Acts

i. (a) Character Evidence

1. Prohibited uses: evidence of a person’s character/character trait is not admissible to prove that on a particular occasion the person acted in accordance w/ the character/trait

2. Exceptions for a Defendant or Victim in a Criminal Case:

a. Defendant may offer evidence of defendant’s trait; if admitted, prosecution can bring evidence to rebut it

b. (Subject to Rule 412) Defendant may offer evidence of an alleged victim’s trait; prosecution may

i. Offer evidence to rebut

ii. Offe

06 Habit

1. Evidence of a person’s habit or an organization’s routine practice may be admitted to prove that on a particular occasion the person or organization acted in accordance w/ the habit/routine practice.

a. This evidence does not have to be corroborated and there does not have to be an eyewitness re: specific incident in question

2. Habit: invariably regular response to repeated specific situation which leads to predictable and predictive conduct

a. Repetition

b. Semi-automatic

c. Specificity

d. Duration

e. Relatively innocuous (harmless)

3. FRE 403 concerns: undue delay and wasting time bringing witnesses to prove habit

d. Exceptions to the Propensity Ban

i. Defendant’s and Victim’s Character

1. FRE 404(a)(2)(A)-(C)

a. Exceptions for a Defendant or Victim in a Criminal Case:

i. (a) Defendant may offer evidence of defendant’s trait; if admitted, prosecution can bring evidence to rebut it

ii. (b) (Subject to Rule 412) Defendant may offer evidence of an alleged victim’s trait; prosecution may

1. Offer evidence to rebut

2. Offer evidence of defendant’s same trait

iii. (c) Homicide case: prosecution may offer evidence of victim’s peacefulness to rebut evidence that victim was 1st aggressor

iv. (d) Witness exceptions à witness’s character may be admitted under FRE 60, 608, and 609

2. FRE 405 – Methods of Proving Character

a. By Reputation or Opinion: when evidence of a person’s character/character trait is admissible, it may be proved by testimony about the person’s reputation or in the form of an opinion. On cross-examination, court may allow an inquiry into relevant specific instances of the person’s character

i. Reputation: have you heard? What a community thinks

ii. Opinion: do you think? I believe