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University of Alabama School of Law
Pardo, Michael S.

Pardo_Evidence Checklist_Spring 2011

I. General Principles

a. Rationale for Rules

i. Mistrust of Juries

ii. Substantive Policies—subject matter of the litigation

1. burdens of proof

iii. External Policies not related to subject matter of litigation

1. privileges

iv. Discern the Truth

v. Efficiency

b. Scope of Direct

i. Cross examination limited to matters explored on Direct examination

ii. Depending on whose side you represent, matters explored on direct are

1. facts in direct

2. Transaction or Occurrence in Direct

3. Issue presented in direct

4. Credibility

c. Objections

i. Timely and Specific 103(a)(1)

ii. Motions in limine made before trial in anticipation of an objection to the evidence you are offering OR anticipating an objection to evidence opposing counsel is going to offer

1. Once a ruling is made, 103(a)(2) provides that the party need not renew the objection during trial

iii. Offers of Proof 103(a)(2)

1. where court’s ruling excludes evidence, proponent of the evidence can offer substance as if he were allowed to in order to preserve the record for appeal

a. sidebar OR

b. question and answer form outside presence of jury 103(c)

d. Errors and Review

i. evidence excluded or admitted must have effected the outcome

1. outcome affected beyond a reasonable doubt in criminal cases

2. outcome affected by a preponderance of the evidence in civil cases

ii. Types of error

1. reversible

2. plain

3. harmless

4. constitutional

iii. Trumps Error

1. cumulative evidence doctrine

2. harmless error

3. curative instructions

iv. Burden of proof to show error

1. record preserved AND

2. outcome affected according to criminal or civil standards

v. Burden of Proof to show no error

1. record was not preserved by timely and specific objections

2. if evidence excluded, no offer of proof was made

II. Relevance

a. Logical 401

i. evidence having any tendency to make the existence of any consequential fact more probably or less probable than it would without the evidence

ii. Evidence providing narrative richness, details to meet jury expectations, and considerations of party autonomy to present evidence is logically relevant

b. Legal 403

i. if relevant, court can exclude evidence if its probative value is substantially outweighed by the danger of

1. unfair prejudice

2. misleading the jury

3. confusion of the issues OR

a. considerations of undue delay

b. waste of time

c. needless presentation of cumulative evidence

ii. When balancing, consider

1. necessity of the evidence AND

2. whether reasonable and less prejudicial alternatives exist

c. Conditional Relevancy and Judicial Fact finding 104

i. if relevancy depends on the existence of a fact, court ONLY determines if there is sufficient evidence to support a jury finding one way or the other

ii. Jury alone decides whether the fact exists. if the fact exists, the evidence is relevant. if not, the jury discards the evidence.

iii. “Substantially the same” standard “any tendency”

d. limited Admissibility

i. where evidence is admissible for one purpose but not another OR for one party and not the other, the court shall restrict the evidence to its proper scope and instruct the jury accordingly

ii. If a limiting instruction would be inadequate, court has the power to sever trials or order separate juries (Bruton Problems)

e. Rule of Completeness

i. where portions of a writing or recording are offered by one party, the adverse party, at that time, May demand the remainder of the writing or recording to provide context

f. Shortness of Life

i. court can exclude evidence for practical reasons

g. Probabilistic Proof

i. Mathematical probabilities to prove guilt are inadmissible

1. usurps the jury function

ii. Probabilistic analysis may be used to identify a body when not a material issue in the case

iii. probabilistic proof might be proper if there are actual probabilities AND jury confusion would be limited

III. Relevancy of Character: Character evidence is generally inadmissible unless the following apply; 403 balancing applies

a. General Character of D

i. Character of the D admissible if D raises good character trait of himself or bad character trait of the victim

1. in either case, the prosecution can offer bad character of the D on SAME trait to rebut

a. on cross, prosecution can question witness as to prior crimes/acts showing the bad character of the D

i. Crimes/acts must be pertinent AND

ii. prosecutor must act in good


i. personal phone calls authenticated by circumstances including self-identification

1. one prior voice identification will suffice

2. caller I.D. is sufficient

3. phone records are sufficient

4. Reply Doctrine applies

ii. Business phone calls can be authentic IF

1. call made to place of business AND

2. conversation is business related

3. Use 901(b)(4) if the elements are not met

e. Self-Authentication

i. Some exhibits need no extrinsic evidence to prove authenticity

1. introducing party has the burden of production AND

2. opponent has the burden to persuade the jury that the evidence is not authentic

f. Demonstrative Evidence

i. Anything that appeals to the senses: including real Evidence

ii. assistance to the jury

iii. courts are split on whether demonstrative evidence must be accurate

g. Witness

i. Every witness must be able to take and comprehend an oath to tell the truth, and have personal knowledge about what they are testifying

VI. Best Evidence Doctrine

a. Old Common Law: Largely inapplicable today

i. original must be produced OR

ii. absence explained

1. words given special sanctity AND

2. copies were suspect

b. Original Required

i. to prove the contents of a writing, recording, or photograph, the original is required

ii. Original means

1. writing, recording, or photo itself

2. Counterpart intended to have the same effect

3. negative of a photograph OR

4. Computer printout

iii. Duplicates are admissible as originals UNLESS

1. general question raised as to authenticity OR

2. circumstances make it unfair to admit the duplicate

c. Exceptions (original not required and secondary admissible)

i. original lost or destroyed

ii. original not obtainable by the court

iii. opponent has the original