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University of Alabama School of Law
Pardo, Michael S.



A. Evidence Law: the rules governing the admission and exclusion of evidenced in both civil and criminal trials.

B. Evidence: information that we use to infer conclusions or beliefs about whether certain facts (those facts that are relevant to the elements of the substantive law) are true.

C. Basic Structure of Trials

1. Motions in limine: pre-trial motions made by the parties to obtain rulings on anticipated evidentiary problems. (Most often raised when parties anticipate problematic evidence by their adversaries and want the court to exclude it).

2. Jury Selection: Voir Dire: questioning process; potential jurors can be dismissed “for cause” (for bias, etc) or by a “preemptory challenge” (does not require a reason, so # is limited)

3. Preliminary Jury Instructions

4. Opening Statements:

a) Plaintiff / Prosecution goes first, then Defendant.

b) OS is neither evidence nor argument, but is supposed to be a compact narrative of what the lawyer believes in good faith the evidence will show

5. Presentation of Evidence and the Burden of Production

a) P/P presents case-in-chief first. Primarily through direct examination of witnesses, P must present evidence sufficient to prove each element of its cause of action / crime charged.

b) D then does direct examination of witnesses and tries to cast doubt on Ps evidence and present evidence sufficient to prove each element of any affirmative defense.

c) Rebuttal: After D rests, P has opportunity to call witnesses but the scope of the rebuttal is limited to either matters raised as part of Ds affirmative defenses, or attacks during D case on the credibility of Ps evidence. Cannot repeat evidence. Sur-rebuttal is allowed for D, but it is unusual.

d) Burden of Proof

i) Burden of Production: producing enough evidence so that a reasonable fact finder can make a finding for the P on each element.

ii) Burden of Persuasion: Beyond a reasonable doubt in criminal cases and a preponderance of evidence in civil cases.

iii) In civil cases, Ds have the B of production on their affirmative defenses. In criminal cases, P has the B of production to negate any defenses.

6. Closing Arguments: argument and discussion of law are allowed.

D. Federal Rules of Evidence

1. FRE 102: Purpose

2. FRE 611: Mode and Order of Examining Witnesses and Presenting Evidence

a) Recognizes broad sweeping authority of the judge to control the examination of witnesses during trial.

b) Cross Examination: scope limited to matters from direct examination and matters affecting the witness’s credibility

c) Leading Questions: a question that suggests the answer the questioner wants the witness to give

i) LQs are allowed during cross examination or when a party calls a hostile or adverse witness

ii) LQs are NOT allowed during direct examination

3. FRE 601: anyone who is competent and has relevant info can be a witness at trial. This is largely a rejection of CL rules prohibiting felons from testifying.

4. FRE 603: witnesses must take an oath or affirmation agreeing to testify truthfully

5. FRE 605: Judge cannot be a witness

6. FRE 606: Jurors cannot be witnesses. What happens during jury deliberation cannot be challenged once verdict is issued, unless outside influence (bribe, etc)

7. FRE 610: religious beliefs off limits for objecting to a witness’s credibility.

E. FRE 103: Appeals

1. Four Requirements to overturn an evidentiary ruling on appeal:

a) Objection: must be made at trial level

i) Two types:

· Objection to Form of Question: intended to regulate the mode of questioning and the behavior of the examiner

· Objection to Admissibility of the Answer: intended to exclude inadmissible evidence.

ii) Things to remember:

· There are no magic words- anything that conveys reason for objection works

· Courts are only allowed to rule on objections made (even if some other objection would have been better)

· Multiple objections are allowed for the same evidence

· *Objections Chart pg 118-119

b) Make a Record: must make a record so that it is clear to the appellate court what the evidence would have been. Can be done two ways:

i) During conference with the judge: we would have called x witness and they would have testified y and z

ii) Witness actually give testimony, just not before a jury

c) Error (Abuse of Discretion): must show that the discretion of the trial judge was unreasonable (not just that it should have been decided differently)

d) Substantial Right (not harmless): must show that the error affected a substantial right of the parties. Harmless Error Standard: reasonable likelihood of affecting outcome in a substantial way.

2. 103(e) Exception: Plain Errors: courts can overturn if an error so obvious and important is identified that it would be unjust not to overturn, even if it was not raised as an objection at trial.


A. Fundamental Concepts

FRE 402: General Admissibility of Relevant Evidence

Relevant evidence is admissible unless any of the following provides otherwise:

US Constitution

A federal statute

These rules

Other rules prescribed by the Supreme Court

Irrelevant evidence is not admissible.

1. Irrelevant evidence should be excluded. Relevant evidence shall be admitted unless there is some reason to exclude.

2. Relevance is necessary but not sufficient for admission at trial

B. FRE 401:The Test for Relevant Evidence

Evidence is relevant if (a) it has any tendency to make a fact more or less probable than it would be without the evidence; and (b) the fact is of consequence in determining the action.

1. Materiality (Of Consequence): Is the evidence offered to prove a fact that is of consequence to the case (can it be connected through inferential reasoning to one of the essential legal elements of the substantive law that governs the case?)

a) Fact of Consequence (FoC): the essential elements of the substantive law that governs the case determine what facts are of consequence.

b) Credibility of a witness is always going to be a FoC!

2. Relevancy: Could a reasonable jury think that the evidence offered has a tendency to make that FoC more or less probable?

a) “Any Tendency” Test: Minimal standard- does not have to prove FoC, only slightly m

tive evidence.

1. Probative Value: the degree to which the evidence will alter the probabilities of a FoC and an essential element in the case. Judge will consider:

a) Strength of Underlying Inferences: generalizations connecting evidence to disputed issues

b) Certainty of the Starting Point:

· Judges may lower estimate of PV if the witness admits they are uncertain of facts, or if a document contains ambiguous language

· Judges may NOT count the witness’s credibility when estimating PV. This is a matter for the jury and judges should estimate PV of testimony if believed.

c) Need: Judges must take into account the following:

· The centrality of the point to be proved with the proffered evidence

· The degree to which the point is disputed by the opponent

· The strength of the evidence in proving the point

· Whether there is no alternative means of proving the FoC

2. 403 Dangers: estimate of danger determined by nature of danger, likelihood that the jury will be negatively affected, and probable degree of harmful effect:

a) Unfair Prejudice: danger that evidence might suggest an improper basis upon which the jury could decide the case. Two types:

i) Evidence about a party can trigger a response that has nothing to do with its logical connection to a FoC

· Example: evidence of Ds prior crimes greatly increased the chances that the jury would punish him not for his involvement in the offense at issue, but rather b/c he appeared to be a “bad guy”

· Example: evidence that could generate undue sympathy for a party

ii) Evidence admitted for a proper purpose could also be used by jury in a matter that violates a rule of evidence

b) Confusing the Issues: when it causes the jury to focus its attention too closely on a factual issue that is not central to the outcome of the case (Collateral Issues: their connection to the EE, although relevant, is trivial and may be based on complicated or attenuated theories of relevance). So, Jury focuses on wrong FoC.

c) Misleading the Jury: involves a risk that an item of evidence will cause the jury to draw a mistaken inference. Draws the wrong conclusions from the evidence. (Usually with scientific evidence)

d) Undue delay/ Wasting Time / Needlessly Presenting Cumulative Evidence: All 3 have same underlying problem: introduction of evidence absorbs court time, incurs expense by the opposing parties, and by the state-run judicial system, and expends the attention of the jury. Research shows the longer a trial goes, the more the jury forgets and the less accurate the decision becomes.