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University of Alabama School of Law
Emens, Steve




1. Relevancy

A. Intro/Overview

1. FRE/ARE 102- Purpose- “rules administer proceedings done fairly, w/o unjust expense/delay, promote develop of Evid law”

2. “Evidence” Meanings

a. Proof- of a cause of action, claim or defense

b. Rules- governing the admissibility and exclusion of proof at trial

c. “in evidence”- the “things” that jurors are able to take back with them to deliberate

3. Categories (of Rules of Evidence)

a. Limit information that may lead decision maker to use irrational reasoning

i. REAS- we’re afraid that it could lead to a decision based more on emotion than logic (don’t really trust decision maker)

b. Limit information for time/efficiency , if wastes time of decision maker (“may be right but has to be efficient to get in”)

i. FRE 611- the judge makes a determination of what is fair and reasonable for the trial

c. Limit information that decision maker gets for public policy reasons (furthers some other interests)

4. Types of Evidence

a. Direct- direct evidence of something, no inferences needed to be made (ex. eyewitness)

b. Circumstantial- draw inferences from (ex.I heard gunshot next door, ran in, vic & gun on floor w/ Df standing there)

5. Facts- “how do you know what you really know?”

a. Gathering Facts

i. From Clients- listen to and learn from BUT their version of the facts may not be exactly what happened

1. Freedman “remembering is process of active, creative reconstruction, begins at the moment of perception”

ii. From Elsewhere- discovery, witnesses

1. eyewitness testimony- thought of as very reliable by the average person BUT accuracy generally overstated

2. just b/c witness not lying not mean that what they are saying happened

b. Analysis of Facts- is there a remedy (damages/money)? does money give you an appropriate remedy?

c. Using Facts

i. Counsel Client- wise council is really what you are selling as a lawyer, not for you to just file papers

ii. Negotiatie- should still done w/ knowledge of the rules of evidence in case goes to court (how FRE would impact)

iii. Use in Court (rules of evidence)- “the last thing that you want to do”

d. “Myths” on Facts- (a) trial will find the truth, (b) the facts will prove the truth

6. Key American Law System Traits

a. designed to be an adversarial process (your job is not to be “fair”)

b. attempt to resolve these a conflict in a logical/rational manner

7. Constitution > FRE

a. GR- ANY time talk about a rule of evidence, ALWAYS implied that constitutional rights TRUMP procedural rules

8. Proper Admit “Cures” All Previous- IF something comes into evidence properly THEN cures ANY previous improper admission of the Evid

a. ex. something comes in that’s improper (Df’s character) THEN Df’s opens the Mercy Rule door, the first admission is NO LONGER “error”

b. REAS- the jury is able to consider ALL the evidence that has been properly admitted

B. Judges Rulings (FRE 103, 104, 105, 106) (Evidence/Relevance/Preliminary Questions)

1. FRE 103- Rulings on Evidence (“judges best friend”)

a. FRE 103a- Preserving Claim of Error- May claim error admit/exclude Evid ONLY IF error affect Substantial right and:

i. Discretion to Judges- REALLY hard reverse judge on Evid issue, REAS- efficiency, only retry a case if a mistake affects the outcome

1. “This court has contributed little to this or any phase of the law of evidence b/c have rare occasion to” (Michelson)

2 “BUT somehow proved workable when left in the discretion of a STRONG trial Court….to PULL ONE MIshpaen STONE..upset rational edifice ”

ii. FRE 103a(1)- Objection- if ruling admits evidence (that don’t want included), Party must, on the record:

(a)(1)(A). “Timely Object” and

1. In real time- MUST object WHEN the evidence being placed in court (ex. second exhibit introduced into court)

2. Object to: 1. Question- b/f answered, 2. Answer- after question asked, right after answered or while answering

3. Except- Objecting to the calling or interrogation of Witness at “next available opportunity”/Extends (FRE 614)

(a)(1)(B). “State Specific Grounds”

1. GR- state Rule # UNLESS context objection clearly show grounds (NOT just “I object”)

iii. FRE 103a(2) “Proffer”/”Offer of Proof”- ruling excludes evidence, STILL put in record, “inform court of subs. by offer of proof”

i. REAS- so appellate courts can see what was excluded, can rule if the trial court was wrong in excluding

1. you waive the issue if you don’t protect your record by putting in offer of proof

2. EVEN IF WRONG to exclude- MUST affect substantial right (of either party) in order to reverse

a. but they would not know that unless you make an offer of proof?

ii. HOW (FRE 103b)

1. actually put witness on stand when jury away

2. (most common) you, as officer of court tell notetaker what witness would said/Evid. been if had been allowed in

iii. WHEN- not allowed make right when excluded since jury’s sitting in, next time jury is out (lunch, next morning, etc)

1. then allowed make offer of proof to the judge, up to you to remind the judge, don’t call “offer of proof” in front jury

2. judge can put you off as long as want, as long as let you offer b/f the close of evidence, otherwise reversible error

iv. Emens Objection Rule- “Make the judge do his job IF if passes:

a. the straight face test (can say it w/ one) AND

b. the Balancing test (Chance of winning v.

402, 104/105)

1. FRE 401- Test for Relevancy- if ANY tendency make existence of fact of consequence more or less probable

a. “any tendency”- LOW Threshold- Judge must think rational trier of fact could be influenced by evid (not necessarily “strongly”)

i. no “direct connection”= not relevant- court NOT liberal for evid. that a non-party did the crime

ii. Burden (Persuasion)- whoever is trying to get the evidence in, if asked trial why relevant NEED a reason

a. “fact of consequence”

i. any element of claim or defense (Theory of case can change whats relevant)

ii. ANY issue of witness credibility (ex. bias, prejudice, etc)

iii. background facts for (i) or (ii)

c. “More or less probable”- a chain of inferences that makes a fact or consequence more or less likely to be true

d. Inclusive Rule- Relevancy is a LOW standard, REAS- want to bring in ANYTHING that could help the jury

i. ex1. allowed to introduce ALL evidence what subway vigilant thought about “attackers” (race, gender, etc.) (Goetz)

ii. ex2. Evid. that a Df was mistaken in belief about someone’s threat for self defense is relevant (Knapp v. State)

f. “Remoteness” (Timing)- “relevancy case by case, time MAY make irrelevant BUT no hard rule” (Smitherman v. State)

i. NO time limit on relevancy in rules, rests in judges hands (Smitherman) fish blasting, dynamite license

2. FRE 402- GR- All relevant evidence is admissible UNLESS violate Constitution, these rules, or other statutes/SC cases

a. If not relevant than inadmissible

3. Relevancy Procedural (FRE 104, 105)

a. FRE 104- Judge Determines Relevancancy of Evidence as a “Premlinary Question”

i. FRE 104a- to determine, Judge applies legal principle, NOT bound by other rules in deciding

ii. FRE 104b- Relevance dependent on s fact, judge decide if jury could find fact by perpond., entered “conditionally”

b. FRE 105- “Limiting Instructions”- sets how jury can use evidence, if irrelevant for one purpose but relevant for another

i. “single level” limiting instruction- what CAN be used for (ONLY level promised/required by the rules)

ii. “Two part” limiting instruction- what evidence CANT be used for AND what it CAN be used for (Modern trend)