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Evidence
University of Alabama School of Law
Pardo, Michael S.

Evidence Outline
 
1. Johnson. 3
FRE 611- Mode and Order of Interrogation and Presentation. 3
Hostile witness, Adverse Party, or Associated with Adverse Party. 4
2. Objections and Preservations of Error for Appeal4
FRE 103- Rulings on Evidence. 4
Two types of objections. 4
Offer of Proof5
Contemporaneous objection rule. 5
3. Relevancy, Probative Value, and the Rule 403 Dangers. 6
Relevance. 7
FRE 401- Definition of “Relevant Evidence”. 7
FRE 402- Relevant Evidence Generally Admissible; Irrelevant Evidence Inadmissible. 7
FRE 403- Exclusion of Relevant Evidence on Grounds of Prejudice, Confusion, or Waste of Time. 8
403 dangers explained. 9
4. Laying the Foundation for Proof10
FRE 601- General Rule of Competency- Every person is competent to be a witness . . .11
FRE 602- Lack of Personal Knowledge. 11
FRE 603- Oath or Affirmation. 11
Authentication and Identification of Exhibits. 11
FRE 901- Requirement of Authentication of Identification. 11
Written Documents that are Self-Authenticating. 14
FRE 902- Self-Authentication. 14
Best Evidence Rule. 15
FRE 1001- definitions. 16
FRE 1002– requirement of original16
FRE 1003– admissibility of duplicates. 16
FRE 1004– admissibility of other evidence of contents. 16
FRE 1005– public records. 16
FRE 1006- summaries. 16
FRE 1007- party admission rule. 16
FRE 1008- Functions of Court and Jury. 16
Judicial Determination of Preliminary Questions Under FRE 104. 17
FRE 104- Preliminary Questions. 17
5. The Character, Propensity and Specific Acts Rules. 19
Evidence of a Person’s Character Offered to Show Action in Conformity with that Character. 19
FRE 404- Character Evidence Not Admissible to Prove Conduct; Exceptions; Other Crimes. 19
FRE 405- Methods of Proving Character. 20
Evidence of a Person’s Character When Character is an Essential Element of a Claim or Defense. 23
Evidence of Specific (Bad) Acts Not Offered to Prove a Person’s Character. 23
Habit and Routine Practice. 24
FRE 406- Habit; Routine Practice. 24
Similar Happenings. 24
6. Other Relevance Rules. 25
FRE 407- Subsequent Remedial Measures. 25
FRE 408- Compromise and Offers of Compromise. 25
NOTES ON NEW RULE NEEDED.. 25
FRE 409- Payment of Medical and Similar Expenses. 26
7. The Impeachment and Rehabilitation of Witnesses. 26
Impeachment and Rehabilitation with Character Evidence. 26
FRE 608- Evidence of Character and Conduct of Witness. 26
FRE 609- Impeachment by Evidence of Conviction of Crime-26
Impeachment and Rehabilitation with Witness’ Prior Statements. 26
FRE 613- Prior Statement of a Witness. 26
Other Impeachment Techniques. 26
8. Hearsay Rule. 26
FRE 801- Definitions. 26
FRE 802- Hearsay Rule. 26
Hearsay Exceptions Not Requiring the Unavailability of the Declarant26
FRE 803- Hearsay Exceptions; Availability of Declarant Immaterial26
FRE 805- Hearsay Within Hearsay. 26
Hearsay Exceptions Requiring the Unavailability of the Declarant26
FRE 804- Hearsay Exceptions; Declarant Unavailable. 26
The Residual Exception. 26
FRE 807- Residual Exception. 26
Confrontation Clause. 26
Review of Hearsay. 26
9. Lay Opinions and Expert Witnesses. 26
FRE 701- Opinion Testimony by Lay Witnesses. 26
NOTES END HERE. 26
Rule 702- Testimony by Experts. 26
Rule 703- Bases of Opinion Testimony by Experts. 26
Rule 704- Opinion on Ultimate Issue. 26
Rule 705- Disclosure of Facts or Data Underlying Expert Opinion. 26
Rule 706- Court Appointed Experts. 26
 
 
3 groups deciding on evidence:
1)      parties themselves
2)      judges (primarily trial)- great deal of discretion
3)      legislature- Congress and state legislatures- can make rules extremely complicated
 
ABA recommendations
1)      jury should get instructions beforehand
2)      jury should be able to deliberate at various points during trial as long as they are all present
3)      jury should be allowed to take notes
4)      jury s

evidence to “balance the errors.” Doing so is probably more efficient than declaring a mistrial or reversing a judgment on appeal.
 
1. Johnson
 
FRE 611- Mode and Order of Interrogation and Presentation
(a) Control by the court. The court shall exercise reasonable control over the mode and order of interrogating witnesses and presenting evidence so as to (1) make the interrogation and presentation effective for the ascertainment of the truth, (2) avoid needless consumption of time, and (3) protect witnesses from harassment or undue embarrassment.
(b) Scope of cross-examination. Cross-examination should be limited to the subject matter of the direct examination and matters affecting the credibility of the witness. The court may, in the exercise of discretion, permit inquiry into additional matters as if on direct examination.
(c) Leading questions. Leading questions should not be used on the direct examination of a witness except as may be necessary to develop (refresh) the witness’ testimony. Ordinarily leading questions should be permitted on cross-examination. When a party calls a hostile witness, an adverse party, or a witness identified with an adverse party, interrogation may be by leading questions.
 
▪ leading question- a question that suggests the answer to the person being interrogated; esp, a question that may be answered by a mere “yes” or “no;” generally allowed only in cross-exam
▪ on cross, two general areas of inquiry are permissible
(1) it is permissible to explore matters about which the witness has testified on direct