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University of Alabama School of Law
Harwood, Robert Bernard

Evidence Outline
Introduction to Evidence
I.         Evidence
A.      Generally
1.        Evidence involves, at the trial level, a process concerning how those facts that are used are determined
2.        Rulings on evidence at trial are seldom appealed and even more rarely overturned
3.        Opening statements by counsel are not evidence
B.       Meanings of “evidence”
1.        Proof of a cause of action, claim or defense
2.        Rules governing the admissibility and exclusion of proof at trial
3.        In evidence, the things the jurors can take back with them to the jury room
C.       Types of Evidence
1.        Real – physical, tangible evidence, the thing itself
2.        Representative – evidence which represents another thing
3.        Testimonial – from ‘viva voce’, meaning by voice, evidence given by witnesses
D.      Nature of Evidence
1.        Circumstantial Evidence requires an inference to be drawn in order for it to be relevant at trial. 
2.        Direct evidence requires no inference in order to be relevant and proves a fact w/out any deductions
E.       Rule of Completeness: Proponent can offer a part of evidence they wish, but other party can object and assert that it is unfair to only use part of the statement. Judges discretion as to whether whole statement will have to be shown (fairness standard)
II.       Roles of Judge, Jury and Attorneys
A.      RULE 103 – Rulings on Evidence (ARE SAME)
1.        (a) – Error cannot be based on a ruling which admits or excludes evidence unless a substantial right of the party is affected AND
a)       (a)(1) – Objection must be timely (otherwise waived) and specific OR
b)       (a)(2) – Offer of proof (proffer) must also be timely and specific
·         Once the court makes a definitive ruling, at or before the trial, a party need not renew an objection or proffer to preserve a claim of error for appeal (this part NOT IN ARE)
2.        (b) – Court may add any other or further statement which shows the character of the evidence, the form in which it was offered, objection made, and ruling thereon
3.        (c) – Proceedings shall be conducted so as to prevent inadmissible evidence from being suggested to the jury
4.        (d) – Nothing precludes taking notice of plain errors affecting substantial rights – can always be appealed
B.       RULE 104 – Preliminary Questions (ARE SAME)
1.        (a) – Preliminary questions concerning the qualification of a person to be a witness, existence of a privilege, or admissibility of evidence is determined by the court, subject to the provisions of (b). Court is not bound by rules of evidence except those with respect to privileges.
2.        (b) – When relevancy depends on fulfillment of a condition of fact, court shall admit it upon or subject to the intro of evidence sufficient to support a finding of the fulfillment of the condition
a)       Notes: “Connecting Up Rule”
(1)     When relevance depends on the existence of separate facts the evidence is considered “conditionally relevant”
(1)     The evidence will be admitted by the judge ONLY if he feels that a reasonable juror could find by a preponderance of the evidence that the necessary fact exists
(1)     Judge does not decide if the fact actually does exist, but if it could exist
(1)     Counsel promises to “connect up” evidence in the near future to show relevancy.
(1)     Allows case and evidence to be presented out of order
(1)     If party is unable to provide connecting evidence, then original evidence is excluded
(1)     Conditionally relevant evidence is admissible for all purposes if it passes all other rules
3.        (c) – Hearings on admissibility of confessions shall be conducted out of the hearing of the jury. Hearings on other prelim matters conducted when interests of justice require

ect or make a proffer then the issue is usually foreclosed on appeal
a)       Except: Appellate court can always consider “plain error” even w/o objection or proffer
I.         Rules
A.      RULE 401 –Definition of “Relevant Evidence” (ARE SAME)
1.      “Relevant Evidence” means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable that it would be without the evidence
a)      “Fact of consequence” –
(1)     Any element of the claim or defense (statute, case law, pattern jury instruction – approved statement by the highest authority of that state stating what the definitive elements of any crime are)
(1)     Any issue of witness credibility
(1)     Background facts for 1 or 2 above
b)       “More probable or less probable” – a chain of inferences that makes a fact of consequence more or less likely – very low standard
2.        Just b/c it’s relevant doesn’t mean it can always come in, but if it’s not relevant, there’s never a chance that it will come in
B.       RULE 402 – Relevant Evidence Generally Admissible; Irrelevant Evidence Inadmissible (ARE SAME)
1.        All relevant evidence is admissible, except as otherwise provided by the Constitution of the US, by Act of Congress, by these rules, or by other rules prescribed by the Supreme Court pursuant to statutory authority. Evidence which is not relevant is not admissible.
a)       All evidence, with no exception, must be relevant to be admissible