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University of Alabama School of Law
Emens, Steve

Evidence Outline
–          Evidence defined: proof of a cause of action or defense offered at trial. Circumstantial evidence requires an inference to be drawn from the evidence in order for it to be relevant. Direct evidence requires no inference to be relevant.
o   Real: physical, tangible evidence
o   Representative: represents another thing (chart, diagram, photo)
o   Testimonial: “viva voce” witness who testifies by voice.
–          Two Principle Divisions in Evidence:
1.      Relevancy
2.      Reliability
–          Testimonial evidence – probably the most common type of evidence.
–          Rational Decision Making
Basic Trial Roles:
–          Judge: the judge is the “gate keeper” who deals with the question of admissibility. There are preliminary questions of facts pertaining to rulings on admissibility (fact specific situations that are determined on a case-by-case basis). If the judge determines that a “reasonable juror” could find that the predicate fact exists by preponderance, then the fact is given to the jury to find (or not find).
o   The judge is given TREMENDOUS discretion in applying the rules thanks to rule 104a
o   Must understand where the discretion is and normally goes.
o   There are few hard rules, and most are subject to various interpretations.
o   Know the rules and argue either side of the rules
–          Jury: determines weight of facts and has ability to “nullify” evidence by returning a converse ruling. The rules can instruct the jury to accept certain facts as true (judicial notice) or can instruct that jury that there is the creation of a presumption (that shifts the burden of proof).
–          Attorney: bifurcated role as advocate for client while creating record objections for appeal:
o   must set forth specific objections in a timely manner if improper evidence is admitted (Rule 103a1)
o   must make a proffer of proof of proper evidence is excluded stating for the record why it should have been admitted (103a2) (not in front of jury 103c)
o   Plain errors can always be appealed even if not preserved on record (don’t trust) (Rule 103d – only in death penalty case)
FRE 102 – Purpose and Construction
–          “These rules shall be construed to secure fairness in administration, elimination of unjustifiable expense and delay, and promotion of growth and development of the law of evidence to the end that the truth may be ascertained and proceedings justly determined.”
–          Elements:
o   promote justice
o   prevent unjustifiable delay
FRE 103 – Rulings on Evidence
(a)   Effect of erroneous ruling. Error may not be predicated upon a ruling which admits or excludes evidence unless a substantial right of the party is affected, and
1.      Objection. In case the ruling is one admitting evidence, a timely objection or motion to strike appears of record, stating the specific ground of objection, if the specific ground was not apparent from the context; or
2.      Offer of proof. In case the ruling is one excluding evidence, the substance of the evidence was made known to the court by offer or was apparent from the context within which questions were asked.
a)      Once the court makes a definitive ruling on the record admitting or excluding evidence, either at or before trial, a party need not renew an objection or offer of proof to preserve a claim of error for appeal. (Green text are an addition to the federal rules, not in Alabama; in Alabama you must renew your objection of a pre-trial objection to get it on the record in the trial. If you don’t protect the right to appeal, you will be subject to malpractice.)
(b)   Record of offer and ruling. – The court may add any other or further statement which shows the character of the evidence, the form in which it was offered, the objection made, and the ruling thereon. It may direct the making of an offer in question and answer form.
(c)    Hearing of jury. – In jury cases, proceedings shall be conducted, to the extent practicable, so as to prevent inadmissible evidence from being suggested to the jury by any means, such as making statements or offers of proof or asking questions in the hearing of the jury.
(d) Plain error. – Nothing in the rule precludes taking notice of plain errors affecting substantial rights although they were not brought to the attention of the court.
–          A lawyer’s responsibility to know and object to the rules are set out in rule 103.
–          A lawyer has to object right then and there (timely).
–          Also must be specific in the objection.
–          It must also affect a substantial right of a party.
–          Protecting the record – very important to get an objection on the record so that the appellate court sees the objection.
–          It’s very difficult to win on an appeal, so it is important to put the judge on notice with a specific, timely objection.
–          Standard of Review on appeals regarding evidence are abuse of discretion.
–          If an objection is sustained (evidence kept out), then the party can offer proof to put in the record for the appellate court to later review the proof to have it to evaluate whether it should have been admitted. The lawyer has to request and submit the offer proof.
–          If a constitutional right is involved, then it trumps all rules of evidence.
–          Constitutional issues only come into criminal cases
–          Addition to Federal Rules (not in ARE) –Once the Court makes a definitive ruling on the record admitting excluding evidence, either at or before trial, a party need not renew an objection or offer of proof to preserve a claim of error for appeal. Still done in Alabama through actual practice.
FRE 104. Preliminary Questions
(a)   Questions of admissibility generally. – Preliminary questions concerning the qualification of a person to be a witness, the existence of a privilege, or the admissibility of evidence shall be determined by the court, subject to the provisions of subdivision (b). In making its determination it is not bound by the rules of evidence except those with respect to privileges.
(b)   Relevancy conditioned on fact. – When the relevancy of evidence depends upon the fulfillment of a condition of fact, the court shall admit it upon, or subject to, the introduction of evidence sufficient to support a finding of the fulfillment of the condition.
(c)    Hearing of jury. – Hearings on the admissibility of confessions shall in all cases be conducted out of the hearing of the jury. Hearings on other preliminary matters shall be so conducted when the interests of justice require, or when an accused is a witness and so requests.
(d) Testimony by accused. – The accused does not, by testifying upon a preliminary matter, become subject to cross-examination as to other issues in the case.
(e)   Weight and credibility. – This rule does not limit the right of a party to introduce before the jury evidence relevant to weight or credibility.
Rule 105. Limited Admissibility. If requested, a judge will restrict the evidence to its proper scope and instruct the jury accordingly if it is admissible for one purpose, but not for another.
Rules 401, 402 and 403
FRE 401. Definition of “Relevant Evidence.”
“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 than it would be without the evidence.”
FRE 402. Relevant Evidence Generally Admissible; Irrelevant Evidence Inadmissible.
All relevant evidence is admissible, except as otherwise provided by the Constitution of the United States, 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. (Alabama differs by saying provided by the state of Alabama)
Notes on Relevance
–          Relevance is super important because it is the first question a judge will ask when considering the admittance of evidence. If it’s not relevant it never comes in, however, not all relevant evidence gets to come in.
–          The lawyer offering the evidence into t

poses if passes all other rules
Knapp v. State
–          Knapp stood convicted of murder in the first degree. He claimed self-defense, testifying that he had heard that the deceased had clubbed and seriously injured an old man in a brutal bar fight weeks before Knapp killed D, and that old man died a short time afterwards. Knapp contended that it was error to admit rebuttal testimony that the old man died of senility and alcoholism, and that there were no bruises nor marks on his person; that the question was whether he had, in fact, heard the story, and not as to its truth or falsity. On appeal, court affirmed. To show that there was no basis in fact for the statement he claimed to have heard had a tendency to make it less probable that his testimony on this point was true.
–          Ruling: Judgment of conviction affirmed since rebuttal evidence was properly admitted to show there was no basis in fact for the statement appellant claimed to have heard.
–          Ruling it’s relevant and admissible whether or not it’s true because it makes the defendant’s story that he had heard from someone about the prior incident less likely. He opened the door making it relevant.
–          “The fact proved by the state tended to discredit appellant, since it showed that somewhere between the fact and the testimony there was a person who was not a truth speaker, and, appellant being unable to point to his informant, it must at least be said that the testimony complained of had a tendency to render his claim as to what he had heard less probable.”
Temporal Limits to Relevancy:
–            How long ago or recent must I have found the gasoline or whatever to still be relevant evidence?
–            Smitherman v. State: “Ordinarily, remoteness of time affects the weight and probative value of evidence rather than its admissibility…it is practically impossible and not at all accurate to attempt to state a fixed rule or standard with particular reference to the time element…it rests largely in the enlightened discretion of the court whether or not such proof will be allowed.”
§ Trial court allowed it.
§ Appeals court said the judge abused its discretion by admitting evidence that he had a dynamite license 20 months prior to being charged with dynamite fishing.
§ They said, although it was relevant, it was highly prejudicial and it outweighed the probative value. 20 months is getting to the point that the jury might reach an irrational decision about this.
403. Relevant, but inadmissible – Unfairly Prejudicial Evidence
Rule 403. Exclusion of Relevant Evidence on Grounds of Prejudice, Confusion or Waste of Time
“Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.”
Committee Note: These circumstances [in which relevant evidence is excluded] entail risks which range all the way from inducing decision on a purely emotional basis, at one extreme, to nothing more harmful than merely wasting time, at the other extreme.
Applying 403
–          403 addresses dangers and considerations.
–          Three dangers in 403: