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University of Baltimore School of Law
McLain, Lynn

Evidence – Fall 2011 – 1st Semester – Professor McLain

1. Relevance: Rules 401-403

a. Admissible evidence must be relevant as substantive evidence

i. Probative of an issue in the case as to who did what

b. Impeachment or rehabilitation evidence

i. Offered only as relevant to the credibility of a witness who has given substantive evidence

2. Rule 402

a. All relevant evidence is admissible, except as otherwise provided by other rules, by statute, or by constitution

3. Rule 401

a. Common law relevance

i. Relationship between the evidence offered and the fact sought to be established

b. Common law materiality

i. Relationship between the fact sought to be established and the issues in the case

ii. Evidence is relevant if it has any tendency to make a fact more or les probable than it would be without the evidence and the fact is of consequence in determining the action. Whether a fact is of consequence in determining the action is governed by both substantive law and the pleadings.

c. Probative value needed for 401 to make the fact more or less probable than without the evidence

i. Very little probative value needed

4. Rule 104 – Preliminary facts

a. Whether particular evidence is admissible often will turn on whether certain preliminary facts or foundation facts have been proved satisfactorily.

b. Rule 104(a) à Preliminary facts required by technical rules of evidence and they are determined solely by the trial judge

i. Under 104(a) the trial judge determines whether the preliminary facts have been proved to the judge’s satisfaction, by a preponderance of the evidence.

1. Example: Business records exception to the hearsay rule (803-6), a foundation must be laid out that the document was made in the ordinary course of business.

c. Rule 104(b) à Conditional Relevancy

i. The only preliminary facts that we entrust to the jury to decide are ones required for relevance.

ii. If a preliminary fact must be true in order for the proffered evidence to be relevant à 104(b) applies.

1. Judge must admit evidence if it’s sufficient to support a reasonable jury’s finding that the preliminary fact is true.

d. 104(a) vs. 104(b)

i. Isolate evidence at issue

ii. Determine whether it is, without more, relevant to the fact it is offered to prove.

iii. Identify the preliminary or foundation fact à is the proffered evidence relevant, regardless whether the preliminary fact is true? à If yes, fact falls under 104(a). If not, 104(b) applies

5. Rule 403

a. Relevant evidence may be excluded by the trial court in its discretion when its probative value is substantially outweighed by the risk of any or all of the following

i. Unfair prejudice à emotional rather than logical, risk that evidence will be used for a purpose forbidding by the rules of evidence

ii. Confusing the issues

iii. Undue consumption of time

6. Direct evidence of a fact

a. Provided only by eyewitnesses to that fact

7. Circumstantial evidence

a. Evidence from which one or more inferences must be made in order to prove the fact at issue in the case

8. Rule 602 – 1st hand knowledge requirement

a. All non-expert witnesses are required to testify only to that of which they have personal, first hand knowledge. The proponent of a law witness must elicit evidence to show that the witness was in a position to have gained first hand knowledge of that to which the witness will testify.

9. Rule 701

a. Lay opinions will be admissible if they are

i. Rationally based on the witness’s perception

ii. Helpful to a clear understanding of the witness’s testimony or to determining a fact in issue

b. Opinion should be excluded if the jury is in just as good a position to reach a conclusion on its own. In that event, the witness should testify only to the underlying facts, or perhaps to the less ultimate opinions

10. Collective facts doctrine

a. Case law has approved opinion testimony to certain opinions that could theoretically be broken down to underlying facts

11. Rule 704(a)

a. Fact that an opinion is on an ultimate issue in the case does not automatically preclude it. Absent a more specific applicable statute, the question always remain does the opinion meet the test of Rule 701 in that it’s helpful to the trier of fact.

12. Evaluating whether a lay opinion is admissible, ask the following questions

a. Is the witness in a better position than the jury or judge to form the opinion?

b. Is the witness speculating? (If so, the opinion is out)

c. Would having the witness’s testimony be more concrete be both possible and more helpful to the fact finder? We want the witness to give helpful opinions, but not go so far as to intrude on what the jury could just as well figure out for itself.


· Hearsay is a person’s out of court statement (OCS), offered at trial to prove the truth of some fact that the declarant (the person who made the OCS) was asserting (TOMA) at the time of the making of the OCS.

a. HS = OCS + TOMA

· To analyze whether particular evidence is hearsay, determine whether the evidence includes an OCS. If an OCS is being offered into evidence, determine (1) for what relevant purpose is it being offered, (2) in order to help prove that relevant fact, we are asking the fact-finder to rely on the truthfulness (accuracy) of the out of court declarant.

· Rule 801(c)

a. Defines OCS as a statement that the declarant does not make while testifying at the current trial or hearing

b. It will be hearsay only if it is being offered now, at trial, to prove the truth of some matter that was being asserted (TOMA) by the declarant on the occasion when the declarant originally made the OCS.

· Rule 801(a)

a. Defines a statement as an oral assertion, or written assertion, or non-verbal conduct of a person, if the person intended it as an assertion. A statement is an assertion of one or more facts by a person

· Hearsay Dangers – Belief à whether the declarant believed what his OCS makes it sound as if he believed

a. Sincerity à Declarant was lying or was otherwise insincere

b. Narration à ambiguity (what did the declarant mean to say?)

· Hearsay Dangers – Accuracy à Even if the declarant sincerely meant what he said, was the declarant correct?

a. Perception à Question the declarant as to whether he accurately perceived the facts he had reported (Did the declarant have first hand knowledge? Even if he did, did the declarant have weaknesses in the ability to perceive?)

b. Memory à whether the declarant’s memory could have been faulty (how much time elapsed between the declarant’s perception of the event and his utterance of the statement?)

· TOMA à proponent is implicitly asking the fact-finder at trail to infer both that the out of court declarant had the belief that the OCS looks as if she had and that the declarant’s perception and memory were accurate.

a. It will be hearsay only if – to make it even a little probative of the fact it is offered to help to prove (see rule 401) – the f

n’t touch that, it’s hot!”) are probative for the proponent’s intended purpose, regardless of either the declarant’s sincerity or accuracy

1. Example: If A testifies that she heard B tell the store manager, 15 minutes before a slip and fall by P, that “there’s a spill in aisle 6”. This puts the manager on notice to take steps to remove the dangerous condition.

c. Statements offered as circumstantial evidence of the declarant’s consciousness, ability to talk, ability to speak a particular language

i. OCS’s that are offered as circumstantial evidence to prove only such matters as the declarant’s being alive, conscious, etc. at the time he made the OCS.

ii. Neither sincere belief nor accuracy of the declarant is needed for this category of non-hearsay

1. Example: Witness testifies to the statement of P, a person (not the prince of Wales) trapped in a car, “I am Charles, Prince of Wales.” This evidence is offered to show P’s consciousness, which is relevant to damages due to conscious pain and suffering. It doesn’t matter whether what the declarant said was true, simply that she said something.

d. Statements offered as circumstantial – Not direct – evidence of the declarant’s emotion, state of mind, knowledge, belief, intent, sanity or insanity

i. OCS’s offered as circumstantial evidence to prove only that the declarant was aware of or believed a certain fact, or had a particular state of mind, not that what the declarant said was true. The relevance requirement is met if the declarant was sincere, regardless of the declarant’s accuracy as to the facts asserted by him.

1. Example: In A’s trial for murder of B, the state offers C’s testimony that A said to C a week before the murder, “B I a mean, nasty, rotten expletive.” It will be probative simply if A believed that B was nasty, not whether A was correct as to the fact A asserted, that B was nasty.

· Riding the bus

a. Stop 1: Non-hearsay (neither declarant’s belief nor declarant’s accuracy required)

b. Stop 2: Non-hearsay (declarant’s belief required by not declarant’s accuracy)

c. Stop 3: Hearsay (no probative value unless declarant both had belief and was factually correct)

· What is a statement? (CHAPTER 9)

a. Rule 801(a) provides that statement means a person’s oral assertion, written assertion, or non-verbal conduct, if the person intended it as an assertion. Thus, the “S” in “OCS” may take one of several forms

i. A verbal assertion (“verbal” meaning “in words,” regardless whether oral (spoken, e.g., conversation) or written (e.g., note or document))

ii. Non-verbal (not in words) assertive conduct, meaning it was intended as a substitute for particular, identifiable words, e.g., the out of court declarant’s response of nodding affirmatively or raising hand in response to, “Who wants to go on the bus trip?”

b. Analysis of what is meant by the assertion