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University of Baltimore School of Law
Gilman, Michele E.

Professor Gilman, University of Baltimore Law, Fall 2011
            This course studies the rules that govern how facts are proved at trial.  The course is structured to give you basic knowledge of how the Federal Rules of Evidence are applied in the courtroom.  In addition, we will examine the policy choices underlying the Rules and how those policies affect interpretation of the Rules.  The goals of the course are as follows:  (1) to enable you to identify potentially admissible or inadmissible evidence; (2) to argue from an advocate’s perspective why the evidence should or should not be admitted at a trial; (3) to assess from a judge’s perspective whether or not the evidence is admissible.  In turn, these skills will help you understand how questions regarding the admissibility of evidence affect a lawyer outside the courtroom, in gathering and investigating facts, assessing a client’s options, providing legal counsel to clients, drafting legal documents, and negotiating with opposing parties. 
            Evidence law is complicated.  It involves numerous rules, exceptions to rules, and exceptions to the exceptions.  Thus, it is essential that you keep up with the material as we move through the semester. 
1.      Assignment for Aug. 25
Appellate Review and Witness Competency
FRE:  103, 601, 602, 603, 605, 606
Three ground rules: Rule 103
·         Litigant responsibility to raise and preserve error
·         Shield the jury from inadmissible evidence
o   Counsel sidebar with the judge
o   Sending jury out of the courtroom
·         Reversals for evidentiary rulings are rare- substantial rights
o   Odds that error will impact jurors is pretty low
Preserving Error for review
Court admits evidence
Court excludes evidence
Timely objection with specific ground
-Offer of proof unless apparent from context
-Examine witness on record
-Counsel’s oral statement about proposed testimony
-Counsel’s written statement about proposed testimony
-Witness’s signed statement
Three categories of error
·         Harmless error
·         Reversible
o   Error was raised in the trial court and affects substantial rights
·         Plain error
o   Was not raised during trial court but affects substantial rights. But appellate court, own initiative, will reverse
Competency of Judges or Jurors
·         Rule 605: Judge’s competency as a witness
·         Rule 606: Juror’s Competency as a witness
o   Internal deliberations aren’t allowed to come in for testimony. However extraneous outside influence can come in to court
o   Extraneous information: obtaining facts from different news media outlets.  Outside influence: external pressure such as bribes or threats **
o   Interest in finality and adequate safeguards, want the jurors to have free and candid discussions without worrying that what they say will come back to haunt them
·         Case: UNITED STATES v. BENALLY [10th circuit case] ·         Facts: Juror brought to defendant’s attention that there was bias toward Native Americans, and defendant is Native American
·         Issue: Is bias/prejudice fall under internal deliberations or external deliberations
·         Conclusion: Statements of bias and prejudice are part of internal deliberations
·         Creating racial exceptions of bias would create slippery slope concern
3.  Assignment for Aug. 30
TOPIC:  Authentication
FRE:  901, 902, 903
Rule 901: Requirement of Authentication or Identification
·         Principles
o   Authentication is a condition precedent to admissibility
o   Condition is satisfied by evidence showing that the matter in question is what its proponent claims.
§  A party’s claim about an item of evidence must be consistent with establishing that the item is relevant
o   Showing must be sufficient to support a finding
Rule 902: Self-Authentication
·         Extrinsic evidence: any evidence other than the item of evidence in question
Rule 903: Subscribing Witness’s Testimony
·         Evidence
o   Real evidence: refers to an item that was directly involved in the very events that are at issue in the case
o   Demonstrative evidence: refers to an item that merely illustrates testimony, such as a diagram. Can be used only if the testimony it illustrates is admissible and accurately reflects the testimony
Case: DICKENS V. STATE, 174 Md. App. 231 (2007)
·         Evidence government was trying to bring in was the text messages. They were able to do this by: the “distinctive characteristics of the text messages” [Rule 901(b)(4) and Rule 901(b)(1) and testimony of witnesses with knowledge
·         Takeaway: ways to authenticate social media pages: extract files form computer, computer forensic analyst
4.  Assignment for Sept. 1
TOPIC:  Best Evidence Rule and Intro. to Relevance
FRE:  1001 – 1008, 401, 402
Chain of custody
·         Fungible items (cocaine, handgun, vial of blood): items that are not unique, it’s not one of a kind
·         You don’t need a chain of custody for items that are not unique
·         Even if there’s a minor break in a chain custody, can still be sufficient that evidence met chain of custody and evidence is what proponent claims it is
Best evidence rule
·         Hypothetical: Friend claims that he doesn’t believe he violated his lease agreement. Landlord claims he violated the lease.  Having a copy of lease is important to have evidence of exact wording
·         Rule 1002, Rule 1003, rule 1004.
·         Best evidence rule doesn’t require best most persuasive evidence as possible, it requires writing, recording, or photograph order to prove its content WHEN TESTIMONY MENTIONS IT unless thes

·         For defense to keep photos out have to argue probative value substantially low compared to unfair prejudice
State v. Bank
·         Probative value:
o   State argued that trophy pictures had probative value the method by which identified the defendant
o   Defense argue there’s plenty of other evidence (offer witnessed drug deal) picture not needed [probative value low] ·          Unfair prejudice
o   defendant argues that jury will punish because he’s engaging in conduct associated with dealer (prejudice high)
o   state argues drugs aren’t in photo, just holding a gun (minimal prejudicial effect)
·         admission of the photo is not harmless error
6.  Assignment for Sept. 8
TOPIC:  Preliminary Questions of Fact and Introduction to Hearsay
FRE:  104, 801, 802
Chief case- wanted to limit revealing of felony to that it was simply a felony not specifically an assault as this would increase prejudice by jury that he is guilty in this assault case, too. Agreed.
·         Preliminary Determinations
o   Rule 104: tells how preliminary question is decided and who decides them
§  (a): judge decides by preponderance of evidence standard
·         factual disputes about a policy-based restraint on the admissibility of evidence
·         judge decides factual issue herself
·         standard is preponderance of evidence
·         most evidentiary rules fall in this class
·         FRE doesn’t apply
·         If statement can’t be disregarded goes to 104(a)
§  (b): jury decides
·         factual disputes that bear on the relevance of evidence
·         if a reasonable jury could find the disputed fact established, judge admits it
·         standared is sufficient evidence to support a jury finding
·         examples are authentication and personal knowledge
o   Example of 104(a)
§  Eyewitness statement: “omg, joe shot leslie”
§  Issue: is this admissible as an excited utterance?
To decide, the statement itself is needed. Judge decides.
o   Example of 104(b)
§  In  murder case, prosecution wants to introduce that there was a gun in D’s apartment
§  Relevant if victim was shot
§  If the evidence ultimately shows that victim was not shot, jury will disregard the gun. Thus, there is no harm. Plus, this is jury’s job
§  Judge admits conditionally