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University of Baltimore School of Law
Jaros, David M.

Evidence Outline, Jaros, UB law, Summer 2014

1. Evidence is a sword and a shied; prevents people from getting things in or out.

2. Conflict exists between judicial efficiency and getting to the truth and coming to a settlement.

3. If the fact that they fixed the problem could be used against them could be used to show they are responsible, that might deter people from taking action to prevent probs.

4. Midterm will be on hearsay, 25%

5. Cannot miss more than two classes this summer

6. Only federal rules will be tested on the exam; 42 states have adopted FRE and the bar tests on federal rules

7. Federal Rule 102

a. Justice, fair accurate determination, eliminate unjustifiable expense and delay, ascertain the truth, etc.

b. Keep this in mind as we go through the rules of evidence to see if they are

8. Excited utterance

a. Person shouts something out and we assume that it is ok bc the person couldn’t have had time to make anything up (huh)

9. Federal Rule 103

a. Preserving a claim of error on the record

i. Timely objects or moves to strike; and

ii. States specific ground, unless it was apparent from the context


b. Maryland Rule: OK to say ‘objection’ and not state specific grounds

10. Three Types of Error

i. Harmless Error

1. Did not affect to substantial right of a party

ii. Reversible Error

1. Error raised at trial that DID affect a substantial right

iii. Plain Error

1. Error was so obvious that any reasonable judge would have picked it up

11. Steps to Successfully Appeal

i. Preservation (must make a clear record on what the lower court ruled)

ii. Persuasion of Error


iii. Persuasion of Substantial Right

1. Not only did they get it wrong, it also was not harmless

12. Federal Rule 103(a)(2)

a. Make an offer of proof to preserve the record for the appeal court

i. “Your Honor, I believe that the witness was about to testify that he did see the D run the red light”

13. Abuse of Discretion review

a. Judge needs to go way outside the box and abuse his power

14. Probative (inquiry-based) versus Prejudicial (misleading)

15. De novo review

a. The facts are enough for the appellate court to make a determination on

16. Objections!

a. Just because you can does not mean you should; strategy involved; there is a whole range of what objections could be legitimate

b. This topic is more explored in trial advocacy

17. ‘My Brother’s Keeper’ documentary

a. heart-warming tale of murder of 1/4 farm brothers

b. when would you make an objection?

i. “do you remember this and that” question; All this leading crap; prosecution is testifying for the witness “hand over his mouth for about 5 minutes”

ii. reporter used the term ‘killer’ to describe Delbert

18. Leading Questions

a. Rules allow leading questions during cross-examination

b. In film we need to determine what stage we were hearing when the attorney questioned Delbert

19. Lay Opinions versus Expert Opinions

20. Character Evidence

21. Relevance

a. Bias is always relevant

22. Keep in mind ‘why’ certain things can or cannot come in; essential to winning in court and on bar exam

23. When does State Evidence Law apply in federal court?

a. State law applies based on Erie Doctrine when:

i. Issue arises in a civil proceeding (criminal proceeding always uses FRE)

ii. Concerns an element of the claim or defense; and

iii. Third criteria???

24. Federal Rule 601, p. 26 Competency to Testify in General

a. Under Rule 601 everyone can be a witness, everyone is competent, except as provide by the rule, so judges are excluded (too much credibility with the juror –truth-seeking goal of evidence-on one hand; threatens impartiality of the system on the other hand)

b. Rule 601 is about WHO can be a witness, not WHAT the person can say

c. “has personal knowledge” “cannot make anything up”

d. In Maryland, convicted perjurers are not competent to testify.


25. Federal Rule 610: Religious Beliefs of Opinions

a. No using religious or beliefs or opinions to attack or support the witnesses credibility; bc we don’t want religion being the basis for which people

b. Must preserve the objection

c. Court’s inquiry would then be:

i. Was it wrong?

ii. Are we going to reverse on appeal?

26. Rule 606: Juror’s Competency as a Witness

a. Cannot bring in evidence unless it’s of an outside influence

b. Tanner v. United States:

i. Jury full of drunk uncles, partying and selling a lot of weed amongst each other (quarter pound); drunk and stoned. Your client is convicted by the drunk high jurors, what say you?

ii. O’Conner: being drunk is the same as waking up with a virus. We have to draw the line in the sand and not permeate the juror’s black box.

iii. We want juror’s to feel free to decide the case, without fear that their behavior will be scrutinized, but at the same time if there is an outside influence (like a threat or something), we don’t need to permeate the black box

c. Finality of the case; when

inds of Evidence

i. Witness Testimony

ii. Tangible Evidence

1. Real Evidence

a. Anything you can actually take into the jury room

b. Toaster as a murder weapon, brought into court

c. Knife that actually killed V

2. Demonstrative Evidence

a. Any evidence that helps to illustrate the testimony

i. Diagram of the murder scene

ii. Charts, evidence

iii. Does not go back into the jury room (they cannot say can we take this back to the table to talk about it)

30. Rule 901: Authenticating or Identifying Evidence

a. Evidence has to be ‘sufficient to support a finding’ (low threshold/burden)

b. You have to bring in the actual knife that killed the guy

c. 901 has Three Aspects

i. Authentication

1. Condition precedent; you have to prove that something is what you say it is before we admit it into evidence; proof must be sufficient to support a finding (reasonable person can conclude that the item is what x says it is)

a. As long as there is evidence to support a finding, it comes in (for the jury/fact-finder to decide)

d. The personal knowledge that you need to authenticate a photograph depends on the way that the photograph came onto the scene;

i. ‘Fair and accurate depiction of the scene’ (magic words)

ii. Establishing personal knowledge of the scene and where the photo came from makes it ‘Real Evidence’ (this is good so that the photo/evidence goes back with the jury to the jury room)

1. If witness has real and personal knowledge of the evidence, then that needs to be established on the stand, to make it real evidence

2. Clint Eastwood movie example – showing that the person’s phone number was on the other end of the receiver under 901(b)(6) would get the recording into evidence

3. Layperson can have experience with the voice, therefore recognize the voice and authenticate it

4. Context of the conversation itself could also authenticate

5. Jury could authenticate voice also, “Jury, you’ve heard both voices, so you can authenticate as a layperson that it is or is not x’s voice.”