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University of Baltimore School of Law
Gilman, Michele E.

SUBJECT: Evidence
SEMESTER: Fall 2010
I.                    TOPIC: The Process of Proof
a.       Evidence is defined as testimony, writings, material objects or other things presented to the senses that are offered to prove the existence or nonexistence of a fact.
                                                  i.      Includes all info given to the trier of fact except for questions and statements made by the attns and judges.
b.      Types of Evidence:
                                                  i.      oral testimony from witnesses speaking from the witness stand. Three kind of witnesses:
1.       fact: people who perceived facts related to the lawsuit and testify about those facts.
2.      expert: uses specialized knowledge to interpret evidence or explain it to the jury. Do not need to have firsthand knowledge about the controversy in question.
3.       character: offer info about the good or bad character of a party or witness. Do not have to have perceived any fact related to the controversy. Only need knowledge about the character of a party or a witness.
                                                ii.      Real evidence: any physical evidence that a party claims played a direct role in the controversy.
1.       murder weapon
2.      must be authenticated which means proponent must offer some proof that the piece of physical evidence is what she claims it to be.
3.       jurors weigh this type of evidence heavily
                                              iii.      Documents: any type of writing or recording of info.
1.       must be authenticated
2.      some are self authenticating
3.       contracts, bills, leases, wills, faxes, emails
4.      subcategory of real evidence because they are physical evidence that played a direct role in the controversy.
                                               iv.      Demonstrative Evidence: created by parties to illustrate concepts or facts to the jury.
1.       not object that played a role in the disputed events
2.      charts, tables, pics, maps, graphs, power points, demonstration
3.       problems: open to abuse because may be recreated in a way that misrepresents the true nature of what happened or may be done in an overly dramatic way.
4.      carefully monitored by judges so not to mislead or distract the jury
                                                 v.      Stipulations. If both parties agree on a fact, they can stipulate that the fact is true for purposes of the litigation. Both parties must agree to its exact language and then the judge or proponent of the evidence then reads the stipulation to the jury.
                                               vi.      Judicial Notice: fact is indisputably true the trial judge can take judicial notice of the fact
1.       fact must either be generally known or capable of accurate and ready determination by consulting an impeachable source
                                             vii.      Circumstantial Evidence: any evidence that requires the jury to make an inference connecting the evidence with a disputed fact.
1.       contrast with direct evidence requires no inferential bridge because it directly establishes a contested fact.
2.      chain of assumptions
c.       all evidence depends upon some inferences.
                                                  i.      Obvious inferences: circumstantial evidence
                                                ii.      Inferences more difficult to detect: direct evidence
                                              iii.      Distinction btw circumstantial and direct does not have a legal effect. It should all be weighed the same. Fed. Rules of Evid. do not draw a distinction btw circumstantial and direct evidence.
d.      Federal Rules of Evidence are a set of restrictions that federal courts place on attns who wish to submit evidence to the trier of fact.
                                                  i.      Why restrict? Don’t want to confuse jurors, waste time or intrude on protected social interests such as confidential relationships.
e.      RULE 101: SCOPE (in all federal courts)
                                                  i.      These rules govern proceedings
1.       in the courts of the US
2.      and before the US bankruptcy judges
3.       and US magistrate judges
f.        RULE 1101(a): Rules DO NOT apply to Supreme Court, administrative agencies (except for tax court), state courts (which have adopted their own rules similar to the federal ones).
                                                  i.      But the administrative agencies and state courts have adopted the rules or look to them for guidance.
g.      RULE 1101(b): APPLICABILITY OF RULES. Says that federal rules govern all kinds of trials in federal court. Govern civil, criminal, admiralty and maritime cases.
h.      RULE 1101(d): rules apply ONLY to trial
                                                  i.      Other stages do not follow the rules.
                                                ii.      Do not apply to:
1.       preliminary questions of fact to admissibility of evidence under RULE 104.
2.      proceedings before grand juries
3.       proceedings for extradition or rendition
4.      preliminary examinations in criminal cases (to decide if probably cause to hold a D for trial)
5.       sentencing or granting or revoking probation
6.      issuance of warrants for arrest, criminal summonses, and search warrants;
7.       and proceedings with respect to release on bail or otherwise.
                                              iii.      Rules that govern privileges are treated differently from other rules.
                                               iv.      Three areas evidence rules do not apply:
1.       grand jury inquiries
2.      a variety of pre- and post-trial hearings, and
3.       preliminary determinations of fact
4.      when a court exercises its summary contempt power
                                                 v.      Judges still often look to the rules for guidance during these proceedings
i.        RULE 1101(c). The rule of privilege applies at all stages of all actions, cases and proceedings.
II.                  TOPIC: Relevance. FEDERAL RULES OF EVIDENCE (FRE): 401, 402, 403
a.       RULE 103. Rulings on evidence. contesting evidence at trial
                                                  i.      Parties raising evidentiary challenges thru objections or motions to strike; each challenge must be timely and specific
                                                ii.      The party introducing the disputed evidence responds with an offer of proof
                                              iii.      Once the judge issues a definition ruling, the parties need not renew any objections or offers of proof
                                               iv.      To the extent possible, this process of evidentiary objections and offers of proof occurs outside the jury’s hearing, so jurors not exposes to inadmissible evidence.
b.      Judge can respond to an evidentiary objection by:
                                                  i.      overruling and admitting evidence,
                                                ii.      sustaining the objection and exclude the evidence;
                                              iii.      admitting a redacted or restricted form of the evidence;
                                               iv.      or admitting evidence for limited purposes or against limited parties.
c.       RULE 105. Limited admissibility. requires the judge to issue a limiting instruction if a party requests that relief.
                                                  i.      Limiting instructions can be a double edged sword.
1.       can either draw the jury’s attention to damaging evidence rather than restricting consideration of that evidence.
d.      Appellate courts review evidentiary issues ONLY if the complaining party complied with the procedural steps.
                                                  i.      Appellate judges usually apply a lenient “abuse of discretion” standard
                                                ii.      Court will only reverse a judgment on evidentiary grounds if the trial judge’s erroneous decision affected a “substantial right of the party.”
e.      RELEVANCE:
                                                  i.      Only relevant evidence is admissible
                                                ii.      RULE 402. If evidence is relevant, then it is admissible unless a specific rule, statute or constitutional provision bars its admissibility.
                                              iii.      First obstacle on path to admissibility
                                               iv.      RULE 401. relevant evidence means evidenc

evidence will arouse emotions or irrational prejudices among the jurors. Judges are more likely to exclude evidence that triggers strong emotional reactions.
b.      The extent to which the jury might overvalue the evidence (take a piece of evidence which is only slightly relevant and give it undue weight)
c.       The strength of the connection between the evidence and the elements of the case. Judges are more likely to admit evidence that is closely related to essential elements of a case, even when that evidence is highly emotional.
d.      Whether the advocate can prove the same facts thru less prejudicial or confusing means. If alternative routes are available, the judge is less likely to admit the challenged evidence.
e.      Whether it would be possible to reduce prejudice or other harm once the evidence is introduced. If the judge can redact prejudicial components of the evidence or instruct the jury to refrain from improper uses of the evidence, he or she will be more likely to admit the evidence.
5.       Damaging Evidence: parties must frequently claim that evidence is unfair simply because it will damage their case.
a.       Routinely rejected
b.      Only exclude if it would inflame the jury’s passions or otherwise introduce an improper basis for decision
c.       Evidence that strongly supports the position of one party and damages the other is not unfair, it is just persuasive
6.      Videos and Photos: real time evidence may be damaging but not unfair.
a.       As long as the other side as an opportunity to cross-examine the filmmaker about perspective and editing, and to explain to jury how the video might convey an erroneous impression, the tape seems to be as accurate (or more so) then eyewitness testimony.
b.      Usually offer an emotional punch that verbal testimony rarely will. For this reason, parties try to make their cases as visual as possible.
c.       Prosecutors often attempt to introduce photos of a victim’s injuries.
d.      If the photo only shows the effects of the crime, giving no indication of how the crime occurred or who was responsible the possibility of unfair prejudice is more substantial.
                                                                                                                          i.      Judge must decide whether the juror’s emotional reaction to the devastating effects of a crime will push them to blame the D, overlooking any exonerating evidence.
                                                                                                                        ii.      Uneasy balance btw allowing parties to make their cases real thru visual evidence and preventing the parties from abusing the unrestrained emotions such evidence might unleash.
                                                                                                                      iii.      May allow some photos in but not others
7.       Socially Undesirable Behavior: wide variety of lifestyles in US and often disapprove of others lifestyles.
a.       Judges tend to exclude this evidence under Rule 402 for relevance.
b.      Often times, lifestyle evidence may have some bearing on issues in the case, especially given the broad definition of relevance under Rule 401.
                                                                                                                          i.      May want to show opulent lifestyle if embezzlers.
1.       May allow evidence of lavish lifestyles to establish motive.
But some have rejected this, saying