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University of Baltimore School of Law
Gilman, Gregory

I. Relevance FRE 401, 402,403


Evidence has to be relevant to be admissible
Its admissible in the absence of a rule or exclusion

Unfair prejudice

Under 403 a trial judge can exclude evidence of unquestioned relevance where its probative value is substantially outweighed by the possibility of unfair prejudice, confusion of the issues, misleading the jury, undue delay, waste of time, or needless presentation of cumulative evidence
The rule favors admissibility

i. Exclusion only happens when the probative value is substantially outweighed by the competing consideration

Rule is also concerned with unfair prejudice not with evidence that is unfavorable to either side
The court in balancing may consider other factors such as

i. The effect of cautionary jury instruction or FRE 105 limiting instructions
ii. The availability of alternate proof
iii. The centrality of the point to be proved
iv. The need for the particular evidence
II. Authentication FRE 901


Something is properly authenticated by “evidence sufficient to support a finding” that it is “what its proponent claims”
Role of Judge and Jury

i. Judge determines whether sufficient evidence to support a finding of authenticity has been introduce
1. not demanding standard
ii. Jury decides whether or not the evidence is authentic and the jury may disregard the testimony if not persuaded on this point

Authentication of photographs

i. Photos are admissible if
1. a foundation witness has personal knowledge of how the real thing looked that relevant time
2. the witness can state that the photograph fairly and accurately represents the real thing as it look at the relevant time

Authentication through chain of custody

i. Usually used for evidence that is fungible
ii. It is established when one or more witnesses first describe the initial recovery or use

SELF-Authentication – FRE 902

Certain docs are self authenticating and presumed to be genuine
Most common are cert copies of public records under 902(4) and business records under 902(11)


i. Facts generally known within the territorial jurisdiction of the trial court and
ii. Facts capable of accurate and ready determination by resort to sources whose accuracy cannot be reasonably questioned such as historical geographic physical political statistical and scientific facts

Jury Instructions – in civil cases court must instruct jury to accept as conclusive any fact judicially noted – in crim cases the jury must be told that it may but isn’t required to accept as conclusive any fact judicially noted


Rule 802

i. An out of court statement offered in court to prove the truth of the matter asserted
1. OCS + offered at trial to prove TOMA (of the MA by declarant when he made the OCS) = HS
2. Being offered today at trial to prove the truth of the matter at trial
ii. Requirements
1. Is the evidence hearsay (801)?