Select Page

University of Baltimore School of Law
Gilman, Gregory

Evidence Outline
Trial about facts
–          if facts in dispute, goes to trial
–          recreation of facts/history
–          2 competing versions of the truth
–          evidence governs access to facts at trial
Reasons for Evidence
–          promote accuracy
–          avoid juror confusion
–          efficiency
–          fairness
–          other substantive policies
Tension b/t trusting and distrusting jury
Federal Rules – 1975
MD Code based on FRE
1)        admissibility favored
2)        trial judge has discretion
FRE 401: Definition of “Relevant Evidence”
“Relevant evidence” means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.
1. “Of consequence”
–      substantive law governing case
–      it must prove an element
2. makes something more probable than not
–      way our experiences and common sense explains actions/scenarios
–      not HOW MUCH it affects probabilities
–      whether it affects probability even a little bit
–      “a brick is not a wall”
FRE 402: Relevant Evidence Generally Admissible; Irrelevant Evidence Inadmissible
All relevant evidence is admissible, except as otherwise provided by the Constitution of the United States, by Act of Congress, by these rules, or by other rules prescribed by the Supreme Court pursuant to statutory authority. Evidence which is not relevant is not admissible.
Relevant evidence is admissible in absence of rule of exclusion
no irrelevant evidence is admissible
Mitchell Case
–      motive: $, possessiveness, lovers quarrel
–      emotional state
–      threats
–      shaky alibi
–      bullet match
–      past history w/ women
–      5lb candy box
–      eye witness testimony
–      discrepancy in gunshop and Joe’s testimonies
Alternate theory: meant to kill Brooke
–      statement: Leslie shouldn’t have been there
–      motive: hate
–      excellent shot
–      gun wet
Joe Defense (hit man did it)
–      Brooke’s gun missing
–      told Leslie to go alone to movies
–      told Joe Leslie’s whereabouts
–      killed before
–      position of body
–      Ms. Porter’s testimony – Joe has alibi
–      distance
–      Joe’s emotional state was better b/c of $500
–      Brooke’s motive = $
–      he handed everything to police, nothing to hide
–      letter from anonymous
Ø TJ has a lot of discretion b/c they see testimony at trial, whereas App. Ct. has only paper record – abuse of discretion standard
Ø Certain evidence goes to certain theories
Ø Links in chain – jury needs to believe each link (piece of evidence) to believe the whole theory
Ø Background generally admissible, even if not relevant as “aid to understanding”
FRE 403: Exclusion of Relevant Evidence on Grounds of Prejudice, Confusion, or Waste of Time
Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.
Exclusion based on:
1. prejudice
2. confusion/misleading
3. waste of time
Rule is balanced to favor ADMISSIBILITY
–      prejudice must be substantially unfair/less favorable to opposing party
Relevance v. Probative value
any tendency to affect probability v. the extent (weight) of evidence
Prejudice must outweigh the probative value
Ø gory photos are generally admitted
The Rule is designed to favor admissibility; thus, the exclusion is only permitted where the probative value is substantially outweighed by the competing considerations.
The Rule is concerned with unfair prejudice, not with evidence that is unfavorable to one side or the other.
In conducting the balancing, the trial court may consider additional factors such as,
1)        the effect of cautionary jury instructions or FRE 105 limiting instructions;
2)        the availability of alternative proof,
3)        the centrality of the point to be proved, and
4)        the need f

at its proponent claims
FRE 901(b) sets forth an illustrative, non-exclusive list of ten examples of authentication methods
Role of judge and jury
Judge determines whether sufficient evidence to support a finding of authenticity has been introduced, i.e., a prima facie standard. This is not a demanding standard.
Jury decides whether or not the evidence is authentic, and the jury may disregard the testimony if it is not persuaded on this point.
Authentication of photographs
Photos are admissible if (1) a foundation witness has personal knowledge of how the real thing looked that relevant time, and (2) the witness can state that the photograph “fairly and accurately” represents the real thing as it looked at the relevant time.
Authentication through chain of custody
Usually used for evidence that is fungible, lacking in distinctive means of identification. (If an item has a distinctive appearance or character, chain of custody authentication is not needed. A single witness can authenticate that item based on seeing it just once before testifying.)
Chain of custody is established when one or more witnesses first describe the initial recovery or use of the object and others then describe handling the object and passing it along to others.
Continuously in safekeeping by one or more person from time picked up through date of court
New technologies often require a combination of authentication approaches under Rule 901(b), which is illustrative and not exclusive. Often, FRE 901(b)(9) is used to authenticate computer output, which requires a description of the “process of system used to produce a result” and a showing that it “produces an accurate result.”