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University of Baltimore School of Law
Gilman, Michele E.

Evidence: testimony, writings, material objects, or other things presented to the senses that are offered to prove the existence or nonexistence of a fact.
includes all information given to the trier of fact during trial, except for the questions and statements made by the attorneys and judges.
Evidence is important because it re-creates the significant parts of the trial (the facts, not the substantive law).
Class Notes
Why not let it all in?
Accuracy – want juries to hear evidence that won’t mislead
Substantive policies must be protected (i.e. A-C privilege)
Prejudice (just benefit of the doubt)
Mistrust of juries
Reliability – it’s a structured system
History of the FRE
1975 Federal
for the values listed above
Prior to 1975 it was common law
1961 committee appointed to adopt the federal code
advisory committee appointed to draft the rules
published drafts of its recommended rules called “Advisory Committee Notes”
SCOTUS promulgated 1972
Sent to Congress 1973
With “Congressional Reports”
First state to adopt code = Cali 1967
Post 1975 – FRE amended regularly by an Act of Congress
Usually SCOTUS makes recommendation beforehand
Occasionally Congress acts on its own
42 states have codified FRE, i.e. Maryland Rules of Evidence
FRE not binding but many states find them persuasive/helpful
In general the federal rules FAVOR ADMISSIBILITY
TRIAL JUDGE DISCRETION (hard to get them overturned)
Types of Courtroom Evidence
A. Direct…
1. oral testimony
fact witnesses
expert witnesses
character witnesses
2. real evidence
must authenticate: prove that the physical evidence is what they claim
3. documents
4. demonstrative evidence
charts, tables, pictures, maps, graphs, physical “demonstration”
5. stipulations
if both parties agree to a fact, they can stipulate the fact is true for purposes of litigation
6. judicial notice
indisputably true facts that are “generally known” or “capable of accurate and ready determination” by consulting an unimpeachable source
Note: photos, videos, audiotapes = direct/real evidence when depicting the events of the controversy OR demonstrative evidence (depends on context).
B. Circumstantial…
any evidence that requires the jury to make an inference connecting the evidence with a disputed fact
the distinction between direct/circumstantial has no legal effect
To protect the jury from misleading info
To eliminate unnecessary delay and promote efficiency
To protect a social interest, such as a confidential relationship
To ensure that evidence is sufficiently reliable
Notes written by the Advisory Comm.
Comm. Reports and other Legislative History from Congress
Rule 101: Scope. These rules govern proceedings
In the courts of the U.S.
And before the U.S. bankruptcy judges
And U.S. magistrate judges
To the extent and with the exceptions listed in Rule 1101.
Rule 1101(b): all kinds of trials in federal court (civil, criminal, admiralty, maritime)
But only apply to the main event of litigation – the trial
Rule 1101(d) Rules inapplicable in the following situations:
Preliminary questions of fact
FRE 104
Grand jury proceedings
Misc. proceedings
Extradition or rendition
Preliminary examinations in criminal cases
Sentencing, granting, revoking probation
Issuance of warrants
Proceedings with respect to release on bail
(b): a court exercises its summary contempt power when judges may sanction any person in the courtroom who disrupts the proceedings
(c): Even when the FRE don’t apply in their entirety, rules governing privileges always apply.
Note: FRE n/a to SCOTUS, Fed. Admin. Agency, or State Court.
Structure of a Trial
1. Pretrial motions
motions in limine: exclude an opponent’s piece of evidence or to secure permission to introduce a potentially contested piece of their own evidence.
Knowing ahead of time helps with planning a trial strategy
Make more lengthy and sophisticated legal arguments
If an attorney loses his objection, jurors jump to conclusions:
(a) The objecting attorney just lost a legal skirmish with opposing counsel, and
(b) The disputed evidence must be particularly important, because it elicited objection, so it deserves special attention
Motion to suppress: claiming evidence was illegally obtained
Summary judgment: no genuine issue as to any material fact and the moving party is entitled to a judgment as a matter of law
2. Jury selection/Voir dire
3. Opening statements: overview of the evidence that party intends to present, explains why the jury should discount evidence presented by the opposition, and offers a theme that the jurors can use to organize the evidence they will hear
tell a story
reflect the evidence that will unfold during trial
the party that bears the burden of

ries, hard to reverse (deference unless abuse)
if its probative value is substantially outweighed by the danger of:
Meaning: firm tilt toward admissibility
The bad must SUBSTANTIALLY outweigh
Probative value: evidence or facts which tend to be sufficiently useful to prove something important at trial (i.e. the existence of other facts or issues)
How much the evidence affects that probability
The weight of the brick
some things are more probative than others
(a) unfair prejudice, confusion of the issues, or misleading the jury, or by
Meaning: the undue tendency to suggest decision on an improper basis (i.e. an emotional one)
Some evidence will always be prejudicial in the sense that the party offering the evidence hopes it will damage the opposing side
(b) considerations of undue delay, waste of time, or needless presentation of cumulative evidence.
Factors Considered When Applying this Rule:
1.                     The extent to which the evidence will arouse emotions or irrational prejudices among jurors.
2.                     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.
3.                     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 the case, even when the evidence is highly emotional.
4.                     Whether the advocate can prove the same facts through less prejudicial or confusion means.
5.                     Whether it would be possible to reduce prejudice or other harm once the evidence is introduced.
How do color photos change an analysis?
Depends on the picture; is it close? Far? Is it a scene?
When in color, the prejudice goes up as the goriness goes up
What about the probative value?
Does it go up? Normally not for pictures…