Evidence Outline

ALWAYS ASK YOURSELF: WHAT IS THE EVIDENCE BEING OFFERD TO PROVE?

A. What is the law of evidence
1. It determines what kinds of information we are going to allow the lawyers to present to the fact-finders. What information we are going to allow the jury to consider in making there decision
a. Help the jury to determine accurately what happened
b. Keep out evidence that will lead the jury astray
i. distrust of jury
ii. constitutional concerns
iii. historical quirks
c. Most of the rules are geared towards what is not admissible
d. Each one is an independent ground for excluding the evidence: Mnemonic device: Hear PA BROWN
i. Hearsay
ii. Privileges
iii. Authentication
iv. Best evidence rule
v. Relevance
vi. Opinion
vii. Witnesses
viii. Notice (judicial notice)
ix. Presumptions – you don’t have to look for it, it is obvious
x. Procedural matters
1. Limiting instructions
2. Preserving for appeal
2. The roles in a trial
a. The parties: the proponent is the party offering the evidence; the opponent is whom the evidence is being offered against
b. The fact-finder (judge or jury); as a practical matter the rules are applied in a much looser fashion in bench trials vs jury trials
c. The judge – largely passive. It is not the judges job to disallow inadmissible evidence, it is the role of the parties and it may be a strategic decision to not object to inadmissible evidence.
i. Can interject to point out a potential objection, but this is not the general case
3. Objections
a. Must be made with timeliness and specificity
i. Timeliness
1. You must object at the first reasonable opportunity
2. If you are not timely, you waive your right to make that objection
ii. Specificity
1. State a ground for objecting clearly
a. Objection, hearsay; objection, inadmissible character evidence
2. If you fail to object with specificity, you have waived your right to appeal on the objection
b. If it is timely and specific, the burden is on the proponent to prove why the evidence is admissible
c. If the judge decides to exclude the evidence, the proponent needs to preserve the issue for appeal by making an offer of proof
i. Making a formal record of the substance of the evidence
1. The lawyer may tell the court what the evidence would have been
2. take the witnesses testimony outside the presence of the jury with a court reporter
3. Mark a physical item for identification
d. Motions in limine
i. A means by which the parties can anticipate and resolve evidence issues they know will arise
e. Prospects on appeal
i. Whichever party is complaining on appeal that the judge made an error, must be able to show that it did everything necessary to inform the judge of the evidence rule in question and its application to the evidence in question (you must show it was inadmissible because of the reason you said it was inadmissible or you will have to prove that it will not be admissible under any circumstances)

B. Relevancy
FRE 401: Relevant evidence is evidence having any tendency to make the existence of any fact that is of consequence o the determination of the action more probable or less probable that it would be without the evidence. Rule 401 poses two questions:
· Is the proposition toward which the evidence is directed properly provable in the case? Is it legally at issue in the case?
· Does the evidence have a tendency to prove the proposition? Does it actually help prove what we are trying to prove?
Knapp v State:
Sherrod v Berry:

FRE 402: Relevant evidence is generally admissible and irrelevant evidence is inadmissible.
Policy: We want to let in all relevant evidence, unless is it excluded for fairness. If evidence is irrelevant, there is no point in making the judge and jury waste time listening to it.

FRE 403: Relevant evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion, delay, or waste of time.
Policy: This rule is concerned that the truth finding process be efficient and fair. Even if evidence gets in under some exception, it will usually still be subject to this balancing test.
Ballou v Henri Studios, Inc.:FRE 403 does not permit the exclusion of evidence because the judge does not find it credible. Weighing the probative value against unfair prejudice means probative value with respect to a material fact if the evidence is believed, not to the degree the court finds it believable. The Court should assume the evidence is true.
1. Evidence is admissible only if it is relevant
a. The piece of evidence offered must tend to prove or disprove a fact that is of consequence to the outcome of the case
i. tend to prove or disprove a fact: there must be a logical link between the evidence offered and the fact the party is trying to prove
ii. fact that is of consequence to the outcome of the case: the thing that the party is trying to prove with this particular piece of evidence must be something that relates to the legal issues in the case
1. Example: D on trial for rape and wants to testify that the V invited him to her bedroom. Ask if this information tends to establish consent – yes, it does. Then ask if consent is of consequence to the case – if the V consented, would it have a bearing on D guilt? Yes.
2. Example: D is on trial for statutory rape and wishes to testify that the V invited him to her bedroom. Does the proffered testimony tend to show consent? Yes. Is consent of consequence to the D guilt? No – just age.
b. If the evidence rationally leads the jury to believe the D was more or less probable to have committed the crime, it is relevant
2. Direct evidence is evidence that proves a consequential fact directly
a. Example: eyewitness that testifies “I saw the D shoot the V”
3. Circumstantial evidence is evidence that requires that fact finder to draw inferences from the evidence in order to conclude that some consequential fact exists
a. Example: W testifies to seeing D drink two beers. The jury would then infer that the D was intoxicated and from that that he was driving carelessly
4. Conditional Relevancy
a. The relevancy of a particular piece of evidence depends on the existence of another fa