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Evidence
University of Dayton School of Law
Hallinan, Charles G.

Evidence
There are 4 functions of evidence. The goal is to apply rules of evidence and use all the evidence so trier of fact and make the best judgment.
Four types of rules:

Admission (R.401) If relevant it is permissible
Exclusion (R.403)
Limitation (R. 609) Proof of prior conviction is admissible for credibility
Procedure (R. 415(c)) Proof of prior sexual conduct in certain trials

The ideal we are trying to bring out is a fair consideration of caused based on accepted rules of the game.
Rule 1101 – Applicability of the Rules (the idea behind it is to understand the proceeding you are going into has application of the rules but in some proceedings the rules do not apply.

They do not apply at proceedings on facts preliminary
Rules do not apply to motion to suppress and motion in limine grand jury.
Remember motion in limine is a preliminary motion to get a pretrial ruling either in crimional or civil, while motions to suppress only go before criminal trials

Laying Foundation – general rule is before you can get evidence in you have to lay a foundation. Say for a lay witness you have to get that in before and must have substantive knowledge. Thus you lay foundation for providing crediability to the witness. Thus the more you know something the better you are able to pass judgment on it.
Objection – part of fulfilling burden or proof.
The idea is thatyou don’t want to object to the judge by alienating the jury through angering the judge. You can ask to approach a bench for sidebar and to make objection but on record the jury doesn’t hear.
Rule 104 Preliminary Questions – You have to ask a series of questions that a witness has personal knowledge of the cause of the circumstances. One think you will see is privileged information is protected all the way through information.
Trial Plan – say you have a witness that you need to testify to a certain fact and thus is an easy review to keep things straight. Say one statement is tried to be introduced by hearsay objection then you respond a number of ways through your rules of evidence. Then you have an alterntive to an objection being sustained. Thus, an alternative source to prove what you were going to show to being with.
Offer of proof – you will go on record the substance of information that is occurring. Thus, jurors could leave and come back in and tell on record of what is there solely for the purposes of appeal.
Rule 104 cont. (b) – dangerous device that no trial goes as perfectly planned. Thus, if you have a witness that cannot be there that can be to lay foundation for a piece of evidence. It is ithus a conditional admitted piece of evidence that is admitted until the witness can come to lay the foundation for the evidence. A good way to not get jerked around by the older lawyers that proper foundation has not been laid and ask it to be striken from the record.
Admissibility and relevancy are not synomous
Motion in limine – pretrial motion [at the threshold] used to exclude evidence in both civil and criminal cases. Thus it is a pretrial ruling that says evidence will not be admissible at trial. It is common pretrial motion to exclude evidence and can get a pretrial rule on the admissiability of evidence prior to trial in planning your strategy.
Two types of a motion in limine – conditional pre-trial ruling is conditional in sense that party opposing the evidence may or may not be allowed in. if it is conditional you cannot plan on how things will go. A definitive ruling the court is saying that in no way will there be reconsideration of evidence. Under conditional rulings the condition of evidence and the time it is introducted.
A viable objection for those on appeal:

Evidence exclusion
Make sure to pereserve issue for appeal

An Objection must be:

Timely (First opportunity)
Specific (Both to Facts Law) [the objection has to be much more quickly. Specifically you have to state facts and the law. ] On the Record (Options otherwise a) Offer of proof b) motion in limine) [If not on the record the issue will lose on appeal]

An objection comes from the party that is being adversely effected by what is occurring at trial. Remember that appellate crt. it is a high bar to overturn on trial of outcome. The best way is that if evidence is left out and not obvious from the trial you need to make an offer of proof under Rule 103(b) by approaching the judge and asking the jury to leave and substantive offer to your evidence. Several ways to have Offer of proof have witness on stand, there is objection, it is sustatined, you make a motion for offer of proof by simply asking the question and then you move on. For purposes of offer of proof you let the witness go on without it being in front of jury trial. Remember we want to try and keep all argument over evidence to be out of the hearing of the jury. Thus, the best idea is it you have an objection make sure it is discussed out of hearing form the jur. Once a court makes a definitive ruling at or before trial a party does not need to object again in order to preserve it for appeal. However, under a conditional ruling is one tere that will admit or deny evidence based on a specific condition is met. However, it is your duty to raise it to preserve it for appeal if condition is not met.
Forfeiture – is the failure to make a timely assertion of a right. Generally this is inadvertence. This generally will not be able to make an issue for appeal.
Waiver – is the intentional relinquishment or abandonment of a known right.
Rule 105

Direct plus cross
All evidence must be exhausted
The burden of production can be tested by the defendant making a motion for directed verdice or for prc. Case aquitall
If burden not met then end

Defendant Case in chief

They never have the burden of proof unless there is an affirmative defense then they have burden of proof

Prosecution Rebuttal

Rebuttal witness can be called – narrowed here only to new evidence

Defendant rebuttal

Limited to new evidence from plaintiff new rebuttal evidence

The burden of proof may shift during the trial but the plaintiff/prosecution always has the ultimate burden of proof in winning the case
A jury does not have to accept direct evidence (testimony) put o from witnesses but it is up to the jury to find them credible. Thus in burden of proof with direct evidence by testimony it does mean burden of proof is met due to not meeting burden of persusasion or really trial of fact finding credibility. The only test for burden of persuasion is at the end when it is to late to do anyting while burden of production can test through various test of motion for direct verdict etc.
As far as expert testimony it falls purely to circumstantial evidence since there has to be an inference of facts since they were not an eye witness.
Circumstantial evidence is one where the facts are inferred from another fact. These are not sure facts but it is based on probabilities. Circumstantial evidence is just sufficient enough to prove guilt as direct evidence is.
Probabitive value of evidence – evidence ability to prove or disprove a certain fact. There is no longer any test for sufficiency of nature of evidence in regard to being circumstantial compared to direct and thus the same test.
It is enough there be sufficient facts for the jury to say reasonably that the preponderance of the evidence standard favors liability. ***You cannot base one inference on another inference***
American Rule – Cross-examination is limited to solely what came out in direct as well as facts that go to the witness credibility or in other words believeability. Belivability question: How much has the