Evidence Outline

Fundamentals of Evidence
Turner
Spring 2016
 
When looking at question: What is the case going to be decided on???
Objections
Used proper objection but lost it/waived it (prior crime)
Reversible error (assuming objection made)
Evidence admitted
Admission erroneous
Probably affected outcome
Evidence excluded
Exclusion erroneous
If admitted, probably would have affected outcome
Harmless Error
Assumes erroneous
Court confident error had little or no effect on verdict
Plain Error
Obvious and substantial (gross/crazy)
No objection necessary- judge jumps in
Prevent of miscarriage of justice
Mostly in criminal cases
Don’t count on it
Judge doesn’t jump in, then appeals court might
 
Objection, Motions, Appeals
Objections- Opponent of evidence, possible scenarios
1. burden on the advocates (adversary system)
2. use it or lose it
3. use it right or lose it
4. use it right and win- no need to appeal
5. use it right and still lose it
6. but, preserved for another day and another court
7. opened the door (waived)
 Objections (Proponent of Evidence)
Offer unopposed- introduce it
Offer opposed but objection denied- introduce it
Offer opposed and objection granted- make a record
 
Motions in Limine- Made before trial
Preemptive strikes
Motion granted- trust but verify
Motion denied- try, try again
Eye on the appeals court
Denial usually enough if clear, unequivocal
Exception- accused and impeachment evidence- accused must testify
 
Relevancy
            Rule 401- any tendency to make a fact more or less probable than it would be without the evidence?
            Is the fact of consequence in determining the action? (materiality)
People who ____________ are more likely to _______ than people who do not _________.
All relevant evidence is admissible under the Constitution, FRE, fed statute, or SCOTUS.
Relevancy thermometer v. Prejudicial thermometer
            Prejudicial Side Effects:
What prejudice is:
            UNDERMINES process itself- tilts the playing field judge must estimate common sense reaction of ordinary person.  Will it skew the juror’s ability to properly assess the facts of the case?  May react v. Must react
Appeals to bias, prejudice and emotions
Excessive weight given to evidence- confusing, guessing? 
Transactional costs
            Prove or disprove fact in issue- impact on credibility of witness
Rule of thumb: the more words needed to explain connection, the less probative value
Fluctuating probative value v. ebb and flow of preju