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University of Dayton School of Law
Turner, Dennis J.

Fundamentals of Evidence
Spring 2016
When looking at question: What is the case going to be decided on???
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
            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

Witness rests the ID on his present memory of it
As best they can tell, the condition is unchanged
Chain of custody
Ultimate disposition of object
Introduced into evidence
Relevancy standard higher, “more accurate representation”
Marked for ID
Did no have to exist in time past
Useful to the jury
Real Evidence
Substantive evidence itself (jury can consider its testimony)
Apart from witness testimony must show it is the “thing” itself
In same condition or differences in donation are irrelevant
Marked for ID
Introduced into evidence
Relevancy standard higher? Capable of belief had to exist in time past, i.e., connected to the incident witness ID
Chain of custody
Continuous exclusive custody
Uniquely marked and in tamperproof container
Other Possible Hurdles
403 Balancing test
The question is always whether the probative value outweighs the prejudicial effects
Improper character evidence
Improper opinion evidence
Improper scientific evidence