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University of Illinois School of Law
Johnson, Eric A.

Fall 2011



1. Introduction

a. Why Evidence Matters:

i. Evidence is the heart of persuasion

ii. Evidence might decide if there is even going to be a trial

iii. Evidence matter outside the courtroom too (negotiation bargaining position)

b. Why Do Rules of Evidence Matter:

i. Every action occurs in the shadow of possible litigation

ii. Technology makes evidence easier to gather (might be used in court)

iii. Distinction about what types of evidence support sound decision making or risk of confusion

c. Benefit from Evidence:

i. Learn Rules

ii. Understand role facts play

iii. Understand strategies lawyers use to create persuasive arguments

d. FRE control the flow of info that reaches the jury (different than norm of 1st amendment more not less)

e. Efficiency / confusing evidence kept out

f. Improper chain of inferences if jury allow to hear everything

g. Some could impair function of jury / if everything gets in witnesses might not want to testify

h. Allocating risk of an adverse outcome

i. Care more about innocent conviction than guilt go free; rule in favor of defense

2. Types of Evidence

a. Definition of Evidence – testimony, writings, material objects, or other things presented to the senses that are offered to prove the existence or non existence of a fact (Cal.)

i. Includes all information given to trier of fact during trial except for questions and statements made by attorneys and judges

b. 6 Types:

i. Oral Evidence – testimony by witness speaking

1. Fact Witness – perceive and testify about facts

a. Directly perceived – eyewitness

b. Non Direct – heard fact from someone else

2. Expert Witness – uses specialized knowledge to interpret evidence or explain it to the jury

a. Don’t need first hand knowledge

3. Character Witness – don’t testify about facts directly related to suit

a. Offer information about the good or bad character

ii. Real Evidence – any physical evidence that directly plays a role in controversy

1. All real evidence must be authenticated – must offer some proof that the evidence is what she claims it to be

2. Makes a story more believable

3. More readily admissible than demos *

iii. Documents – any type of writing or recording of info

1. Technically a subcategory of real evidence

2. Must be authenticated *

3. Some are self authenticating – no need for witness to confirm authenticity

4. Witness almost never can testify orally about contents of document (must admit)

iv. Demonstrative Evidence – not an object that played a role in disputed events; created

1. May misrepresent or be overly dramatic so judges monitor demonstratives closely to insure that it does not mislead or distract jury

v. Stipulations – both parties agree on a fact

1. Must agree to exact language

vi. Judicial Notice – if a fact is indisputably true

1. Must be generally known or capable of accurate and ready determination by consulting an unimpeachable source

c. Circumstantial Evidence

i. Circumstantial – Any evidence that requires the jury to make an inference connecting the evidence with a disputed fact (state of mind)

ii. **All evidence depends upon some inferences

iii. Distinction between has no legal effect!!

iv. Less inferences = stronger evidence

3. Four W’s of Rules

a. Rules – set of restrictions that federal courts place on attorneys who wish to submit evidence to the trier of fact

b. Balance generous view of admissibility with safeguards below

c. Why

i. To protect the jury from misleading information

ii. To eliminate unnecessary delay and promote efficiency

iii. To protect a social interest such as a confidential relationship

iv. To ensure that evidence is sufficiently reliable

d. Who Wrote them

i. First started as common law

ii. Supreme Court appointed advisory committee to codify common law into rules

iii. Sometimes Supreme court makes rules directly

1. Source of research

a. Notes written by advisory committee

b. Committee reports and other legislative history

e. Where do they apply

i. Rule 101 – these rules govern proceedings in

1. Courts of the US

2. Before the US bankruptcy judges

3. And US magistrate judges

4. Tax court (admin agency)

5. Exceptions in rule 1101*

a. Does not apply to Supreme Court – but usually don’t get evidence at this level

b. Does not apply to Administrative agencies (except TAX) : less formal

c. Even if doesn’t apply it does INFLUENCE

f. When do they apply

i. Rule 1101 (b) – govern both civil and criminal trials, admiralty and maritime cases

1. Apply only to the main event – trial

2. But can influence other parts of a case

ii. Rule 1101(d) – rules inapplicable

1. Preliminary questions of fact

2. Grand jury

3. Pre and post trial hearings

a. Miscellaneous proceedings (extradition)

b. Sentencing / revoke probation

c. Issue warrants

d. Release on bail

iii. Rule 1101(c) – the rule with respect to privileges applies at all stages of actions, cases, proceedings

g. FRE 102– rules should be construed to secure fairness, eliminate delay & expense and promote the ascertaining of truth.

4. Structure of Trial

a. Pretrial Motions

i. Motions in limine – exclude opponents evidence or to secure permission to introduce evidence

1. Knowing ahead of time what will be admitted and what will be excluded can help an attorney plan trial strategy

2. Prepare and make more lengthy legal arguments

3. Not objecting in front of jury

ii. Motion to suppress – not arguing that violates the rules but that illegally obtained

iii. Summary Judgment – there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law

b. Jury Selection

c. Opening Statement

d. Presentation of Proof

e. Trial Motions

f. Closing Argument

g. Instructions

h. Deliberations

i. Verdict

j. Judgment and Post Trial Motions

k. Appellate Review

5. Raising and Resolving Evidence Objections

a. Introduction

i. Trust adversary system to identify inadmissible evidence

b. Disputing and Defending Evidence

i. Rule 103 – for appellate court to consider evidentiary objection

1. Raise objections during trial

i. 103 (a)(1) – Effect of Erroneous ruling: error may not be predicated upon a ruling which admits or denies evidence unless a substantial right of the parties is affected = probably affected the outcome of the case

i. affect substantial right of party

ii. timely objection / move to strike

iii. State a specific ground for objection/portion unless obvious

2. Defend evidence – offer of proof

a. 103(a)(2) – make an offer of proof – the substance of the evidence was made known to the court by offer or was apparent from context

i. if objection other than relevance must include why objection is unsound

1. Make an offer of proof

2. Identify theory of admissibility

3. Maintain objection

a. Do not have to renew objection

b. Must be a definitive ruling

4. Shield jury

a. 103(c) – prevent inadmissible evidence from being heard by jury

5. Limiting – instruction to jury to limit evidence to specific purpose and no other

a. Rule 105 – if limited admissibility the court shall / must give instructions

c. On Appeal

i. Must follow all steps above except for plain error

ii. Still rarely reversed on evidentiary grounds

iii. Abuse of Disc

ejudicial or conducing means

v. Possible to reduce the prejudice or other harm once the evidence is introduced

d. Stipulations – may affect the balance of unfair prejudice and probative value

i. Old Chief:

1. 403 balancing test requires court to evaluate unfair prejudice and probative value in the context of the full evidentiary record- Alternative evidence is a factor

2. The probative value of a stipulation usually cannot match the descriptive richness and coherent narrative of testimony

3. The calculus differs in the special context of the felon in possession statute

4. Evidence fact does not have to be stripped of details / syllogism is not a story

5. Can state extra details that add to story but cannot state type of felony because lead jury down bad inferential chain

e. Bench trial is different because would not use 403 prejudice but still can use 403 waste time

f. Admit arrest but not the charge under 403

g. Evidence of someone not on trial weighs less under 403 because far less damaging

8. Competence / Witness on the Stand

a. Competence:

i. Rule 601 – every person is competent to be a witness except as otherwise provided in these rules

1. Default is competence but other limitations below

2. No general competence requirement / permissive view toward allow testify

3. Cross examination will highlight flaws

4. however in civil actions and proceedings with respect to an element of a claim or defense as to which state law supplies the rule of decision the competency of a witness shall be determined in accordance with sate law

ii. Rule 605 – the judge (clerk) presiding at the trial may not testify in that trial as a witness

1. Cannot offer commentary or reporting evidence related to

iii. Rule 606 – a juror may not testify as a witness before that jury in the trial of the case in which the juror is sitting

b. Personal Knowledge:

i. Rule 602 – a witness may not testify to a matter unless evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter; evidence to prove personal knowledge may but need not consist of the witness’ own testimony

1. Limitation to 601 generous view of competence / threshold standard but easy to meet

2. Can have a general knowledge even if don’t remember specifics

3. 703 opinion testimony by experts don’t need personal knowledge

4. Must lay foundation to show person knowledge – May be during witness testimony

5. Law threshold – judge find that there is enough evidence reasonable person would conclude personal knowledge

6. Can be indirect circumstantial knowledge

c. Oath or Affirmation:

i. Rule 603 – before testifying every witness shall be required to declare that the witness will testify truthfully by oath or affirmation administered in a form calculated to awake the witness’ conscience and impress the witness’ mind with the duty to do so

1. Oath = swear and reference to god

2. Affirmation = promise to tell the truth with no god

3. Minimum standard of competency

4. No magic words need to utter to satisfy oath