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University of Illinois School of Law
Johnson, Eric A.

Evidence – Johnson: Fall 2010
FRE 102: Rules shall be construed to secure fairness in administration, elimiation of unjustifiable expense and delay, and promotion of growth and development of the law of evidence to the end that the truth may be ascertained and proceedings justly determined
a.       General: Rules promote fairness, ascertainment of truth, and elimination of necessary expense and time
FRE 103(a) Effect of erroneous ruling. Error may not be predicated upon a rulling which admits or denies evidence unless a substantial right of the party is affected and (1) Objection. In the case the ruling is one admitting evidence, a timely objection or motion to strike appears of record, stating the specific ground of objection if the specific ground was not apparent from the context; OR (2) Offer of proof. In case the ruling is one excluding evidence, the substance of the evidence was made known to the court by offer – NOTE: Once the court makes ruling to admit or exclude, a party need not renew an objection or offer of proof to preserve a claim of error
1.      Consequences of Evidential Error
a.       FRE 103: – 3 requirements for objection on appeal:
1.      Must affect a substantial right of the party (harmful) AND
a.       Trial ruling was error, and harmful
2.      Must raise a timely objection/offer of proof
3.      Should include a statement of the specific grounds for it.
b.      Keeping Evidence Out: Making a Record
                                                              i.      Objection – Must satisfy two important criteria
1.      Timely: Must be timely, must be raised at the earliest reasonable opportunity. Generally after the questions but before the answer
2.      Grounds: Must state specific ground, unless the ground is apparent from the context. General objections are inadequate to preserve the point
3.      Limits: An objection advanced on one ground only preserves a claim of error on that ground. Can object on multiple grounds
                                                            ii.      The Offer of Proof – counterpart to the objection
1.      General – If objection is sustained, proponent of the evidence must make an offer of proof to preserve the claim of error for appeal. Involves showing on record, the substance of the evidence
c.       Types of Error
                                                              i.      Reversible error – probably did affect judgment “substantial right”
                                                            ii.      Harmless error – probably did not affect the judgment
                                                          iii.      Plain error- warrants relief on appeal even though the appellant failed to take the steps necessary to preserve it right. Obvious error and more serious in the sense that there is a greater certainty it affected the outcome.
                                                          iv.      Constitutional error – mistake in admitting evidence for the prosecution that should have been excluded under the Constitution
2.      Procedural Pitfalls and adversarial Gambits
a.       Failing to object/offer proof waives the right to claim error on appeal – relief is denied in absence of palin error
b.      Inviting error – Lawyers ask question that produce otherwise excludable answers
c.       Opening the door – a party testifying on direct examination by his own counsel makes an ill-advised and overbroad assertion about his past. This now opens the door to info that might otherwise been kept out
d.      Evidence admitted, wrong ground of objection
e.       Inadmissible evidence excluded on wrong ground, but would have been properly excluded on some other ground anyway
f.       Evidence admitted under wrong theory, but would have been admissible under some other theory (harmless error)
FRE 104(a) Questions of admissibility generally. Preliminary questions concerning the qualification of a person to be a witness, the existence of a privilege, or the admissibility of evidence shall be determined by the court, subject to the provisions of subdivision (b). In making its determination it is not bound by the rules of evidence except those with respect to privileges.
3.      Questions of Admissibility: FRE 104(a), (b)
a.      Preliminary questions for the Court –
                                                              i.      Types of preliminary questions for the judge: Under FRE 104(a), the judge decides questions of admissibility – qualifications of person to be a witness and privilege
                                                            ii.      Rules of evidence do not apply: When the preliminary question is for the judge under FRE 104(a), the FRE do not apply, except for privilege rules. Inadmissible evidence, such as hearsay, may be presented
                                                          iii.      Preponderance standard
b.      Preliminary Questions for the jury.
                                                              i.      Relevancy conditioned on fact Rule 104(b) says when relevance turns on fulfillment of a condition of fact, the judge merely screens the evidence: when difference answers are possible, the jury decides.
1.      E.x., authentication, question of personal knowledge of witness
FRE 611: Mode and Order of Presentation.
(a)   Control by court. trial judge can control or alter the order of presenting evidence in order to (1) make presentation affective for the ascertainment of truth, (2) avoid needless consumption of time, AND (3) protect witnesses from harassment or undue embarrassment
(b)   Scope of cross-examination. Cross should be limited to the subject matter of the direct examinationand matters affecting the credibility of the witness. The court, may in its discretion, permit in additional inquiry outside of scope of direct
(c)    Leading questions. Should not be used on direct examination of witness, except as may be necessaru to develop witness testimony. Leading questions are permitted on cross
4.      Mode and order of presentation
a.       Getting Evidence In:
                                                              i.      Motions in Limine – a motion seeking a court ruling to exclude (or sometimes to admit) anticipated evidence. Usually filed and heard before trial, sometimes during in anticipation of objectionable evidence being offered.
1.      Purpose is to obtain an advance ruling so jurors are not exposed to potentially inadmissible evidence and litigants can plan trial stratey
                                                            ii.      Direct Examination, initial
1.      Form of questioning: Rule 611(c) nonleading questions, should not unnecessarily push witness toward certain response à Avoid leading questions
a.       Invoke false memory
b.      May adopt suggested version
c.       Distract witness from important detail
                                                          iii.      Cross-Examination, next phase – Scope of Direct Rule:
1.      FRE 611(b) Scope of cross-examinations
a.       Cross should be limited to subject matter of direct (AND)
b.      Matters affecting the credibility of the witness
c.       Judge discretion – may permit inquiry into additional matters as if on direct
2.      Broad vs. Narrow Construction
a.       Argument for broad definition of scope: It facilitates truth and offers info that is potentially valuable to jury; Easy to administer
b.      Arguments against broad: narrow scope allows parites to control the order of proof; protects the accused when he is witness; voucher principal
3.      Transactional Model – Is it part of the same transaction?
a.       Any matter relevant to the legal issue addressed by witness testimony
Judicial Notice
FRE 201. Judicial Notice of Adjudicative Facts. (a) scope of rule. Governs only judicial notice of adjudicative facts.
1.      General – where a fact is indisputable, the court may, and some instances must, accept the facts as established (judicially notices) and dispense w/ requirement of evidentiary proof. 4 Types:
a.       Adjudicative facts (FRE 201)
                                                              i.      Jury instruction
b.      Evaluative facts – matters o

he elements of an affirmative defense, and damages in civil cases
2.      What is the nature of the required connection
a.       Judge decides most relevancy questions. In determining relevancy, the trial judge must rely on logic as informed by experience or science
3.      How strong must the connection be?
a.       Relevant if evidence has “any tendency” to make the existence of a consequential fact “more probable or less probable than it would be without the evidence”
4.      Direct Evidence vs. Consequential Evidence
a.       Direct Evidence – Always relevant if the fact it proves is of consequence to the action (ex., W testified that she saw the D shoot V, direct evidence of shooting)
b.      Circumstantial – Proof that does not actually assert or represent the fact to be proved, but from which the factfinder can infer an increased probability that the fact exists
                                                              i.      Issue in most relevance because the reasonableness of inferences can be debated.
5.      Old Chief v. United States (1) (1997): ∆ offered to stipulate to a prior conviction to keep the facts of the incident out of court; Pros. Refused and ∆ was convicted; appeal on grounds that details of prior offense were irrelevant; Held the issue of ∆’s prior felonies status is of consequence to the current charges and increases the probability of finding that the crime occurred à relevant
Pragmatic Relevance
FRE 403: Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence
General: Elements
1.      Although relevant
a.       Logically probative
1.      EXCLUSION: Probative Values counterweights
b.      FRE 403: Evidence may be excluded if its probative value is substantially outweighed by the danger of
                                                              i.      Unfair Prejudice
                                                            ii.      Confusion of the issues
                                                          iii.      Misleading the jury; OR
                                                          iv.      Considerations of
1.      Undue delay
2.      Waste of time or
3.      Needless presentation of cumulative evidence
a.       Shortness of life
                                                              i.      Court can exclude evidence for practical reasons
1.      Limit the number of witnesses
2.      Exclude, as cumulative, evidence duplicative of that already presented
b.      BALANCE favors admissibility
2.      How to measure probative value
a.       Probative value depends on logical connection between:
                                                              i.      Evidential fact
                                                            ii.      Fact of consequence
b.      Whether there are other available means of proof
3.      How to measure unfair prejudice
a.       Excessive emotionalism – arousing hostility, passion, anger, or sympathy
b.      Jury unable to limit use – when jury is likely to misuse the evidence in some way or to be unable to follow a limiting instruction