Evidence – Fall 2014 – Prof. Johnson
103: Preserving Claim/Error
(a) May make claim of error only if:
(1) ADMITS evidence and party on the record
(A) Timely objection or move to strike
(B) States specific grounds
(2) EXCLUDES evidence, party informs court of substance via offer of proof UNLESS apparent from context . . .
(b) Once objection is raised and judge rules definitively- NO need to re-raise the objection . . .
(d) As practicable, the court must conduct a jury trial so that inadmissible evidence is not suggested to the jury by any means
(e) If plan error is obvious court can take notice, even if it was not preserved properly
* Any party affected by the ruling can challenge as long as a party objected on record at trial
* In order to have an erroneous evidentiary ruling reversed:
1. Proper objection was made on the record
2. Meets standard of review – typically “abuse of discretion”
3. Affected a substantial right of a party – not harmless error
105: Limiting Evidence
If the court admits evidence that is admissible against a party or for a purpose (but not against another party or for another purpose) the court, on timely request, must restrict the evidence to its proper scope + instruct jury accordingly.
* Limiting instructions can be given
401: Test for relevance
Evidence is relevant if:
(a) Any tendency to make a fact more or less probable than without the evidence AND
(b) The fact is of consequence in determining the action
ACN: “Relevancy is not an inherent characteristic of any item of evidence but exists only as a relation between an item of evidence and a matter properly provable in the case.”
* VERY lenient standard
* STILL must be a fact of consequence
* Logical relevancy concerns the inferential chain between the evidentiary fact which seeks to be admitted and a fact of consequence
402: General admissibility of rel. evidence
Relevant evidence admissible unless barred by: (1) US Constitution; (2) Federal Statute; (3) FRE; (4) Other SCOTUS Rules. Irrelevant evidence is not admissible
403: Excluding Relevant Evidence for Prejudice
The court MAY exclude relevant evidence if its probative value is substantially outweighed by a danger in one of more of:
• Unfair prejudice
• Confusing the issues, misleading the jury
• Undue delay or needlessly presenting cumulative evidence
ACN: Surprise alone is not ground for exclusion.
– “’Unfair prejudice’ within its context means an undue tendency to suggest decision on an improper basis, commonly, though not necessarily, an emotional one.”
** Each piece of evidence/each evid. statement should be viewed in isolation – E should not be viewed as a bundle (all in or all out)
Seven Factors to consider:
1) Extent E will arouse emotions or irrational prejudice
2) Potential overvaluing
3) Strength of connection between E & elements of case
4) Can facts be proved another way
5) Can prejudice or harm be reduced once the E is in (LI)
6) Need for E (dispute/other E)
7) Strength of inferential chain connecting EF to FC
Old Chief v. United States
Evidence is not irrelevant because the fact is not in dispute (stipulated) – fact is still of consequence and still made more or less probable – therefore litigants may introduce evidence of very damaging facts even if the other side stipulates to it (kind of gun)
“Extraneous detail like this tends to confirm the accuracy of the memory and the truthfulness of the speaker.”
Other Relevancy Considerations
Unrelated Misdeeds: Courts will occasionally find that evidence is too far removed from the parties’ dispute in time, place, or other respects (e.g.: old or different discrimination is not relevant.) Some courts find all bias persuasive, though.
Negative Evidence: Judges frequently reject proving a negative – that lack of evidence proves something – but a court/judge may be persuaded that this is a legitimate piece of evidence.
Case by Case: SCOTUS says no per se relevancy rules
Opening the Door: Irrelevant evidence may sometimes become relevant to rebut claims made by another party
601: Comp. to stand trial
Every person is competent to be a witness unless these rules provide otherwise. . .
NO explicit qualifications, but by negative implication (602/3):
1. Appreciate the duty to tell the truth – flipside of having to take oath or affirmation
2. Have a minimal capacity to observe, recall, and communicate – flipside of personal knowledge requirement
Competency is the default rule: there must be another rule holding the witness incompetent to prevent testimony
*In a civil case, state law governs the witness’s competency regarding a claim or defense for which state law supplies the rule.
605: Judge as a witness
Presiding judge may not testify as a witness at the trial. A party need not object to preserve the issue.
Applies to judge’s clerk as well
606: Juror as a witness
Juror may not testify as a witness before other jurors. If called to testify, court must allow party to object outside jury presence.
*Lawyers MUST object to preserve this though
Personal Knowledge, Truthfulness, Authenticity
602: Need for personal knowledge
A witness may testify to a matter only if evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter. Evidence to prove personal knowledge may consist of the witness’ own testimony.
ACN: “[FRE 602] does not govern the situation of a witness who testifies to a hearsay statement as such, if he has personal knowledge of the making of the statement. … This rule would, however, prevent him from testifying to the subject matter of the hearsay statement, as he has no personal knowledge of it.”
Doesn’t apply to experts under FRE 703.
901: Authenticating Evidence
(a) Requires the proponent of real, demonstrative, or documentary evidence to lay a foundation by showing that the evidence is what its proponent claims.
(b) Examples (non-exhaustive list) of satisfying evidence:
(1) Witness w/ knowledge testim.
(2) Nonexpert opinion about handwriting (based on familiarity- not knowledge for litigation)
(3) Comparison by expert/ Trier of Fact
(4) Distinctive characteristics
(5) Opinion about a voice
(6) Evidence about a phone convo
(7) Evidence about public records
(8) Evidence about ancient documents or data compilations
(9) Evidence re: process or system
(10) Methods provided by statute
* DO NOT have to prove that beyond a reasonable doubt the evidence is genuine – just that there is evidence sufficient to allow a reasonable FF to find by preponderance of evidence that it is what the proponent claims it is
*Handwriting: 1) Author: FRE 901(b)(1); 2) Person who saw the person author: FRE 901(b)(1)
3) Expert handwriting through comparison FRE 901(b)(3)
4) ToF may compare handwriting to identify it FRE 901(b)(3)
5) A lay person familiar with the handwriting: FRE 901(b)(2)
*Photo/Video: fair & accurate representation
Witness must give oath or affirmation to testify truthfully.
*No particular format needed
Interpreter must be qualified & must give 603 oath.
902: Evidence that is self-authenticating
The following documents are self authenticating:
(1) Domestic Public docs that are sealed and signed
(2) Domestic Pub docs NOT sealed, but signed and certified
(3) Foreign Public docs, (4) Certified copies of public records
(5) Official Publications, (6) Newspapers and periodicals
(7) Trade Inscriptions, (8) Acknowledged documents
(9) Commercial Paper and related documents
(10) Presumptions under a federal statute
(11) Certified domestic records of a regularly conducted activity
(12) Certified foreign records of a regularly conducted activity
*COMPREHENSIVE LIST – nothing not found in this list is self-authenticating
903:Subscribing Witness’s Testimony
Subscribing witness’s testimony is necessary to authenticate a writing only if required by the law of the jurisdiction that governs its validity
Overturns CL which always req. subscribing witness to appear in court
Examination of Witnesses
611: Mode and Order of Examining Witnesses and Presenting Evidence
611(a): “Control by the Court”
611(b): Limits on scope of X
(a) Court should exercise reasonable control over mode and order of examining witnesses so as to:
(1) Make procedures effective for determining the truth; (2) avoid wasting time; (3) protect witnesses from harassment or undue embarrassm
solely because it impeaches the witness – in other words, it concerns no fact of consequence and only concerns problems with the witness’ credibility
– Facts which would have been independently relevant regardless of the contradiction are not ‘collateral.
1. Is this the type of impeachment evidence to which the rule applies? (Must be either prior inconsistent or contradiction evidence)
2. Is this evidence extrinsic or intrinsic? (Must be extrinsic)
3. Does this evidence concern collateral or non-collateral matters (Must concern collateral matters)
Character Evidence (To Impeach & Otherwise)
608(b): Permits X-Ex about specific instances of non-conviction misconduct if “probative of … character for untruthfulness.”
609(a)(1): Makes the admissibility of conviction depend mostly on its seriousness (but crime’s relationship to character for untruthfulness still matters).
609(a)(2): Makes prior conviction admissible per se “if the court can readily determine that establishing the elements of the crime required proving—or the witness’s admitting—an act of dishonesty or false statement.”
1. Proof of a witness’s propensity to lie or tell the truth
2. Proof of conduct by propensity
3. Proof of character or reputation as elements
4. Proof of other acts for non-propensity purposes
404(a): Character Evidence
(a) Character Evidence (NO PROPENSITY ARGUMENTS)
1) Prohibited Use: not permissible to prove that on a particular occasion the person acted in accordance with the character trait
2) Exceptions for Criminal Ds:
A) D offers evidence of D’s pertinent trait, IF admitted P may offer evidence to rebut
B) D may offer evidence of alleged victim’s pertinent trait (subject to 412), IF admitted prosecutor may (i) offer evidence to rebut AND (ii) offer evidence of D’s same trait
C) Homicide case: P may offer evidence of victim’s peacefulness to rebut claim victim was first aggressor
3) Exceptions for a witness: Evidence of witness’s character may be admitted under 607, 608, 609
Exceptions in (a)(2) apply only to criminal prosecutions
– Applies to good or bad character
– Applies to any person- witness/ party/never appeared in court
– Meant to focus on disputed actions not character of the parties
– Prosecution’s ability to X-ex with specific acts discourages utilizing (a)(2) (open the door)
404(b): Character Evidence
(b) Crimes wrong or Other Acts
1) Evidence of a crime, wrong or other act is NOT admissible to prove a person’s character to show on a particular occasion the person acted in accordance with character
2) May be admissible for another purpose, such as proving motive, opportunity, intent, prep, plan, knowledge, ID, absence of mistake or lack of request. IF D requests, P must:
A) Provide reasonable notice of the general nature of any such evidence that P intends to offer AND
B) Does so before trial or during trial if the court (for good reason) lacks pretrial notice
Often used to show motive (previous crime/act motivated charged crime); plan (prior act part of a larger scheme); identity (participants in prior bad acts/crimes able to identify Δ or ‘signature elements’); opportunity (E that Δ enjoyed access to the protected place or special tools on another occasion); knowledge (E that Δ had knowledge of a particular fact that’s an element of the crime); intent (E that Δ had necessary intent); preparation, lack of accident, complete story