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University of Illinois School of Law
Johnson, Eric A.

Evidence Outline: Johnson – Spring 2016

Evidence – testimony, writings, material objects, or other things presented to the senses that are offered to prove the existence or nonexistence of a fact (source: California Code of Evidence)

Types of Evidence:

1) oral testimony

2) real evidence

3) documents

4) demonstrative evidence

5) stipulations

6) judicial notice

Circumstantial Evidence – any evidence that requires a jury to make an inference connecting the evidence with a disputed fact

Direct Evidence – evidence which requires no inferential bridge

Distinction between direct and circumstantial evidence has no legal effect and the jury can give as much or as little weight as possible to either type of evidence

Generally courts try to be permissive towards evidence and allow the jury to draw their own conclusions concerning the amount of weight to give certain pieces of evidence

Where do Federal Rules of Evidence Apply?

Rule 1101. Applicability of the Rules

(a) To Courts and Judges. These rules apply to proceedings before:

· United States district courts;

· United States bankruptcy and magistrate judges;

· United States courts of appeals;

· the United States Court of Federal Claims; and

· the district courts of Guam, the Virgin Islands, and the Northern Mariana Islands.

(b) To Cases and Proceedings. These rules apply in:

· civil cases and proceedings, including bankruptcy, admiralty, and maritime cases;

· criminal cases and proceedings; and

· contempt proceedings, except those in which the court may act summarily.

(c) Rules on Privilege. The rules on privilege apply to all stages of a case or proceeding.

(d) Exceptions. These rules — except for those on privilege — do not apply to the following:

(1) the court’s determination, under Rule 104(a), on a preliminary question of fact governing admissibility;

(2) grand-jury proceedings; and

(3) miscellaneous proceedings such as:

· extradition or rendition;

· issuing an arrest warrant, criminal summons, or search warrant;

· a preliminary examination in a criminal case;

· sentencing;

· granting or revoking probation or supervised release; and

· considering whether to release on bail or otherwise.

(e) Other Statutes and Rules. A federal statute or a rule prescribed by the Supreme Court may provide for admitting or excluding evidence independently from these rules.

Many federal judges, however, use the Federal Rules of Evidence anyway in these circumstances

Raising Evidentiary Objections

Judges will not typically raise evidentiary objections on their own but they rely on the parties to raise their own evidentiary objections – adversary system

Rule 103 outlines the process that parties use to dispute and defend evidence at trial – Rule 103 does so from the standpoint of an appellate court


(a) Preserving a Claim of Error. A party may claim error in a ruling to admit or exclude evidence only if the error affects a substantial right of the party and:

(1) if the ruling admits evidence, a party, on the record:

(A) timely objects or moves to strike; and

Objection – occurs before the offending evidence has been admitted

Motion to Strike – occurs after the evidence has been admitted – either because the disputed evidence has already entered the record (witness answers a question before objection or unexpectedly goes into an impermissible topic) or because the evidence became inadmissible based on a development in the trial (once relevant evidence becomes irrelevant

(B) states the specific ground, unless it was apparent from the context; or

States the specific ground – grounds for objection must be stated on the record so that the appellate court knows why the objection was made – good attorneys will always state the grounds for objection in order to preserve them – if there are multiple grounds for an objection, then each ground should be states

(2) if the ruling excludes evidence, a party informs the court of its substance by an offer of proof, unless the substance was apparent from the context

“[T]he proponent must tell the judge what the tenor of the evidence would be and why the evidence is logically relevant. Where the sustained objection challenges the relevancy of the evidence, the offer of proof should indicate the facts on which relevancy depends. When the objection is on a ground other than relevancy, the offer must also explain why the objection is unsound.” – McCormick on Evidence § 51 (6th ed. 2006)

Including this also preserves a record on appeal, something to go back and look to to see that the error was or wasn’t harmless, substance needed for court to evaluate

If court rules definitively on the record BEFORE or DURING trial, party does not need to renew the objection in order to preserve for an appeal – however, if the judge defers the ruling, the attorney will need to renew the objection later

This part of the Rule stemmed from when a judge would rule on a motion in limine concerning a piece of evidence prior to trial – it then seemed silly to have to reobject at the trial to preserve the issue for appeal

As regards “substance apparent from context” and “ruling definitively on the record” – better safe than sorry, if any doubt – put it on the record

From Advisory Cmte. Notes: “The amendment imposes the obligation on counsel to clarify whether an in limine or other evidentiary ruling is definitive when there is doubt on that point.”

Judge’s Options When Evidentiary Objection is Made:

-Sustain or overrule the objection

-If document or video, admit it, but redact inadmissible portions

-Give the jury a curati


Rule 401. Test for Relevant Evidence

Evidence is relevant if:

(a) it has any tendency to make a fact more or less probable than it would be without the evidence; and

(b) the fact is of consequence in determining the action.

Rule 402. General Admissibility of Relevant Evidence

Relevant evidence is admissible unless any of the following provides otherwise:

the United States Constitution;
a federal statute;
these rules; or
other rules prescribed by the Supreme Court.

Irrelevant evidence is not admissible.

The fundamental rule of evidence is relevance – only relevant evidence is admissible, however, IF evidence is relevant, then it is admissible unless a specific rule, statute, or constitutional provision bars admissibility

Rule 401. Test for Relevant Evidence

Evidence is relevant if:

(a) it has any tendency to make a fact more or less probable than it would be without the evidence; and

Any tendency – very lenient standard – could be evidence which shifts the fact finder’s view of the facts in even the smallest degree

More or less probable – can support or negate a particular theory of events

(b) the fact is of consequence in determining the action.

Of consequence – fact must be relevant to the cause of action – meaning whether something is a “fact of consequence” will depend in large part on the elements of the crime and the elements of the defense – this phrasing was used instead of “material” in order to set a low threshold – evidence must connect to the legal issues in the case, but need not be “material” – evidence may also be relevant for one purpose in a case, but irrelevant for another purpose

Rule 401 is very basic and simple – contrast with the much more detailed Wigmore on Evidence, which gives rules and law for every conceivable scenario

Therefore, determining if something is relevant is not about citing cases, but about the inferential chain

From Advisory Committee notes on FRE 401: “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.” – logical relevancy therefore concerns the inferential chain between the evidentiary fact which seeks to be admitted and a fact of consequence