Select Page

Evidence
University of Illinois School of Law
Tarr, Nina W.

Evidence Outline

Chapter 1 – Introduction to Evidence Law
I. Purposes of Evidence Law
a. Regulate Jury Trials
b. Further Accurate Fact Finding – aids the search for truth
c. Control the scope and duration of trials – without limits on the evidence that attorneys can present, trials would never end, and could venture far from the dispute that brought the parties to court in the first place.
d. Favor or disfavor certain litigants or claims – ex – a requirement of clear and convincing evidence helps assure that claims of fraud can carry the day only if they have clear merit.
e. Protect Private relationship
f. Further Other Substantive Policies Unrelated to the Litigation – example, the repair rule encourage properties to make practices safer after an accident by blocking proof of remedial measures from being introduced against them. Ex – marital privilege.
g. Insure Due Process and a Perception of Fairness – in order to make judgments entered by courts generally acceptable in society at large, judicial proceedings must be perceived as following fair procedures.
II. Evidence Checklist
a. Is the witness competent to take the stand?
b. Is the piece of evidence relevant to the case?
i. What is the logical relevance?
ii. What do you want to say about the evidence in closing argument?
1. Say you can get the scissors in, to the fact that it is admissible. Is it necessarily sufficient though? That means can you use it to prove everything. Just because something isn’t sufficient doesn’t mean it’s not admissible
2. Dear Sister, I’m in Urbana, I met a man named Alex, and we are traveling to Chicago on Tuesday. Love, Brother. 1892.
a. What can the letter be used for?
i. That he intended to go to Chicago, which means the next logical step is that he probably went
ii. Alex, he can either be the suspect, or that he knows what happened. Mainly that he was with him
c. Can the piece of evidence be authenticated – is it what it purports to be?
d. Is there a best evidence problem?
e. Is there a hearsay problem?
f. Does Rule 403 preclude admission?
i. Character
ii. Habit
iii. Remedial Measures
g. Is the evidence credible and if not, how might it be rehabilitated?
h. If there is a roadblock anywhere, would a different logical relevance allow for admission of the evidence? If so, go back to the second step.
III. Planning a case
a. First things
i. What are the facts and what is the law?
ii. Theory of the case, start with the closing argument
1. Make sure every piece of evidence you bring in is tied to that narrative.
2. Otherwise all your witnesses and evidence could be irrelevant.
iii. Trial Notebook – opening statement.
b. Jury Selection
i. Introduction
ii. Voir Dire – elimination. If prejudiced or related, you can be excluded for cause. You also get three “preemptory” challenges. For any reason. Is this evidence? No.
1. How does it play in though? Look for ways certain jury members would respond based upon the way you will present the case.
c. Opening Statement – not evidence. But how does evidence play in? you may hint at what evidence you have. Can you discuss inadmissible evidence though?
i. No, it is unethical to refer to inadmissible evidence.
d. Presentation of proof – party with burden goes first.
i. Present your case in chief
1. do this by calling witnesses
ii. Case in rebuttal
iii. Each successive case in rebuttal.
IV. Proceedings governed by evidence rules
a. FRE Applicable
i. Civil proceedings
ii. Criminal proceedings –
iii. Contempt proceedings – governed by the FRE, except those in which the court may act summarily.
iv. Habeas Corpus proceedings – to the extent they aren’t inconsistent with statute.
b. FRE Inapplicable – FRE 1001(d) says that the FRE, other then the rules of privilege, do not apply in the following proceedings:
i. Preliminary questions of fact – in criminal cases, common suppression motions require courts to determine the legality of a police seizure or search.
ii. Grand Jury proceedings
iii. Preliminary Hearings – evidentiary standard is too low to need the rules
iv. Bail hearings
v. Sentencing
vi. Arrest and Search warrant proceedings
vii. Extradition proceedgins
V. The Trial Process
a. Stages of a trial
b. Discretion to alter Order of proceedings – under FRE 611(a), the trial judge can alter the order of presenting evidence.
c. Motions in Limine – means at the threshold.
i. A motion seeking a court ruling to exclude (or sometimes admit) anticipated evidence.
ii. Usually filed and heard before trial, but sometimes it is filed during the trial in anticipation that objectionable evidence will be offered later.
iii. You don’t want a big fight about it in front of the jury, that can look bad.
iv. Courts often hesitant to make these rulings in advance, and because admissibility may hinge on what happens later.
1. Some times, the judge may say, if they can testify that they had personal knowledge, then it will fly, otherwise know. Judges give wishy/washy answers at the beginning
2. If not definitive, you may need to object again.
3.
VI. Preliminary Questions Affecting Admissibility –
a. Judicial Mini-hearings – often conducted to decide during trial questions that determine whether evidence is admissible.
b. Most Preliminary questions are for the court under FRE 104(a).
i. Types of preliminary questions for the judge
1. under FRE 104(a), the judge decides qualifications of a witness, the existence of privilege, and questions of admissibility g

the witness.
iv. Outside presence of the jury.
VIII. Limited Admissibility –
a. Purpose for which evidence offered –
b. Proponent required to specify purpose – when evidence is admissible for some purposes but not for others, you may be required to specify the purpose.
c. Limiting instruction – 105. restricts evidence to its proper scope.
i. Alternatives
1. Exclusion – court can totally throw out under 403.
2. Redaction – cover up (in a writing) the objectionable part.
3. Separate trials
IX. Rule of Completeness –
a. FRE 106 – when a party offers part of a writing or recorded statement, “an adverse party may require the introduction at that time of any other part or any other writing or recorded statement which ought in fairness to be considered contemporaneously with it.
X. Types of Error
a. Reversible – need to have it preserved for it to work
b. Harmless – you preserved it, but it wouldn’t have mattered.
c. Plain – even if you didn’t preserve it, you still get it. So egregious it doesn’t matter.
d. Constitutional – sometimes can result in automatic reversal. In order to avoid this, you need to show the error was harmless beyond a reasonable doubt.
i. Reasons for Refusing to reverse
1. evidence admitted, wrong ground of objection
2. Inadmissible evidence excluded on wrong ground – will still exclude if it was excludable on some other ground.
3. Evidence admitted on wrong theory –
4. Curative instruction – cured if the judge told the jury whats up.
5. Invited error – you invite the error by asking questions
6. Opening the door – if questioning your own witness and they make a statement, they open the door to other damaging proof
e. Interlocutory Appeal – evidence rulings only reviewable after judgment. 2 exceptions
i. Privilege Rulings
ii. Appeal by prosecutor from rulings suppressing evidence.

Chapter 6 – Competency of the Witness
I. Introduction – competency refers to the qualifications needed to enable a person to testify as a witness. Also refers to a body of principles that dq participants in the trial process from also testifying.
a. Witness Qualifications – modern approach is of universal competency.
i. Old times many couldn’t testify
1. Insane