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Evidence
University of Illinois School of Law
Beckett, J. Steven

Evidence Outline
I. Overall:
a. General Rule: presumption that any evidence a party wants to produce is admissible
i. Note: ambiguous and doubtful cases will be resolved in favor of admissibility
ii. Objections to Admission of Evidence (FRE 103):
1. Objection Required: to exclude a piece of evidence, party must make a timely and appropriate objective
a. Timely Objection: must object to evidence at earliest available opportunity (ie. before answer is given)
i. Must object each time
b. Appropriate Objection: objection must be specific and correct
i. Specific: objection must state particular legal ground or reason that evidence was inadmissible
1. ie. if correct objection is “hearsay,” cannot say “irrelevant”
ii. Exception: specificity need not be stated if it is “apparent from the context” (FRE 103(a)(1))
c. Waiver if No Objection: if party does not raise objection, party waives right to review evidence’s admissibility on appeal
i. Exception: plain error (see below)
d. Rationale for Objection Requirement: based on adversarial system; judge will not step in in absence of objection
e. Renewal of Objection Not Required: once there has been an objection/offer of proof, counsel need not renew (FRE 103(a))
2. Motion in Limine: party may make a pretrial motion to object to testimony that may occur at trial
a. Strategy: takes place outside jury’s presence to assure that jury does not see disputed evidence
i. Must anticipate issue
b. Renewal: objection need not be renewed for preservation purposes, but wise to renew objection in case pretrial ruling is deemed not to be final
iii. Offer of Proof: where a party objects to offer of evidence, other party must tell judge substance of evidence to show that it is proper to admit evidence (FRE 103(a)(2))
1. May vary from simple statement by attorney to a dress rehearsal of sworn testimony outside jury’s presence
2. Exception: if substance of evidence “was apparent from context within which questions were asked” no offer of proof required (FRE 103(a)(2))
iv. Appeal of Evidentiary Issue:
1. Preservation Requirement: all evidentiary issues must be preserved on appeal by timely, appropriate objection or offer of proof
2. Harmless Error Rule: “error may not be predicated upon a ruling which admits/excludes evidence unless a substantial right of party is affected” (FRE 103(a))
a. Context: court must consider error in context of trial as a whole and decide affect it had on jury
b. Examples:
i. No Contribution: evidence did not contribute to verdict/conviction
ii. Overwhelming Evidence: other evidence overwhelmingly supported verdict
iii. Duplicative: improperly admitted evidence merely duplicated other properly admitted evidence
1. Or, in cases of erroneous exclusion of evidence, excluded evidence was merely duplicated of admitted evidence
3. Plain Error: if evidentiary objection was waived at trial but, “substantial rights” of parties were affected by the evidentiary decision, appellate court may review evidentiary issue (FRE 103(d))
a. Court will look at evidence notwithstanding wavier (by failing to make proper, timely objection or offer of proof)
4. Standard of Review: abuse of discretion
5. Burden of Persuasion:
a. Harmless Error:
i. Criminal Appeal: D has initial burden of demonstrating error. State then has burden of persuasion on question of whether error was harmless (state must show beyond a reasonable doubt that result would have been same had error not occurred)
ii. Civil Appeal: party seeking reversal has burden to show error affected outcome of trial
b. Plain Error:
i. Criminal Appeal: D has burden of persuading court not only that error occurred but also that evidence was so closely balanced that error was prejudicial or that error was so serious that prejudice should be presumed
ii. Civil Appeal: plain error review applies when error is so egregious that it deprive complaining party of fair trial and substantially impairs integrity of judicial process itself
6. Threshold Requirement: preservation. Was issue preserved for appeal by proper objection or offer of proof?
a. If yes, was error harmless?
i. If yes, verdict/conviction should not be overturned
ii. If no, remedy is possible (new trial, reversal)
b. If no, was there plain error?
i. If yes, review is possible
ii. If no, verdict/conviction should not be overturned
b. Role of Judge and Jury:
i. Judge Determines Preliminary Issues of Fact: arises where evidence is relevant, but not admissible before a certain fact is shown (legal admissibility only)
1. Rule: questions concerning qualification of a person to be a witness, existence of a privilege, or admissibility of evidence shall be determined by judge (FRE 104(a))
a. Often decided outside jury’s presence, judge has discretion
b. Confessions: must be decided outside jury’s presence (FRE 104(c))
2. Rules of Evidence Not Applicable: judge not bound by rules of evidence except privileges (FRE 104(a))
a. Testimony by Accused: when the accused testifies upon a preliminary matter, he does not become subject to cross examination as to other issues (FRE 104(d))
i. BUT, if D’s testimony on direct extends beyond preliminary matter in dispute, D may have opened door on cross examination
3. Burden of Proof: preliminary facts must be proved by preponderance of the evidence (FRE (104(a))
4. Rationale for Judge’s Wide Role/Discretion:
a. Minimizes complexity of jury’s tasks
b. Enhances predictability
c. Efficiency: saves time at trial
ii. Exceptions: jury decides whether evidence is admissible in following situations
1. 1) Conditional Relevance (FRE 104(b))
a. When relevancy of evidence depends on fulfillment of a condition of fact, court shall admit it upon, or subject to, introduction of evidence sufficient to support a finding of fulfillment of condition (FRE 104(b))
i. Must Connect Up: if relevance of disputed evidence depends on proof of some fact, disputed evidence is admitted but jury also has to be given evidence of facts that make disputed evidence relevant
ii. Jury Determines Relevance: jury determines whether the fact is shown thereby making disputed evidence relevant
1. BUT, Sufficiency of Evidence: if person offering evidence offers so little support for the relevance question that no reasonable juror could find that preliminary fact was met, judge can take question from jury
b. 1) “Upon”: evidence of preliminary fact is presented first and then disputed evidence is admitted
c. 2) “Subject to”: disputed evidence comes in because counsel has promised that evidence will be relevant
i. No Connecting Evidence: if connecting evidence is never proved, jury is instructed to disregard it (so long as opposing counsel moves to strike evidence)
d. Determination not Final: jury’s initial determination of fact question is not final; jurors can arrive at contrary conclusion later in trial
2. 2) Personal Knowledge: party must lay a foundation that witness has personal knowledge of matter he testifies to (FRE 602)
a. Jury Decides: jury decides whether witness has personal knowledge (FRE 104(b))
b. If no personal knowledge, adverse party may request that judge instruct jury to ignore evidence
3. 3) Authentication: jury decides whether disputed documents are authentic; non-authentic documents are not relevant at trial
4. 4) Questions that go to Ultimate Issue: where a preliminary factual issue (that must be resolved before certain evidence is admissible) completely overlaps with main issue in case, jury decides question (FRE 104(b) and 1008)
a. Ordinarily for Judge: ordinarily, judge would decide questions of admissibility, but, because question overlaps with main issue in case, it goes to jury
i. Rationale: if judge decided question, he would usurp jury’s role
b. Judge’s Role: judge determines whether threshold of “sufficiency” is met
c. Cautionary Instruction and Limited Admissibility:
i. Cautionary Instruction: jury instruction by judge to disregard some evidence at trial
1. Legal Fiction: in practice, jurors find it difficult to disregard the statement
2. Arises where party objects, objection is sustained, and judge gives cautionary instruction
ii. Limited Admissibility (FRE 105): judge can instruct jury that some evidence is admissible for one purpose only but not another purpose
1. Party Must Request: party must request limiting instruction (FRE 105)
2. Relation to Relevance: where evidence is relevant for one purpose and irrelevant for another purpose, party may request a limiting instruction
d. Non-Jury Trials: even though judge will be aware of inadmissible evidence, he will be presumed not to have relied on such inadmissible evidence (on appeal)
e. Tactical Considerations: in determining whether to object or not to object, must remember that a trial is not an evidence exam
II. Taking Evidence:
a. Preconditions to Testimony:
i. Competency of Witnesses: every person is presumed to be competent (FRE 601)
1. Exceptions:
a. Judge (FRE 605), jury (FRE 606) and attorney to case cannot be a witness
b. Dead Man’s Statute: in diversity cases, Erie requires federal courts to apply a given state’s dead mans statute. Applies in any action in which a person sues or defends as representative of a deceased person or a person under a legal disab

y Control: judge has virtually unreviewable authority to decide who and when questions are put to witnesses (FRE 611(a))
1. FRE uses permissive language in many contexts, allowing the judge discretion
c. Objections:
i. Classifications of Objections:
1. 1) Objections to Content of Evidence: such as hearsay, irrelevant, undue prejudice, privileged, improper opinion, inadmissible settlement negotiation
2. 2) Objections to Foundation for Evidence: must “show something else” first before evidence can be proffered
a. ie. lack of authentication, lack of qualification for an expert
3. 3) Objections to Form of Question: testimony might be admissible, but it is asked in wrong manner
a. ie. leading question, question that calls for a narrative, compound question, assumes facts not in evidence
4. 4) Objections to Timing and Sequence: question is asked at wrong time
a. ie. question is beyond the scope of cross examination, question has been asked and answered, argumentative
ii. Practical Considerations: might not want to object when it will annoy jury, when evidence might actually help you, or may not want to draw attention to the evidence
III. Relevance:
a. General Analysis:
i. 1) Is proffered evidence relevant?
1. ie. must be material and probative
ii. 2) If relevant, is evidence otherwise admissible?
1. ie. admission of evidence must be constitutional (4th Amendment), not violate another FRE (such as privileged testimony), etc
2. Also, does the evidence fall under an exception (such as subsequent remedial measures or plea negotiations?
iii. 3) If evidence is relevant and otherwise admissible, does it pass FRE 403 balancing?
b. Threshold Relevance Requirement: to be admissible, evidence must be relevant; evidence which is not relevant is inadmissible (FRE 402)
i. Relevance Definition: evidence is relevant if it has any tendency to make the existence of any fact of consequence to determination of the action more probable or less probable than it would be without the evidence (FRE 401)
1. Subtest: must be material and probative
a. 1) Materiality: “fact of consequence”—the evidence must relate in some way to a matter in issue (ie. always ask, “the evidence is relevant to what issue?”)
i. ie. must relate to a charge (in a criminal case), claim (in a civil case) or defense
ii. Dispute Not Required: fact need not be in dispute to be material (such as a person’s address)
iii. Credibility: a fact is material if it bears on a witness’s credibility
iv. All or Nothing: materiality is all or nothing; it is either material or it is not material
b. 2) Probity: “tendency”—tendency to prove or disprove something; evidence is probative if it contributes in any way to determination of a fact
i. Sliding Scale: evidence can be on a sliding scale of probity
c. If evidence is both material and probative, it is admissible unless some exclusionary rule applies. If it is not both material and probative, it is not relevant
c. Relevant Evidence Must be Otherwise Admissible: relevant evidence must comport with Constitution, congressional statutes, other FRE, and USSC rules
i. ie. admission of evidence must be constitutional (such as 4th Amendment), not violate another FRE (such as privileged testimony), etc
d. Rule 403 Balancing Test: relevant evidence may be excluded if its probative value is substantially outweighed by:
i. 1) danger of unfair prejudice,
ii. 2) confusion of issues, or
iii. 3) misleading jury
iv. 4) considerations of undue delay,
v. 5) waste of time, or
vi. 6) needless presentation of cumulative evidence
vii. Overall Cost-Benefit Analysis: balance probative value of evidence against harm likely to result from admission of evidence