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University of Iowa School of Law
Stensvaag, John-Mark

Evidence Outline – Prof. Stensvaag (Fall 2011)

Book: Evidence, WALTZ & PARK, CASES AND MATERIALS ON EVIDENCE (11th ed. 2009)

University of Iowa College of Law

Unit 1: Intro, Making the Record

FRE adopted in 4/5 of states, 1975

Rules/principles governing:

1) Rules of Admissibility: facts/data properly considered by the decision-maker when reaching a decision

Worded more in terms of what is not admissible; admitted/excluded from record

Judicial Notice: extra facts implicit from the record (e.g. brakes make car stop)

Ex. hearsay, best evidence rule, character evidence

Dominated by the JURY – content of rules explained by want to keep some info. from them (calculated, supposedly helpful obstructionism)

• Society can only invest a limited time in a trial – concession to its “mortality”

2) Rules of Technique: rules governing manner in which proof is presented

• Objections, results, DX/CX, etc.

3) Rules of Evaluation: manner in which decision-maker may deal with facts before it

• Laws of evidence limit, in highly artificial ways, the use to which proof may be put in the decision-maker’s evaluation leading to a decision

• Often rules are premised on assumption that D-M can consider evidence for only a limited purpose

The Exclusionary Rules (Roadmap)

A: Rule Excluding Irrelevant Evidence – facts not of any assistance to D-M (no probative value)

– Does not impede the search for TRUTH!!

– Whether an item is irrelevant is a question for the trial judge (???)

> Authentication – subpart of rule of relevance

If not authentic, then not relevant – must establish that it is genuine.

Not only related to writings; necessary for ALL evidence proffered

How can a judge decide if an item is relevant w/o trampling the province of the jury?

“Conditional Relevance”: relevant only if certain conditions met. [FRE 104(b) & (a)]

B: Rules Excluding Even Relevant Evidence

1. Competency/Personal Knowledge: squishy; often just rules excluding irrelevant evidence.

2. “Best Evidence Rule” – give us the best you’ve got… whatever that is.

3. Prejudice, Confusion, Waste of Time (FRE 403) [104(a) maybe???]

4. Hearsay Rule: lots of exceptions carved out.

5. Rule Excluding Opinion: I don’t care what you think.

Unit 2: Rule Excluding Irrelevant Evidence

A: Rule Excluding Irrelevant Evidence. Principles of Relevance:

1) Anything not probative should not come in;

2) Everything that is probative should come in.

Relevancy indicates a relationship between facts; evidence + premises = relevance

FRE 402: not relevant = not admissible; relevant = admissible unless Const., Acts of Congress, Supreme Court, FRE, or other rules say otherwise.

• Solomon Question – who is the biological mother?

• M1 v. M2 (had child in the morning); question to M2: “Isn’t it true you’d rather see this child dead than w/M1?” – How to answer would be irrelevant? (to question of who is biological Mom)

• Hard to explain why; “does not necessarily follow” is a POOR ARGUMENT

• How to answer it is relevant? – trying to only prove it is not M2’s child; reasonable mother would rather see offspring alive than dead, period

• Use of Inference: evidence (A) (“rather see it dead”) assumed to be a true statement; proposition (C) (not M2’s child) trying to be proven

• Premise (M) – “love prefers life”, inferred, not directly testified to; first inference: M2 does not love child

• Premise 2 (N) – Mothers do love kids; 2nd inference = Proposition – M2 NOT mother

• Use of inferences not directly testified of to get to proposition sought

• Relevancy is not an inherent characteristic of an item of evidence – it is a relation between an item of evidence and a proposition one is seeking to prove

• Can only answer “Is it relevant?” if you first answer “what are you seeking to prove?”

• Evidence may be excluded as irrelevant for two reasons:

• 1) Not probative of the proposition; 2) Proposition is not provable

• If evidence is directed to an immaterial proposition, it will “flunk” the probative test

• FRE 401: “relevant evidence” = evidence having tendency to make existence of any fact that is of consequence to the determination of the action more/less probable than would be w/o evidence

• “Fact of consequence” = materiality/provable-ness

• Pleading & Substantive Laws: may still exclude relevant evidence for immateriality (not fact of consequence)

• Union Paint and Varnish v. Dean

• Substantive Law: D has NO claim unless drum 2 is also bad – evidence that paint #1 is bad is not enough! (even if relevant)

• Relevancy of evidence ≠ sufficiency of evidence

• If Substantive Law changes (Paint #1 bad = reas. belief Paint #2 = bad), relevancy of evidence changes

• Paint having great history does not affect D’s reasonable belief in Paint #2 being bad

• Inadmissible under 401 – goes to an immaterial proposition (Paint #2’s quality now irrelevant)

• As su

et or not later; can move to strike afterwards if not

• 2. Nonexpert Witness/Opinion: FRE 901(b)(2)

• Hypo: old buddy familiar with testimony based only on memory – How to refresh recollection?

Can use anything so long as it is sufficient familiarity not for purposes of litigation (see Baker v. State)

If actually refreshes, is ok; if it is witness comparing the evidence, no longer within 901(b)(2)

Hard to know and keep out; bit of a common-sense rule

• 3. Comparison w/Authentic Specimen: FRE 901(b)(3)

• a. Jury Alone OR b. w/Expert Assistance

• Univ. of Ill. v. Spalding (1901): must establish that the “exemplar” (specimen) is genuine before you can use it as a comparison

• Jury cannot make this decision – would produce collateral inquiries endlessly to decide one issue

• Specimen must have been authenticated (FRE 901(a): requirement of authentication as a condition precedent to admissibility)

• Only need evidence sufficient to support a finding of authenticity, not the heightened “clear and undoubted evidence” of Spalding

• If judge finds such sufficient evidence jury decides if it is, in fact, authentic

• What to instruct the jury on this evidence?

• Frequently use “if . . . then” statements – “Conditional Relevance”: item of evidence relevant only if certain conditions are met

• 4. Distinct Characteristics/Circumstances: FRE 901(b)(4)

• Hypo: what if Chuck can show the will was located in Uncle’s safe deposit?

• Just having circumstantial evidence is not enough (Keegan v. Green Giant Co. (1954) – pea-can label insufficient to prove was their can)

• Appearance taken in conjunction with circumstances; more likely to work than Keegan suggests

• How convincing must the evidence be? – so that judge finds it “sufficient to support a finding”

• 5. “Ancient Document” Rule: FRE 901(b)(8)

• At common law, had to be at least 30 yrs. old; FRE use 20 yrs.

• Two rules: 1) Deals w/authentication – age + location = authentic (901(b)(8)); 2)