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
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)