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Evidence
University of Iowa School of Law
Stensvaag, John-Mark

EVIDENCE
STENSVAAG
FALL 2013




I.                   Overview
a.       Federal Rules of Evidence
i.      Adopted in 1975, revised in 2011.
ii.      80% of states have also adopted them (some had also added or changed them).
b.      Law of Evidence
i.      Rules of Admissibility/Exclusion (Judicial Notice) à define those facts or data that a decision-maker may properly consider when making a decision (i.e. what goes on the record/what can be considered).
ii.      Rules of Technique à govern the manner in which proof is presented to the decision maker.
iii.      Rules of Evaluation à manner in which the decision-maker may deal with the admitted facts. The law of evidence frequently limits, in highly artificial ways, the use to which proof may be put in the evaluative process that leads to a decision.
c.       Exclusionary Rules
i.      Needed for efficiency and due to mistrust of the jury (worried the jury will misuse evidence).
ii.      Two types:
1.      Rules Excluding Irrelevant Evidence
a.       Question for the trial judge
b.      Example: Authentication
2.      Rules Excluding Even Relevant Evidence
a.       Personal Knowledge
b.      Competency
c.       Best Evidence Rule
d.      Prejudice, Confusion, or Waste of Time (FRE 403)
e.       Hearsay
f.       Rule of Excluding Opinions

II.                Relevancy of Evidence
a.       FRE 402: evidence that is not relevant is not admissible.
i.      Question for the trial judge
ii.      Irrelevant evidence is not admissible. FRE 402.
b.      “Evidence is relevant if it has any tendency to make a fact more or less probable than it would be without the evidence; and the fact is of consequence in determining the action.”
c.       Difference between relevance and sufficiency
i.      Relevance à can item get into record
ii.      Sufficiency à will issue go to the jury; much more demanding standard
d.      Relevancy in not an inherent characteristic of item of evidence, it is a relation between an item of evidence and a proposition one is seeking to prove.
e.        Relevancy Analysis Steps
i.      Evidence Offered
ii.      Proposition seeking to prove
iii.      Is the proposition material/fact of consequence? FRE 401(b).
iv.      All inferences that will lead from A to the proposition.



f.       Evidence might be excluded as irrelevant for two distinct reasons: FRE 401
i.      It is not probative of the proposition to which it is directed (i.e. it does not make the proposition more likely).
ii.      The proposition to which it is directed is not of consequence (i.e. evidence is directed to an immaterial proposition).
1.      To determine if material: look at the pleadings or the substantive law.
g.      One item of evidence can go to prove several propositions
i.      Union Paint Lawsuit example à
1.       
h.      Trial judges have great discretion.
i.      Undemanding threshold
1.      Direct evidence is not necessarily superior to circumstantial evidence.
i.        There are not different degrees of relevance—it is either relevant or it is not
j.        Not all relevant evidence is admissible. See FRE 403.
k.      Scenario:
i.      Objection! Regardless of the answer to the question, it will not help in answering/clarifying the legal dispute.
1.      Burden: Sponsoring lawyer.  Now he must name the proposition. Then opposing lawyer can bring into play other exclusionary rules.

III.             Authentication
a.       Subpart of issue of irrelevance.
i.      Evidence that has not been authenticated is not relevant. FRE 402.
b.      Preliminary Questions (VERY IMPORTANT)
i.      When sponsoring lawyer tries to get evidence into record, he will often have to lay evidentiary foundation to convince judge that it is relevant.
ii.      Judge makes ruling on relevance à subject of ruling is a preliminary question
iii.      Two Categories
1.      Relevant? FRE 104(b)
a.       Facts or events must be established to determine relevancy
b.      Judge makes “quick and dirty” ruling.
i.      Jury will be asked to re-decide.
ii.      Judge listens to only one side of story (sponsoring lawyer)
1.      No counter-evidence/voir dire allowed.
iii.      Judges have power to alter mode of proof
iv.      The court shall admit the evidence upon, or subject to, the introduction of evidence sufficient to support a finding of the fulfillment of the condition
2.      Avoid Other Exclusionary Rules? FRE 104(a)
a.       Facts or events must be established to convince judge evidence gets around exclusionary rules
b.      Examples: Is W competent? Is W actually an expert? Is evidence hearsay?  Does it meet one of the exceptions?
c.       Judge decides.
i.      Voir dire allowed: interrupting your opponent’s DX to lay a foundation for an objection.
ii.      Does not substitute your right for CX.
iv.      To decide if 104(a) or 104(b), look at
1.      Function of judge
2.      Manner in which admissibility is determined
c.       Authentication Modes FRE 901b
i.      Direct Eyewitness FRE 901(b)(1): Testimony of Witnesses With Knowledge)
1.      Direct Eyewitness = Authenticating Witness
ii.      Nonexpert opinion FRE 901(b)(2): Nonexpert Opinion on Handwriting
1.      Nonexpert opinion as to the genuineness of handwriting, based upon familiarity not acquired for purposes of the litigation
2.      One of rare circumstances where law permits testimony based on opinion of a lay person
3.      Lawyers are allowed to use anything they want to refresh a W’s memory
a.      Problem: testimony must be based on familiarity not acquired for purposes of the litigation
i.      Judge must draw the line
b.      Lighten up rule: lighten up, it’s only evidence!  Jury/judge can decide whether to believe it or not
4.      Pro: handwriting experts are expensive; nonexperts are cheap and easy to get

iii.      Comparison with Authentic Specimen FRE 901(b)(3)
1.      Comparison by the trier of fact or by expert Ws with specimens which have been authenticated
2.      Disputed document (may or may not be authenticated) vs. specimen (has been authenticated)
a.       Go between is the expert
3.      1st Problem: specimen must be authenticated
a.       FRE 901(a): Requirement of Authentication           
i.      Requirement is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims
ii.      Trier of fact (jury) must decide, not the judge
4.      “Conditional Relevance”
a.       If you find that the specimen is authentic, then you may compare the specimen with the disputed document for purposes of authenticating the handwriting.  In that case, you may consider the testimony of the handwriting expert…”
b.      But, if you find that the specimen is not authentic, then the specimen is not evidence in the case and you must disregard it. 
iv.      Distinctive Characteristics and the Like FRE 901(b)(4)
1.      Appearance, contents, substance, internal patterns, or other distinctive characteristics, taken in conjunction with circumstances
2.      Ex. Milton’s will was found in his safe deposit box, therefore it is probably Milton’s will
3.      Evidence has to be sufficient to support a finding
a.       Need enough circumstantial indicators to meet this requirement
4.      Jury will decide
v.      “Ancient Document” Rule FRE 901(b)(8): Ancient Documents or Data Compilation
1.      Evidence that a document or data compilation, in any form:
a.       Is in such good condition as to create no suspicion concerning its authenticity
b.      Was in a place where it, if authentic, would likely be, and
c.       Has been in existence 20 years or more at the time it is offered
2.      Two ancient document rules: authentication and hearsay.
d.      Authentication may arise in situations which do not involve documents FRE 901(b)(6)(B)
i.      Ex. Supplement pg. 11: Korch case (telephone conversation)
1.      Not enough that he acted in good faith to make evidence admissible

IV.             Authentication of Scientific Evidence
a.       Any evidence based on scientific technique.
b.      Evidence derived by techniques going beyond unaided human observation.
1.      Five “Scientific” Evidence Concerns:
a.       Is the underlying theory valid?
i.      Examples:  Lie detection test à not valid; DNA typing à valid.

                                                                                                       ii.      Voir dire allowed
iii.      Judge is not going to resubmit to the jury for determination
iv.      Court arbitrarily applied Daubert to FRE 104(a)
1.      Not a question of relevance, but a question of expert opinion testimony
2.      Expert testimony is always treated under 104(a)
f.       Daubert deals only with admissibility, not sufficiency
i.      Does not guarantee that evidence is sufficient to go to jury
g.      Beneficiaries of new (junk?) science may differ in civil (tort plaintiffs?) and criminal (prosecutors?) contexts
i.      Example: Pollak decision on admissibility of fingerprinting evidence under Daubert – shows incredible challenge that federal trial judge has in trying to fulfill gatekeeper duty.

V.                Rules Excluding Relevant Evidence
a.       Competency & Personal Knowledge
i.      Competency Rules (2 types)
1.      Rule Excluding Incompetent W
a.       Focus on the human being
2.      Rule Excluding Incompetent Testimony
a.       Focus on the words of human being
3.      COMMON-LAW Testimonial Capacities à In common law jurisdictions, if someone has these testimonial capacities, they are competent to testify
a.       Four testimonial capacities:
i.      Perception
ii.      Memory
iii.      Narration
iv.      Sincerity (capacity to tell the truth)
b.      Normal adult Ws are assumed to have the proper capacity
4.      Competence of W is governed by FRE 104(a)
a.       Judges make decisions
b.      Voir dire possible
5.      Competency of Witnesses
a.       FRE 601: every person is competent to be a W except as otherwise provided in the FREs (abolishes competency objection under federal law)
b.      OBJECTIONS:
i.      FRE 602: No foundation has been laid to show that W has personal knowledge.
ii.      FRE 603: W did not take oath to testify truthfully.
iii.      FRE 605: W is the judge.
iv.      FRE 606: W is a member of the jury.
6.      Competency Objections (awkward and clumsy)
a.       Relevance (requires some minimal level of credibility) FRE 402 à evidence does not make more or less likely…
i.      Decided by both the judge and jury
ii.      No right to voir dire à makes it difficult
b.      Counterweights of FRE 403 à prejudice, confusion, and a waste of time
i.      Decided by the judge alone
ii.      Voir dire possible
c.       Credibility issue à let the person testify, then argue that he has no credibility