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University of Iowa School of Law
Stensvaag, John-Mark

Evidence Outline Fall 2013

Governing Rules and Principles in Evidence Law
Rules of Admissibility and Exclusion from the Record
·         Defines what facts or data a decision-maker may properly consider in arriving at a decision
·         Some facts may not be in the record but may still be considered, called Judicial Notice
Rules of Technique
·         A body of rules governing the manner in which proof is presented to the decision-maker
Rules of Evaluation
·         A body of rules governing the manner in which a decision-maker may evaluate the facts before him
·         The law of evidence frequently limits in artificial ways, the use to which proof may be put in the evaluative process that leads to a decision

Fundamental Exclusionary Rules
Rule 402: Excluding Irrelevant Evidence
·         Irrelevant evidence is not admissible. It’s a binary rule, no question of degrees of relevance
Rule 401: Definition of Relevance
·         Evidence is relevant if 1) it tends to make a fact more or less probably and, 2) the fact is of consequence
o   1) Encompasses the reasons irrelevant evidence can be excluded below
o   2) Typically relevance refers to Rule 401(a)
·         In theory, doesn’t impede search for truth, things with no probative value are kept out
·         Diagramming Technique to determine Relevance
o   1) Identify the Evidence being disputed- Ex. “Isn’t it true you’d rather see this child dead than w/ my client?”
o   2) Identify the goal or proposition the evidence is being used to support- Named by sponsoring lawyer, Ex. (Mom 1 is the mother in the Solomon example)
o   3) Is the goal or proposition a material fact
o   4) Fill in Premises/interferences allowing one to get from evidence to the end goal
§  A= Evidence, X= Ultimate Propositionà is it provable or material fact, M= First Premise, B= First Inference, N= Second Premise
·         Remember the question of sufficiency of evidence is SEPARATE from the question of whether the evidence is relevant
·         Relevance is not an inherent characteristic of evidence, it’s a relation between a piece of evidence and a proposition that’s attempted to be shown
·         Evidence can be excluded as irrelevant for 2 distinct reasons
o   1) It’s not probative on the proposition to which it’s directed
o   2) The proposition to which it’s directed is not provable in the case
§  Ex: The law won’t ask who the better custodian is in a kidnapping case, so even if evidence is relevant on that fact, it’ not provable in a kidnapping case
§  “The evidence is directed to an immaterial proposition”
Authentication and Conditional Relevance
Preliminary Questions: Supp. Pg. 5-6
·         Foundation must often be laid to show evidence to be admissible. When court rules on whether foundation has been sufficiently laid, the subject is called a preliminary question b/c it proceeds the determination of whether the evidence is admissible
·         2 Types of Preliminary Questions
o   Rule 104(b)- Facts or events that must be established to show evidence is relevant
§  Judge makes a quick and dirty ruling on whether foundation has been laid and met
·         Jury will be asked to reassess this decision. It’s just a preliminary determination, so the judge only listens to the proponent/sponsoring lawyer’s side of the story. NO VOIR DIRE
o   You can move to strike if cross really changes things later
o   Judge does technically have power under Rule 611(A) to hear the whole story
o   Rule 104(a)- Facts or events that must be established to show evidence avoids all other exclusionary rules
§  Judge has the final say, counter-evidence can be heard. VOIR DIRE ALLOWED
o   Voir Direà Interrupting examination by your opponent to lay foundation for an objection
Problem of Authentication: Modes of Authentication
·         Rule 901(b) Direct Eyewitness
§  Preliminary questions ruled by 104(b)- when the relevance of the document depends on whether a fact existsà Test:
·         1) No Voir Dire
·         2) Evidence must be sufficient to support a finding- 104(b), 901(a)
·         Rule 901(b)(2) Non-Expert Opinion
o   Exception to the Opinion Ruleà Allowing a lay witness to testify to an opinion
o   Familiarity not acquired for current litigation. This is an exception to the rule that you can normally refresh a witness’s memory at any time
o   Judges preliminary ruling under 104(b) on whether evidence comes in is never the final word
·         Rule 901(b)(3) Comparison with Authentic Specimen
o   Jury can do this alone or with help of an expert
o   Frist have to find authentic specimen
§  Specimen must be found to be authentic sufficient to support a finding. 
§  CLà it had to be found by the judge by clear and undoubted evidence.
§  FREà the jury decides if the specimen is authentic and whether the comparison is authentic. Jury instructions are required to help them
§  Conditional Relevance
·         Rule 901(b)(4) Distinctive Characteristics and Circumstances
o   Contains information only individual would know, found somewhere only individual would have the key. Standard still sufficient to support a finding
o   FRE is more willing to listen to circumstantial evidence than the CL
Authentication Not Involving Documents
·         Rule 901(b)(6)(b) Still sufficient to support a finding standard
Authentication of Scientific Evidence
·         Evidence derived by techniques going beyond unaided human observation. Any evidence based on scientific technique
·         Evidence Derived by Using Instruments: 5 Questions
o   1) Is the underlying theory valid
o   2) Is the type of device accurate
o   3) Is the particular device used accurate
o   4) Were the proper procedures followed
o   5) Is the Witness an adequate expert
·         Note: There is no constitutional right to present a lie detector test to prove your innocence (US v. Shaeffer)
·         Daubert v. Merrel Dow Pharm.
o   Frye Rule: Laid down by D.C circuit court in 1923. Standardà if the technique used  is generally accepted as reliable in the relevant scientific community
o   Supreme Court invalidate Frye Rule in Daubert
o   Federal judges must be gatekeepers to screen out “junk science”
§  Performed under 104(a)
§  Frequently done pre-trial during Daubert hearing
§  Factors: for the judge to make sure evidence is based on scientific knowledge
·         1) Tested
·         2) Peer Review/Publication
·         3) General Acceptance in Scientific Community
o   Federal judges must make sure evidence will assist the trier of fact
o   Daubert talks only about admissibility of scientific evidence, not sufficiency
Rules Excluding Even Relevant Evidence
Competency of Witnesses and Personal Knowledge
·         2 Types of Rules- relating to Fed. Criminal Cases
o   1) Excluding Incompetent Witnesses:
§  4 Testimonial Capacities under CL
·         1) Perception (personal knowledge, Rule 602)
·         2) Memory
·         3) Narration: meant to portray what he actually heard
·         4) Sincerity: trying to be truthful at the time D was making the statement
§  We assume adults are competent unless otherwise shown
§  Competency under FRE
·         603- Witness won’t swear to tell the truth
·         605- Judge’s Competencyà presiding judge may not testify as a witness at the trial
·         606- Juror’s Competencyà juror may not testify as a witness before the other jurors
·         Every person is competent to testify. Frist sentence in notes for 601.
·         CL Testimonial Capacities abolished under Rule 601
§  Competency is treated under 104(a)
o   2) Excluding Incompetent Testimony or Evidence
§  Rule 601- Sentence 2à When state law supplies the substantive law in Federal court, state competency rules apply
·         Rule 602 Personal Knowledge Requirement
o   You need to establish personal knowledge before delving into detail about an event
o   Foundation must be sufficient to support a finding and can consist only of the witnesses’ testimony
o   Governed by 104(b)- We know this b/c of the advisory not to 602 which matches 104(b). Jury instruction required again
Best Evidence Rule
In proving the terms of a writing, where such terms are material, the original writing must be produced, unless it is shown to be unavailable for some reason other than the serious fault of the proponent

It must be an original document if you’re trying to prove the content of the writing.
·         Rule 1001 Definition Section
o   (a) Writingà consists of letters, words, numbers, or their equivalent set down in any form
o   (b) Recordingà consists of letters, words, numbers, or their equivalent recorded in any manner
o   (c) Photographà means a photograph

pensity of evidence is allowed under405(b), with a jury instruction
§  If character is in issue, how to prove it?
·         ALL 3 are usable when character is an essential element of claim or defense: reputation, opinion (405(a)) and specific instances or prior conduct (405(b))
·         Shorthand definitions:
o   Character: What a person really is.
§  Character is NOT always at issue in a defamation suit.
§  No better way to figure out what a person really is than to look at what they’ve done (405(b))
o   Reputation: What people think he is.
§  Reputation is ALWAYS at issue for a defamation suit. Because it is the reputation that has been damaged by the utterance
·         Examples:
o   Libel suit 1: “You defamed me when you said “P lied on a job application””
§  D says: “that was true, you did lie”
§  P’s reputation is at issue (it always is).
§  Does the defense of truth put the P’s character at issue?
·         Is character an essential element of the defense of truth? Does D have to prove anything about P’s character to prevail on his “I told the truth” defense? NO.
o   He only has to prove one action of lying. Conduct, not character. 405(b) doesn’t fit here.
·         It’s not an essential element, but It is helpful to prove hes a liar. It fits 404(a)(1): circumstantial  evidence prohibits this use.
o   Libel Suit 2: You defamed me when you said “P is a liar”
§  D says: “that was true, you are a liar”
§  P’s reputation is at issue (always is)
·         Is character an issue? YEP (405(b)): character trait is an essential element of the defense of truth. D HAS to prove P’s character to prevail on his defense of truth. Allowed under 405(b).
o   2) Character as circumstantial evidence of conduct 404(a)
§  Rule 404(a) controls whether the evidence is admissible at all. When it’s a circumstantial use of character evidence, to 404
§  Except for character of a witness, use of character evidence as circumstantial proof is limited almost exclusively to narrowly defined situations in criminal cases
§  If the Defendant decides to introduce his own character evidence, it doesn’t make it a character in issue (we’re still in the second category under 404(a))
·         D wants to introduce evidence about specific traits, that opens up the prosecution to ask about those traits too and to investigate within those traits.
·         The door can be opened through asking ANY WITNESS about the D’s character.
§  404(a)(1) Not admissible if: offered to prove “that on a particular occasion the person acted in accordance with the character or trait.
·         Default- you can’t use this rule for propensity. Propensity evidence is not admissible in civil case Wright v McKee, or generally at all except as otherwise provided by the rule
o   Propensity: predisposition or likelihood that he would act a certain way
o   If the only relevance of a piece of evidence is to show what kind of person someone is, cite this rule and the facts  that it is NOT admissible unless there is first a triggering event (introduction by the defendant into the trial).
·         Excluding character evidence when character is not in issue doesn’t destroy the P’s case b/c they aren’t required to prove character
·         When character is NOT in issue, no propensity evidence is allowed.
·         Prosecutors get around this rule by going to 404(b)(2)
§  404(a)(2) Criminal Cases Only! Defendant may offer evidence of how good they are. They may offer evidence of a pertinent trait