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University of Iowa School of Law
Stensvaag, John-Mark

Evidence, Fall 2014
Professor John-Mark Stensvaag

1)      Preliminary Question
a)      Test
i)        What is the evidence?
ii)       What is the proposition the admitting attorney is trying to prove?
iii)     What is the preliminary question?
iv)     Does the relevance of the evidence depend on the preliminary question?
(1)    If yes, then it is a 104(b) question (no voir dire)
(2)    If no (i.e., evidence is relevant regardless of the preliminary question), then it is a 104(a) question (voir dire is allowed)
v)      Court must make decision based on “preponderance of the evidence,” not merely “evidence sufficient to support a finding”
b)      104(b) (no voir dire, unless judge uses FRE 611(a) powers, but this is rare)
i)        The judge will make a “quick and dirty” preliminary determination on whether the evidence passes a minimum threshold (whether a reasonable jury could find the evidence relevant). Judge will only hear proponent’s arguments before deciding. The jury will decide whether the evidence is relevant
(1)    Note on FRE 611: Judge can decide to conduct voir dire for three reasons (truth, avoid wasting time, protect witness from harassment)
ii)        Reasons
(1)    OP still gets to present arguments against the evidence even if it is admitted
(2)    If a jury finds the evidence is not relevant (or is not authentic) we assume the jury will not give it any weight (so no harm was done) (Imwinkelried called this “logical relevance”)
c)       104(a) (voir dire allowed)
i)        OP can request voir dire
ii)       Voir Dire: Interrupts the direct examination, and allows the objecting party to ask questions of the witness to lay foundation for an objection to relevance (this is for a limited purpose, and not a substitute for cross-examination)
(1)    Judge can decide whether this takes place in front of jury or not, except when FRE 104(c) applies, where judge must conduct voir dire outside hearing of the jury (applies for (1) confessions, (2) Δ in a criminal case requests it, or (3) just requires)
(2)    Judge must listen to evidence from both parties before deciding
(3)    Judge makes a final ruling on whether evidence is admissible (jury can’t reverse this)
(a)    Court not bound by the rules of evidence in voir dire (can consider hearsay)!
(b)   Decision is based on “preponderance of the evidence” standard (Bourjaily)
(i)      Bourjaily – Determines that a party should not be able to “bootstrap in evidence” to prove conspiracy. In conspiracy cases, ∏s often want to introduce testimony of co-conspirators to prove a conspiracy, but these are excluded unless ∏ can show there was a conspiracy. This creates a 104(a) preliminary question, and SCOTUS said even though judges can use hearsay testimony to decide the preliminary question, they should not be able to use that power to determine there was a conspiracy solely based on the evidence it is deciding whether to admit or not. See 801(d)(2)(E)
iii)     Reasons
(1)    Because the evidence is relevant (regardless of how the preliminary question is answered), it would be difficult for jury to “set aside” the testimony just because it is inadmissible. So the judge should decide the question, and not let the jury hear the evidence.
d)      Example
i)        Murder prosecution and the prosecutor wants to put a pistol registered to the defendant. But, there is a question about whether the pistol was actually found at the scene. Defense objects
(1)    Evidence: pistol
(2)    Purpose: Show Δ used the pistol
(3)    Prelim. Q: Was pistol found at the scene?
(4)    Evidence only relevant if found at the scene, so it is a 104(b) question (no voir dire)
2)      Rules Excluding Irrelevant Evidence
a)      Purpose of Excluding Evidence: Keeping information away from the jury that the jury might misuse (“calculated and supposedly helpful obstructionism”)
b)      Rule Excluding Irrelevant evidence
i)        Rules
(1)    FRE 402 – Excludes irrelevant evidence
(2)    FRE 401 – Provides a test for relevance
ii)       Process (Both 3 and 4 must be answered “yes” for it to be relevant)
(1)    Identify the evidence
(2)    What is the party trying to prove?
(3)    Is evidence probative of (1)?
(a)    401(a) – Does it make a fact “more or less probable that it would be without the evidence”?
(b)   This depends on the inferences made by proponent
(c)    This is a question for the Judge, 104(a) and voir dire is allowed (because the question of relevancy does not depend on whether a fact exists, but is a legal determination).
(4)    Is what you are trying to prove a material fact in the case?
(a)    401(b) – is it a “fact of consequence”?
(b)   This depends on substantive law. As a result, if an attorney cannot get something admitted (because it is irrelevant) he may succeed in coming up with a new theory of substantive law
(c)    As long as something can influence how the case comes out, it can be a fact of consequence (even if just for circumstantial evidence)
(d)   Note: the threshold is very low for this to be admissible
iii)     Examples
(1)    Old Chief cases
(a)    ∆ charged with being a felon with a firearm
(b)   Defendant stipulated to committing a felony, so ∏’s evidence of the felony did not make the fact that ∆ committed a felony more or less probative.
(c)    The court admitted evidence of ∆’s past crimes anyways (gruesome pictures), however this was erroneous
(2)    Solomon and the Baby: Is the fact that the woman would not kill the baby relevant?
(a)    Evidence: Woman refuses to cut the baby in half
(b)   Solomon is trying to prove that the woman is the mother
(c)    The inference from evidence that “mothers tend not to want to kill their children” would make this more probative
(d)   Whether the woman is the mother or not is a material fact for custody
(3)    Union Paint & Varnish
(a)    Trial court
(i)      Evidence: Drum1 of paint was bad
(ii)    Attorney trying to prove that Drum2 of paint was bad
(iii)   Inference is that if one of the products is bad, all of the products are bad (judge gets to decide if a reasonable jury could make a finding by the preponderance of the evidence)
(iv)   Is this fact trying to be proved a material fact?
1.       Old Law: Π only could refuse to pay for Drum2 if it is defective

owledge – 601, 602, 402, 403
i)        Introduction
(1)    History
(a)    Traditionally, jurors all had to be from the community and know a bit about what happened. Witnesses were not allowed at this time.
(b)   Common law later allowed witnesses to come in, but said those with a personal stake in the decision were incompetent
(c)    Now, almost no rules that say someone is incompetent
(2)    Common Law
(a)    Four testimonial capacities
(i)      Perception
(ii)    Memory
(iii)   Narration
(iv)  Sincerity
(b)   Adults are presumed competent (OP must show they are incompetent)
(c)    Children are not presumed competent
ii)       Note: Competency is a 104(a) question (voir dire is allowed!)
iii)     FRE and Competency
(1)    Competency – 601
(a)    Rule 601: All witnesses are competent, unless the FRE specifies (the FRE does not specify any of the common law competency judgments)
(b)   Objections to Competency
(i)      Rule 603 – If a witness refuses to give an oath or affirmation to testify truthfully
(ii)    Rule 605/606a – The judge/juror cannot serve
(c)    If witness is not helpful (e.g. he admits he was totally drunk)
(i)      There may be two other objections
1.       402 (Relevance), that testimony doesn’t make it more probable than it would be otherwise
2.       403 – Waste of time
(ii)    However, these are difficult objections to make because
1.       The threshold is really low, and
2.       Opposing (objecting) party does not have a right to conduct voire dire
(d)   Impact of Rule 601 “blowing up common law competency rules” is that the question is split into three parts
(i)      Relevance (including minimal credibility) Rule 402
(ii)    Counterweights of Rule 403
(iii)   Credibility (But can this disqualify a witness? I don’t think so)
(e)   Exception: 601 does not apply in a civil case where a state law provides the rule of decision for a claim or defense. In this case, the state law governs the witness’s competency
(i)      Example: Plaintiff has an oral contract with defendant (who is now dead). The state’s “Dead-man statute” does not allow the plaintiff to testify against the defendant when the defendant is dead.
1.       In this case, the plaintiff would be competent under Federal law and incompetent under state law (which could lead to forum shopping)
2.       When there are multiple claims (which are a mix of federal and state claims), it may lead to a situation where witness may only testify for the federal claims and not the state claims.